CJnrtiFll ICaui i>rljooI IGtbtatjj Cornell University Library KF 2289.E46 V.4 A treatise on the law of railroads; conta 3 1924 019 317 878 Cornell University 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/cu31924019317878 A TREATISE LAW OF RAILROADS CONTAINING A CONSIDERATION OF THE ORGANIZATION, STATUS AND POWERS OF RAILROAD CORPORATIONS, AND OF THE RIGHTS AND LIABILITIES INCIDENT TO THE LOCATION, CONSTRUCTION AND OPERATION OF RAILROADS AND ALSO THE DUTIES, RIGHTS AND LIABILITIES OF RAILROAD COMPANIES AS CARRIERS UNDER THE RULES OF THE COMMON LAW AND THE INTERSTATE COMMERCE ACT BY BYRON K. ELLIOTT AND WILLIAM F. ELLIOTT Authors of Roads and Streets, Appellate Procedure and General Practice Hn 3Four IDolumes VOLUME IV INDIANAPOLIS AND KANSAS CITY THE BOWEN-MERRILL COMPANY 1897 lB'7^3y^ Copyright 1897 BY THE BOWEN-MERRILL CO. PRESS OF CAELON & HOLLBNBECK, INDIANAPOLIS. TABLE OF CONTENTS. Volume IV. CARRIERS. CHAPTER LV. RAILROADS AS CAKRIEKS. PAGE. § 1391. Nature of duty aa common carriers 2165 1392. Implied duties as carriers '. 2166 1393. Railroads as carriers — Generally 2167 1394. Carriage for other carriers ' 2168 1395. Breaking bulk — Transfer of goods from cars of one company to cars of another company 2170 1396. Railroad companies as private carriers 2172 1397. Right to prescribe extent of liability where a railroad company undertakes service as a private carrier 2174 1398. Switching companies .■ 2175 1399. Transfer companies '. 2175 1400. Bridge companies 2177 1401. Express, dispatch and fast freight companies 2177 1402. Street railway companies 2179 CHAPTER LVI. DELIVERY AND ACCEPTANCE. 1403. Liability begins with delivery 2181 1404. What constitutes complete delivery 2182 1405. Effect of requirement that shipper shall load 2185 1406. Delivery to authorized agent 2186 1407. Delivery to unauthorized person 2187 (iii) IV TABLE OF CONTENTS VOL. IV. PAGE. § 1408. Delivery by agent oJ shipper 2188 1409. Delivery must be for immediate shipment 2189 1410. Notice of delivery 2190 1411. Place of delivery 2191 1412. Delivery to connecting carrier 2193 1413. Evidence of delivery 2194 1414. Delivery to carrier passes title to consignee 2195 CHAPTER LVII. BILLS OF LADING. 1415. Definition— Two-fold character 2197 1416. Power of agent to issue bills of lading 2199 1417. Execution of bills of lading 2200 1418. Premature issuance of bill 2202 1419. Bills of lading as evidence of receipt of goods — Bona fide pur- chasers 2203 1420. As evidence of condition, weight or contents 2205 1421. As evidence of value 2207 1422. Misdescription in bill 2208 1423. As evidence of contract — Not variable by parol 2209 1424. Construction of bills of lading 2212 1425. Construction of particular words and phrases 2212 1426. As munimeHts of title— Delivery by carrier 2214 1427. Effect of direction in bill of lading to notify some designated person 2215 1428. Bills of lading assignable but not negotiable 2217 1429. Rights of bona fide purchasers and other third persons who hold bills of lading 2219 1430. Duplicate bills 2221 1431. Change of consignment by shipper 2222 CHAPTER LVIII. THE INITIAL CARRIER. 1 432. Duties of initial carrier generally 2223 1433. No extra-terminal liability unless by contract 2224 1434. There may be liability by contract 2225 1435. What constitutes such a contract 2226 1436. Illustrative cases 2230 14.37. Authority of agents as to extra-terminal liability 2232 1438. Exclusion of liability by contritrt 2233 1439. Rule when statute makes initial carrier liable for negligence of others 2235 1440. Liability for deviation or failure to obey instructions 2236 1441. Actions on account of extra-terminal defaults 2238 TABLE OF CONTENTS VOL. IV. V CHAPTER LIX. CONNECTING CAEKIEES. PAGE. § 1442. Definition 2240 1443. Commencement of connecting carrier's liability 2241 1444. Liability for defaults of the initial or of other connecting car- riers 2242 1445. Liability as partner — What constitutes 2243 1446. Effect of initial carrier's contract on connecting carrier 2245 1447. Liability for defaults of common agent 2246 1448. Liability for their own defaults 2246 1449. Extent and termination of liability 2247 1450. Presumption against last carrier 2250 1451. Rights and liabilities as to charges 2252 1452. Liability of carriers as between themselves — Action over 2255 CHAPTER LX. COMMON LAW DUTIES OF COMMON CAEEIERS. 1453. Who are railroad carriers — Fast freight lines — Union depot com- panies — Express companies 2259 1454. General nature of the common law duty 2261 1455. Act of God — What constitutes 2264 1456. Act of God— Express contract 2266 1457. Burden on carrier to prove that act of God caused loss — Concur- ring negligence < 2266 1458. Public enemies 2268 1459. Public enemies— Mobs— Strikes 2269 1460. Mobs — Violence of does not relieve where there is an express contract 2271 1461. Public authority — When exercise of exonerates carriers 2271 1462. When the liability of the company as a common carrier attaches.2272 1463. Eailroad company as a warehouseman — General doctrine 2274 1464. When the liability of a railroad company is that of a warehouse- man 2276 1465. The duty to carry 2279 1466. Eefusal to carry— Excuses for 2280 1467. Discrimination — Unjust forbidden 2283 1468. Discrimination — Like facilities to be furnished to all where like conditions exist 2285 1469. Discrimination — Effect on stipulations limiting liability 2286 1470. Duty to furnish cars 2287 1471. Refusal to carry — Duty to state grounds of refusal 2288 1472. Duty of carriers as to cars and equipment — Standard of 2288 1473. Express contract to furnish cars 2289 VI TABLE OF CONTENTS VOL. IV. PAGE. § 1474. Goods requiring unusual facilities — Refrigerator cars 2290 1475. Acceptance of perishable property— Cars and equipments 2292 1476. Failure to furnish cars— Offer of goods 2293 1477. Cars — Inability to furnish — Burden on carrier to prove an excuse for failure to furnish 2294 1478. Duty of carrier as to cars and equipments— Influence of breach of duty on contracts limiting liability 2294 1479. Facilities for transportation — Yards — Depots 2296 1480. Selection of cars by shipper 2298 1481. Negligence — Handling goods 2299 1482. Delay in transporting goods — General doctrine 2302 1483. Unreasonable delay — What constitutes — Evidence of 2303 1484. Delay — Accidents and obstructions 2304 1485. Accidents do not terminate the duty of the carrier 2304 1486. Care of goods during delay 2305 1487. Delay— Notice to the owner 2305 1488. Delay — Destruction of goods while awaiting transportation by fire 2306 1489. Delay in transporting goods caused by the act of the owner 2307 1490. Directions and instructions of shipper — Duty of obedience to ... . 2308 1491. Fraud of shipper 2309 1492. Negligence of owner — Packing and loading goods 2309' 1493. Placing goods in an exposed position 2311 1494. What law governs — Law of the place — Conflict of laws 2312 CHAPTER LXI. CONTRACTS LIMITING LIABILITY. 1495. The English rule 2314 1496. Conflict among the American decisions ^ 2315 1497. No right to contract against liability for negligence in most juris- dictions 2316 1498. Right to contract against liability for negligence in some juris- dictions 2318 1499. Right to limit liability prohibited by statute in some states 2319 1500. Right to limit liability by special contract in most jurisdictions. .2320 1501. Nature of special contract required 2321 1502. Limitation in receipt or bill of lading 2323 1503. Parol limitation 2325 J 504. Consideration necessary 2326 1505. Construction of contract 2328 1506. Conflict of laws 2329 1507. Power of agents to agree to limitations 2331 1508. Stipulation exempting carrier from Hability for loss by fire 2332 1509. Stipulations as to insurance 2333 1510. Stipulations as to value and amount of damages 2335 TABLE OF CONTEXTS VOL. IV. Yll PAGE. i 1511. Stipulation exempting carrier from liability in case of live stock. 2339 1512. Stipulations as to manner and time of presenting claims 2340 1513. Miscellaneous stipulations 2343 1514. "Waiver of stipulation limiting liability or fixing time and man- ner of presenting claims 2344 1515. Benefit of exemption lost by deviation 2344 1516. Burden of proof 2345 CHAPTER LXII. DELIVERY BY THE CARRIER. 1517. Generally 2350 1518. Personal delivery 2351 1519. Place of delivery 2352 1520. Time of delivery 2354 1521. Manner of delivery 2355 1522. Custom and usage 235'8 1523. Delivery must be to right person 2359 1524. Delivery to agent 2361 1525. Right of carrier to require identification of consignee 2362 1526. Misdelivery 2362 1527. Notice to consignee or his agent 2365 1528. Reasonable time to inspect and remove 2371 1529. Rule where goods are to be held until called for 2373 1530. Rule where goods are not to be delivered until paid for 2374 1531. Waiver by consignee 2375 1532. Carrier's right to receipt or surrender of bill of lading 2376 1533. Duty to store — Liability as warehouseman 2377 CHAPTER LXIII. EXCUSES FOR FAILURE TO DELIVER. 1534. Difference between cases not within the scope of duty and cases involving excuses for non-delivery 2379 1535. Excuses for non-delivery arising from acts of the shipper, owner or consignee 2380 1536. Countermanding original shipping directions — Change of in- structions 2383 1537. Seizure under legal process— Generally 2385 1538. Attachment — Garnishment 2387 1539. Stoppage in transitu 2389 1540. Who may exercise the right of stoppage in transitu 2391 1541. Against whom the right of stoppage in transitu ma.y he exercised. 2392 1542. Mode of exercising the right of stoppage in transitu — Duty of car- rier to give notice 2393 1543. Termination of the right of stoppage in transitu 2393 1544. Adverse claimants —Procedure on part of carrier— Interpleader. . 2396 V113 TABLE OF CONTENTS VOL. IV. CHAPTER LXIV. CAKRIEKS OF LIVE STOCK. PAGE. § 1545. Eailroad companies are common carriers of live stock 2398 1546. No liability for injuries arising from inherent nature of stock 2399 1547. Duty to receive and carry 2401 1548. Liability for negligence — Burden of proof 2401 1549. Rule where owner accompanies the stock 2404 1550. Contributory negligence of owner 2405 1551. Cars and appliances — Terminal charges. 2407 1552. Loading and unloading 2410 1553. Duty to feed, water and care for stock 2411 1554. Statutory regulations 2412 1555. Liability for delay 2414 1556. Liability for loss or failure to deliver 2416 1557. Limiting liability 2417 CHAPTER LXV. FREIGHT CHARGES AND DEMURRAGE. 1558. Generally 2419 1559. Whois liable for freight charges 2421 1560. Amount of compensation 2423 1561. How compensation is calculated 2425 1562. Compensation pro rata itineris 2426 1563. Excessive and unreasonable charges 2428 1564. Eights and remedies where excessive charges are demanded .... 2430 1565. Discrimination — Rebates 2432 1566. Compensation for special services 2434 1567. Demurrage 2436 1568. Car service associations 2440 1569. Collecting charges — Connecting carriers 2440 1570. Carrier's lien for freight 2442 1571. Enforcement of lien 2444 1572. Waiver and loss of lien 2445 CHAPTER LXVI. RAILROADS AS CARRIERS OF PASSENGERS. 1573. The general doctrine 2448 1574. The duty to carry 2451 1575. Refusal to carry — Extraordinary press of business 2451 1576. Excuses for refusal to carry — Disregard of rules and regulations. 2452 1577. Excuses for refusal to carry — Improper or unfit persons 2454 TABLE OF CONTENTS VOL. IV. IX PAGE. § 1578. Who are passengers 2455 1579. The relation of passenger and carrier — When it begins 2459 1580. Relation of passenger and carrier — Authority of subordinate em- ployes to create 2460 1581. Trespassers and intruders 2462 1582. Taking passage on freight trains, hand-cars and the like 2465 1583. Nature of the liability as a carrier of passengers 2466 1584. Accidents 2467 1585. Degree of care required of railroad passenger carriers — General rule 2469 1586. Duty as to road-bed and tracks 2471 1587. Duty as to engines, cars, equipments and appliances 2472 1588. Duty to provide and equip trains with modern and improved ap- pliances 2474 1589. Care required in operation of trains 2474 1590. Station buildings— Depots — Negligence in maintaining 2477 1591. Duty to protect passengers from injury by third persons 2480 1592. Termination of the relation of carrier and passenger 2480 CHAPTER LXVII. TICKETS, FARES AND PASSES. 1593. Tickets and fares— Generally 2482 1594. Ticket as evidence of passenger's rights — Loss of ticket 2487 1595. Stop-over privileges 2491 1596. Through tickets— Coupons 2493 1597. Round trip tickets 2495 1598. Limited tickets 2496 1599. Non-transferable tickets 2499 1600. Commutation and mileage tickets 2500 1601. Excursion tickets 2503 1602. Conductor's checks 2504 1603. Fare paid on train -2506 1604. When person riding on pass is a passenger and when not 2508 1605. Drovers riding on passes 2510 1606. Duty to person riding on pass 2511 1607. Conditions in passes 2513 1608. Validity of stipulation exempting carrier from liability for negli- gence 2513 1609. Injury to person riding on pass 2516 1610. Person other than the one entitled to use a pass riding thereon — Fraud 2518 1611. Contract to give passes , 2519 1612. Interstate commerce law 2521 1613. Statutes prohibiting the granting of passes 2523 1614. Rights of persons holding passes to be carried in sleeping and parlor cars 2524 1615. Baggage of person riding on pass 2524 ; TABLE OF CONTENTS VOL. IV. CHAPTER LXVIII. SLEEPING CAR COMPANIES. PAGE. ) 1616. General nature of sleeping car companies 2526 1617. Duty to furnish accommodations 2527 1618. Duties and liabilities of sleeping car and parlor car companies— Generally '. 2528 1619. Refusal to furnish berth— Right of railroad company to deter- mine on what trains or tickets sleeping car berths shall be furnished 25S0 1620. Tickets— Berths 2531 1621. Duties of sleeping car companies to passengers — Illustrative in- stances 2533 1622. Duty as to property of passengers 2535 1623. Baggage of passengers — Loss of — Negligence 2537 1624. Contributory negligence— Loss of baggage or property 2539 1625. Relation of railroad companies to passengers traveling in sleep- ing car or parlor car 2540 1626. Railroad companies may require compensation for sleeping car accommodations 2541 1627. Limiting liability— Contract— Notice 2542 CHAPTER LXIX. INJURIES TO PASSENGERS. 1628. Boarding and alighting from trains 2544 1629. Injuries received on freight trains 2551 1630. Injuries to passengers on platforms and steps 2555 1631. Injuries to passengers riding in baggage car 2559 1632. Injuries to passengers riding in other dangerous aTid improper places 2561 1633. Injuries received by passengers occupying an improper position in car 2562 1634. Injuries caused by derailment 2565 1685. Collisions 2508 1636. Injuries from obstructions 2571 1637. Ejection of passengers 2572 1638. Assault and injuries by employes 2578 1639. Injuries caused by other passengers and third persons 2584 1640. Injuries received in sleeping cars 2586 1641. Injuries received at stations 2588 1642. Contributory negligence 2592 1643. Effect of direction by trainmen to occupy dangerous position. . . .2594 1644. Burden of proof 2596 1645. Contracts limiting liability 2600' TABLE OF CONTENTS VOL. IV. XI CHAPTER LXX. BAGGAGE. PAGE. § 1646. Definition 2604 1647. What things are personal baggage 2605 1648. When a question for the jury and when for the court 2609 1649. Merchandise as baggage 2611 1650. Excess of baggage 2614 1651. When company is liable as a common carrier 2614 1652. When company is liable as a warehouseman 2616 1653. Delivery to the company 2619 1654. Rule where passenger retains custody of baggage 2620 1655. Baggage checks 2622 1656. Baggage on one train and owner on another 2624 1657. Rule where baggage is received by mistake 2625 1658. Baggage shipped over connecting roads 2626 1659. Delivery by company — Duty of owner 2628 1660. Liability for loss, injury or delay 2630 1661. Limiting liability 2632 1662. Carrier's lien on baggage 2634 CHAPTER LXXI. THE INTERSTATE COMMERCE ACT. 1663. The source, nature and extent of the federal power over interstate railroads 2635 1664. Commerce clause of the federal constitution — Generally 2640 1665. State power as limited by the commerce clause of the federal constitution — Generally 2641 1666. The interstate commerce act — Generally 2644 1667. Construction of the interstate commerce act 2645 1668. The police power as affected by the commerce clause 2647 1669. State statutes held to be regulations of interstate commerce 2650 1670. State statutes held not to be regulations of interstate commerce .2652 1671. Interstate commerce 2655 1672. The interstate commerce commission 2657 1673. Railroads engaged in domestic commerce — When a railroad is interstate 2659 1674. Commerce and manufactures — Monopolies — Trusts — Conspira- cies 2662 1675. Combinations— Pooling 2663 1676. Discrimination — Undue preference — What is under the interstate commerce act 2666 1677. Preference — Discrimination — When not unjust — Differences in circumstances and conditions 2668 xii TABLE OF CONTENTS VOL. IV. PAGE. § 1678. Undue preference— Discrimination— Illustrative instance 2669 1679. Undue preference— Question one of mixed law and fact 2672 1680. Rebates as affected by the interstate commerce act 2673 1681. Formation of connecting lines— Preference— Terminal facilities . 2674 1682. Long and short haul 2675 1683. Group rates 2680 1684. Reasonable charges 2682 1685. Interchange of business 2684 1686. Joint tariffs— Through rates 2685 1687. Party rates— Mileage and commutation tickets 2687 1688. Violations of the interstate commerce act— Indictment 2687 CHAPTER LXXII. ACTIONS AGAINST RAILROAD COMPANIES. 1689. Generally— Scope of chapter 2690 1690. Remedy for breach of duty as public or common carrier — Man- damus 2691 1691. Remedy for refusal to carry — Action for damages 2692 1692. Actions against common carriers — Parties 2694 1693. Actions against common carriers — Form of action 2696 1694. Actions against common carriers — Pleading 2698 1695.- Actions against common carriers — Evidence 2701 1696. Actions for injuries to passengers 2702 1697. Actions for injuries to employes 270 > 1698. Pleading ordinances 2710 1699. Inspection and physical examination of party 2713 1700. Experiments and practical tests — Real evidence 2714 1701. Presumptions 2715 1702. Withdrawing the case from the jury 2719 1703. Physical facts 2723 CARRIERS. CHAPTER LV. RAILROADS AS CARRIERS. 1391. Nature of duty as common carriers. § 1397. 1392. Implied duties as carriers. 1393. Railroads as carriers — Gener- ally. 1398. 1394. Carriage for other carriers. 1399. 1895. Breaking bulk — Transfer of 1400. goods from cars of one com- 1401. pany to cars of another company. 1402. 1396. Bailroad companies as private carriers. Right to prescribe extent of liability where a railroad company undertakes service as a private carrier. Switching companies. Transfer companies. Bridge companies. Express, dispatch and fast freight companies. Street railway companies. § 1391. Nature of duty as common carriers. — Railroads are instrumentalities of commerce, and in a limited sense railroad companies are public agents. They are not public agents in the sense that they can bind the public but they are public agents in the sense that they are created for the purpose of transporting goods and passengers, and thus in great part con- ducting the commerce of the country. This is a public ser- vice.' As we have said, they "are affected with a public in- terest," and for that reason the governmental control over them is much greater than over a purely private corporation. As the functions of railroad companies in carrying goods and passengers are essentially public, they have no right to un- ' State V. Boston, etc., R. Co., 25 Vt. Worcester v. Western, etc., R. Co., 4 433; Newburyport, etc., Co. v. Eastern Mete (Mass.) 564. R. Co., 23 Pick. 326; Inhabitants of Corp. 138 (2165) 2166 CARRIERS. § 1392 justly discriminate in favor of some citizens and against others, but under similar circumstances or conditions must treat all who seek transportation alike.' § 1392. Implied duties as carriers.— In accepting the grant of rights and franchises from the state a railroad corporation • impliedly assumes the duty of a common carrier. The con- sideration for the grant is the undertaking of the corporation to impartially perform this public duty. The duty is in the true sense a public one and one which every member of the community has a right to demand that the corporation shall perform. The benefit to the community is the consideration for the important rights and franchises conferred upon the cor- poration by its charter. From the fact that the company is authorized to build, maintain and operate a commercial rail- road may be inferred its duties, rights and obligations as a common carrier of goods and passengers, but authority to build and operate a railroad for the carriage of passengers only, as, for instance, in the case of a street railway, does not authorize the inference that there is an implied duty to carry goods." 'Messenger v. Penna. E. Co., 36 business of transporting passengers M. .7. L. 407; Cumberland, etc., R. for hire on a railroad operated by him, Co.'s Appeal, 62 Pa. St. 218; Vin- the law denominates him a "common cent 0. Chicago, etc., R. Co., 49 111. 3.3; carrier," is correct. See Palmer i\ Great Western, etc., R. Co. v. Sutton, Grand Junction, etc., E. Co., 4 ^I. & L. R., 4 H. L. 226. "\Ve are here treat- W. 749; Pennsylvania Co. v. Clark, 2 ing only of the general nature of the Ind. App. 146, 27 N. E. 586; Richards duty. We have elsewhere treated of v. London, etc., R. Co., 7 C. B. 839; the right to make different rates under Cranch ti. London, etc., R. Co., 255; different circumstances and condi- Houston, etc., R. Co. u. Harn, 44 Tex. tions. That different rates may be 628. Burbridge v. Kansas City C. K. made where circumstances are unlike Co., 36 Mo. App. 669, was an action has been often held. See Eclipse, etc, for injuries to the person of a passen- Co.B. PontchartrainR.Co.,24La.Ann. ger on a street-car, and the answer ad- 1; Sargent D. Boston, etc., R. Co., 115 mitted that defendant was a street Mass. 416; McDuffeew. Portland, etc., railroad corporation, duly organized R. Co., 52 N. H. 430; Shipper v. and existing under general statutes of Penna. R. Co., 47 Pa. St. 338; Stewart the state. Held, that this was in effect V. Erie, etc., R. Co., 17 Minn. 372. an admission that it was a common = In Davis J). Button, 78 Cal. 247, 20 carrier of passengers. An allegation Pac. 545, it is held that an instruction of a contract to carry, coupled with that, if defendant was engaged in the the averment and fact that defendant § 1393 RAILROADS AS CARRIERS. 2167 The implied duty of an ordinary commercial railroad does not extend so far as to require all trains to carry passengers or all trains to carry goods, but, on the contrary, the company may, within reasonable limits, determine what trains shall transport passengers and what trains shall transport goods. Citizens have no right to demand that trains provided for carrying goods shall carry passengers, nor, on the other hand, that passenger trains shall carry goods. § 1393. Kailroads as carriers — Generally. — It is evident from what has been said that railroad companies conducting ordinary commercial railroads are always common carriers of goods, and as such ordinarily bound to accept property of the kind they undertake to carry, properly tendered,' although the was a railroad corporation, is suf- ficient to show tlie character of the de- fendant as a common carrier. Kain v. Kansas City, St. J. & C. B. E. Co., 29 Mo. App. 53. As to difference be- tween common carrier and forwarder see Schloss v. Wood, 11 Colo. 287, 17 Pac. Rep. 910. The question as to whether a party in any given case is a common carrier is sometimes one of fact for the jury. Avinger v. South C. R. Co., 29 S. Car. 265, 7 S. E. Rep. 493, 35 Am. & Eng. R. Cas. 519. 'Pickfordv. Grand J. R., 12 M. & W. 766; Oxlade v. Northeastern R. Co., 9 C. B. N. S. 896; Eaglet). White, 6 Whart. (Pa.) 505; Crouch v. London, etc., E. Co., 14 Com. B. 255, 23 L. J. C. P. 73 ; Nashville R. Co. v. Messino, 1 Sneed 220; Nashville, etc., R. Co. v. David, 6 Heisk. (Tenn.) 261 ; Dill v. South Carolina R. Co., 7 Rich. L. 158; Norway Plains Co. v. Boston, etc., R., 1 Gray 263; Finn v. Western R. Co., 112 Mass. 524; Thomas v. Boston, etc., R. Co., 10 Met. 472, 43 Am. Dec. 444 ; Rogers L. Works v. Erie, etc., R. Co., 20 N. J. E. 379; Fuller v. Nau- gatuck R. Co., 21 Conn. 556; Jones v. Western, etc., R. Co., 27 Vt. 399; Noyes v. Rutland, etc., R. Co., 27 Vt. 110; Root V. Great Western R. Co., 45 N. Y. 524; Contra Costa, etc., R. Co. V. Moss, 23 Cal. 323; Elkins v. Boston, etc., R. Co., 23 N. H. 275 ; East Tennessee, etc., R. Co. v. Nelson, 1 Cold. 272; Southwestern R. Co. v. Webb, 48 Ala. 585 ; Mississippi C. R. Co. V. Kennedy, 41 Miss. 671 ; South- ern Ex. Co. V. Moon, 39 Miss. 822; Weed V. Saratoga & S. R. Co., 19 Wend. (N. Y.) 534; Camden R. Co. . that where a railroad company by Knight, 122 U. S. 79, s. c. 7 Sup. Ct. the bill of lading reserved to itself the R. 1132. Cotton was placed on a plat- privilege of compressing the cotton form, which, with the consent of the which it contracted to transport, such company, had been built adjacent to reservation being evidently for its the company's side track by the nm- own convenience, the placing of the nicipal authorities, who retained con- cotton in the hands of the compress trol of it. It had not been received company to be compressed made that by the company, nor had there been company the carrier's agent, for whose any order to ship it. The company negligence the carrier was liable the was held not liable as a common car- same as its own negligence ; so it was rier. Brown v. Atlanta & A. L. R. proper to refuse an instruction which Co., 19 S. Car. 39, 13 Am. & Eng. R. asserted that it was incumbent on Cas. 479. In Deming r. Merchants' § 1405 DELIVERY AND ACCEPTANCE. 2185 livery of a warehouse receipt to the carrier with an order to deliver the goods to it such a constructive delivery of the goods as will render it liable where they are burned in the ware- house before it can remove them.' § 1405. Effect of requirement that shipper shall load. — ^The shipper is sometimes required by contract or by custom to load or to assist in loading the freight. This requirement may be of importance in determining whether there has been a com- plete delivery, although it is not always controlling either upon that question or upon the general question of the liability of the carrier. It is evident that where goods remain in the pos- session and control of the owner under an agreement that he shall load them, when he can get the necessary cars, there is no complete delivery even though they may be upon the premises of the railroad company, and if the company duly furnishes the cars he must not unreasonably delay the train in loading and can not hold the company liable in damages, as for a refusal to receive and carry the goods, if it refuses to delay the train an unreasonable time.^ But where goods are delivered to the company for immediate shipment and accepted by it and placed in its freight house, it is liable as a common carrier for their loss by fire while in the freight house awaiting shipment which had been delayed on account of the failure of the company to furnish necessary cars, notwith- standing the fact that it was the duty of the shipper to load them.' In other words, as stated in the case just cited, the agreement or duty of a shipper to load goods into the cars does C. P. & S. Co., 90 Tenn. 306, 17 S. W. ^ Louisville, etc., R. Co. ■». Godman, R. 89, it was decided that, a compress 104 Ind. 490. See, also, Frazier v. company's receipt having been given, Kansas City, etc., R. Co., 48 Iowa according to usage, by the owner to a 571 ; Wilson v. Atlanta, etc., R. Co., 82 carrier, and a bill of lading issued by Ga. 386, s. c. 9 S. E. R. 1076. the latter, the liability of the carrier ^ London, etc., Ins. Co. v. Rome, to the owner began, though the cot- etc., R. Co., 144 N. Y. 200, s. c. 39 N. ton was not yet actually delivered to E. R. 79, 61 Am. & Eng. R. Cas. 225, the carrier. 43 Am. St. R. 752. See, also, Hanni- ' Stewart V. Gracy, 93 Tenn. 314, s. bal R. v. Swift, 12 Wall. (U. S. ) 262. c. 27 S. W. R. 664. 2186 CARKIEBS. §1406 not necessarily postpone "the time when the railroad company- takes on the character of a common carrier." It is sufficient that there has been a complete delivery and acceptance for im- mediate shipment. § 1406. Delivery to authorized agent.— The delivery is suffi- cient if made to an agent acting by the carrier's authority, or to one so placed by the carrier that the consignor has the right to assume that he has been authorized to receive freight.' It 'Harrell v. Wilmington & W. R. Co., 106 N. Car. 258, 42 Am. & Eng. E. Cas. 417, 11 S. E. R. 286. This was an action to recover a penalty under North Carolina Code, § 1967, for fail- ure to ship goods, the defendant deny- ing their receipt. According to plaint- iff's evidence, he carried the goods to defendant's depot. The station agent and one R. were in the office. Plaintiff stated his wish without addressing either of them. R. went out and weighed the goods, went back into the office where the station agent was, and gave a receipt signed, in the lat- ter's name "per R." There was evi- dence that R. had been in the office several months, that he handled and delivered goods, and had on one occa- sion shipped them. Plaintiff also tes- tified that when he went to the station to complain of the non-shipment of the goods, the station agent cursed and abused R., saying it was the third time he had done so that fall. Held, that the evidence was sufficient to sustain a finding that the goods had been delivered to the defendant. In Rogers v. Long Island, etc., R. Co., 2 Lans.269,the owner of the trunk sent it to the defendant's depot by an express- man, who placed it within the enclos- ure of the depot beside the baggage crate, which was locked, and then went the ticket office and informed the ticket agent of the fact, who replied, "all right;" and it waaheld that the case should have gone to the jury upon the question of delivery, the court saying that it was enough to es- tablish a delivery, in the first in- stance,.to prove that a person, acting as the agent of the company, received and accepted the property for transporta- tion, even if there should be, in fact, another person having charge of the business of handling freight. "The ticket agent," said the court, "was ap- parently in charge of the depot. The company which sanctions his em- ployment and thus holds him out to the world as its agent is not at liberty to repudiate his acts." Hutchinson on Carriers, (2nd ed.) §83. See, also, Minter v. Pacific R. Co., 41 Mo. 503, s. c. 97 Am. Dec. 288, andnotei; Cronkite V. Wells, 32 N. Y. 247; Ouimitv. Hen- shaw, 35 Vt. 605; Southern Ex. Co. v. Newby, 36 Ga. 635; Fisher v. Geddes, 15 La. Ann. 14; Cobban v. Downe, 5 Esp. 41 ;Dwight v. Brewster, 1 Pick. 50 ; Riley v. Home, 1 C. & P. 610; Thur- man v. Wells, 18 Barb. 500 ; Wilson v. York.etc, R. Co., 18 Eng. L. & Eq.557 ; D'Anjou V. Deagle, 3 Harris & J. 206; Lloyd V. Barden,3 Strob. 343 ; McCourt V. London, etc., R. Co., 3 Ir. Rep. C. L. 107 ; Winkfield v. Packington, 2 C.& P. 599; Boys v. Pink, 8 Car. &P. 361; Long V. Home, 1 C. & P. 610; Lloyd V. Barden, 3 Strob. 343 ; Giles v. Taff Vale R. Co., 2 E. & B. 822, 23 L. J. Q. § 1407 DELIVEKY AND ACCEPTANCE. 2187 has been held that a shipper may assume, in the absence of anything to the contrary, that a railroad station agent has authority to contract with reference to the acceptance and car- riage of freight.' But this assumption, in the absence of any- thing further to justify it, can not safely extend to any con- tract beyond the usual authority of such agents, and a mere station agent will not, under ordinary circumstances, be pre- sumed to have authority to bind the company by contract to carry freight beyond its own line.^ Delivery to a drayman or other servant of the company who is accustomed to collect and receive goods for the company at the places of business of its patrons is a delivery to the company,' and the company may become responsible for freight or baggage delivered to one who is in the habit of receiving such articles for it at a station where it has no other agent of its own, although such person is the regular agent of a connecting line at such point.' § 1407. Delivery to unauthorized person. — Delivery to an unauthorized person, even if he be an agent or servant of the company, is not a good delivery to the company unless, be- cause of his position or other circumstances for which the com- B. 43; Street v. Morrison, 10 New "Wilmington, etc., Co. v. Adams Bruns. 296. Delivery to an unauthor- Express Co., 8 Houst. (Del.) 329, s. c. ized person is no delivery unless notice 32 Atl. R. 250 ; Davey v. Mason, 1 Car. is given. Trowbridge v. Chapin, 23 & M. 45 ; Baxendale v. Hart, 21 L. J. Conn. 595 ; Ford v. Mitchell,21 Ind. 54 ; Exch. 123, s. c. 6 Exch. 769 ; Quarrier Leigh i;. Smith, 1 C. & P. 638; Young v. Baltimore, etc., R. Co., 20 W. Va. V. Canadian Pac. R. Co., 1 Manitoba 424, s. c. 18 Am. & Eng. R. Cas. 535. 205. See, also, Pickford v. Grand Junction 'Lake Erie, etc., R. Co. v. Rosen- R. Co., 12 M. & W. 766; Whitbeck v. berg, 31 111. App. 47; Pruitt v. Hanni- Schuyler, 44 Barb. (N. Y.) 469; Boys bal, etc., R. Co., 62 Mo. 527 ; Deming v. Pink, 8 Car. & P. 361 ; Waldron v. V. Grand Trunk, etc., R. Co., 48 N. H. Chicago^etc, R. Co., 1 Dak. 351, s. c. 455 ; Wood v. Chicago, etc., R. Co., 68 46 N. W. R. 456 ; Duff v. Budd, 3 Brod. Iowa 491, 24 Am. & Eng. R. Cas. 91 ; & B. 177. - Miller v. Chicago, etc., R. Co., 1 Mo. * Jordan v. Fall River R. Co., 5 App. Rep. 474. Cuah. (Mass.) 69, s. c. 51 Am. Dec. " Minter v. Southern Kansas R. Co., 44 ; McCourt v. London, etc., R. Co., 3 56 Mo. App. 282; Gulf, etc., R. Co. Ir. Rep.C. L. 107, 402. See, also, Mont- V. Hodge, (Tex.) 30 S. W. R. 829; gomery, etc., R. Co. v. Kolb, 73 Ala. Burroughs v. Norwich, etc., R. Co., 396, s. c. 49 Am. R. 54,18 Am. & Eng. 100 Mass. 26, s. c. 1 Am. R. 78. R. Cas. 512. 2188 CARRIERS. § 1408 pany is responsible, the shipper is justified in assuming that such person has authority to receive the freight for the com- pany. Thus, it has been held that delivery to a deck hand on a steamboat is not a good delivery to the 'carrier.' So, of course, if the shipper has notice that the agent has no such au- thority this will prevent an assumption to the contrary on the part of the shipper.^ But if the goods are received and trans- portation is actually undertaken by the carrier, the fact that the agent had no authority to receive them, even though known to the shipper, will not necessarily relieve the carrier from liability for their loss.' § 1408. Delivery by agent of shipper. — As delivery may be made to the authorized agent of the company, so it may be made by an authorized agent of the shipper. The rules which apply are, in the main, the same in both cases. Where the owner of goods places them with an agent, who is to secure their transportation by a carrier, the agent is presumptively au- thorized to exercise all the powers necessary to effect the pur- pose of the agency, and in the absence of any limitation upon his authority which is or ought to be known to the carrier, the acts of the agent in directing and agreeing upon the time, man- ner, terms and conditions of shipment will bind his principal.* It has also been held that when the delivery is disputed, and the proof doubtful, evidence is admissible to show that the shipper's agent who claimed to have delivered the articles had ' Trowbridge ti.Chapin,23 Conn. 595; 83 Me. 236, s. c. 18 L. R. A. 33; Fille- Ford V. Mitchell, 21 Ind. 54. f^ee, brown v. Grand Trunk R. Co., 55 Me. al.'-o, Cronkite v. Wells, 32 N. Y. 247; 462, s. c. 92 Am. Dec. 606. Southern Exp. Co. ■!). Newby, 36 Ga. 'Hutchinson on Carriers, §§ 84o, 635; Blanchard v. Isaacs, 3 Barb. (N. 265; Mechera on Agency, § 311; Nel- Y.) 388; Elkins v. Boston, etc., R. son v. Hudson River R. Co., 48 N. Y. Co.. 23 N. H. 275; Porter w. Chicago, 498; York Co. v. Illinois Cent. R. etc., R. Co., 41 Iowa 358. Co., 3 Wall. (U. S.) 113; Squire w. = See Walker v. York, etc., R. 23 L. New York, etc., R. Co., 98 Mass. 239, J. Q. B. 73, s. c. 2 E. & B. 750; Slim s. c. 93 Am. Dec. 162; London, etc., V. Great Northern, etc., R. Co., 23 L. R. Co. v. Bartlett, 7 Hurlst. & N. 400. Compare Hayes v. Campbell, 63 Cal. J. C. P. VVy ' See Bennett . American Exp. Co., 143. § 1409 DELIVERY AND ACCEPTANCE. 2189 been convicted of larceny of goods from his principal.' But a telephone message from a railroad company to the owner of a tug boat, who is a common carrier, to send his boat to a cer- tain place and transport hay from that place to another simply authorizes him to transport such hay as a common carrier and does not authorize him to bind the company by employing an- other tug owner to do the work.^ § 1409. Delivery must be for immediate shipment. — Rail- road companies are held to the liability of warehousemen, not to that of common carriers, for goods deposited with them oth- erwise than for immediate shipment. Thus, if the shipment is not to begin till further orders from the consignor, or some- thing has been done by him, the carrier's liability attaches the instant, but not before, the orders have been given, or the something has been done." If, however, the delay in shipment 'Wilmington, etc., Co. v. Adams Exp. Co., 8 Houst. (Del.) 329, s. c. 32 Atl. R. 250. 2 Bleecker v. Satsop R. Co., 3 "Wash. 77, s. c. 27 Pac. R. 1073. ' Jit. Vernon Co. v. Alabama, etc., R. Co., 92 Ala. 296, 8 S. Rep. 687; Barron v. Eldredge, 100 Mass. 455; O'Neill V. New York, etc., R. Co., 60 N. Y. 138; St. Louis, etc. R. Co. V. Knight, 122 U. S. 79; Michigan S. R. V. Shurtz, 7 Mich. 515; Moses v. Boston, etc., R., 24 N. H. 71; Rogers v. Wheeler, 52 N. Y. 262; Fitchburg, etc., R. Co. v. Hanna, 6 Gray 539 ; Wade v. Wheeler, 3 Lans. 201 ; Nichols v. Smith, 115 Mass. 332; Judson V. Western R. Co., 4 Allen 520; McDonalds. Western R. Co., 34 N. Y. 497 : Blossom v. Griffin, 13 N. Y. 569; Pittsburg, etc., R. Co. v. Barrett, 36 Ohio St. 448, 3 Am. & Eng. R. Cas. 256; St. Louis, etc., R. Co. v. Jlontgomery, 39 111. 335; Lawrence?). V/inona & St. P. Ry. Co., 15 Minn. 390 ; Watts V. Boston & L. R. Co., 106 Mass. 4')6. But see Michaels v. New York R. Co., 30 N. Y. 564. The fact that the railroad company permitted a car of lumber, while waiting further or- ders from the shipper, to stand near a dry kiln in which a fire originated which destroyed the lumber, was not such negligence as would render it liable as warehouseman, since it was merely a gratuitous bailee, and the destruction of the car was not the natural and proximate consequence of the act complained of. Basnight v. Atlantic & N. C. R. Co., Ill N. C. 592, 16 S. E. R. 823. In St. Louis, etc., R. Co. V. Montgomery, 39 111. 335, it was held that the company's liability was that of warehouseman only for goods already loaded which were dam- aged while being held at the compa- ny's request. Where a carrier, after informing the owner of goods deliv- ered to it for transportation that they will be held at place of receipt till the freight charges are prepaid, ships the goods without payment, and without notice to the owner, it is liable for damages resulting from such prema- 2190 CaREIKRS. §1410 is due, not to the request or default of the consignor, but to the exigencies of the railroad company's business or to its default, the carrier's liability usually dates from the deposit and not from the commencement of the journey. Thus, where goods bearing the consignee's name and address are delivered to a railroad company, without agreement to the contrary, the de- livery is equivalent to an express order to ship immediately ;' and the fact that the consignee consents that they may wait in the freight house because the company has no car ready, will not relieve it from liability as an insurer/ § 1410. Notice of delivery. — There must always be either actual or constructive notice of the deposit of goods for trans- portation. If the deposit is made in the usual manner at a place where goods have been constantly received for transpor- tation, the railroad company may, it seems, be charged with constructive notice even though the delivery was not made to any of its servants." But this is a doctrine to be cai'efully np- ture shipiaent. Campion u. Canadian P. B. Co., 43 Fed. Rep. 775. ' Redfield on Railways, §174; Sohouler on Bailments, 381, c.h. 4; Clarke v. Needles, 25 Pa. St. 338 ; Ran- dleson v. Murray, 8 A. & E. 109; Dale V. Hall, 1 Wils. 281 ; Blossom v. Grif- fin, 13N.Y. 569; Williams i). Peytavin, 4 Mart. (La.) 304 ; Grand Tower, etc., Co,. V. Ullman, 89 111. 244; Mirriam v. Hartford & N. II. R. Co., 20 Conn. 354; Trowbridge v. Ciiapin, 23 Conn. 695; Ford u. Mitchell, 21 Ind. 54; Gleasont). Goodrich Trans. Co., 32 Wis. 85; O'Bannon v. Southern Ex. Co., 51 Ala. 481 ; Grosvenor v. New York C. R. Co., 39 N. Y. 34 ; Burrell v. North, 2 Car. & Kir. 680; London & L. F. I. Co. V. Rome, etc., R. Co., 23 N. Y. Sup. 231, 68 Hun 598; Pittsburgh, etc., R. Co. V. Barrett, 36 Ohio St. 448, 3 Am. & Eng. R. Cas. 256. But see 111. Cen. R. Co. v. Ashmead, 58 111. 487 ; Same w.McClellan,54 111. 58 ; Same V. Hornberger, 77 111.457; in which cases the company was held liable as warehouseman only for goods deposit- ed on a platform with the understand- ing that they would be shipped as soon as cars and the permission of the military authorities roiild be hud. ^Witbeck V. Holland, 45 N. Y. 13; Sheltonw. Merchants' D. T. Co., 36 N. Y. S. C. 527, 59 N. Y. 258 ; ( iregory v. Wabiinh Ry. Va>., 4(') Mo. App. 574. 'Meiriami'. II:irttord,<'tc., R.(:o.,20 Conn. .'!■'") 1 ; (Jonverset). Norwich, lUi-., Trans. Co., ."?.'! Conn. Kifl; Evansville, etc., R. Co. (1. ICcitii, 8 Ind. App. ■'>!, s. c. 35 N. E. R. 2'.)(;. Sec ( ireen v. Mil- waukee, etc., Railroad, 38 Iowa 100, 41 Towa 410, where the company was held liable for a trunk left by a dray- man in the waiting-room, without notice, in accordance with an estab- lished custom. See, also, Wright v. Caldwell, 3 Mich. 51 ; Packard v. Get- man, 6 Cowcm 757; O'Bannon v. Southern Ex. Co., 51 Ala. 481; Buk- nian v. Levi, 3 Camp. 414. §1411 DELIVERY AND ACCEPTANCE. 2191 plied, and it has been held that leaving goods on a dock near a boat, in accordance with the usual custom, is not sufficient unless notice is given.' The general rule is that the carrier must have notice.^ § 1411 . Place of delivery. — Goods are usually delivered to rail- road companies at established stations, and they may refuse to re- ceive them at unusual places.' But the delivery may be sufficient ' Packard v. Getman, 6 Cow. (N. Y.) 757, s. c. 16 Am. Dec. 344, and note. 'Leigh V. Smith, 1 Car. & P. 638; Grosvenor v. New York, etc., R. Co., 39 N. Y. 34 ; Basnight v. Atlantic, etc., R. Co., Ill N.Car. 592, s. c. 16 S. E. R. 323. "And it must be admitted that the doctrine of constructive delivery with- out notice to the carrier is one which should be applied with great caution. It is undoubtedly competent for him to bind himself by such a delivery either by his express agreement that a deposit of goods at a particular place shall be a valid delivery to him, or by so advertising it to the public, or by a well known and established custom to receive the goods in that way, which would perhaps be as binding upon him as to persons who had acted upon the notice or the usage as an express agreement; and cases may arise in which the usage and course of dealing between the parties should un- doubtedly have that effect. But, cer- tainly, to do so they should be shown to have existed and to have been uni- formly acted upon by the parties, by the most satisfactory proof and for a Bufflcient length of time to have be- come an established usage, tanta- mount to an agreement to that effect or to a declaration to the public that a delivery in accordance with the usage will be deemed an acceptance by him for the purpose of the transportation ; and perhaps it should be shown that a reliance upon the previous course of dealing or the usage or the notice had controlled the action of the shipper in the particular instance." Hutchinson on Carriers, (2nd. ed.) §93. Little Rock, etc., R. Co. v. Hunter, 42 Ark. 200; Selway v. Holloway, 1 Ld. Rayd. 46; Lovett u. Hobbs, 2 Show. 127; Leigh V. Smith, 1 C. & P. 638; Hickox V. Naugatuck, etc., R. Co., 31 Conn. 281 ; Pittsburg, C. & St. L. R. Co. v. Barrett, 36 Ohio St. 448, 3 Am. & Eng. R. Cas. 256 ; Salinger v. Simmons, 57 Barb. (N. Y.) 513. 3 Kellogg V. Suffolk, etc., R. Co., 100 N. C. 158, 35 Am. & Eng. R. Cas. 529; Chicago, etc., A. R. Co. v. Flagg, 43 111. 364 ; State v. New Haven, etc., Co., 41 Conn. 134. While a carrier is not liable for failing to furnish cars or to transport goods, unless offered at a usual or designated place for receiv- ing freight, yet where goods are placed at a station upon the line of a railroad to be transported, the refusal of the carrier, upon demand, to furnish cars for the transportation of the property relieves the owner from making any further delivery or offer to deliver. Louisville, etc., R. Co. v. Godman, 104 Ind. 490; Louisville, etc., R. Co. v. Flanagan, 113 Ind. 488, 32 Am. & Eng. R. Cas. 532. In "Wells v. Wilmington, etc., Railroad, 6 Jones L. 47, it was held that the defendant was not liable for goods lost in consequence of the train's failure to stop for them at the roadside 2192 CAKRIERS. § 1411 although, made at an unusual place to an authorized agent,' and accepted by him, or, under some circumstances, even if made at a place not an established station but where the company has habitually received freight. Thus where a railroad company had erected a platform on which, in the usual course of business, cotton was stored for shipment by the next train, it was held that the shipper could recover as from a currier for cotton stored on such platform and destroyed by fire set by one of the company's locomotives.'' A like decision was rendered where goods were placed on a depot platform for ship- ment, in accordance with the usual custom, with the knowledge of the carrier's agent, and were set on fire by a boy who was playing on the platform and could have been seen by the agent from his office in the depot.'' And where it was the custom to deposit cotton in the street beside the railroad company's plat- form or in the company's cotton yard, a delivery there was held sufficient.* But loading goods on a car standing on a Hannibal, etc., ■wliere they had been placed in reli- ance on the conductor's promise that he would stop there for them. The facts that a mail train stopped regu- larly at a certain place to deliver mail and that the place was set down in circulars and orders of the company as a station, do not necessarily make such place a regular station for the reception of freight within N. C. Code, 1964. Land v. Wilmington & W. R. Co., 104 N. C. 48, 10 S. E. R. 80, 40 Am. & Eng. R. Cas. 18. Neither is a point on a railroad where there was never any station agent, no agent's offii'e, nor books kept, tickets sold, or bills of lading given, but where con- ductors had frequently stopped trains to receive and let off freight and pas- sengers, a regular station within the meaning of the same law. Kellogg v. Suffolk & C. R. Co., 100 N. C. 158, 5 S. F,. R. 379; 35 Am. & Eng. R. Cas. 52!i. 'Cronkite v. Wells, 32 N. Y. 247; Blaiichard v. Isaacs, 3 Barb. HSS ; Dwight V. Brewster, 1 Pick. 50; Mis- souri, etc. R. Co. i>. Railroad, 35_Mo. 84. ^Meyert). Vicksburg, S. &P. R. Co., 41 La. Ann. 6.39, So. Rep. 218. «But a place on a line of railroad where there is a switch, but neither agent, station, nor platform, and where ship- ments are made only by loading on the cars, and where freight is delivered when parties are ready to receive the same, is not a depot, and a deposit of cotton near such switch does not con- stitute such a delivery to the com- pany, as to render it thereafter liable as a common carrier. Kansas City, M. & B. R. Co. V. Lilly, (Miss.) 8 So. R, 644, 45 Am. & Eng. R. Cas. 379. See Missouri P. R. Co. v. Douglass, 2 Tex. App. (Civ. Cas.) 32, 16 Am. & Eng. R. Cas. 98. 8 Ft. Worth, etc., R. Co. ». Martin, (Tex. Civ. App.) 35 S. W.R. 21. See, also, Mvunsville, etc., R. Co.«. Keith, 8 Irid. App. 67, 8. c. 35 N. E. R. 296. ' Montgomery, etc., Ry. Co. v. Kolb, 73 .Ma. ,396. Sec, also, Wright ■». Caldwell, .'! Mich. 51. § 1412 DELIVERY AND ACCEPTANCE. 2193 side track is not a sufficient delivery to the company, where there is no custom to that effect and the company's agent, upon being notified, refuses to receive and ship them.' § 1412. Delivery to connecting carrier. — The liability of a connecting carrier does not attach, and the duty of the first carrier is not fully performed, until there has been an actual delivery to the connecting carrier, or notice under such cir- cumstances as, according to usage, contract, or the course of business, will constitute a constructive delivery.* Thus, it is not a good delivery to the connecting carrier, in the absence of some special agreement or custom, to merely store the goods in a warehouse at the end of the route.' And where a freight car is to be transported over connecting lines, the liability of the connecting carrier does not begin until the car is trans- ferred to it.' So, it has been held that merely placing a car on the side track of the connecting carrier, without giving the latter any notice or directions, and without marking it with the name and address of the consignee, is not a sufficient de- livery to establish a contract relation between the carriers and make the latter liable as a common carrier to the former.' It may be said, in general, that the rules in regard to deliverj^ by one carrier to another are substantially the same as those which govern the delivery by a shipper to a carrier.* But a 'Yoakum v. Dryden, (Tex. Civ. Railroad Co. ■«. Manufacturing Co., 16 App.) 26 S. W. E. 312. See, also, V^^all. (U. S.) 318; note to Wells t-. Kansas City, etc., R. Co. v. Lilly, Thomas, 72 Am. Dec. 228, 237, 238. (Miss.) s. c. 8 So. R. 644. Post, §1443. But compare Peoria, etc., 'Post, § 1443. But it is held that R. Co. v. United States, etc., Co., 136 an action for failure to deliver to a 111. 643. connecting line will not lie where the *Rome R. Co. v. Sloan, 39 Ga. 636. two lines are not connected for that See, also, Gass v. New York, etc., R. purpose and there is no agent at the Co., 99 Mass. 220, s. c. 96 Am. Dec. junction of the two roads. St. Louis, 742. etc., R. Co. V. Marrs, 60 Ark. 637, 31 ^Mt. Vernon Co. v. Alabama, etc., S. W. R. 42. See, also, Shelbyville Co., 92 Ala. 296; Kentucky, etc., In- R. Co. V. Louisville, etc., R. Co., 82 surance Co. v. Nashville, etc., R. Co., Ky. 541. 8 Baxt. 268. 'Irish V. Milwaukee, etc., R. Co., ^Shelbyville R. Co. v. Louisville, 19 Minn. 376, s. c. 18 Am. R. 340; etc., R. Co., 82 Ky. 541. 2194 CARRIERS. § 1413 mere constructive delivery, which is good as between the two carriers, according to their usage, or a special contract between them, may not be sufficient to bind the shipper and deprive him of recourse upon the initial carrier.' Evidence of a well- established, general and uniform custom is generally admissi- ble, even as against the shipper, where there are no special di- rections, or the like.^ And the usage or usual course of deal- ing between connecting carriers in regard to the delivery and receipt of freight may be shown, in such a case, as between themselves.' § 1413. Evidence of delivery. — It has been held that wheth- er freight has been delivered to a common carrier, so as to fix his liability as such, is a mixed question of law and fact, and that delivery may be shown by proving that tlie freight was sent to the place where the carrier was accustomed to receive such freight, and that notice was duly given that it was there for transportation.* The burden of proving the delivery is upon the plaintiff.' The fact that a bill of lading has been issued by the carrier is -prima facie but not conclusive evidence of delivery.^ Thus, in a recent case' it appeared that a com- press company was in the habit of receiving cotton at its sheds, and that a railroad company had not only contracted with it ' Conkey 1). Milwaukee, etc., E. Co., Co. v. Curtis, 80 111. 324; Gulf, etc., 31 Wis. 619, s.c. 11 Am. R. 630; Con- R. Co. v. Insurance Co., (Tex.) 28 don V. Marquette, etc., R. Co., 55 S. W. R. 237. See, also, Evansville, Mich. 218, s.c. 54 Am. R. 367; Mc- etc., R. Co. v. Keith, 8 Ind. App. Donald ?;. Western, etc., R. Co., 34 N. 57, 35 N. E. R. 296; Blanchard «. Y. 497; Rawson u. Holland, 59 N. Y. Isaacs, 3 Barb. (N. Y.) 388; Lawson's 611 ; Merriam v. Hartford, etc., R. Co., Usages and Customs, § 79. 20 Conn. 354, s. c. 52 Am. Dec. 344. 'Bowie v. Baltimore, etc., R. Co., 1 2 Van Santvoord v. St. John, 6 Hill McArthur (D. C.) 609. See Nichols (N. Y.) 157; Converse v. Norwich, «. Smith, 115 Mass. 332. etc., Co., 33 Conn. 166; Pratt v. Rail- = Lo„jgyijje_ gj^, _ jj q^^ ^ Echols, way Co., 95 U. S. 43 ; Ray Neg. of Im- 97 Ala. 556, s. c. 12 So. R. 304 ; Can- posed Duties, (Carriers of Freight) 384, field V. Baltimore, etc., R. Co., 14 J. 385; Hutchinson on Carriers, §104. & S. (N. Y.) 238. See, also, Melbourne W.Louisville, etc., ^ Post, §1419. R. Co., 88 Ala. 443, s. c. 6 So. R. 762. 'St. Louis, etc., R. Co. v. Commer- ' Root V. Great Western R. Co., 65 cial, etc., Ins. Co., 139 U. S. 223, s. c. Barb. (N. Y.) 619; Michigan Cent. R. 11 Sup. Ct. R. 554. § 1414 DELIVERY AND ACCEPTANCE. 2195 to transport all cotton brought by the owners to the sheds of the compress company, but was also in the habit of issuing bills of lading to the owners, upon their request, in exchange for the receipts of the express company, but this was for the mere convenience of all parties and without any intention of making any change in the actual or legal custody of the cotton while in the sheds. The court held that the railroad company was not liable for the loss of the cotton by fire while in the sheds, although it had accumulated therein by reason of the delay of such company in furnishing transportation.' We have already considered what is sufficient evidence to consti- tute a complete delivery and the competency and effect of evi- dence of custom upon the question, and a further consideration of the subject seems unnecessary in this connection. § 1414. Delivery to carrier passes title to consignee. — We shall elsewhere consider the right of stoppage in transitu and the relative rights of the consignor and consignee in that con- nection, but it may be well at this place to state generally the effect of delivery to the carrier upon the title to the goods de- livered. The effect of such delivery, of course, depends very largely upon the intention of the parties, which is usually de- termined by the contract in each particular case, but, as a gen- eral rule, in the absence of any agreement to the contrary, delivery to the carrier is delivery to the consignee.^ So, where the seller agrees to deliver goods "f. o. b." at a certain place, after their arrival at that place it has been held ' To the same effect is St.Louis, etc., State v. Carl, 43 Ark. 353, s. c. 51 Am. R. Co. V. Knight, 122 U. S. 79, s. c. 7 R. 565 ; Magruder v. Gage, 33 Md. 344, Sup. Ct. R. 1132. See, also, California s. c. 3 Am. R. 177; Johnson v. Stod- Ins. Co. V. Union Compress Co., 133 dard, 100 Mass. 806; Sarbecker v. V. S. 387, s. c. 10 Sup. Ct. R. 365. State, 65 Wis. 171, s. c. 56 Am. R. 624; *Mann v. Glauber, 96 Ga. 795, s. c. Kessler v. Smith, 42 Minn. 494; Penn- 22 S. E. R. 405 ; Meyer, etc., Drug Co. sylvania Co. v. Holderman, 69 Ind. 18 ; V. McMahan, 50 Mo. App. 18; Whit- Richtin v. McGary, 117 Ind. 132; Gar- man, etc., Co. V. Strand, 8 Wash. 647, bracht v. Com., 96 Pa. St. 449, s. c. 42 s. c. 36 Pac. R. 682; Leggett, etc., Co. Am. R. 550; Benj. on Sales, (6th Am. V. Collier, 89 Iowa 144, s. c. 56 N. W. ed.) § 693. R. 417 ; Pilgreen v. State, 71 Ala. 368 ; 2196 CARRIERS. § 1414 that the carrier ceases to be the agent of the consignor and Ije- comes the agent of the consignee, and the former can not main- tain an action against the carrier for injuries to them after their arrival and before they are unloaded." It has also been held that the reservation of the right to test the goods does not prevent the title from passing upon their delivery to the carrier where, in accordance with a long course of dealing between the parties, the goods are credited to the seller before delivery to the buj^er and as soon as bills are received therefor, with the understand- ing that the purchaser should be given credit for such as he might return as unsatisfactory aft^r testing them.^ But where the seller undertakes to deliver the goods himself at the buyer's place of business and selects his own carrier the carrier is usually regarded as the agent of the seller, who thus assumes the risks of carriage," and so where the sale is conditional upon payment on or before delivery, or the like, the mere delivery to the carrier before the condition precedeiit is performed will not ordinarily pass the title to the purchaser.* ' Capehart v. Furman, etc., Co., 3 H. & N. 1. See, also, Sohn «. Jervis, (Ala.) 16 So. R. 627. 101 Ind. 578. ^Wind V. Her, (loWa) 61 N. W. R. ' Merchants' Exch. Bank u. McGraw, 1001. To same effect, see Foley v. 59 Fed. R. 972; Russell v. Minor, 22 Felrath, 98 Ala. 176, s c. 1.3 So. R. AVend. (N. Y.) in- 485; Bootby «. Plaisted, 51 N. H. 436, neman, 48 N. Y. 399; Siieathen v. s. c. 12 Am. R. 140. Grubbs, 88 Pa. St. 147; Bonner c = Devine v. Edwards, 101 111. 138; Marsh, 10 Smed. & M. (Miss.) 376, s.c. Falvey ti. Richmond, 87 Ga. 99; Mur- 48 Am. Dec. 754. See, also. Suit v. ray v. Nichols, etc., Co., 11 N. Y. Woodhall, 113 Mass. 391. But coni- Supp. 734; Dunlop v. Lambert, 6 C. & pare Farmers', etc., Co. v. Gill, 69 Md. F. 600 ; Coombs v. Bristol, etc., R. Co., 537, s. c. 9 Am. St. R. 443. CHAPTER LVII. BILLS OF LADING. 1415. Definition — Two-fold ciiarac- ter. § 1425. 1416. Power of agent to issue bills of lading. 1426. 1417. Execution of bills of lading. 1427. 1418. Premature issuance of bill. 1419. Bills of lading as evidence of receipt of goods— Bona fide 1428. purchasers. 1420. As evidence of condition, weight, or contents. 1429. 1421. As evidence of value. 1422. Misdescription in bill. 1430. 1423. As evidence of contract— Not variable by parol. 1431. 1424. Construction of bills of lading. Construction of particular- words and phrases. As muniments of title — De- livery by carrier. Effect of direction in bill of lading to notify some des- ignated person. Bills of lading assignable but not negotiable. Eights of bona fide purchasers and other third persons who hold bills of lading. Duplicate bills. Change of consignment by shipper. § 1415. Definition — Two-fold character. — A bill of lading is " a written acknowledgment by the common carrier of the receipt of certain goods and an agreemei;it, for a consideration, to transport and to deliver the same at a specified place to a person therein named or his order, "^ and any instrument pass- ing from the carrier to the shipper bearing these characteris- tics is effective as a bill of lading, no matter what its name or form.^ The bill of lading is not necessary to establish the lia- ' Bouv. Law Diet., 246. For other definitions of bills of lading, see 2 Am. & Eng. Encyc. ofiL. 223; The Delaware, 14 Wall. (U. S.) 579; Cope V. Cordova, 1 Eawle (Pa.) 203; Free- man V. Kraemer, (Minn.) 65 N. W. E. 455; Union E. Co. v. Yeager, 34 Ind. 1 ; Empire T. Co. v. Wallace, 68 Pa. St. 302 ; Merchants' Bank v. Hewitt, 3 Iowa 93 ; Covill v. Hill, 4 Denio (N. Y.) 323. ^ There have been attempts to dis- criminate between bills of lading giv- en by carriers by water and what are sometimes called "shipping receipts," given by carriers by land, but it is es- tablished that their effect is the same. In Freeman v. Kraemer, (Minn.) Corp. 140 (2197) 2198 CARRIERS. §1415 bility of the common carrier, for his liability usually begins with the completion of the delivery of the goods, whether a bill of lading has or has not been issued ;' but this common law liability is generally qualified and limited by the bill of lading, which serves the double purpose of receipt and con- tract, although the limitations in the bill of lading can not re- lieve the railroad company of the character of a common car- rier/ In its two-fold character of receipt and contract the bill of lading is subject to different rules of construction. In so 65 N. W. R. 455, the court said: "These instruments consist each of a receipt for the goods, and an agree- ment to transport them to a certain place, and in our opinion are bills of lading." Hutchinson also says, on the same subject: "They are, how- ever, the same in effect, and are in- tended merely to evidence the true intent of the transaction between the parties. In both cases they contain a description of the goods, an acknowl- edgment that they have been received by the carrier, the names of the ship- per and consignee, the place of con- signment, that they are in good con- dition, the terms of the carriage and such qualifications of the liability of the carrier as he and the shipper may have agreed upon, and the contract to carry to destination and there de- liver to the consignee. They must be signed by the carrier or his author- ized agent to bind him, and must be accepted by the shipper. And any contract with the carrier having these characteristics is entitled to the effect of a bill of lading, no matter how in- formally it may be drawn." Hutch- inson on Carriers, (2d ed.) § 120. See, also, Lawson on Carriers, § 112; Bal- timore, etc., R. Co. IK Wilkens, 44 Md. 11, s. u. 22 Am. Rep. 26; Union R. Co. V. Yeager, 34 Ind. 1. • Pollard V. Vinton, 105 U. S. 7. A parol contract is as effective as a bill of lading. Texas Pacific R. Co. v. Nicholson, 61 Tex. 491, 21 Am. & Eng. R. Cas. 133; Mobile, etc., R. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. R. 566. "We know no rule of the common law, and no provision of statute, which requires a railroad company to give bills of lading. * * * jfor is there any rule of law requiring a con- signor to take out a bill of lading and send it to the consignee." Johnson V. Stoddard, 100 Mass. 306. In some states, however, the carrier is com- pelled by statute to issue bills of lad- ing when requested to do so. See Texas & P. R, Co. v. Kuteman, 79 Tex. 465, 14 S. W. Rep. 1069, where it was held that under the Texas statute, imposing a penalty on common car- riers for refusing to give, when de- manded, a bill of lading stating "the quantity, character, and condition of the goods" received for transporta- tion, a railroad company incurs the penalty by giving a bill of lading for lumber, describing it merely as "a car-load," when the shipper demands that the weight be stated. But see Missouri, etc., R. Co. ti. Douglas, 2 Tex. App. (Civ. Cas.) 32, 16 Am. & Eng. R. Cas. 98, where it is held that the lia- bility is only that of warehouseman until the bill of lading is signed. ^See discussion in Railroad Co. v. Lockwood, 17 Wall. 357, 376, and au- thorities cited therein. § 1416 BILLS OF LADING. 2199 far as it is merely a receipt, either party may explain or con- tradict it by parol, but as a contract it must be construed ac- cording to its terms.' Bills of lading answer a different pur- pose and perform functions different from those of bills of exchange and promissory notes. The former are symbols of ownership of the goods they cover, and are not negotiable as commercial paper. While commonly used as security for loans and advances, they are so used only as evidence of ownership, special or general, of the property mentioned in them, and of the right to receive such property at the place of delivery." § 1416. Power of agent to issue bills of lading. — The rail- road company in its capacity of common carrier is bound by the acts and contracts of its agents so long as they are acting within the scope of their authority and it is also held to be bound by the knowledge thus obtained by such agents.' It is held in some jurisdictions that the true limit of a railway agent's authority to bind his company, as between the company and a third person, is the apparent authority with which he is invested and which he is known to exercise, and that a fraudu- lent bill of lading issued by a duly accredited agent binds the company if found in the hands of a bona fide purchaser, the company being estopped to deny the facts there set out.* The ' Long D. New York, etc., E. Co., 60 Cas. 70; Baltimore, etc., E. Co. v. N. Y. 76; Louisville, etc., E. Co. v. Wilkens, 44 Md. 11; Douglas v. Peo- Wilson, 119 Ind. 352, 21 N. E. E. 341 ; pie's Bank, 86 Ky. 176, 5 S. W. E. 420 ; Snow V. Indiana, etc., E. Co., 109 Ind. Bank of Batavia v. New York, etc., K. 422; Tebbits v. Rock Island, etc., E. Co., 106 N. Y. 195, 12 N. E. R. 433; Co., 49 111 App. 567; Wayland v. Missouri, etc., E. Co. v. Heidenhei- Mosely, 5 Ala. 430; McTyer «. Steele, mer, 82 Tex. 195, 17 S. W. E. 608; 26 Ala. 487 ; Louisville, etc., R. Co. v. Shaw v. Railroad Co., 101 U. S. 557. Fulgham, 91 Ala. 555, 8 So. R. 803; 'Harmon v. New York, etc., R. Co., Central, etc., R. Co. v. Hasselkus, 91 28 Barb. (N. Y.) 323. But see Mis- Ga. 382, 17 S. E. Rep. 838; Little souri, etc., R. Co. v. Belcher, (Tex.) Eock, etc., E. Co. v. Hall, 32 Ark. 35 S. W. R. 6. 669; Richmond, etc., E. Co. w. Shomo, * Brooke ». New York, etc., E. Co., 90 Ga. 496; Merchants', etc., Co. v. 108 Pa. St. 529, 1 Atl. E. 206; Sioux Furthmann, 149111.66; The Delaware, City, etc., E. Co. v. First Nat. Bank, 14 Wall. 579, and cases cited. 10 Neb. 556; Wichita Savings Bank v. ^Friedlander v. Texas & Pacific E. Atchison, etc., E. Co., 20 Kan. 519; Co., 130 U. S. 416, 40 Am. & Eng. E. ante, §303 and note on p. 415; post, 2200 CAKRIEES. § 1417 weight of authority, however, seems to sustain the view that an agent can not bind the company by issuing a bill of lading where no goods are received.' Where the transaction is in good faith, however, the express authority of the agent need not appear if he receives the goods in the proper place and is in possession of the company's stamps to be used on bills of lading.^ It has been held that the position of one authorized to make contracts for carriage is one of special trust and con- fidence, and that a bill of lading signed by a substitute is not valid, ° but it seems to us that this view is questionable as the necessities of commerce may often require the agent to dele- gate his authority temporarily, otherwise there might be times when traffic from particular stations might be entirely sus- pended. A general freight agent has power to authorize others to sign bills of lading in his own name and bills so signed are binding upon the principal,' whenever they would have bound the principal if signed by the general agent in his own proper person. The subject of the authority of agents to receive freight and execute bills of lading or other contracts for transportation beyond their own lines is fully treated else- where. ° § 1417. Execution of bills of lading.— Bills of lading are usually on printed forms and signed only by the carrier or his agent. ^ Generally the acceptance of the bill by the shipper or § 1419. See, also, Bank of Batavia v. sary than that the agent's acts justify New York, etc., R. Co., 106 N. Y. 195, the party dealing with him in believ- 12 N. E. R. 433. ing that he had authority." Hansen 'Baltimore, etc., R. Co. x,. Wilkens, v. Flint, etc., R. Co., 73 Wis. 346, 41 44 Md. 11; Stone v. Wabash, etc., R. N. W. R. 529, citing Kasson v. Nolt- Co., 9 Brad. (111.) 48; Hunt v. Missis- ner, 43 Wis. 646. sippi, etc., R. Co., 29 La. Ann. 446; 'Pendall u. Rench, 4 McLean (U. Union, etc., R. Co. v. Yeager, 34 Ind. S.) 259. 1; Ryder v. Hall, 7 Allen (Mass.) 'Beunitt v. The Guiding Star, 53 456; Friedlander v. Texas, etc., R. Fed. R. 936. Co., 130 U. S. 416; Pollard v. Vjn- =^«Je, §§ 1405, 1406; posf, § 1437. ton, 105 U. S. 7 ; ante, § 303 and note ^ ^y^ere the bill is made out by the on page ili; post, § 1419, where many shipper, his assent to it will be pre- other authorities are cited. sumed. Lawrence t). New York etc 2 "No other proof of agency is neces- R. Co., 36 Conn. 63. Where the re- iun BILLS OF LADING. 2201 his agent* is, at least in the absence of fraud, deceit, or mis- take, conclusive evidence of his assent to its conditions.' This subject will be more fully treated when we come to consider contracts limiting the common law liability of the carrier. It may be well to add, however, in this connection, that, unless required by statute, the bill of lading need not be signed by the shipper,^ and that the contract may even rest in parol.* In- ceipt for goods is taken from a book § 1423. As to acceptance of bills by of blank forms by the shipper and agents see Knell v. United States & filled in by him, he is presumed to B. SS. Co., 1 Jones & S. (23 N. Y. S. know all stipulations therein con- C.) 423; Nelsons. Hudson E. E. Co., tained as to the company's liability 48 N. Y. 498; York Co. v. Central E. Co., 3 Wall. (U. S.) 107; Grace v. Adams, 100 Mass. 505. According to for loss or injury to the goods. Dur- gin V. American Exp. Co., 66 N. H. 277, 20 Atl. E. 328. Whether it is some of the decisions in Massachu- signed by the carrier or not is a ques- tion of fact for the jury to determine. setts, Illinois, Georgia, Michigan, Maryland, Mississippi, Ohio and Wis- Eoyal Canadian Bank v. Grand consin, it seems assent must be aflBrm- Trunk E. Co., 23 Upper Can. C. P. 225. 'Where the owner leaves goods atively shown. Buckland v. Adams Ex. Co., 97 Mass. 124 ; Perry v. Thomp- son, 98 Mass. 249; Boorman v. Ameri- with an agent to be shipped, he will can Ex. Co., 21 Wis. 153; White v. be bound by the agent's contract Goodrich, etc., Co., 46 Wis. 493; Mer- with the carrier, though the carrier chants' D. T. Co. v. Joesting, 89 111. knew who the owner was. Jennings V. Grand Trunk Ey. Co., 5N. Y. Supp, 152; Wallace v. Sanders, 42 Ga. 486; American T. Co. i). Moore, 5 Mich. 368, 140, 52 Hun 227, affirmed on appeal in 7 Am. Law Eeg. (O. S.) 352 ; Michigan 127 N. Y. 438. " Kellerman v. Kansas City, etc., R. Cent. E. Co. v. Hale, 6 Mich. 243 ; Bal- timore & O. R. Co. V. Brady, 32 Md. Co., (Mo.) 34 S. W. E. 41; Zimmer 333;McCoy».Erie& W.T. Co.,42Md. mer v. New York Central, etc., E. Co., 498; Gaines v. Union T. Co., 28 Ohio 137N. Y. 460, s. c. 33 N. E.E. 642; Steel V. Townsend, 37 Ala. 247 ; Steam- boat "Emily" ti. Karney, 5 Kan. 645; Mulligan v. Illinois R.Co., 36 Iowa 181 ; Eobinson v. Merchants' D. T. Co., 45 Iowa 470; Hoadly ». Northern Transp. Co., 115 Mass. 305; Cincinnati, etc., E. Co. V. Pontius, 19 Ohio St. 221; Dillard v. Louisville E. Co., 2 Lea (Tenn.) 288; Farnham B.Camden,etc., E. Co., 55 Pa. St. 53; Mobile & O. E. Co. V. Weiner, 49 Miss. 725; Maghee ■v. Camden & A. R. Co., 45 N. Y. 514; Germania F. I. Co. v. Memphis & C. E. Co., 72 N. Y. 90; Newman v. Smoker, 25 La. Ann. 303. See, post, St. 418. See, post, § 1502. As to con- signor's agents in these states, see Falvey v. Northern Transp. Co., 15 Wis. 129 ; Fillibrown v. Grand Trunk E. Co., 55 Me. 462. 'Piedmont, etc., Co. v. Columbia, etc., E. Co., 19 S. Car. 353, s. c. 16 Am. & Eng. E. Cas. 194 ; Cincinnati, etc.,E. Co. V. Pontius, 19 Ohio St. 221 ; Adams Exp. Co. V. Haynes, 42 111. 89. But see, under the Dakota statute. Hart- well V. Northern Pac. Exp. Co., 5 Dak. 463, s. c. 41 N. W. E. 732, 3 L. E. A. 342. * Eoberts v. Eiley, 15 La. Ann. 103 ; Missouri, etc., E. Co. v. Carter, (Tex. 2202 CAKRIEES. § 1418 deed, the complete delivery of goods, properly directed, which the carrier is required by law to accept and carry is generally sufficient to render the company responsible for their trans- portation in accordance with its common law duties. The ex- ecution of a bill of lading by the carrier with a blank left for the name of the consignee, has been held to be equivalent to a contract to deliver to the consignor or his assignee,' and where two papers are executed together as a bill of lading, one party signing one, and the other party signing the other, both should be construed together as constituting the entire contract." §1418. Premature issuance of bill. — If a bill of lading, through inadvertance or otherwise, be signed before the goods are actually shipped, and afterwards certain goods are delivered to the carrier as and for the goods receipted for, the bill may operate on those goods as between the shipper and the carrier by way of relation and estoppel. ° But, although a bill of lad- ing has been issued acknowledging the receipt of the goods the company may, at least as between the parties, show that they have not been delivered to it, if such is the fact.' In some of the states it is provided by statute that no bill of lad- ing shall be issued until the goods are actually delivered to the carrier. It has been held, under such a statute, that a bill of lading reciting that the goods have been received for trans- portation when they have not been received and are in fact in possession of another company is void.° Civ. App.) 29 S. W. R. 565; Louis- Bark Edwin, 1 Sprague (U. S. Dist.) ville, etc., R. Co. v. Craycraft, 12 477. 12 Ind. App. 203, s. c. 39 N. E. R. 523 ; * Fast, § 1419. So, according to the Mobile, etc., R. Co. v. Jurey, lllU. S. weight of authority, even as against 584, s. c. 4 Sup. Ct. R. 566. third persons, where the company has 'Garden Grove Bank v. Humeston, done nothing to mislead them or cre- etc, R. Co., 67 Iowa 526, s. c. 25 N. ate an estoppel. Post, § 1419. W. R. 761. 6^tna Nat. Bank v. Water Power i! Richmond, etc., R. Co. v. Shomo, Co., 58 Mo. App. 532. See, also, 90 Ga. 496. Stone v. Wabash, etc., R. Co., 9 111. « Rowley u.Bigelow,12 Pick. (Mass.) App. 48; Martin v. Railway Co., 55 307 ; The Delaware, 14 Wall. (U. S.) Ark. 510, s. c. 19 S. W. R. 314. 579; The Idaho, 93 U. S. 575; The §1419 BILLS OF LADING. 2208 § 1419. Bills of lading as evidence of receipt of goods. — Bona fide purchasers. — Bills of lading are only prima facie evidence between the original parties that the goods have act- ually come into the carrier's custody, and like other receipts are open to explanation, modification or contradiction by parol.' The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver.* And so it is held that a recovery can not be had even by an innocent and bona fide holder for value against a common carrier for goods never actually in its possession for transportation, though one of its agents, with authority to sign bills of lading, had, through fraud, mistake or negligence, issued a bill of lading.' While > Ellis V. Willard, 9 N. Y. 529 ; Berk- ley V. Watling, 7 Ad. & El. 29; Meyer V. Peck, 28 N. Y. 590; White v. Van Kirk, 25 Barb. (N. Y.) 16; The Dela- ware, 14 Wall. 579 ; The Lady Frank- lin, 8 Wall. 325; Van Etten ?-. New- ton, 134 N. Y. 143, s. c. 31 N. E. R. 334; Abbe v. Eaton, 51 K. Y. 410; Na- tional Bank v. Walbridge, 19 Ohio St. 419; Dean v. King, 22 Ohio St. 118; Wood V. Perry, 1 Wright (Ohio) 240; The Loon, 7 Blatch. 244; Southern Ex. Co. V. Hess, 53 Ala. 19; Northern Transp. Co. v. McCIary, 66 111. 233 ; Brouty u. Five, etc., Elm Staves, 21 Fed. Rep.- 590; Southern Ex. Co. v. Craft, 49 Miss. 480; Fellows v. Steam- er Powell, 16 La. Ann. 316; Jones V. Walker, 5 Yerger (Tenn.) 427; Hunt V. Mississippi Cent. R. Co., 29 La. Ann. 446 ; Flower v. Downs, 12 Rob. (La.) 101 ; Baltimore, etc., R. Co. V. Wilkens, 44 Md. 11; Louis- iana Bank v. Laveille, 52 Mo. 380; Kirkman v. Bowman, 8 Rob. (La.) 246; Cox V. Peterson, 30 Ala. 608; Peck V. Dinsmore, 4 Porter (Ala.) 212; Wayland ?j. Mosely, 5 Ala. 430; Wetzler v. Collins' 70 Me. 290 ; O'Brien V. Gilchrist, 34 Me. 554; Cafiero v. Welsh, 8 Phila. (Pa.) 130. It is com- petent for the carrier to show that the shipper had no such goods as those receipted for, or that, having the goods, they were never delivered to the carrier. 2 Am. & Eng. Encyc. of L. 224, citing, among other cases, Hub- bersty u. Ward, 8 Ex. 330; Sears v. Wingate, 3 Allen (Mass.) 103; Balti- more, etc., R. Co. V. Wilkens, 44 Md. 11 ; Hunt V. Mississippi, etc., R. Co., 29 La. Ann. 446. It is no objection to the bill as evidence that it acknowl- edges the receipt of other goods in addition to those concerning which the suit is brought. Wallace v. Vigus, 4 Blackf. (Ind.) 260. A railroad com- pany is not precluded from denying the receipt of the goods, it having ac- cepted a warehouse receipt as evi- dence of the shipper's go6ds, in the faith that they would be delivered. Hazard v. Illinois C. R. Co., 67 Miss. 32, 7 So. R. 280, 42 Am. & Eng. R. Cas. 455. 2 Pollard V. Vinton, 105 U. S. 7; St. Louis, etc., Ry. Co. v. Knight, 122 U. S. 79; Baltimore, etc., R. Co. v. Wil- kens, 44 Md. 11; Miller'!). Hannibal, etc., R. Co.. 90 N. Y. 480. 'National Banku. Chicago, B. & N. R. Co., 44 Minn. 224, s. c. 46 N. W. 2204 CAKRIERS. ^1419 this view has the weight of authority the contrary is main- tained in some of the states.' And it is held in Alabama that the carrier is liable to a bona fide purchaser of a bill of lading issued without having received the goods, under a statute pro- viding that the carrier shall be liable to any person injured by issuing a bill of lading or receipt for things or property not re- 342,560; Chicago B. & N. R. Co. v. Sowie Elevator Co., 44 Minn. 224, s. c. 46 N. W. E. 342 ; Friedlander v. Texas & P. K. Co. 130 U. S. 416, s. c. 9 Sup. Ct Rep. 570, 5 R. E. & Corp. L. J. 507, 28 Cent. L. J. 503, and note, 40 Am. & Eng. R. Cas. 70 ; Schooner Free- man V. Buclcingliam, 18 How. (U. S.) 182, 191; The Lady Franklin, 8 Wall. (U.S.) 325; Pollard v. Vinton, 105 U. S. 7 ; Jessel v'. Bath, 2 Exchq. (L. R.) 267; Bates v. Todd, 1 Moo. & R. 106; Lickbarrow o. Mason, 2 T. R. 63; Brown v. Powell D. S. C. Co., L. R., 10 C. P. 562; Grant v. Norway, 10 C. B. 665; Hubbersty D. Ward, 8 Exch. 330; Cox V. Bruce, 18 L. R. Q. B. D. 147; Coleman v. Riches, 16 Com. B. 104; St. Louis, etc., R. Co. v. Knight, 122 U.S. 79, 87; Brown v. Powell, etc., Coal Co., L. R., 10 C. P. 562; Williams r. Wilmington, etc., R. Co., 93 N. C. 42; McLean v. Fleming, L. R., 2 H. L. Sc. 128; Baltimore, etc., R. Co. V. Wilkens, 44Md. 11; Stone V. Wabash, etc., R. Co., 9 Brad. 48; Meyer v. Dresser, 16 Com. B. (N. S.) 646; Sears v. Wingate, 3 Al- len (Mass.) 103; Louisiana Bank v. Laveille, 52 Mo. 380; Hunt v. Missis- sippi Cent. R. Co., 29 La. Ann. 446. In some states statutes have been passed making the bills of lading in the hands of innocent purchasers con- clusive evidence of the receipt of the goods mentioned. See Hazard v. 111. C. R. Co., 67 Miss. 32, 7 So. Rep. 280, 42 Am. & Eng. R. Cas. 455, where it is held that the Mississippi act of 1886 is not retroactive, as it is not a mere rule of evidence, but changes the character and legal effect of the con- tract evidenced by the bill of lading. See, also. The Guiding Star, 62 Fed. R. 407; Jasper Trust Co. v. Kansas City, etc., R. Co., 99 Ala. 416, 14 So. R. 546, and statutes cited in 2 Am. & Eng. Encyc. of Law 241, 242. ' See an able opinion by Finch, J., in Bank of Batavia v. New York, etc., R. Co., 106 N. Y. 195, 32 Am. & Eng. R. Cas. 497. See, also, Brooke v. New York, etc., R. Co., 108 Pa. St. 629, 1 Am. Rep. 206, 21 Am. & Eng. R.Cas. 64; Meyer v. Peck, 28 N. Y. 590; Sioux City & P. R. Co. v. First N. Bank, 10 Neb. 556, 1 Am. & Eng. R. Cas. 278 ; Armour v. Michigan Cent. R. Co., 65 N. Y. Ill ; Wichita S. Bank V. Atchison, etc., R. Co., 20 Kan. 519, 20 Am. Ry. Rep. 299; Miller v. Han- nibal, etc., R. Co., 24 Hun (N. Y.) 607, reversed 90 N. Y. 430, 12 Am. & Eng. R. Cas. 30. It has been held that a railroad company having given a bill of lading reciting that the property is then lying in a depot at a certain place, and having agreed to forward it to the consignee, is estopped as against assignees of such bill who ad- vance money on the faith thereof, from showing that at the time of giv- ing such bill of lading the goods were in the adverse possession of another person. St. Louis, etc., R. Co. v. Lamed, 103 111. 293, 6 Am. & Eng. R. Cas. 436. §1420 BILLS OF LADING. 2205 ceived, but is not liable in such a case where the bill of lading is issued by the carrier's agent to a fictitious person and in- dorsed by such agent in the name of the fictitious person to one who is thus put upon inquiry.' § 1420. As evidence of condition, weight, or contents. — Bills of lading are only prima facie evidence between the original parties as to the condition of goods received for transportation, their statements that the goods are in "good order," or "ap- parent good order," being taken to refer only to the apparent external condition.' And similarly, a statement in a receipt for goods signed by the consignee that the goods were deliv- ered to him by the carrier in good condition is a mere admis- ' Jasper Trust Co. v. Kansas City, etc., R. Co., 99 Ala. 416, 14 So. E. 546 ; Bank of Tupelo v. Kansas City, etc., R. Co., (Miss.) 16 So. R. 572. 'St. Louis, etc., R. Co. v. Neel, 56 Ark. 279, 19 S. W. R. 963; Nelson v. ■Woodruff, 1 Black 156 ; Clark v. Barn- well, 12 How. 272; Hastings u. Pepper, 11 Pick. 41 ; Bradstreet v. Heran, 2 Blatch. 116; Richards v. Doe, 100 Mass. 524; The Bark Olbers, 3 Ben. (U. S. C. C.) 148; The Oriflamme, 1 Sawyer 176; Arend v. Liverpool, etc., Co., 64 Barb. 118; Hazards. Illinois Cen. R. Co., 67 Miss. 32, 7 So. R. 280; Missouri Pac. R. Co. v. Fennell, 79 Tex. 448, 15 S. W. E. 693; Missouri Pac. Ey. Co. v. loy, 79 Tex. 444, 15 S. W. R. 692; St. Louis, etc., R. Co. u. Knight, 122 U. S. 79, 30 Am. & Eng. E. Cas. 88; The Prosperino Palasso, 29 L. T. Rep. N. S. 622; Mitchell v. United States Ex. Co., 46 Iowa 214; Carson*. Harris, 4 Greene (Iowa) 516; Keith V. Amende, 1 Bush (Ky.) 455 ; Gowdy V. Lyon, 9 B. Men. (Ky.) 112; Barrett v. Rogers, 7 Mass. 297; The Adriatic, 16 Blatch. (C. 0.) 424; Chi- cago & A. R. Co. V. Benjamin, 63 111. 283; Illinois Cent. R. Co. v. Cowles, 32 111. 116; Bissel v. Price, 16 111. 408; Choate v. Crowninshield, 3 Cliff. (0. C.) 184; Ellis v. Willard, 9 N. Y. 529; Meyer v. Peck, 28 N. Y. 590; Kimball V. Brander, 6 La. 711 ; Ship Howard 11. Wissman, 18 How. (U. S.) 231; O'Brien v. Gilchrist, 34 Me. 554; Goodman v. Oregon, etc., Co., 22 Ore. 14, 28 Pac. R. 894; Seller v. Steamship Pacific, 1 Ore. 409. The legal effect of "apparent good order" and "good order" is the same. The Oriflamme, 1 Sawyer (C. C.) 176; Illinois Cent. R. Co. ■U.Cobb, 72 111. 148; Blade v. Chi- cago, St. P. & F. du L. E. Co., 10 Wis. 4. As to pencil interlineation as to bad order, see Goodman v. Oregon, R. & N. Co., 22 Ore. 14, 28 Pac. R. 894. It may be shown that the carrier wished to receipt for the goods as in poor condition but was not permitted to do so. Tierney v. New York, C. & H. R. Co., 67 Barb. (N. Y.) 538. The bur- den of rebutting the presumption that the goods were in the condition spec ified in the bill is on the carrier Illinois Cent. E. Co. v. Cowles, 32 111 116; Tarbox v. East S. B. Co., 50 Me 339; Breed v. Mitchell, 48 Ga. 533 Whitney v. Gauche, 11 La. Ann. 432 ; Austin v. Talk, 20 Tex. 164; The Freedom, L. E. 3 P. C. 594. 2206 CARRIERS. § 1420 sion, and is not conclusive.' Specifications as to weight or quality are prima facie evidence only," being subject to con- tradiction by parol.' Particularly if the specifications are, in another part of the bill, qualified by the insertion of some such statement as "contents unknown," is the carrier not re- sponsible for the discrepancy between the goods delivered and ' Missouri Pac. R. Co. v. Fennell, 79 Tex. 448, 15 S. W. E. 693. ''McLean v. Fleming, L. E. 2 H. L. (Sc.) 128, 25 L. T. Eep. N. S. 317; Hall V. Grand T. E. Co. 34 U. C. Q. B.517; Horseman v. Grand Trunk E. Co., 31 U. C. Q. B. 535 ; Cox v. Bruce, L. E. 18 Q. B. D. 147. A custom to treat statement of quantity as conclusive is unreasonable and void. Strong v. Grand Trunk E. Co., 15 Mich. 206. But, see, Ehodes v. Newhall, 126 N. Y. 574, 27 N. E. R. 947, affirming 59 Hun 616, 12 N. Y. Supp. 669, and hold- ing that where a carrier executes a bill of lading acknowledging the re- ceipt of a certain quantity of wheat on board, which was weighed under the supervision of the carrier, and provid- ing that "all the deficiency in the cargo shall be paid by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee," such carrier must pay for any deficiency in the quantity acknowledged by the bill of lading to have been received, and this may be deducted by the consignee from the gross amount of freight earned by the carrier, although it delivers all the wheat it actually did receive. 'Abbe V. Eaton, 51 N. Y. 410; Meyer v. Peck, 28 N. Y. 590, 33 Barb. 532; Dean v. King, 22 Ohio St. 118; Strong V. Grand Trunk E. Co., 15 Mich. 206; Steamboat Wisconsin v. Young, 3 Greene (la.) 268; Kirkman «. Bowen, 8 Eob. (La.) 246; The J. W. Brown, 1 Biss. 76; Goodrich v. Norris, Abbott Admr. 196; Little Eock, etc., R. Co. v. Hall, 32 Ark. 669; Hall v. Mayor, 7 Allen 454; Manchester v. Milne, 1 Abbott Admr. 115; Blanchet v. Powell's Collieries Co., 9 L. E. Ex. 74; Bates v. Todd, 1 Moody & Rob. 106; Glass v. Gold- smith, 22 Wis. 488; Erb v. Keokuk P. Co., 43 Mo. 53; Lane v. Boston & A. R. Co., 112 Mass. 455; Graves v. Harwood, 9 Barb. (N. Y.) 477; Naug- atuck R. Co. V. Beardsley S. Co., 33 Conn. 218. The burden of the con- tradiction is usually on the carrier. McLean v. Fleming, L. R. 2 H. L. (So.) 128, 25 L. T. Rep. N. S. 317. But, see, McCready v. Holmes, 6 Am. L. Reg. 229. A fraudulent and mistaken statement in a bill of lading that the weight is less than it actually is will not prevent the carrier from recover- ing for the whole amount carried, according to the rate per hundred pounds stated in the bill. Baird v. St. Louis, I. M. & S. R. Co. (C. C. E. D. Ark.) 7 E. E. & Corp. L. J. 516, 42 Am. & Eng. E. Cas. 281, 41 Fed. R. 592. In this case it was held that the Arkansas statute providing that no carrier shall charge a greater sum for transporting freight than is speci- fied in the bill of lading, was not in- tended to give validity to stipulations which were the result of mistake or fraud, and that the material part of the bill of lading was the part which fixed the rate per 100 pounds, and the weight stated did not control. §1421 BILLS OF LADING. 2207 those described* having safely delivered the very goods it ac- tually received.' And the use of the words "more or less" relieves the carrier from responsibility for the exact quantity mentioned if it fails to coincide with the quantity shipped.' The carrier may, however, by the insertion of such a phrase as "quantity guaranteed," bind itself conclusively.' §1421. As evidence of value. — ^The shipper, when tender- ing goods for transportation, is not bound to disclose their value for insertion in the bill of lading, unless requested to do so.' If, however, he be requested to give the value he must 'St. Louis, etc., E. Co. v. Knight, 122 U. S. 79, 30 Am. & Eng. E. Cas. 88; Miller v. Hannibal, etc., E. Co., 90 N. Y. 430, reversing 24 Hun 607 ; Haddpw V. Parry, 3 Taunt. 303 ; Jessel V. Bath, L. E. 2 Exch. 267; Vaughan V. Six, etc.. Casks of Wine, 7 Ben. 506; Clark v. Barnwell, 12 How. 272; The Colombo, 3 Blatch. 521 ; Fassett V. Euark, 3 La. Ann. 694; Levois ». Gale. 17 La. Ann. 302. A bill for a certain number of tons of scrap iron, "marked and numbered as per mar- gin," and concluding, "weight un- known to" the master, binds the ship- owner to deliver only so much as was actually shipped. Shepherd v. Naylor, 5 Gray 591. See, also, St. Louis, etc., Ey. Co. V. Knight, 122 V. S. 79, 30 Am. & Eng. E. Cas. 88. "Under the clause 'weight unknown,' the state- ment of 'three hundred tons' in the bill of lading was not even prima facie evidence as to the weight against the ship when it appeared that all that was received was delivered." Hen- derson V. Three, etc., Tons of Iron Ore, 38 Fed. E. 36. See, also. The Ismeale, 14 Fed. E. 491, 22 Fed. E. 559; Matthiessen H. Gusi, 29 Fed. E. 794; Lebeau v. General, etc., Naviga- tion Co., L. E. 8 0. P. 88; The Peter der Grosse, L. E. 1 Prob. Div. 414; Clark V. Barnwell, 12 How. (U. S.) 272; Baxter v. Leland, Abb. Admr. Pr. 348 ; Vernard v. Hudson, 3 Sumn. (C. C.) 405. A weighmaster's certifi- cate, not itself legal evidence, is 'in- sufficientto show a shortage in a cargo, where the master, before signing the bill of lading, wrote upon it, "I do not know the weight or quality." The Pietro G., 38 Fed. E. 148. 2 O'Brien v. Gilchrist, 34 Me. 554; Shepherd v. Naylor, 5 Gray (Mass.) 591; Dean u. King, 22 Ohio St. 118; Winterport G. & B. Co. v. Schooner Jasper, 1 Holmes (C. C.) 99. A bill of lading, in which the carrier agrees to deliver "twenty-two hundred and eighty-two bushels of corn, more or less, all to be delivered," is complied with by the delivery of 2217 bushels, if no more was shipped. Kelley v. Bowker, 11 Gray 428. See, also, Pee- bles V. Boston & A. E. Co., 112 Mass. 498. ' Bissel V. Campbell, 54 N. Y. 353 ; Byrne v. Weeks, 7 Bosw. (N. Y.) 372. *Levois V. Gale, 17 La. Ann. E. 302; Phillips D. Earle, 8 Pick. 182; Brooke V. Pickwick, 4 Bing. 218; Southern Ex. Co. V. Crook, 44 Ala. 468; Gor- ham Mfg. Co. v. Fargo, 45 How. (N. Y.) Pr. 90; Camden & A. E. Co. v. Baldauf, 16 Pa. St. 67; Eelp v. Eapp, 3 W. & S. (Pa.) 21 ; Baldwin v. Liver- pool & G. W. S. Co., 74 N. Y. 125; 2208 CARRIERS. § 1422 do so truly,' else the carrier may be absolved from liability at least for any excess over the value given." And he must not, by any subterfuge, deceive the carrier as to the value of the proffered goods.' So, of course, the valuation given by the shipper and stated in the bill of lading is not conclusive, as against the carrier and in favor of the shipper that the goods are worth that much. The construction of a written contract is usually for the court, but it has been held that where the bill of lading acknowledged the receipt for transportation of "one horse, value $100; one colt," it was for the jury to deter- mine whether the value given was intended to be that of the horse alone or both the horse and colt.* § 1422. Misdescription in bill. — Generally the damages re- sulting from a misdescription of goods in the bill of lading must be borne by the carrier or the shipper, according as the one or the other is responsible for it.° And a misdescription Parmelee v. Lowitz, 74 111. 116; War- ner d. West T. Co., 5 Rob. (N.Y.) 490; Merchants' D. T. Co. v. Bolles, 80 111. 473. See, also, Kember v. Southern Ex. Co., 22 La. Ann. E. 158 ; Southern Ex. Co. V. Newby, 36 Ga. 635; Stone- man V. Erie R. Co., 52 N. Y. 429; Tudor V. Macomber, 14 Pick. (Mass.) 34. The failure of the shipper to dis- close the value does not permit the carrier to rely upon a stipulation in the bill of lading limiting his liability to a stated amount, he having actually known, but failed to enter, the value. Kember v. Southern Ex. Co., 22 La. Ann. R. 158; Southern Ex. Co. v. Newby, 36 Ga. 635 ; Stoneman v. Erie R. Co., 52 N. Y. 429. ' Boskowitz !). Adams Ex. Co., 5 Cent. L. Jour. 58; Green v. Southern Ex. Co., 45 Ga. 305; Little v. Boston, etc., R. Co., 66 Me. 239. "Muser v. American Ex. Co., 1 Fed. R. 382; Hopkinsc. Westcott,6Blatch. (C. C.) 64; Mather v. American Ex. Co., 2 Fed. R. 49; Houston & T. C. R. Co. V. Burke, 55 Tex. 323; Cole v. Goodwin, 19 Wend. (N. Y.) 251 ; Fish V. Chapman, 2 Ga. 349; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, s. c. 32 Am. Dec. 455. The words "said to contain" so much money do not con- stitute even prima facie evidence against the carrier as to the amount actually received. Fitzgerald w. Adams Ex. Co., 24 Ind. 447. See Weil v. Express Co., 7 Phila. (Pa.) 88. ' Chicago & A. R. Co. v. Thompson, 19 111. 578 ; Houston & T. C. R. Co. v. Burke, 55 Tex. 323; Cooper v. Berry, 21 Ga. 526 ; Great N. R. Co. v. Shep- herd, 14 Eng. L. & E. R. 367; Lebeau V. General S. N. Co., 8 L. R. C. P. 88; Cnicinnati, & C. R. Co. v. Marcus, 38 111. 219; Gibbon v. Paynton, 4 Burr. 2298; Magnin v. Dinsmore, 62 N. Y. 35. •Coupland v. Housatonlc R. Co., 61 Conn. 531, b. c. 23 Atl. R. 870. 5 Hyde v. N. Y., etc., S. S. Co., 17 La. Ann. 29; Fassett v. Ruark, 3 La. Ann. 694; Chicago & A. E. Co. v. §1423 BILLS OF LADING. 2209 of goods by the carrier, with knowledge of what they are, is usually not binding upon the shipper so as to release the car- rier from responsibility for the goods actually received.' The statement of the route and place of delivery in the bill of lading will control the marks on the goods and be generally accepted as evidence, showing the contract of the parties.^ So, where the goods are misdirected by the shipper, and are lost by rea- son thereof, without the fault of the carrier, the latter is not liable therefor.' § 1423. As evidence ot contract — Not variaMe by parol. — In the absence of fraud or mistake, it must be conclusively pre- sumed that the oral negotiations respecting the terms and con- ditions upon which the goods were received, the route, and the rate at which they were forwarded, are merged in the bill of lading. This must be taken as the final repository and the sole evidence of the 3;g][eement between the parties.* The bill Thompson, 19 111. 678 ; Chicago & A. R. Co. V. Shea, 66 111. 471 ; American Ex. Co. V. Perkins, 42 111. 458; Mc- Clanei). Burlington, C. E. &N. R. Co., 52 Iowa 600 ; New Jersey E. & T. Co. V. Pennsylvania E. Co., 3 Dutch. (N. J.) 100; Southern Ex. Co. ■». Womack, 1 Heisk. (Tenn.) 256; Southern Ex. Co. v. Crook, 44 Ala. 468 ; McCoy v. E. & W. T. Co., 42 Md. 498. 'Harmon v. N. Y., etc., E. Co., 28 Barb. 323 ; Bancroft v. Peters, 4 Mich. 619. * Moore v. Henry, 18 Mo. App. 35. ' Lake Shore, etc, E. Co. v. Hodapp, 83 Pa. St. 22; Congar v. Chicago, etc., E. Co., 24 Wis. 157 ; Southern Exp. Co. V. Kaufman, 12 Heisk. (Tenn.) 161; Erie E. Co. v. Wilcox, 84 111. 239; Stimson v. Jackson, 58 N. H.'138. *Snow u. Indiana., etc., E. Co., 109 Ind. 422; Louisville, etc., K. Co. v. Wilson, 119 Ind. 352; Indianapolis, etc., E. Co. «. Eemmy, 13 Ind. 518, Hall V. Penn. Co., 90 Ind. 459 ; Bart- lett 11. Pittsburgh, etc., E. Co., 94 Ind. 281; Guillaumei). General T. Co., 100 N. Y. 491; Germania F. I. Co. ■». Memphis, etc., R. Co., 72 N. Y. 90, s. c. 28 Am. E. 113; Bedell a. Eichmond, etc., E. Co., 94 Ga. 22, s. c. 20 S. E. E. 262; Davis «. Central Vt. E. Co., 66 Vt. 290, s. c. 61 Am. & Eng. R. Cas. 197; Clark v. Barnwell, 12 How. 272; The Delaware, 14 Wall. 579; The Caledonia, 43 Fed. R. 681 ; Center v. Torrey, 8 Mart. La. R. 206; Hewett V. Chicago, etc., R. Co., 63 Iowa 611 ; Louisville, etc., Co. je. Fulgham, 91 Ala. 555, 8 So. E. 803; Wayland v. Mosely, 5 Ala. 430; O'Bryan v. Kin- ney, 74 Mo. 125; St. Louis, etc., R. Co. ». Cleary, 77 Mo. 634; Arnold x. Jones, 26 Tex. 335; White ti. Van Kirk, 25 Barb. (N. Y.) 16; Hinckley V. New York, etc., E. Co., 56 N. Y. 429; Turner v. St. Louis, etc., R. Co. 20 Mo. App. 632; Shaw », Merchants' Nat. Bank, 8 W. N. C. (Pa.) 221 ; Peck V. Dinsmore, 4 Por. (Ala.) 212; Chi- cago, etc., R. Co. V. Northern, etc., Co., 70 111. 217 ; May v. Babcock,4 Ohio 334 ; 2210 CARRIERS. § 1423 of lading being silent in respect to the line by which the goods are to be forwarded, its effect is the same as if a provision were therein inserted that the carrier should have the right to select at his discretion any customary or usual route which was re- garded as safe and responsible. This provision, being thus imported into the contract by law, is as unassailable by parol as any of the other express terms of the contract.' Where goods are received and actually shipped under a parol contract, the subsequent receipt of a bill of lading does not preclude the shipper from showing the terms of the parol contract,* unless Lawrence ■«. McGregor, Wright (Ohio) 193 ; Cincinnati, etc., R. Co. v. Pontius, 19 Ohio St. 221 ; Knowles v. Dabney, 105 Mass. 437; Shaw v. Gardner, 12 Gray (Mass.) 488; Wallace v. Mat- thews, 39 Ga. 617; Wilde v. Mer- chants' Dispatch, etc., Co., 47 Iowa 272; Sproat i). Donnell, 26 Me. 185; Merchants' D. T. Co. v. Leysor, 89 111. 43; United States Ex. Co. «. Haines, 67 111. 137. In the case of Union etc., Co. v. Biegel, 73 Pa. St. 72, it was held that where certain parol arrangements were made at the time the bill was signed, both should be submitted to the jury to enable it to determine which was the contract. See, also, Atwell«. Miller, llMd.348. But in Hostetterw. Baltimore, etc., R. Co. , (Pa. ) 11 Atl. Rep.609, the court up- held the refusal of an instruction that a bill of lading on its face was but a mem- orandum, and not in form a contract inter partes, and oral testimony might be received to show the real contract. 1 White V. Ashton, 51 N. Y. 280; Hinckley v. New York, etc., R. Co., 56 N. Y. 429; Simkins v. Norwich, etc., S. Co., 11 Cush. 102; Hudson C. Co. ».Penn. C. Co., 8 Wall. 276; Snow V. Indiana, etc., R. Co., 109 Ind. 422. Where the bill is silent as to the time of shipment, the implied obligation to ship within a reasonable time after the goods are delivered is a part of the contract, and can not be modified by parol evidence of an undertaking to ship on a certain train. Pennsylvania Co. V. Clark, 2 Ind. App. 146, 27 N. E. R. 586, distinguishing Cincinnati, etc., R. Co. V. Case, 122 Ind. 310. 2 Guillaume v. General T. Co., lOON. Y. 491; SnowK. Indiana, etc., R. Co., 109 Ind. 422; Bostwick v. Baltimore, etc.,R.Co.,45 N.Y.712 ; Swiftw. Pacific, etc., Steamship Co., 106 N. Y. 206; Wheeler v. New Brunswick, etc., R. Co.. 115 U. S. 29; Wilde i;. Merchants', etc., Co., 47 Iowa 247; McCullough v. Wabash, etc., R. Co., 34 Mo. App. 23. A bill of lading, modifying a previous parol contract, accepted by the shipper without noticing the charges does not supersede the latter which may be proved by the shipper. Missouri, etc., R. Co. V. Beeson, 30 Kan. 298. A shipper alleged and testified that the shipment was made under a parol agreement, without limitation of lia- bility, for carriage to a point beyond the defendant's line, and that, after the stock was loaded and had left the station, he signed a paper which he could not well read, and did not read, but which he supposed to be a receipt. The company contended, and offered testimony to show, that the only con- tract made with the shipper was the written one embodied in the bill of lading signed by the shipper, and §1423 BILLS OF LADING. 2211 it appears that between the shipper and the carrier the estab- lished custom has been for the former to receive bills of lading constituting the contract after the shipment.' Neither does the acceptance of a bill of lading on a subsequent shipment of goods waive the right to damages for the violation of a contract for an earlier supply of the necessary cars for the shipment of the same goods.'' A bill of lading, under the rules applicable to other written contracts, may be explained by parol if am- biguous,' or, sometimes, if subject to a usage which is annex- able to the contract as an incident, may be explained by usage.' And, in accordance with the rule that written contracts may be modified, changed or rescinded by a new and valid parol contract at any time after their execution, it is competent to prove that the contract embodied in a bill of lading was abandoned and the goods shipped under a parol contract sub- sequently made.^ So fraud or mistake may be shown by parol evidence in a proper case.* which, to a great extent, limited the liability of the company. It was held that the court was warranted in sub- mitting to the jury the question of what constituted the contract of the parties, and in defining what the com- mon law liability of the company was, in case they should find in favor of the theory of the shipper. St. Louis, etc., R. Co. V. Clark, 48 Kan. 321, 329, 29 P. Rep. 312. ' Shelton v. Merchants' D. T. Co., 59 N. Y. 258. ' McAbsheri). Richmond,etc.,R.Co., 108 N. C. 344, 12 S. E. R. 892; Ham- ilton V. Western, etc., R. Co., 96 N. C. 398, 3 S. E. Rep. 164. 'The Wanderer, 29 Fed. R. 260; The Delaware, 14 Wall. (U. S.) 579. The meaning of C. O. D. may be shown by parol. Am. Ex. Co. v. Lesem, 39111. 312. In Savannah, etc., R. Co. V. Collins, 77 Ga. 376, 3 S. E. R. 416, goods were received for transportation to a point beyond the company's line, and the following re- ceipt issued: '■ * * * Received from J. * * * the following articles for ship- ment to W., Cedar Keys, Fla. : 1 bdl. bedding. [Name,] Care R. R. Agt., Callahan. [Signed] D., Agt." In an action to recover for the loss of the goods, .it was held that the words, "Care R. R. Agt., Callahan," are am- biguous, and that they may be ex- plained by parol evidence. 'Hutchinson on Carriers, (2d ed.) § 126 b, citing The Delaware, 14 Wall. 579; Creery v. Holly, 14 Wend. 26; The Waldo, Davies 161; Blackett v. Royal Exchange Co., 2 Cromp. & J. 244; Arnold on In., 776; Lenox v. United Ins. Co., 3 Johns. Cas. 178; Shackleford v. Wilcox, 9 La. 33; Bar- bers. Brace, 3 Conn. 9; Sproatc. Don- nell, 26 Me. 185. 5 Toledo, etc., R. Co. v. Levy, 127 Ind. 168, 26 N. E. R. 773. ^Long V. New York, etc., R. Co., 50 N. Y. 76; Louisville, etc., R. Co. v. 2212 CARBiERS. § 1424 § 1424. Construction of bills of lading.— As with other con- tracts, the meaning of the parties is to be gathered from the bill as a whole;' and, there being both a bill of lading and a shipping note, executed and delivered simultaneously and re- lating to the same matter, they constitute one agreement.' In case of doubt a bill of lading should generally be construed strictly, but reasonably, against the carrier.' Written portions prevail over contradictory printed portions.' And a memoran- dum written on the margin of the bill of lading may be as valid as if written in the body of the bill." Other general rules gov- erning the interpretation or construction of bills of lading will be found in another section.' § 1425. Construction of particular words and phrases. — It is held that such abbreviations as "C. 0. D." and "F. 0. B." have by long usage acquired a fixed and well known meaning, and that courts and juries understand without further explana- tion the meaning of such terms,' but it is said by other courts that their meaning can not be considered as judicially settled so that judicial notice can be taken of the purpose for which Wilson, 119 Ind. 352, s. c. 21 N. E. R. 62 Hun 227, 23 N. Y. S. R. 15, 5 N. Y. 341 ; Baltimore, etc.. Steamboat Co. v. Supp. 140. See, also, Richmond, etc., Brown, 54 Pa. St. 77; Chouteaux v. R. Co. v. Shomo, 90 Ga. 496. Leech, 18 Pa. St. 224; Richmond, etc., 'Babcock v. Lake, etc., R. Co., 49 R. Co. V. Shomo, 90 Ga. 496. N. Y. 491 ; Miller v. Hannibal, etc., 1 Ashmore v. Pa. S. T. Co., 28 N. R. Co., 24 Hun (N. Y.) 607; Elkins v. J. L. 180; Lawrence v. McGregor, Empire T. Co., 2 Weekly Notes C?s. Wright (Ohio) 193; Heineman u. (Pa.) 403; Lebeau v. Gen. S. N. Co., Grand T. R. Co., 31 How. Pr. CN. Y.) 42 L. J. C. P. 1, 8 L. R. C. P. 88. 430. The shipper is not bound by a ^Alabama, etc., R. Co. w. Thomaa, clause on the back of the shipping 89 Ala. 204, s. c. 18 Am. St. R. 119; bill, which, apparently by inadvert- Stanard Milling Co. v. White Line, ence, was not struck out, or adapted etc., Co., 122 Mo. 258, s. c. 61 Am. to the terms of the special contract. & Eng. R. Cas. 185, Jennings v. Grand Trunk R. Co., 52 = grown v. Adams, 3 Tex. App. Hun 227, 23 N. Y. S. R. 15, 5 N. Y. (Civil Cases) 462. Supp. 140. The caption is part of the « Pout, § 1425. As to the conflict of bill. Robinson v. Merchants' D. T. laws, seo, post, §§ 1494 1506. Co., 45 Iowa 470; Stewart v. Mer- 'United States Express Co. v. Kee- chants' D. T. Co., 47 Iowa 229 ; United fer, 59 Ind. 263 ; American, etc., Ex- States V. Kimbal, 13 Wall. 636. press Co. v. Schier, 55 111. 140; State ''Jennings v. Grand Trunk R. Co., v. Intoxicating Liquors, 73 Me. 278. § 1425 BILLS OF LADING. 2213 they are used, and that parol evidence may be used to explain them and thus to remove all ambiguity by showing their mean- ing in the contract in which they are employed.' Their tech- nical or customary meaning being thus established, and all ambiguity being removed, it has been held that parol evidence is no further admissible to vary or explain them, and, of course, if the words or terms are used in the ordinary and usual sense as commonly used by everybody, no parol evidence is neces- sary. "Where "C. 0. D." is used it is held that the con- tract of the carrier, in connection therewith, is not only for the safe carriage and delivery of the goods to the consignee but it further contracts with the consignor that it will "collect on delivery" and return to him the charges on such goods.* The phrase "at owner's risk," as used in bills of lading, is con- strued to only exempt the carrier from liability as insurer, and not to exempt him from liability for negligence,' and the in- sertion of the words "at the convenience of the company" will not protect the company in case of unreasonable delay.* It is held that the words "privilege of reshipping" in a bill of lad- ing are intended for the benefit of the carrier, but it is bound for safe delivery to the same extent as if such words did not appear,^ and it has also been held that the general liability of 'Collender v. Dinsmore, 55 N. Y. Ont. App. 601; Baltimore, etc., E. 200, 14 Am. R. 224; Silberman v. Co. v. Eartbone, 1 W. Va. 87; Nash- Olark, 96 N. Y. 522. ville, etc., R. Co. v. Jackson, 6 Heisk. ^United States Express Co. v. Kee- (Tenn.) 271. See post. § 1505. fer, 59 Ind. 263; American, etc., Ex- 'Branch^. Wilmington, etc., E. Co., press Co. V. Schier, 55 111. 140. It has 88 N. Car. 573, s. c. 18 Am. & Eng. R. been held that if the consignee neg- Cas. 621 ; Whitehead v. Wilmington, lects or refuses to take and pay for the etc., R. Co., 87 N. Car. 255, 9 Am. & goods they remain in the carrier's Eng. E. Cas. 168. hands subject only to his liability as a * Broadwell v. Butler, 6 McLean (U. warehouseman. Gibson ti. American, S.) 296. And evidence of usage was etc.. Express Co., 1 Hun 387. See, held admissible. See, also. Little v. also. Pacific Express Co. v. Wallace, Semple, 8 Mo. 99, s. c. 40 Am. Dec. 60 Ark. 100, 61 Am. & Eng. E. Cas. 123 ; Carr v. Steamboat Michigan, 27 170; Eailway Co. v. Cravens, 57 Ark. Mo. 196, s. c. 72 Am. Dec. 257; Mc- 112 ; Weed v. Barney, 45 N. Y. 344. Gregor v. Kilgore, 6 Ohio 358, s. c. 3 Mobile,etc.,E.Oo. v. Jarboe,41 Ala. 27 Am. Dec. 260. 644 ; Fitzgerald t>. Grand Trunk E.Co., 4 Corp. 141 2214 CARRIEES. §1426 the carrier is not restricted by an exception on account of "un- avoidable dangers and accidents of the road." § 1426. As muniments of title— Delivery by carrier.— A bill of lading is regarded as a symbol of the property therein described, and stands in the place of the goods it represents.' If it is issued to the true owner' of goods, it secures his title thereto during the period of transportation while the owner- ship and possession are severed. The carrier must bear the risk of delivering the goods to the person entitled to them un- der the bill and its indorsements.* If there be no reservation by the shipper, the title presumptively rests in the consignee,' 'Walpole V. Bridges, 5 Blackf. (Ind.) 222. See, also, Fowler v. Da- venport, 21 Tex. 626, and Harmony v. Bingham, 1 Duer (N. Y.) 209. But it seems to us that this decision is erroneous. ' Missouri Pac. R. Co. v. Heiden- heimer, 82 Tex. 195, a. c. 17 S. W. R. 608 ; Dodge v. Meyer, 61 Cal. 405 ; Ev- ansville, etc., R. Co. v. Erwin, 84 Ind. 457, s. c. 9 Am. & Eng. R. Cas. 252; Baltimore, etc., E. Co. v. Wilkens, 44 Md. 11. 8 The Idaho, 93 U. S. 575; Blossom V. Champion, 37 Barb. (N. Y.) 554; Dows V. Perrin, 16 N. Y. 325 ; Moore V. Robinson, 62 Ala. 537 ; Saltus v. Ev- erett, 20 Wend. (N. Y.) 267 ; Mechan- ics,' etc., Banku. Farmers' &M. Bank, 60 N Y.40 ; Richardson v. Smith, 33 Ga. (Lester's Sup.) 95 ; Union, etc. , T. Co. v. Yeager, 34 Ind.l ; Craven v. Ryder, 6 Taunt. 433. If the carrier is compelled by legal action to deliver the goods to the true owner, he can not be held for failing to deliver in accordance with the bill. Bliven v. Hudson R. R. Co., 36 N. Y. 403 ; King v. Richards, 6 Whart. (Pa.) 418 ; Bates v. Stanton, 1 Duer (N. Y.) 79 ; Hardman v. Wilcock, 9 Bing. 382; Biddle v. Bond, 6 Best & S. 225 ; Cheegman^.Exall,6Exch.341; Stol- lenwerck v. Thacher, 115 Mass. 224. But see Saltus v. Everett, 20 Wend. 267 ; Pickering v. Busk, 15 East 38. * McEntee v. New Jersey Steamboat Co., 45 N. Y. 34; Bailey v. Hudson River Railroad, 49 N. Y. 70; Hawkins V. Hoffman, 6 Hill 586 ; Devereux v. Barclay, 2 B. & Aid. 702; Guillaume V. Hamburg, etc.. Packet Co., 42 N.Y. 212; Duff V. Budd, 3 B. & Bing. 177; Merchants' D., etc., Co. v. Merriam, 111 Ind. 5. The carrier must recognize all transfers of the bill by indorsement. Walker -v. Detroit, etc., R. Co., 49 Mich. 446, 9 Am. & Eng. R. Cas. 251; Colgate t). Pennsylvania Co., 102 N. Y. 120. Evidence, however, of pre- vious deliveries to one who was nei- ther the consignee nor entitled to the delivery by the terms of the bill of lading, or by its assignment, with the knowledge of the owner of the goods and without any objection having been made by him, has been held to justify such a delivery. Hutchinson on Carriers, (2d ed.) § 1373, citing Ontario Bank v. New Jersey Steam- boat Co., 59 X. Y. 510. ' Congar v. Galena R. Co., 17 Wis. 477; Griffith v. Ingledew, 6 S. & R. (Pa.) 429 ; MoCauley v. Davidson, 13 Minn. 162; Lawrence v. Mintum, § 1426 BILLS OF LADING. 2215 but, under some circumstances, only after his receipt of the bill of lading.' A delivery to him, upon presentation of the bill,^ will discharge the carrier, he having had no notice of the failure of the presumption.' A bill directing delivery to the vendor's order is prima facie evidence that he does not intend that the title shall pass to the vendee, and notice to the carrier that he must not deliver to the consignee without the bill , properly indorsed by the consignor.* A pledgee to whom a 17 How. (U. S.) 100; Krulder v. El- lison, 47 N. Y. 36 ; Watkins v. Paine, 57 Ga. 50; Merchants', etc., Co. v. Smith, 76 111.542; Sedgwick v. Cot- tingham, 54 Iowa 512 ; Toney v. Cor- liss, 33 Me. 333 ; Arnold v. Prout, 51 N. H. 587 ; Schlesinger v. Stratton, 9 E. I. 578. The presumption may be rebutted. Dawes v. Peck, 8 T. R. 330 ; Button V. Solomonson, 3 B. & P. 582; Holbrook o. Wight, 24 Wend. 169; Covell V. Hitchcock, 23 Wend. 611 ; Waldron v. Romaine, 22 N. Y. 368; Stanton v. Eager, 16 Pick. 467 ; Cross V. O'Donnell, 44 N. Y. 661 ; Anderson V. Clark, 2 Bing. 20 ; Walley v. Mont- gomery, 3 East 585 ; Haille v. Smith, 1 B. & P. 563. ' Bruce v. Andrews, 36 Mo. 593 ; Hausman D. Nye, 62 Ind. 485; Mitch- eH V. Ede, 11 Ad. & Ellis 888; Cpnard V. Atlantic I. Co., 1 Peters (U. S.) 386 ; Pratt V. Parkman, 24 Pick. (Mass.) 42; Bank of Rochester v. Jones, 4 N. Y. 497 ; First Nat. Bank v. Crocker, 111 Mass. 163 ; Taylor w. Turner, 87 111. 296. ^ The carrier must ascertain, it has been held, whether a bill was issued, and, if so, deliver only in accordance therewith. City Bank v. Rome, etc., R. Co., 44 N. Y. 136; Furman v. Union Pacific, etc., R. Co., 106 N. Y. 579. A custom at the residence of both the consignee and the holder of a draft with bill attached, of delivery with- out the bill, will justify the carrier in so delivering. Forbes v. Boston, etc.. Railroad, 133 Mass. 154. But such local custom will not prevail against a consignor without knowledge of it. Weyand v. Atchison, etc., Railroad, 75 Iowa 573, nor against a statute requiring delivery only on presen- tation of bill. Colgate v. Pennsyl- vania Co., 102 N. Y. 120. 'O'Dougherty v. Boston, etc., Rail- road, 1 Thomp. & C. 477 ; Sweet v. Barney, 23 N. Y. 335 ; Lawrence v. Minturn, 17 How. 100. The carrier has the right, under such circum- stances, to settle with the consignee a claim for damages for non-delivery. Scammon v. Wells, Fargo & Co., 84 Cal. 311, 24 P. R. 284. * Benjamin on Sales, ch. 6, bk. 2, and cases there cited. Pennsylvania R. Co. V. Stern, 119 Pa. St. 24; North Penn. R. Co. v. Commercial Bank, 123 U. S. 727 ; Watson v. Hoosac Tun- nel Line, 13 Mo. App. 263; Libby v. Ingalls, 124 Mass. 503; Furman v. Union Pac, etc., R. Co., 106 N.Y. 579; Joslyn V. Grand T. R. Co., 51 Vt. 92; First Nat. Bank ». Northern Railroad Co., 58 N. H. 203; Boatmen's, etc., Bank v. Western, etc.. Railroad, 81 Ga. 221 ; Bass v. Glover, 63 Ga, 745 ; Holmes v. Bailey, 92 Pa. St. 57; Ma- son V. Great W. R, Co., 31 U. C. Q. B. 73 ; Halsey v. Warden, 25 Kan. 128 ; Alderman v. Eastern R. Co., 115 Mass. 233; Commercial Bank v. Pfeiffer, 22 Hun 327; Security Bank v. Luttgen, 29 Minn. 363 ; Jenkyns v. Brown, 14 2216 CARRIERS. § 1427 bill has been delivered has, in general, the same rights as a purchaser for value, and may maintain an action of replevin for the possession.' § 1427. Effect of direction in bill of lading to "notify" some designated person. — A direction in a bill of lading to consignor's order to "notify" some one else, does not warrant the carrier in delivering the property to the person so to be notified without the production of the bill of lading.* The use of the term "notify" shows that the party to be notified was not intended as the consignee, but was simply to be advised of the arrival of the goods." The fact that a bill of lading is Q. B. 496 ; Ellershaw v. Magniac, 6 Ex. 569 ; Oggc. Shuter, L. R. 1 0. P. Div. 47. So with a bill directing delivery to the order of the vendor's agent. The St. Joze Indiano, 1 Wheat. 208 ; Dows v. Nat. Ex. Bank, 91 U. S. 618. There is the same presumption where the vendor assigns the bill to one who discounts a draft. The title only passes with the acceptance or payment of the draft. Dows v. Nat. "Ex. Bank, 91 U. S. 618; Alderman v. East- ern R. Co., 115 Mass. 233; Stollen- werck v. Thacher, 115 Mass. 224; Jen- kynsti. Brown, 14 Q. B.496; People's, etc.. Bank v. Stewart, 3 P. & B. (19 New Bruns.) 268. "It is no excuse," says the court in The Thames, 14 Wall. (U. S.) 98, "for a delivery to the wrong person that the indorsee of the bills of lading was unknown, if indeed he was, and that notice of the arrival of the cotton could not be given. Dil- igent inquiry for the consignee at least was a duty, and no inquiry was made. Want of notice is excused when a con- signee is unknown or is absent or can not be found after diligent search. And if, after inquiry, the consignee or indorsees of. a bill of lading for deliv- ery to order can not be found, the duty of the carrier is to retain the goods until they are claimed, or store them prudently for and on account of the owner. He may thus relieve himself from a carrier's responsibil- ity. He has no right, under any cir- cumstances, to deliver to a stranger." An invoice furnishes no proof of title, and the carrier is not justified in rely- ing on it in making delivery. Penn- sylvania Co. u. Stern, 119 Pa. St. 24. As to factors receiving bills, see Rice V. Austin, 17 Mass. 197; Vall^ v. Carr6, 36 Mo. 575; Davis v. Bradley, 24 Vt. 55 ; Wade v. Hamilton, 30 Ga. 450. 'Fifth Nat. Bank v. Bayley, 115 Mass. 228; First. National Bank v. Dearborn, 115 Mass. 219; Dows v. Nat. Ex. Bank, 91 U. S. 618; Tilden V. Minor, 45Vt. 196; Farmers', etc., &M. Bank ■!). Logan, 74 N. Y. 568; Marine Bank v. Wright, 48 N. Y. 1. " National Bank v. Atlanta, etc., Co., 25 S. Car. 216; Libby v. Ingalls, 124 Mass. 503; North ». Merchants', etc., Co., 146 Mass. 315, s. c. 15 N. E. R. 779; Joslyn v. Grand T. R. Co., 51 Vt. 92; North Pennsylvania R. Co. v. Commercial P.ank, 123 U. S. 727, B. c. 8Sup. Ct. R. 266; Furman v. Union Pac.,etc., R. Co., 106N. Y. .579. And the bill must usually be indorsed, in such a case, by the consignor. ^ Union Stock Yards Co. v. Weat- cott, (Neb.) 66 N. W. R. 419, 422; Furman v. Union Pac. R. Co., 106 §1428 BILLS OF LADING. 2217 made out to the consignor's order makes this still plainer. Indeed, it has been held that such a contract is so plain and unambiguous that a custom in a certair. city to deliver property under similar bills of lading to the person to be notified can not be shown.* § 1428. Bills of lading assignable, but not negotiable. — As already stated, bills of lading are not negotiable as commercial paper, ^ and any defense available against an action by the shipper is generally available against one by an innocent holder for value.' They are, however, assignable, and in a N. Y. 579. It has been said that if he were the consignee such di- rection would be unnecessary, for it is the duty of a carrier to notify the consignee upon the arrival of the goods anyway. North Pennsylvania R. Co. V. Commercial Bank, 123 U. S. 727, s. c. 8 Sup. Ct. E. 266. 1 Bank of Commerce v. Bissell, 72 N. Y. 615. It is common practice to forward such bills of lading with a draft on the purchaser which he is to pay before obtaining the goods. As to the effect of this, see Hieskell v. Farmer's, etc., Bank, 89 Pa. St. 155; National Bank v. Merchants' Bank, 91U."S. 92; Dows D. National, etc., Bank, 91U. S. 618; Marine Bank i7. Wright, 48 N. Y. 1 ; Commercial Nat. Bank v. Chicago, etc., R. Co., (111.) 43 N. E. R. 756; Tiedeman Com- mercial Paper, § 494, and authorities cited in preceding notes to this sec- tion. ' Friedlander v. Texas & P. R. Co., 130U.S. 416, 40 Am. & Eng. R. Cas. 70 ; StoUenwerck v. Thacher, 115 Mass. 224 ; Am. notes to Lickbarrow v. Ma- son, 2 T. R. 63, 1 Smith's Leading Cas. Sth'ed. 1159 ; Douglas ». People's Bank, 86 Ky. 176, s. c. 5 S. W. R. 420. Many statutes have been enacted for the pur- pose of making bills of lading negotia- ble, but they are generally held not to make them negotiable in the fullest sense, as commercial paper. For the construction of respectively the Penn- sylvania and the Maryland statutes, see Shaw v. Railroad Co., 101 U. S. 557; Tiedeman v. Knox, 53 Md. 612. For construction of Minnesota statute, see National Bank v. Chicago, etc., R. Co., 44 Minn. 224, s. c. 46 N. W. R. 342. In Knight v. St. Louis, etc., R. Co., 141 111. 110, s. c. 30 N. E. R. 643, it was held that an assignee of a bill of lading can not sue the carrier in his own name for failure to transport and deliver the goods according to the con- tract, since bills of lading are non-ne- gotiable. 'Hazard v. Illinois, etc., R. Co., 67 Miss. 32, 7 So. R. 280, 42 Am. & Eng R. Cas. 455. In Boatman's Savings Bank v. Western, etc., R. Co., 81 Ga. 221, 7 S. E. R. 125, the plaintiff, to whom a bill of lading and draft had been indorsed for value, presented the draft for acceptance. The acceptance was refused on the ground that the goods had been sold on sixty days' time, the drawees promising to ac- cept such draft. The bank having possession of the bill, the railroad company delivered the goods to the purchasers, who were drawees of the draft, after which such purchasers executed their note for the price of 2218 CARRIERS. § 1428 larger than usual sense inasmuch as their assignment con- stitutes a complete legal delivery of the goods.' But, as a rule at least, a fraudulent assignment is no excuse for the delivery of the goods to any one, even a bona fide purchaser for a valuable consideration, other than the true owner.'' The con- signor's rights under the bill may be transferred by its delivery and indorsement,' and a delivery without indorsement will convey the title if the intention is clear.* It has also been "held that the indorsement may be made conditional or restrictive. the goods, as of the date of the bill and draft, payable in sixty days. The note was discounted by the bank for value, without notice that it was for the goods described in the bill of lad- ing, or that the goods had been delivered to the makers. It was held that the bank could recover on the bill of lading, although the makers paid the note, the latter not being for the exact amount of the draft. 'Benjamin on Sales, §813; Meyer- stein V. Barber, L. R, 2 C. P. 38; Michigan 0. R. Co. v. Phillips, 60 111. 190; Stone v. Wabash, etc., R. Co., 9 111. App. 48; Burton v. Curyea, 40 111. 320; McKee v. Garcelon, 60 Me. 165; Robinson v. Stuart, 68 Me. 61 ; Stone V. Swift, 4 Pick. 389 ; Forbes v. Boston, etc., R. Co., 133 Mass. 154; Davis u. Bradley, 28 Vt. 118; Tilden v. Minor, 45 Vt. 196; Joslyn v. Grand T. R. Co., 51 Vt. 92; Hazard v. Fiske, 83 'n. Y. 287; Dodge v. Meyer, 61 Cal. 405; Campbell v. Alford, 57 Tex. 159. See, also, Blackburn on Sales, 297; Hat- field V. Phillips, 9 M. & W. 647 ; Sew- ell V. Burdick, 52 L. T. R. 445, and cases therein reviewed. The rights of an assignee for value are equal to, but not greater than, those of the assignor. Haas V. Kansas City, etc., R., 81 Ga. 792 ; Tison v. Howard, 57 Ga,4]0 ; Shaw V. Railroad Co.. 101 U. S. 557. And the assignee's title is superior to the lien claim of a person to whom the carrier delivered the property, for charges against the transferrer on prior consignments. Dickson v. Mer- chants' Elevator Co., 44 Mo. App. 498. ^Gurney v. Behrend, 3 El. & Bl. 622; Shaw v. Railroad Co., 101 U. 8. 557 ; Brower v. Peabody, 13 N. Y. 121 ; Decan v. Shipper, 35 Pa. St. 239; Dows V. Perrin, 16 N. Y. 325 ; Compare Dews V. Greene, 24 N. Y. 638. 8 The Thames, 14 Wall. (U. S.) 98. * Jeffersonville, etc., R. Co. v. Irvin, 46 Ind. 180 ; Gibson v. Stevens, 8 How. 384, 400; Merchants' Bank ». Union R. Co., 69 N. Y. 373 ; Bank of Roches- ter ti. Jones, 4 N. Y. 497; Baltimore, etc., R. Co. V. Wilkens, 44 Md. 11; Nathans v. Giles, 5 Taunt. 558; Al- len V. Williams, 12 Pick. 297; First Nat. Bank v. Dearborn, 115 Mass. 219; Holmes v. Germ. Sec. I'.ank, 87 Pa. St. 525; Campbell v. Alford, 57 Tex. 159; M. C. R. Co. v. Phillips, 60 111. 190; Davenport Banki). Homeyer, 45 Mo. 145; Fowler v. Meikleham, 7 Low. Can. 367; Glidden v. Lucas, 7 Cal. 26; Dodge v. Meyer, 61 Cal, 405. That the consignor may show an in- tention to the contrary, see Alabama, etc., K. Co. V. ]\It. Vei-nou Co., 84 Ala. 173, s. c. 4 So. R. 356. § 1429 BILLS OF LADING. 2219 as well as unconditional or in blank, and where it is so made the indorsee takes it subject to the conditions or restrictions.' § 1429. Rights of bona fide purchasers and other third per- sons who hold bills of lading. — As we have seen, the weight of authority is to the effect that where no goods are actually re- ceived by the carrier it is not liable upon a bill of lading even to a bona fide purchaser. But a question as to the rights of bona fide purchasers frequently arises in other cases where the goods have been delivered to the carrier. It has been held that a purchaser of a bill of lading who has reason to believe that his vendor was not the owner thereof, or that it was held to secure an outstanding draft, is not a bona fide purchaser and is not entitled to hold the goods covered by the bill against their true owner. ^ But a pledgee who holds the bill as collat- eral security for money loaned or advanced thereon has, in general, the same rights, so far as the exercise of them is nec- essary for his protection, as a purchaser for value, and, in the , absence of anything to the contrary, is to that extent at least a bona fide purchaser.' So, it has been held that one who clothes another with indicia of ownership, thereby putting it ' Barrow t). Coles, 3 Camp. 92; Wal- lent vendee will acquire a good title ley V. Montgomery, 3 East 585. to the goods. Dows v. Greene, 24 N. 2 Shaw V. Railroad Co., 101 U. S. Y. .638; Pease v. Gloahec, L.E.I Privy 557. See Alderman v. Eastern R. C. App. 219. Co., 115 Mass. 233; Mason v. Great ^ Dows t). National, etc., Bank, 91 U. Western R. Co., 31 U. 0. Q. B. 73. S. 618; Marine Bank t). Wright, 48 N. This is true where a bill of lading is Y. 1; Tilden v. Minor, 45 Vt. 196; found or stolen by the transferrer and Dymock v. Missouri R. Co., 54 Mo. transferred by him to an innocent App. 400; Fifth Nat. Bank «. Bayley, third party. Gurney v. Behrend, 3 El. 115 Mass. 228. See, also, Bank of Roch- &B.622;Dowsi;.Perrin, 16N. Y. 325; ester ?;. Jones, 4 N. Y. 497; First Barnard v. Campbell, 55 N. Y. 456; Nat. Bank v. Crocker, 111 Mass. 163. Emery v. Irving Nat. Bank, 25 Ohio As to the effect of such a pledge on St. 360; Moore v. Robinson, 62 Ala. the vendor's right of stoppage in 537. But if the bill of lading has been transitu, see Missouri Pac. R. Co. v. actually transferred by the real owner, Heidenhamer, 82 Tex. 195, s. c. 17 S. although the assignment and transfer W. R 608, and compare Dymock v. has been procured from the owner of Missouri, etc., R. Co., 54 Mo. App. the goods by fraud, the bona fide 400. holder by purchase from the fraudu- 2220 CARRIERS §1429 in his power to deal with a thing as his own, is estopped from asserting a better title as against a bona fide purchaser for value who has no knowledge of such title.' Where a firm was en- gaged in mercantile business at one station on a railroad and had a mill at another, and a member of such firm was the rail- road agent at the latter place, but the business at both places was practically conducted at the former, it was held that the railroad company, having knowledge of the manner of con- ducting business, was liable to innocent holders of bills of lad- ing taken as collateral by them, without knowledge of any irregularity, after delivery to the firm at the latter station of goods which had been shipped by them from the former sta- tion, the goods being delivered without presentation of the bills of lading.^ But, in another case, where the railroad company was not in fault, it was held that it was not liable to a bank which had taken bills of lading for grain as security for a loan to the indorsee and had then permitted him to obtain posses- sion of them, whereby he secured the grain from the company.' One who takes a bill of lading merely as security for, or in con- sideration of an antecedent indebtedness is not a bona fide pur- chaser for value.* But the surrender by a pledgee of a bill of ^ Dymock v. Missouri, etc., R. Co., in the possession of a compress com- 54 Mo. App. 400. See, also, Wichita pany as agent for the shipper and be- Sav. Bank v. Atchison, etc., R. Co., fore delivery to the carrier was de- 20 Kan. 519, (a case to some extent stroyed by fire. contrary to the weight of authority) ; 'Douglas v. People's Bank, 86 Ky. Farmers', etc., Bank v. Erie R. Co., 72 176, s. c. 5 S.W. R. 420, citing Newsom N. Y. 188; Western Union R. Co. ». v. Thornton, 6 Bast 17; Hatfield v. Wagner, 65 III. 197. Phillips, 9 M. & W. 647; Meyerstein * Walters v. Western, etc., R. Co., v. Barber, L. R., 2 C. P. 38. 56 Fed. R. 369. But see Friedlander u. *Dymock v. Missouri, etc., R. Co., Texas, etc., R. Co., 130 U. S. 416, s. c. 9 54 Mo. App. 400 ; Skilling v. Bollman, Sup. Ct. R. 570; Missouri Pac. R. Co. 73 Mo. 665; Loeb v. Peters, 63 Ala. V. McFadden, 154 U. S. 155, s. c. 14 243; Harris v. Pratt, 17 N. Y. 249; Sap. Ct. R. 990. In the last case just Naylor v. Dennie, 8 Pick. (Mass.) 198. cited it was held that a railroad com- See, also, Busenbarkeu. Ramey,53 Ind. pany was not liable to an assignee 499; Retry v. Ambrosher, 100 Ind. without notice on bills of lading for 510. But see contra (under a statute) cotton which, according to agreement Tiedeman v. Knox, 53 Md. 612. We and the course of deahng between the do not mean that such a considera- carrier and the shipper, had been left tion may not support the contract as § 1430 BILLS OF LADING. 2221 lading securing a loan has been held to be a sufficient con- sideration for the substitution, as security, of a bill of lading antedating the loan.' § 1430. Duplicate bills. — Where a bill of lading is issued in duplicate, one marked "Original" and one "Duplicate," the duplicate is, in effect, an original.' But if the bill of lad- ing given to the shipper and the duplicate retained by the carrier differ, the former controls.' A purchaser of goods to be paid for on delivery of the bill of lading is bound to pay on the tender of a duly indorsed bill which is effective to pass the property, notwithstanding that the bill was drawn in trip- licate, and that all the copies were not tendered or accounted for.* If duplicate bills are given to the shipper who indorses one which is attached to a draft and forwards the other as a notice to the purchaser, the carrier must deliver only on the presentation of the indorsed copy.' Where a carrier issued original bills of lading to the order of the shipper, stating that the goods were in its possession to be delivered only on their presentation and not conditioned to be void in case of delivery on duplicate bills, it was held that the fact that du- plicate bills were also issued and that the carrier had deliv- ered the goods to the shipper on presentation and surrender of the duplicate bills did not relieve it from liability on the original bills to one who had taken them in good faith as pledgee to secure a loan made by him to the shipper upon between the parties, but we refer to 75 Iowa 573, 39 N. W. E. 899 ; Congar cases in which there are prior equities v. Galena, etc., E., 17 Wis. 477; Krul- or the rights of innocent third parties der v. Ellison, 47 N. Y. 36 ; Lawrence are involved in gome way. v. Minturn, 17 How. 100; Alderman v. • Midland Nat. Bank I). Missouri Pac. Eailroad, 115 Mass. 233; Merchants' E. Co., (Mo.) 33 S. W. E. 521. Bank v. Union, etc., Transportation 2 Missouri P. E. Co. v. Heiden- Co., 69 N. Y. 374; Shaw t>. Eailroad heimer, 82 Tex. 195, 17 S. W. E. 608. Co., 101 U. S. 557; McEwen v. Jeffer- » The Thames, 14 Wall. (U. S.) 98; sonville, etc., E. Co., 33 Ind. 368; Ontario Bank v. Hanlon, 23 Hun (N. Newcomb v. Boston, etc., E., 115 Y.) 283. Mass. 230. See as to the rule where ' Sanders v. MacLean, L. E. 11 Q. B. the indorsed duplicate is obtained by Div. 327. fraud, Shaw v. Eailroad Co., 101 U. 8. 'Weyand v. Atchison, etc., E. Co., 557. 2222 CARRIERS. § 1431 such bills.' It is frequently stated as a general rule, however, that where bills of lading are issued in "sets" or "parts" to the order of the shipper or consignee the property usually passes to the first indorsee or transferee, but the carrier ia justified in delivering the goods to him on presentation by him of one of the parts or sets, although there has been a prior indorsement or assignment to another person for value of another set or part, provided the carrier has no notice or knowledge thereof and acts in good faith, but in most of the cases in which this rule is announced the bills of lading pro- vided that, one of them "being accomplished, the other shall stand void," or contained some other similar provision. ' § 1431. Change of consignment by shipper. — Where the con- ditions of shipment are not such that delivery to the carrier vests the title in the consignee," the consignor, not having for- warded the bill to the consignee or his representative,' may, after surrendering to the carrier the bill and all copies thereof," order the delivery to another consignee, even if the goods have at the time passed into the possession of a connecting carrier.' So, it has been held that where the consignor forbids a delivery to the consignee there is no presumption that the latter is the owner of the goods, and that the former, even after receiving a bill of lading, can make the delivery to the consignee condi- tional on the payment of a draft.' 'Midland Nat. Bank v. Missouri *Blanciiard v. Page, 8 Gray, 281; Pac. E. Co., (Mo.) 33 S. W. E. 521. Mitchel v. Ede, 11 Ad. & El. 888; ^SeeGlyn, etc., Co. ■«. East & West, Buck v. Hatfield, 6 Barn. & Aid. etc., Co., L. E. 7 App. Cas. 591. 632; Thompson v. Trail, 2 Car. &P. ' See supra under sub-title As Muni- 334. ments of Title. If the title has vested * Hubbersty v. Ward, 8 Exch. 330. in the consignee the carrier may not, 'Sutherland v. Second Nat. Bank, of course, permit a change of destina- 78 Ky. 250; Chaffeu. Mississippi, etc., tion without the consignee's consent. E., 59 Miss. 182. Philadelphia, etc., E. Co. ■u.Wireman, 'Louisville, etc., E. Co. v. Hartwell, 88 Pa. St. 264; Bailey v. Hudson (Ky.) 36 S. W. E.183. Eiver, etc., E. Co., 49 N. Y. 70. CHAPTER LVIII. THE INITIAL CARRIER. f t432. Duties of fnitial carrier gen- erally. J433. No extra - terminal liability unless by contract. 1434. There may be liability by con- tract. 1435. "What constitutes such a con- tract. 1436. Illustrative cases. 1437. Authority of agents as to ex- tra-terminal liability. § 1438. Exclusion of liability by con- tract. 1439. Eule when statute makes ini- tial carrier liable for negli- gence of others. 1440. Liability for deviation or fail- ure to obey instructions. 1441. Actions on account of extra- terminal defaults. § 1432. Duties of initial carrier generally. — As a general rule, no carrier is bound by law to accept and carry goods be- yond the terminus of its own line. In the absence of any agreement, either express or clearly implied, for transporta- tion beyond its own line, the common law duty of an inde- pendent carrier is performed by safely transporting the goods over its own line and delivering them to the consignee or connecting carrier, as the case may be.' If, in such a case, the goods are to be delivered by the initial carrier to a con- necting carrier for further transportation, the former is consid- ered as a forwarding agent rather than a carrier as to such further transportation, and is not liable for the default of subsequent carriers. Its whole duty is not always performed, however, ' See post, § 1449. As to what will not excuse it from delivery to the connecting carrier, see Blodgett v. Abbot, 72 Wis. 516, s. c. 40 N. "W. R. 491, 7 Am. St. R. 873; McLaren v. Detroit, etc., R. Co., 23 Wis. 138. Where there is no express contract (2223) and no business connection between the two roads and no agent at their junction the first company is not lia- ble for failure to deliver to such con- necting carrier. St. Louis, etc., R. Co. V. Marrs, (Ark.) 31 S. W. R. 42. 2224 CARRIERS. § -l-ib3 by merely tendering the goods to the connecting carrier. If the latter rolusos to receive them, it is generally the duty of the initial carrier to notify the consignor or the consignee without unreasonable delay and to store or otherwise take care of the goods for a reasonable time while awaiting instructions/ and, in some cases, especially whore the goods are known to be perishable, it may bo the duty of the initial carrier as a forwarding agent or depository, if an emergency exists, to for- ward them by some other carrier, if the carrier designated is unable to receive them." So, where instructions are given to it with the goods to be transmitted to succeeding carriers, it is the duty of such initial carrier to duly transmit them to the connecting carrier." As we shall hereafter see, although the general rule is that an independent carrier is under no duty to transport goods beyond its own line, it may incur that ob- ligation by holding itself out as a carrier beyond its own line or may become liable for the default of connecting carriers by contract or by reason of some custom or arrangement which entitles the shipper to treat them as partners. § 1433. No extra-terminal liability unless by contract. — The general rule is that a carrier is not liable beyond its own line unless by contract.' But if an initial carrier contracts 'Lesinsky v. Oreat Western Dis- Reynolds v. Boston, etc., R. Cio., 121 patch, 10 Mo. AiJjj. 134; Louisville, Mass. 291. etc., R. Co. II. Oampliell, 7 Ileisk. 'Berg v. Atchison, etc, R. Co., 30 (Tenn.)253; 7»re IVttir.scn t).CaH(^ 21 Kan. SCI; Hunter t). So. P. R. Co., 76 Fed. R. 885; pnU, § 1449. See, also, Tox. 1115, l:!S.W. R. 190; Cincinnati, Railroad Co. v. Miuiufactiiring Co., 10 etc., 11. Co. i). I'oiitiiiB, 19 Ohio St. 221 ; Wair. (U. S.) 318. Mc(!(.nnell v. Norfolk & W. K. Co., 86 'See Regan V. Grand Trunk R. Co., Va. :il8, 9 S. K. U. 1000; Detroit, 61 N. 11. .579. (.|,,-., K. (!,,, -0. Fanners', etc., Hank, * North V. Merchants' Transporta- 20 Wis. i'22; Sumner v. Walker, 30 tionCo.,146Mass.315, B.C. 15N.E. U. Fed. R. 201; (iray v. Jackson, 51 779; Little Miami R. Co. B.Washburn, N. II. 9; Crom^h v. Louisville, etc., 22 0hioSt. 324; Dana B.NewYork,et(-., It. Co., 42 Mo. App. 248; Piedmont R. Co., 50 How. Pr. (N. Y.) 428; note M. Co. v. C!olumbia, eti,.. Railroad, 19 in 40 Am. & Eng. R. (!as. 142. So it S. C. 353; Savannah, \<\ & W. R. Co. may be its duty to deliver a freight v. Harris, 20 Fla. 148, 8 R. R. & Corp. bill and voucher to llie connecting L. .1. 1()H, 42 Am. &. Enj,'. R. Cas. 457, company in accordance with custom. 7 So. 5. V. Harris, 26 Fhi. 148, 7 So. R. 544; Stewart v. Terre Haute, etc., R. Co., 1 McCrary 312, s. c. 3 Fed. R. 708; Hadd v. United States, etc., Ex. Co., 52 Vt. 3.35; Knott v. Raleigh, etc., R. Co., 98 N. C. 73, 3 S. E. R. 735, 2 Am. St. R. 321; Hunter v. Southern I'. R. Co., 76 Tex. 195, 42 Am. & Eng. R. Cas. 501, 13 S. W. R. 190; International & G. N. R. Co. v. Tisdale, 74 Tex. 8, 4 L. R. A. 545, 11 S. AV. R. 900. ' As to such contracts see Harris v. Grand Trunk Ry., 15 R. I. 371, 5 Atl. R. 305; OHt V. Minneapolis, etc., R. Co., 36 Minn. 396, 31 N. W. R. 519; Quimby v. Vanderbilt, 17 N. Y. 306 ; International, etc., R. Co. v. Tisdale, 74 Tex. 8 ; Berg v. Narragansett Steam- ship Co., 5 Daly 394 ; Candee v. Penn- sylvania Railroad, 21 Wis. 582 ; Rail- road Co. V. Androscoggin Mills, 22 Wall. 594 ; Robinson v. Merchants' D. T. Co., 45 Iowa 470; Root v. Great Western R. Co., 45 N. Y. 524; Rail- road Co. k. Pratt, 22 Wall. 123; Hill Man. Co. v. Boston, etc.. Railroad, 104 Mass. 122 ; Gray v. Jackson, 51 N. PI. 9 ; Woodward v. Illinois Cent. Rail- road, 1 Biss. 403; Knight v. Portland, etc.. Railroad, 66 Me. 234; Milnor v. New York, etc., R. Co., 53 N. Y. 363; Nashville, etc., R. Co. v. Sprayberry, 9 Ileisk. 852; Brooke v. Grand Trunk Railway, 15 Mich. 332 ; Ilartan v. East- ern Railroad, 114 Mass. 44; Stimpson V. Connecticut, etc.. Railroad, 98 Mass. 83; Ellsworth v. Turtt, 26 Ala. 733; Kesslor v. New York, etc.. Railroad, 7 Lans. 62 ; Hood v. Railroad, 22 Conn. 1 ; Elmore v. Naugatuck Railroad, 23 Conn. 457; Sprague i;. Smith, 29 Vt. 421. The receipt considered in Han- sen V. Flint & P. M. R. Co., 73 Wis. 346, 41 N.W. R. 529, was as follows: "Shipped by R. P. & Co., the follow- ing articles, in good order, to be delivered in like good order, as ad- dressed, without unnecessary delay." "Consigned to II. & K., Onekama, Mich." It was held that this was a contract to carry the goods to One- kama, there boiiij^ nothing in the in- strument limiting defendant's liability to its own route. For construction of contract by trustees in possession of a railroad, see Tolman v. Abbot, 78 Wis. 192, 47 N. W. R. 264. A railroad company which received goods at Akron, Pennsylvania, for St. Augus- tine, Florida, marked "via Philadel- phia, care Atlantic Coast Line Fast § 1435 THE INITIAL CARRIER. 2229 plied even from the shipper's payment or guaranty to the ini- tial carrier of through freight.' An undertaking, however, in the receipt for the goods, "to forward" them beyond its line is generally held to bind the initial carrier for the entire carriage.^ And the fact that the initial company named the through rate and collected the entire charge has been held, in some jurisdic- tions, to be a circumstance strongly tending to show a con- tract for through transportation by it or such a ' ' connection in business" as to make the first carrier liable over the entire route.' What constitutes such a contract is a matter of gen- Freight," and forwarded the goods from Philadelphia by steamer, was held liable for a loss by fire on the steamer. Philadelphia, etc., E. Co. v. Beck, 125 Pa. St. 620, 17 Atl. E. 505. » Illinois Cent. E. Co. v. Kerr, 68 Miss. 14, 8 So. E. 330; ^tna Ins. Co. t-. "Wheeler, 49 N. Y. 616; Camden E. Co. V. Forsyth, 61 Pa. St. 81 ; Lamb v. Camden, etc., E. Co., 46 N. Y. 271; Piedmont Mfg. Co. v. Columbia, etc., E. Co., 19 S. Car. 353, s. c. 16 Am. & Eng. E. Caa. 194; Hill v. Burlington, etc., Eailroad, 60 Iowa 196; Wash- burn, etc., Co. V. Providence, etc., E. Co., 113 Mass. 490. See, also, McCon- nell V. Norfolk, etc., E. Co., 86 Va. 248, s. c. 9 S. E. E. 1006; Ft. Worth, etc., E. Co. V. Williams, 77 Tex. 121, B. c. 13 S. W. E. 637, s. c. 42 Am. & Eng. E. Caa. 464. But a company re- ceiving goods marked for delivery be- yond its line and requiring of the shipper an advance deposit equal to the amount to be earned by the several carriers over the entire distance, is bound to so deliver the goods into the possession of the carrier connecting with it as to place the latter under the same obligation as if the goods had been received from the consignor with advance payment of freight. Palmer V. Chicago, B. & Q. E. Co., 56 Conn. Corp. 142 137, 13 Atl. E. 818. A contract to transport and to deliver goods to the road's connecting lines for transporta- tion to a destination off its line, at a fixed rate for the whole distance, held to be a through bill of lading. Gulf, etc., E. Co. V. Vaughn, (Tex.) 16 S. W. E. 775. ^ East Tennessee &Va.E. Co.u. Eog- ers, 6 Heisk. 143, s. c. 19 Am. E. 589; Cutts V. Brainerd, 42 Vt. 566, s. c. 1 Am. E. 353; St. Louis, etc., E. Co. o. Piper, 13 Kan. 505; Mercantile' Mut. Ins. Co. V. Chase, 1 E. D. Smith, 115; Nashua Lock Co. v. Worcester, etc., E. Co., 48 N. H. 339; Wilcox v. Par- melee, 3 Sand. 610; Schroeder v. Hud- son Eiver, etc., E., 5 Duer 55; Davis V. Jacksonville, etc.. Line, 126 Mo. 69, a. c. 28 S. W. E. 965 ; Buckland v. Adams Ex. Co., 97 Mass. 124. But see Eeed ■». United States Ex. Co., 48 N. Y. 462; Dunbar v. Port Eoyal, etc., E. Co., 36 S. Car. 110, s. c. 55 Am. & Eng. E. Caa. 466; American Ex. Co. V. Second Nat. Bank, 69 Pa. St. 394; Crawford v. Southern E. Assn., 51 Miss. 222. 'Page 1). Chicago, etc., E. Co., (S. Dak.) 64 N. W. E. 137 ; Ogdensburg, etc., E. Co. V. Pratt, 22 Wall. (U. S.) 123, 132; Condict v. Grand Trunk E. Co., 4 Lans. 106; Eootti. Great West- 2230 CARRIERS. § 1436 eral law upon which the federal courts will exercise their own judgment, and the decisions of the state court are not binding upon them.' § 1436. Illustrative cases. — In Illinois, although the rule in Muschamp's case is followed in that state, it has been held that the receipt of goods in New York addressed to Blooming- ton, Illinois, did not bind the carrier to deliver the goods at Bloomington where the bill of lading, after acknowledging the receipt of the goods so addressed, specified that they were to be forwarded to "Chicago depot only."^ So an offer by a common carrier to " take" peas from a point on its line to a point on another line via a certain route has been held to be merely an offer to take them for carriage over its own line and then to deliver them to the next carrier on the route named, to be forwarded by the latter.' In another case the agent of a railroad company received goods which the shipper desired to send to Monroe, Louisiana, a point beyond the terminus of such road, and executed a bill of lading acknowledging the re- ceipt of such goods "to be laden on the freight car, 1 bale bed- ding, J. F. Phillips, Monroe, La., marks, etc., as per margin (condition of contents unknown) to or assigns at station," at the same time saying to the shipper that the goods would reach Monroe in good condition in a few days. The court held that this was not sufficient to show a special con- tract on the part of the company to carry to Monroe and there deliver the goods to the plaintiff.' In another case the carrier ern R. Co., 45 N. Y. 532; Weed thereof is not of itself sufficient to V. Saratoga, etc., R. Co., 19 Wend, make the carrier liable over the entire (N. Y.) 534; Nashua Lock Co. v. route. Worcester, etc., R. Co., 48 N. H. ' Myrick i;. Michigan Cent. R. Co., qqi 3.39; Chouteaux v. Leech, 18 Pa. St. 107 U. S. 102, s. c. 1 Hup. Ct. R. 425. 224; Camden v. Pennsylvania R. Co., ^ Merchants', etc., Co. v. Moore, 88 21 Wis. .582, 8. c. 94 Am. Dec. .566; 111. 136, s. c. 30 Am. R.541. See Wa- ll ill, etc , Co. ti. Boston, etc., R. Co., bash, etc., R. Co. v. Jaggerman, 115 104 Mass. 122. This, of course, would 111. 407, s. c. 4 N. E. R. 641. follow whenever the courts have 'Harris ?;. Grand Trunk R., 15 R. I. adopted the rule in Muschamp's case, 371, s. c. 5 Atl. R. 305, and note. See, but in other jurisdictions the weight also, Myrickr. Michigan Cent. R. Co., of nuthority is that such fixing of 107 U. S. 102, s. .-. 1 Sup. Ct. R. 425. throii'_rb rates and rcr-eiving payment 'Phillipsv. North Carolina R. Co., § 1436 THE INITIAL CARRIER. 2231 gave a receipt for the goods "in good order, to be delivered in like good order," and placed on the margin thereof the con- signee's name and address, the latter being a point beyond de- fendant's line on a connecting road. Cards were also put on the goods giving the name and address of the consignee and the name of the connecting road. It was held that this did not constitute a contract for through carriage so as to render the first carrier liable for loss beyond its own line.' On the other hand, where a bill of lading was issued by an associa- tion of several railroads in the name of the association whereby it agreed, without naming any of the railroad companies, to carry goods from Boston to Chicago and there deliver them to connecting lines to be forwarded to Denver, it was held that it was a special through contract to Chicago, and that the constit- uent companies were liable jointly and severally for any loss or damage to the goods between Boston and Chicago, notwith- standing a provision that in case of loss or damage to the goods "that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening thereof."* Substantially the same view was taken by another court in a similar case recently decided.' In another case a box was delivered to a railroad company for shipment beyond its line, and a receipt was executed by it describing the goods with the consignee's name and address and contain- ing a promise upon the part of the company to forward them by its railroad and deliver them "to at its depot in ." The blanks were in a regular printed form and were so left 78 N. Car. 294. See, also, Ortt v Min- Co., 9 Am. & Eng. E. Cas. 36 ; Balti- neapolis, etc., R. Co., 36 Minn. 396. more, etc., Co. v. Brown, 54 Pa. St. 77 'Wright ?;. Houghton, 22 Barb. (N. Milne v. Douglass, 13 Fed. R. 37 Y.) 561. Clyde v. Hubbard, 88 Pa. St. 358 ^ Block V. Fitchburgh R. Co., 139 Lindley u. Richmond, etc., R. Co., 88 Mass. 308, s. c. 1 N. E. R. 348. The N. Car. 547, s c.9Am. & Eng. R Cas. court construed the exemption from 31. But compare Hot Springs, etc., liability as referring to the acts or de- R. Co. v. Trippe, 42 Ark. 465, s. c. 48 faults of the companies beyond Chi- Am. R. 65. cago. See, also, International, etc., * Southard v. Minneapolis, etc., R. R. Co. V. Tisdale, 74 Tex. 8, s. c. 4 L. R. Co., 60 Minn. 382, s. c. 62 N. W. R. A. 545; Cummins u. Dayton, etc., R. 442. 2232 CARRIERS. § 1437 when the receipt was executed. It was held that this consti- tuted a special contract to carry the goods to their destination although it was beyond the line of such company.' So, where a bill of lading was given for goods for shipment beyond the company's line and there was a stipulation in writing that such company should carry them to their destination at a certain fixed rate, it was held that this was a contract for through car- riage by it, and that the written portion of the contract must prevail over the printed portion which tended to show that the company acted merely as a forwarding agent.' § 1437. Authority of agents as to extra-terminal liability. — The courts following the English rule announced in Mus- champ's case hold that an agent's authority to receive goods for carriage implies authority to contract for extra-terminal liability," while the others deny the implication.* Although a general freight agent may have this power, we think the better rule is that a local station agent has no such implied authority, unless he has in some manner been held out as having it. And it has been held that such authority will not be inferred from the mere fact that he has collected freight in the particu- ' Cutts V. Brainerd, 42 Vt. 566. This ceipts. Hansen v. Flint, etc., B. Co., case can hardly be reconciled with 73 Wis. 346, 41 N. W. Bep. 529. But some of those referred to in the first see Turner v. St. Louis, etc., 20 Mo. part of this section. See, however, App. 632 ; Patterson v. Kansas City, Fortier v. Pennsylvania Co., 18 111. etc., R. Co., 47 Mo. App. 570, and App. 260. Crouch v. Louisville, etc., R. Co., 42 ^Peet V. Chicago, etc., B. Co., 19 Mo. App. 248, holding that a station Wis. 118, s. c. 20 Wis. 594, 91 Am. agent or a soliciting agent has no Dec. 446. power to make such agreement for ' Watson V. Ambergate Bailway, 15 the company, unless expressly con- Jurist 448; Scothorn v. South, etc., ferred or implied from previous con- Bailway, 8 Exch. 341; Bristol, etc., duct. It is held in the same state, B. Co. V. Collins, 7 H. L. Cas. 194. however, that a general freight agent It has been held unnecessary to prove has the power. Grover, etc., M. Co. the express authority of the agent d. Missouri, etc.. Railroad, 70 Mo. 672; to make such a contract, when he White v. Missouri, etc., Bailroad, 19 acted as such in the proper place Mo. App. 400. for receiving goods for the company, 'Burroughs v. Norwich, etc., B. Co., and was in possession of the com- 100 Mass. 26, s. c. 1 Am. R. 78. pany's stamp to be used on such re- § THE INITIAL CARRIER. 2233 lar instance for the transportation of the goods to their destina- tion on a connecting line.' Nor has the general freight agent of the receiving line implied authority to bind a connecting line by fixing the freight rate over it.' But the authority of an agent to contract for carriage beyond the terminus of the line of his company, or the like, may sometimes be implied from the fact that he is held out to the world as having such author- ity, or has been permitted to exercise it in other cases.' § 1438. Exclusion of liability by contract. — All extra-ter- minal liability may be excluded by the carrier by an express contract.* This would seem to follow from the common law 'Ooates V. Chicago, etc., E. Co., (S. Dak.) 65 N. W. R. 1067; Page u. Chi- cago, etc., R. Co., (S. Dak.) 64 N. W. R. 137. In Railroad Co. v. Pratt, 22 Wall. (U. S.) 123, 131, 132, it was held a question of fact for the jury. See, also. Wood v. Chicago, etc., R. Co., 59 Iowa 196. 2 Hill V. BurKngton, etc., R. Co., 60 Iowa 196, s. c. 9 Am. & Eng. R. Cas. 21. See, also. Gulf, etc., R. Co. v. Clarke, 5 Tex. Civ. App. 547. 'See Railroad Co. v. Pratt, 22 Wall. (U. S.) 123, 131, 132; Mayall u. Bos- ton, etc., R. Co., 19 N. H. 122, s. c. 49 Am. Dec. 149 ; Wilcox v. Chicago, etc., R. Co., 24 Minn. 269; Pruitt v. Hannibal, etc., R. Co., 62 Mo. 527; Gulf, etc., R. Co. V. Cole, (Tex.) 28 S. W. R. 391. •Illinois Cent. R. Co. v. Franken- berg, 54 111. 88 ; Berg v. Atchison, etc., Railroad, 30 Kan. 561 ; Alabama, etc., R. Co. V. Thomas, 83 Ala. 343, 3 So. E. 802; Jones v. Cincinnati, etc.. Railway, 89 Ala. 376 ; My rick v. Mich- igan, etc., R. Co., 107 U. S. 102; Hun- ter V. Southern Pac. Railroad, 76 Tex. 195; Texas, etc., R. Co. v. Hawkins, (Tex.) 30 S. W. R. 1113 ; Ortt v. Min- neapolis, etc.. Railway, 36 Minn. 396 ; Illinois Cent. R. Co. v. Scruggs, 69 Miss. 418, s. c. 13 So. R. 698; Harris V. Grand Trunk Railway, 15 R. 1. 371 ; McOonnell v. Norfolk, etc., R. Co., 86 Va. 248, 9 S. E. R. 1006; Tolman <;. Abbot, 78 Wis. 192, 47 N. W. R. 264; Pendergast v. Adams Ex. Co., 101 Mass. 120 ; American Ex. Co. v. Sec- ond N. Bank, 69 Pa. St. 394; United States Ex. Co. v. Rush, 24 Ind. 403; McEacheran v. Michigan Cent. R. Co., 101 Mich. 264, s. c. 59 N. W. R. 612 ; Inhabitants of Plantation v. Hall, 61 Me. 517; Smith v. American Exp. Co., (Mich.) 66 N. W. R. 479; Rick- erson, etc., Co. v. Grand Rapids, etc.. Railroad, 67 Mich. 110; Detroit, etc., R. Co. V. McKenzie, 43 Mich. 609; Beaumon v. Canadian B. R. Co., Mon- treal L. R. 5 Super. Ct. 255; Grand Trunk R. Co. v. McMillan, 16 Can. Sup. Ct. R. 543, 42 Am. & Eng R. Cas. 468 ; Central R.& Bkg. Co.u. Avant,80 Ga. 195, 5 S. E. R. 78 ; Ohio & M. R. Co. v. Emrich, 24 111. App. 245; Bethea v. Northeastern R. Co., 26 S. Car. 91, 1 S. E. R. 372. Contra, Baker v. Mis- souri P. R. Co., 34 Mo. App. 98. If the bill provides that there shall be no liability for negligence of connect- ing lines, the carrier is not responsi- 2234 CARRIERS. § 1438 rule that a carrier is not bound to receive and transport goods beyond its own line.' Such a limiting contract is valid as to interstate commerce/ and has been held binding, even though the shipper could not read, and was not aware that the limit- ing clause was in the bill." It has been held, however, that such a contract must be specially pleaded by the railroad com- pany,* and where the connecting lines over which a through shipment is made are partners, such a contract limiting the liability of each to its own line and providing that it shall not be responsible for the negligence of any of the others, has been held invalid as against public policy.' In such a case it vir- ble for delay in delivering goods in etc., R. Co. v. Montfort, 60 111. 175. time for a particular market, where it But this may be conclusively pre- is not shown the delay occurred on its sumed in the absence of fraud or own line. Mobile & O. R. Co. v. mistake where the shipper accepts Francis, (Miss.) 9 So. R. 508. Such and acts upon it. Mulligan v. Illinois a contract having been made, it is Cent. R. Co., 36 Iowa 181. See, also, proper to refuse to direct a verdict Texas, etc., R. Co. v. Adams, 78 Tex. for defendant where the evidence 372, s. c. 14 S. W. R. 666 ; Hadd v. fails to show that the goods were de- United States, etc., Co., 52 Vt. 335, s. c. livered safely to the connecting line. 6 Am. & Eng. R. Cas. 443; Phifer v. Georgia Pac. Ry. Co. v. Hughart, 90 Carolina Cent R. Co., 89 N. Car. 311. Ala. 36, 8 So. R. 62. < Missouri Pac. R. Co. v. Wichita, 'Atchison, etc., R. Co. v. Denver, etc., Co., 55 Kan. 525, s. c. 40 Pac. R. etc., R. Co., 110 U. S. 667, s. c. 4 Sup. 899; Atchison, etc., R. Co. v. Bryan, Ct. R. 185; Pittsburgh, etc., R. Co. v. (Tex.C. App.) 28S.W. R.98. See, also, Morton, 61 Ind. 539, s. c. 28 Am. R. Schaeffer v. Philadelphia, etc., R. Co., 682; Lotspeich v. Central R. Co., 73 168 Pa. St. 209, s. c. 31 Atl. R. 1088; Ala. 306; Richmond, etc., R. Co. ■«. Western Transp. Co. v. Newhall, 24 Shomo, 90 Ga. 496, s. c. 16 S. E. R. 111. 466; Gaines v. Union, etc., Co., 220. 28 Ohio St. 418. But compare Crum ^Texas, etc., R. Co. v. Adams, 78 v. Yundt, 12 Ind. App. 308, s. c. 40 N. Tex. 372, 14 S. W. R. 666. E. R. 79; Baltimore, etc., R. Co. v. 'Jonest!. Cincinnati, etc., R. Co., 89 Ragsdale, (Ind. App.) 42 N. E. R. Ala. 376, 8 So. R. 61, distinguishing 1106, 1107. Louisville, etc., R. Co. v. Meyer, 78 =Gulf, etc., R. Co. ■«. Wilbanks, 7 Ala. 597,8. c.27Am. &Eng. R.Cas.44. Tex. C. App. 489, 27 S. W. R. 302; It has been held a question for the jury Gulf, etc., R. Co. u. Wilson, 7Tex. C. to determine whether the terms of are- App. 128, 26 S. AV. R. 131 ; Interna- ceipt or bill of lading, limiting liabil- tional, etc., R. Co. v. Tisdale, 74 Tex. ity to the carrier's own line, were 8, s. c. 11 S. W. K. 900, 4 L. R. A. 545; fairly understood and assented to by Merchants', etc., Co. v. Bloch, 86 the <:onsignor. Ohio, etc., R. Co. v. Tenn. ?,'.)'2, s. c. 6 Am. St. R. 847. Emrich, 24 111. App. 245; Chicago, But, see Weinberg r. Albemarle, etc.. § 1439 THE INITIAL CARRIER. 2235 tually amounts to a contract by the carrier against liability for its own negligence. So, where several railroad companies had formed a traffic association and goods were shipped over their line under a bill of lading which provided that in case of loss or damage "that company alone shall be held answerable therefor in whose actual custody the same may be at the time of such loss, detriment or damage," it was held that this did not relieve the first carrier from liability for the refusal of one of its associates to receive the goods.' It was also held, in the same case, that where unqualified receipts were given, con- taining no exemption from liability, and these were afterward canceled and bills of lading issued in lieu thereof, containing an exemption from liability, without any other change in the terms of the contract, such stipulation for exemption was not binding in the absence of anything to show some considera- tion therefor. § 1439. Rule where statute makes initial carrier liable for negligence of Otiiers. — The rule that a carrier may contract against extra-terminal liability has been applied even where a statute provided that a common carrier receiving property "to be transferred from one place to another within or without the state," or "issuing receipts or bills of lading in the state," should be liable for loss or injury to such property caused by its negligence or the negligence of any common carrier to which such property might be delivered or over whose line it might pass. It was held that the effect of the statute of which we have just given the substance was simply to prescribe a definite rule of evidence, substantially the same as the English rule, whereby aprima facie liability would be established in the absence of a specific contract against extra-terminal liability/ In a more recent case, however, the same court modified some E. Co., 91 N. Car. 31, s. c. 18 Am. & ^Dimmitt v. Kansas City, etc., R. Bng. R. Cas. 597. Co., 103 Mo. 433, s. c. 15 S. W. R. 'Southard v. Minneapolis, etc., R. 761. Followed in Nines d. St. Louis, Co., 60 Minn. 382, s. c. 62 N. W. R. etc., R. Co., 107 Mo. 475, s. c. 18 S. 442, 619. But see Cincinnati, etc., R. W. R. 26. See, also, AVatkins v. St. Co. V. Pontius, 19 Ohio St. 221. Louis, etc., R. Co., 44 Mo. App. 245. 2236 OAERIEES. §1440 of the statements in the former decisions ana neld that while a carrier could, under such statute, limit its contract of car- riage to the terminus of its own route, it could not contract for a through shipment and at the same time exempt itself from liability on account of the negligence of the connecting carriers.' It was held that even as applied to a contract for transportation beyond the limits of the state the statute was not invalid as regulating or interfering with interstate com- merce/ Other cases showing the rule under particular statutes are cited below.' § 1440. Liability for deviation or failure to obey instruc- tions. — It is, in general, the duty of the initial carrier to obey the instructions of the shipper as to the route, mode of car- riage and the like,* and it should also transmit the instructions of the shipper to the connecting carrier. ° Where the route and connecting carrier are not specified it may usually select them for itself,^ but if they are specified it will become responsible 'McCann v. Eddy, (Mo.) 33 S. W. R. 71. ^Citing Hart V. Chicago, etc., R. Co., 69 la. 485, s. c. 29 N. W. R. 597 ; Solan V. Chicago, etc., R. Co., (la.) 63 N. W. R. 692; Bagg ?>. Wilmington, etc., R. Co., 109 N. Car. 279, s. c. 14 S. E. R. 79. 'Falvey v. Georgia R., 76 Ga. 597, s. c. 2 Am. St. R, 58 ; Joseph v. Georgia R. Co., 88 Ga. 426, s. c. 14 S. E. R. 591 ; Chicago, etc., R. Co. v. Church, 12 111. App. 17; King v. Macon, etc., R. Co., 62 Barb. (N. Y.) 160; Burtis V. Buffalo, etc., R. Co., 24 N. Y. 269; Root V. Great Western, etc., R. Co., 45 N. Y. 524 ; Gulf, etc., R. Co. i;. Adair, 4 Tex. App. (Civil Cases) 55, s. c. 14 S. W. R. 1076; Missouri Pac. R. Co. v. Sherwood, 84 Tex. 125, s. c. 17 L. R. A. 643; Miller v. South Carolina R. Co., 33 S. Car. 359, s. c. 9 L. R. A. 833, 11 S. E. R. 1093. * Michigan, etc., R. Co. v. Day, 20 111. 375, s. c. 71 Am. Dec. 278; Proc- tor V. Eastern R. Co., 105 Mass. 512; Davis V. Garrett, 6 Bing. 716 ; Sleat v. Fagg, 5 Barn. & Aid. 342; Stewart v. Merchants', etc., Co., 47 Iowa 229, s, c. 29 Am. R. 476; Philadelphia, etc., R. Co. V. Beck, 125 Pa. St. 620; Ex- press Co. V. Kountze, 8 Wall. (U. S.) 342 ; Sager v. Portsmouth, etc., R. Co., 31 Me. 228, s. c. 50 Am. Dec. 659. See, also, Illinois Cent. R. Co. v. Tronstine, 64 Miss. 834 ; Wright v. Northern, etc., R.Co.,8 Phila.(Pa.)19 ; Ponkey D.Rich- mond, etc., R. Co., 3 Inters. Com. Rep. 806 ; Pennsylvania R. Co. v. Stern, 119 Pa. St. 24. 'North V. Merchants' Transp. Co., 146 Mass. 315 ; Palmer v. Chicago, etc., R. Co., 56 Conn. 137, s. c. 13 Atl. R. 818 ; Little Miami R. Co. u. Washburn, 22 Ohio St. 324; Pankeyi). Richmond, etc., R. Co., 3 Inters. Com. Rep. 33. ' Atchison, etc., R. Co. f. Denver, etc., R. Co., 110 U. S. 667 ; Snow v. Indiana, etc., R. Co., 109 Ind. 422 ; Mattingly v. Pennsylvania Co. ,2 Inters. Com. Rep. 806 ; Patten B.IJnion Pac.R.Co.,29 Fed. §1440 THE INITIAL CARRIER. 2237 as an insurer for unnecessary deviation, even though it had not contracted for a through shipment otherwise than as a for- warding agent/ or had expressly limited its liability as a com- mon carrier to its own line or the like/ There are, however, cases in which an emergency may arise which will justify a deviation." But the burden of showing such an emergency has been held to rest upon the carrier.* If there is no emer- gency, but for some reason the connecting carrier can not or will not receive the goods, it is generally the duty of the in- itial carrier to notify the shipper or owner and await instruc- tions.' The consent of the parties interested will, of course, justify the carrier in the deviation from the original route. ° And it has been held that where there is nothing in the bill of lading or other final written contract specifying the route or re- E. 590; Kentucky, etc.. Bridge Co. v. Louisville, etc., E. Co., 37 Fed. E.667, s. c. 2 L. E. A. 289. It should, how- ever, as a general rule select the or- dinary route or one equally safe and cheap. Pankey v. Eichmond, etc., E. Co., 3 Inters. Com. Eep. 33; Wells, Fargo, etc., Co. v. Fuller, 4 Tex. Civ. App. 213; Merchants', etc., Co. v. Kahn, 76 111. 520; Crosby v. Fitch, 12 Conn. 410. 1 "Wilcox V. Parmelee, 3 Sandf. (N. Y.) 610; Johnson ». New York, etc., E. Co., 33 N. Y. 610; Philadelphia, etc., E. Co. V. Becks, 125 Pa. St. 620, s. c. 17 Atl. E. 505; Goodrich v. Thompson, 44 N. Y. 324 ; Isaacson v. New York, etc., E. Co., 94 N. Y. 278, s. c. 46 Am.R.142 ; Independence Mills Co. V. Burlington, etc., E. Co., 72 Iowa 535, s. c. 2 Am. St. E. 258; Louisville, etc., E. Co. V. Odill, (Tenn.) 33 S. W. E. 611 ; Brown, etc., Co. v. Penn- sylvania Co., (Minn.) 65 N. iW. E. 961. 'Galveston, etc., E. Co. v. Allison, 59 Tex. 193, s. c. 12 Am. & Eng. E. Cas. 28; Dunseth v. Wade, 3 111. 285; Merrick v. Webster, 3 Mich. 268 ; Fat- man V. Cincinnati, etc., E. Co., 2 Disn. (Ohio) 248; Eobertsoni;.National,etc., Co., 17N.Y.Supp.459; Magheeu.Cam- den, etc., E. Co., 45 N. Y.514; Eobin- son V. Merchants', etc., Co., 45 Iowa 470; Collins ». Bristol, etc., E. Co., 11 Exch. 790. 'Johnson v. New York, etc., E. Co., 33 N. Y. 610, s. c. 88 Am. Dec. 416; Eegan v. Grand Trunk E. Co., 61 N. H. 579. * Le Sage v. Great Western E. Co., 1 Dely (N. Y.) 306 ; Ackley v. Kellogg, 8 Cow. (N. Y.) 223. ^Goodrich v. Thompson, 44 N. Y. 324; Hand v. Baynes, 4 Whart. (Pa.) 204, s. c. 33 Am. Dec. 54; Alabama, etc., E. Co. V. Thomas, 89 Ala. 294, s. c. 7 So. E. 762; Louisville, etc., E. Co. V. Odill, (Tenn.) 33 S. W. E. 611 See, also. Levy v. Louisville, etc., E. Co., 35 La. Ann. 615; Johnson v. New York, etc., E. Co., 33 N. Y. 610. ' Hedricks v. Steamship Morning Star, 18 La. Ann. 353. But see as to when acceptance of goods and pay- ment of freight will not amount to a waiver. Brown, etc., Co. v. Pennsylva- nia Co., (Minn.) 65 N. W. E. 961. 2238 CARRIBKS. § 1441 stricting the right of the carrier to select its own agency or the route over which the goods are to be forwarded, parol evidence is inadmissible to show that the carrier agreed to forward them over a particular route at the time the bill of lading was exe- cuted.' § 1441 . Actions on account of extra-terminal defaults. — The English rule is that, a contract for extra-terminal liability hav- ing been expressly made with the initial carrier or being im- plied, the shipper's only action for damages for default, no matter upon what line it occurs, is against such initial carrier.' This rule has been followed in this country only in Georgia," the courts of all other states holding that the shipper may have his action against the carrier in default,* or against the initial carrier where it has, expressly or impliedly, become liable as a 'White V. Ashton, 51 N. Y. 280; Hinckley w. New York, etc., R. Co., 56 N. Y. 429; Snow v. Indiana, etc., R. Co., 109 Ind. 422; Indianapolis, etc., R. Co. 0. Remmy, 13 Ind. 518. " For the reason that there is no privity of contract between connect- ing carriers and the shipper. Collins i;. Bristol, etc., Ry. Co., llExch.790; Coxon V. Great Western Ry. Co., 5 Hurl. & N. 274; Mytton v. Midland, etc., Ry. Co., 4 Hurl. & N. 615; Grand Trunk R. Co. v. McMillan, 16 Can. Sup. Ct. R. 543, 42 Am. & Eng. R. Cas. 468. ^Mosher v. Southern Ex. Co., 38 Ga. 37 ; Southern Ex. Co. v. Shea, 38 Ga. 519. The Georgia Code, §2084,provides that where there are several connect- ing railroads under different compan- ies, and goods are intended to be transported over more than one road, each company shall be responsible only to its own terminus, and until delivery to the connecting road, the last company which received the gonils in good order being liable to the consignee for any damage thereto. In Falvey v. Georgia R. Co., 76 Ga. 597, it was held that this statute applies only in the absence of an express or implied contract to carry to the desti- nation, and the English rule was re- announced that a contract for extra- terminal liability will be implied from the reception of goods for transporta- tion to a point beyond the initial car- rier's line. But see the Georgia case cited in the following note. * Illinois Cent. R. Co. v. Cowles, 32 111. 116; Anchor Line v. Dater, 68 111. 369; Chicago, etc., R. Co. v. Northern Line Packet Co., 70 111. 217; Aigen v. Boston, etc., R. Co., 132 Mass. 423, s. c. 6 Am. & Eng. R. Cas. 426; Barter v. Wheeler, 49 N. II. 9 ; Nashua Lock Co. V. Worcester, etc., R. Co., 48 N. -H. 339, s. c. 2 Am. R. 242 ; Southern Ex. Co. V. Iless, 53 Ala. 19; Conkey «. Milwaukee, etc., R. Co., 31 Wis. 619; Halliday v. St. Louis, etc., Ry. 74 Mo. 159; Packard v. Taylor, .OS Ark. 402; International, etc., R. Oo. u. Tisdale, 74 Tex. 8. See, ;\lso, Johnson v. East Tennessee, etc., R. Co., 90 Ga. 810, s. c. 17 S. E. R. 121. § 1441 THE INITIAL CARRIER. 2239 common carrier for through carriage of the goods.' In some jurisdictions, as we have seen, the English rule is so far adopted as to make the initial carrier liable upon an implied contract for extra-terminal liability where no such contract would be implied under what is known as the "American rule," but in none of the states with the possible exception of Georgia, is the English rule adopted to the full extent of requiring the initial carrier alone to be sued even where another carrier has been guilty of the default. So, as we have seen, there are cases in which there is a joint and several liability upon the ground that as to the plaintiff the connecting carriers are part- ners. 'Richardson v. The Charles P. etc., E. Co., 27 Vt. 110; Hill Mfg. Co. Chouteau, 37 Fed. R. 532; Railroad u. Boston, etc., R. Co., 104 Mass. 122, Co. V. Pratt, 22 "Wall. (U. S.) 123; s. c. 6 Am. R. 202; Jennings t). Grand Hart V. Rensselaer, etc., R. Co., 8 Trunk R. Co., 127 N. Y. 438, s. c. 49 N. Y. 37, s. c. 59 Am. Dec. 447; Am. & Eng. R. Cas. 98; Central R., Chouteax v. Leech, 18 Pa. St. 224; etc., Co. «. Georgia, etc., Co., 91 Ga. Bradford t). South Carolina, etc., R. 389, s. c. 17 S. E. R. 904; Davis v. Co., 7 Rich. L. 201, s. c. 62 Am. Dec. Jacksonville, etc., Line, 126 Mo. 69, 411; Wyman v. Chicago, etc., R. Co., s. c. 28 S. W. R. 965; Bank of Ken- 4 Mo. App. 35; Noyes v. Rutland, tucky ». Adams Ex. Co., 93 U. S. 174. CHAPTER LIX. CONNECTING CARRIERS. § 1442 ."If Definition. §1448. Liability for their own de- 1443. Commencement of connect- faults. ing carrier's liability. 1449. Extent and termination of 1444. Liability for defaults of the liability. initial or of other connect- 1450. Presumption against last car- ing carriers. rier. 1445. Liability as partner — What 1451. Rights send liabilities as to constitutes. charges. 1446. Effect of initial carrier's con- 1452. Liability of carriers as be- tract on connecting carrier. tween themselves-^Action 1447. Liability for defaults of com- over. mon agent. §1442. Definition. — "A connecting carrier," according to the definition quoted by Hutcliinson' from a recent case/ " is one whose route, not being the first one, lies somewhere be- tween the point of shipment and tlie point of destination. It becomes such by virtue of the agreement between the con- signor or shipper and the first carrier, whereby the latter un- dertakes to deliver the shipment at its ultimate destination, and thus makes the carrier beyond its own route its agent for continuing the transportation, or else undertakes only to de- liver the goods safely to the next carrier on the route, who thus becomes the agent of the shipper for carrying them far- ther." But a railroad company which receives loaded cars from another company, over whose line they have been trans- ported to its own, and transfers them by means of a switch engine over a portion of its own track to their destination, re- ceiving compensation therefor, from the former company, is a ' Hutchinson on Carriers, (2d ed.) since affirmed in 93 Mo. 331, s. c. 6 8. § 157a. W. R. 246. ^ Nanson v. Jacob, 12 Mo. App. 125, (2240) §1443 CONNECTING CARRIERS. 2241 connecting carrier and liable as a common carrier for the loss of the same by fire while in its possession as such, no matter how short the distance may be.* § 1443 . Commencement of connecting; carrier's liability. — The connecting carrier's liability begins with the actual delivery to it/ or with such notification as, under the usages of busi- ness, constitutes a constructive delivery.' It is not rendered liable by the fact that the preceding carrier has unloaded the goods and stored them in a warehouse.' So, where a part of a lot of goods had been unloaded from a steamboat and placed ' Missouri Pac. E. Co. v. Wichita, etc., Co., 55 Kan. 525, b. c. 40 Pac. E. 899. In this case the court said : "The distance over which freight is hauled, whether in car-load lots or in less quantities, whether in its own cars or those belonging to connecting car- riers, can make no difference with the capacity in which the company acts. A railroad transporting a passenger or a car-load of freight one mile, using a switch engine for motive power, is just as much a common carrier as if the distance were a thousand miles by regular freight or passenger train." But see Missouri Pac. E. Co. v. Young, 25 Neb. 651, s. c. 41 N. W. E. 646; Western, etc., E. Co. v. Exposition Cotton Mills, 81 Ga. 522. ^Condon v. Marquette, etc., E. Co., 55 Mich. 218, 18 Am. & Eng. E. E. Cas. 574; Petersen v Case, 21 Fed. E. 885, 18 Am. & Eng. E.'Cas. 578 ; Insurance Co. V. Eailroad Co., 104 U. S. 146; Lesinsky v. Great W. D. Co., 10 Mo. App. 134 ; Goold v. Chapin, 20 N. Y. 259; Miller v. Steam Navigation Co., ION. Y. 431; Eeynolds ti. Boston, etc., Eailroad, 121 Mass. 291; Kentucky, etc., Ins. Co. v. Western, etc., Eail- road, 8 Baxt. 268 ; Gray v. Jackson, 51 N. H. 9; Eegan v. Grand Trunk Eail- road, 61 N. H. 579; McKay v. New York Cent. Eailroad, 50 Hun 563; Alabama, etc., E. Co. v. Mt. Vernon Co., 84 Ala 173. ' It has been held that constructive delivery is good only as between the carriers, and that the shipper may look only to the carrier who has act- ual possession. Goold v. Chapen, 20 N. Y. 259 ; Oonkey v. Milwaukee, etc., E. Co., 31 Wis. 619, overruling Wood V. Milwaukee, etc., E. Co., 27 Wis. 541 ; McDonald v. Western Eailroad Corp., 34 N.Y. 497; Condon u. Mar- quette, etc., Eailroad, 55 Mich. 218. But see Van Santvoord v. St. John, 6 Hill 157; Converses. Norwich, etc., Trans. Co., 33 Conn. 166; Pratt v. Ey. Co. 95,U. S. 43 ; Mills v. Michigan, etc., Eailroad, 45 N. Y. 622. It has been held, however, that the owner may re- cover from the carrier to whom a con- structive delivery has been made, ^tna Ins. Co. «. Wheeler, 49 N. Y. 616. See ante, §1412, as to what consti- tutes a sufficient delivery to a con- necting carrier. « Lesinsky v. Great W. D., 10 Mo. App. 134 ; Eailroad 0. v. Manufactur- ing Co., 16 Wall. 318; Irish v. Mil- waukee, etc., Eailway, 19 Minn. 376; West. Trans. Co. v. Newall, 24111. 466 ; Merchants' Des. Co. v. Kahn, 76 III. 520 ; Louisville & N. E. E. v. Campbell, 7 Heisk. 253; Brintnall v. Saratoga, etc., Eailroad, 32 Vt. 665; Blossom v. 2242 CARRIERS. § 1444 in the car of a connecting carrier and the rest of the articles had been pointed out and were ready to be taken from the boat, it was held that there was no complete delivery of the latter, either actual or constructive, and that the railroad company was not liable for those destroyed by fire while still upon the steamboat.' But evidence that fourteen boxes of goods were delivered to the initial carrier, and sealed in a car and that such car, still sealed, was delivered to the connecting carrier has been held sufficient to charge the latter with the receipt of that number of boxes of goods. ^ Considering the fact, how- ever, that freight cars of one road are constantly being used by others, mere proof that the initial carrier delivered goods into the cars of a connecting carrier has been held insufficient to es- tablish a complete delivery and notice to it that they were to be carried by it over its own road." § 1444. Liability for defaults of the initial or of other con- necting carriers. — A connecting carrier can not, as a rule, be held for the default of the initial or of other connecting carriers in the absence of a partnership, express or implied.' Thus, where tobacco was damaged while in the hands of a third con- necting carrier, it was held that the carrier which received it from the initial carrier was not liable therefor, although the receipt given by the initial company stated that the company to which it should deliver the tobacco should be regarded as Griffin, 13 N. Y. 569; Mills v. Michi- '■ Gass v. New York, etc., R. Co., 99 gan, etc., Railroad, 45 N. Y. 622; Mass. 220, s. c. 96 Am. Dec. 742. Root V. Great Western Railroad, 45 ^ Newport News, etc., R. Co. «>. Men- N. Y. 524; Michaels v. New York, dell, (Ky.) 34 S. W. R. 1081. etc.. Railroad, SON. Y. 564; Regan'!). ^ patten v. Union Pac. R. Co., 29 Grand Trunk Railway, 61 N. H. 579 ; Fed. R. 590. McKay v. New York, etc.. Railroad, 50 * Montgomery, etc., R. Co. v. Moore, Hun 563; Whitworth v. Erie, etc., R. 51 Ala. 394; Knott v. Raleigh, etc., R. Co.,87N.Y. 413; Condon «. Marquette, Co., 98 N. Car. 73, s. c. 2 Am. St. R. etc., Railroad, 55 Mich. 218; Con- 321; Hill v. Burlington, etc., R. Co., diet u. Grand Trunk E. Co., 54 N. Y. 60 Iowa 196; Lowenburg v. Jones, 66 500; McDonald w. "Western R. R. Co., Miss. 688, s. c. 31 Am. R. 379; Weh- 34 N. Y. 497; Ayers v. Western Rail- mann v. Minneapolis, etc., R. Co., 58 road Corp., 14 Blatchf. 9. Minn. 22, s. c. 59 N. W. R. 546. §1445 CONNECTING CARRIERS. 2243 the agent of the owner.' So, where goods were lost by a prior carrier, it was held that the last carrier could not be held lia- ble for the loss.^ But sometimes, because of the relation of principal and agent, and, more frequently, because of a part- nership relation existing between them, one connecting car- rier has been held liable for the default of another. Such partnerships for joint carriage may be formed,' and when ex- isting, either expressly or impliedly, any or all of the mem- bers may be held for the defaults of each.* § 1445. Liability as partner — What constitutes partner- ship. — Partnership liability of connecting carriers to third persons may exist without liability to each other.* "Where ' Knott V. Ealeigh, etc., E. Co., 98 N. Car. 73, s. C. 2 Am. St. K. 321. ^Lowenburg D. Jones, 56 Miss. 688, s. c. 31 Am. R. 379. So, where the last carrier shows that the goods were damaged to the same extent when re- ceived by it. Gulf, etc., E. Co. v. Malone, (Tex.) 25 S. W. E. 1077. So, where there is no evidence that the goods were ever delivered to the last carrier. Chicago, etc., E. Co. v. Goldman, 46 111. App. 625. See, also, Charch v. Atchison, etc., E. Co., 1 Okla. 44, s. c. 29 Pac. E. 530. ' Swift V . Pacific, etc. , Steamship Co . , 106 N. Y. 206; Aigen u. Boston, etc., Eailroad, 132 Mass. 423; Block v. Fitchburg, etc., E. Co., 139 Mass. 308; Gass B. New York, etc., E. Co., 99 Mass. 220; Hot Springs E. Co. v. Trippe, 42 Ark. 465 ; Insurance Co. v. Eailroad Co., 104 U. S. 146; Barter v. WheeFer, 49 N. H. 9 ; Wylde v. North- ern E. Co., 53 N. Y. 156. * Weylandt). Elkins, Holt N. P. 227 ; Waland v. Elkins, 1 Starkie 217; Laugher v. Pointer, 5 B. & C. 547; Carter v. Peck, 4 Sneed 203; Cobb v. Abbot, 14 Pick. 289; Fremont^. Coup- land, 2 Bing. 170 ; Champion v. Bost- wick, 18 Wend. 175; Bostwick v. Champion, 11 Wend. 571, Atchison, etc., E. Co. V. Grant, 6 Tex. 0. App. 674, 26 S. W. E. 286. ^Champion v. Bostwick, 11 Wend. 571, 18 Wend. 175 ; Pattison *. Blanch- ard, 5 N. Y. 186; Block v. Fitchburg E. Co., 139 Mass. 308; Hill Mfg. Co. V. Boston, etc., Eailroad, 104 Mass. 122; Wymani). Chicago, etc., Eailroad Co., 4 Mo. App. 35. As to conditions from which a partnership will be im- plied, see, Cincinnati, etc., E. Co. v. Spratt, 2 Duvall 4; Judsoni). Western Eailroad, 4 Allen 520; Straiton v. New York, etc., Eailroad, 2 E. D. Smith 184; Hood v. New York, etc., Eail- road, 22 Conn. 1 ; Bowman v. Hilton, 11 Ohio 303; Eicketts v. Baltimore, etc., Eailroad, 4 Lans. 446; Harp i;. The Grand Era, 1 Woods (C. C.) 184; Barter v. Wheeler, 49 N. H. 9; Fairchild v. Slocum, 19 Wend. 329; Slocum V. Fairchild, 7 Hill 292; Hart- an D. Eastern E. Co., 114 Mass. 44; Washburn Manfg. Co. v. Providence, etc., E. E., 113 Mass. 490; Croft D.Bal- timore, etc., Eailroad, 1 McArthur 492 ; Skinner v. Hall, 60 Me. 477 ; Wilson V. Chesapeake, etc., Eailroad, 21 Gratt. 654; Darling tj. Boston, etc., Eailroad, 11 Allen 295 ; Burroughs v. Norwich, 2244 CAKRIERS. § 1445 carriers over different routes have associated themselves under a contract for a division of the profits of the carriage in cer- tain proportions, or of the receipts from it after deducting any of the expenses of the business, they become jointly liable as partners to third persons.'" But "where the agreement is that each shall bear the expenses of his own route and of the transportation upon it, and that the gross receipts shall be divided in proportion to distance or otherwise, they are part- ners neither inter se nor as to third persons, and incur no joint liability.'"' Nor does the establishment by two or more carriers of joint or through rates make them joint carriers or one of them liable for the default of another .' etc., E. Co., 100 Mass. 26 ; Milnor v. N. y. etc., E. Co., 53 N. Y. 363 ; Brooke v. Grand Trunk, E. Co., 15 Mich. 332; Nashua Lock Company v. Worcester, etc., Eailroad, 48 N. H. 389; Gray i). Jackson, 51 N. H. 9; Fitchburg, etc., E. E. V. Hanna, 6 Gray 539 ; Lowell Wire Fence Co. v. Sargent, 8 Allen 189 ; Hempstead v. New York, etc., E. 28 Barb. 485; Baltimore, etc., E. E. V. Wilkens, 44 Md. 11. 'Hutchinson on Carriers, (2d ed.) § 169; Champion v. Bostwick, 18 Wend. 175; Bostwick v. Champion, 11 Wend. 571; Hart». Eensselaer,etc., E.Co., 8 N.Y. 37, s.c. 59 Am. Dec. 447 ; Peterson ii. Chicago, etc., E. Co., 80 Iowa 92, s. c. 45 N.W.E. 573. See, also. Barter v. Wheeler, 49 N. H. 9, s. c. 6 Am. E. 434; Nashua, etc., Co. v. Wcr- cester, etc., E. Co.,48N.H.339, s. c. 2 Am. E. 242; Cincinnati, etc., E. Co. v. Spratt, 2 Duv. 4; Swift v. Pacific, etc., Co., 106 N. Y. 206; Bradford v. South Carolina E. Co., 7 Eich. L. 201, s. c. 62 Am. Dec. 411; Coates v. United States Exp. Co., 45 Mo. 238; Pearce V. Madison, etc., E. Co., 21 How. (U. S. 441. ^Hutchinson on Carriers, (2d ed.) § 169; Pattison v. Blanchard, 5 N. Y. 186; Converse v. Norwich, etc., T. Co., 33 Conn. 166; Hot Springs, etc., E. Co. V. Trippe, 42 Ark. 465, s. c. 48 Am. E. 65 ; Gass v. New York, etc., E. Co., 99 Mass. 220; Irvin v. Nashville, etc., E.Co., 92 111. 103 ; Briggs u.Vanderbilt, 19 Barb. 222 ; Peterson ^.Chicago, etc., E. Co., 80 Iowa 92, s. c. 45 N. W. E. 673; Swift v. Pacific, etc.. Steamship Co., 106 N. Y. 206; Insurance Co. V. Eailroad Co., 104 U. S. 146; Citizens' Insurance Co. v. Kountz Line, 4 Woods 268 ; Milne v. Douglass, 4 McCrary 368; Deming v. Norfolk, etc., E. Co., 21 Fed. E. 25; Ellsworth V. Tartt, 26 Ala. 733; Montgomery, etc., E. Co. V. Moore, 51 Ala. 394. ' Wehmann v. Minneapolis, etc., E. Co., 58 Minn. 22, s. c. 59 N. W. E. 546; Fort Worth, etc., E. Co. v. John- sou, 5 Tex. Civ. App. 24, s. c. 23 S. W. E. 827; Summer v. Walker, 30 Fed. E. 261 ; Eailroad Co. v. Pratt, 22 Wall. (U. S.) 123. But see Burke V.Concord E. Co., 61 N. H. 160; Harp V. The Grand Era, 1 Woods {V. S.) 184; Texas, etc., E. Co. v. Parrish, 1 Tex. App. (Civil Cas.) 529; Wyman k. Chicago, etc., E. Co., 4 Mo. App. 35; International, etc., E. Co. v. Tisdale, 74 Tex. 8, s. c. 4 L. E. A. 545 ; Eich. ardson v. The Charles P. Chouteau, 37 Fed. E. 532. § 1446 CONNECTING CARRIERS. 2245 § 1446. Effect of initial carrier's contract on connecting carriers. — If a connecting railroad company is designated as such in the initial carrier's bill of lading, or if the bill provides that all stipulations shall enure to the benefit of all the car- riers, then, having accepted the goods thereunder without any- separate agreement, it becomes virtually a party to the con- tract, bound by the undertakings therein and benefited by the limitations.' If, however, the connecting carriers are not designated but are left to the initial carrier's selection, and there is no provision that the stipulations shall enure to the benefit of any other carrier, the connecting carrier may not claim the benefit of the original contract, and when it accepts the goods it does so under the law.* So, where the connecting car- rier on receiving the goods, gave a receipt containing different provisions, it was held that it thereby lost the right to avail itself of provisions for its benefit in the receipt given by the first carrier.' And it has also been held that a connecting carrier can not be considered as ratifying the original contract where, in receiving and transporting the goods, it merely does what a valid statute requires it to do.* 'Adams Ex. Co. v. Harris, 120 Ind. 262, 29 Am. E. 482; Merchants', etc., 73, B.C. 21N.E.E.340; United States Co. v. Bolles, 80 111. 473; Camden, Ex. Co. u. Harris, 51 Ind. 127; St. etc., E. Co. v. Forsyth, 61 Pa. St. 81; Louis, etc., E. Co. v. "Weakly, 50 Ark. .Stna Ins. Co. v. Wheeler, 49 N. Y. 397, s. c. 7 Am. St. E. 104 ; Halliday 616 ; Crawford v. Great Western E. V. St. Louis, etc., E. Co., 74 Mo. 159, Co., 18U. C. C. P. 510; Central E.,etc., 41 Am. E. 309; Eailroad Co. v. An- Co. v. Bridger, 94 Ga. 471, s. c. 20 S. droscoggin Mills, 22 Wall. 594; Ma- E. E. 349. But see Western E. Co. v. gheev. Camden, etc., E. Co., 45 N. Y. Harwell, 97 Ala. 341, s. c. 11 So. E. 514, s. c. 6 Am. E. 125; Lamb v. Cam- 781. See, also, note Wells v. Thomas, den, etc., E. Co., 46 N. Y. 271 ; Whit- 27 Mo. 17, 72 Am. Dec. 228, 242. worth V. Eailroad Co., 87 N. Y. 413; 'Browning v. Goodrich, etc., Co., Fairbanks & Co. v. Cincinnati, etc., 78 Wis. 391, s. c. 47 N. W. E. 428. See, E. Co., 66 Fed. E. 471 ; Kift v. Atchi- also, Gordon v. Great Western E. Co., son, etc., E. Co., 32 Kan. 263, s. c. 4 25 IT. C. C. P. 488. Pac. E. 401; Western E. Co. i>. Har- *Gulf, etc., E. Co. v. Dwyer, 75 well, 97 Ala. 341, s. c. 11 So. E. 781. Tex. 572, s. c. 7 L. E. A. 478; Gulf, "Adams Ex. Co. v. Harris, 120 Ind. etc., E. Co. v. Baird, 75 Tex. 256, s. c. 73, s. c. 21 N. E. E. 340; Martin v. 12 S. W. E. 530. This, however, is American Ex. Co., 19 Wis. 336 ; Ban- not free from doubt, for it would seem craft V. Merchants', etc., Co., 47 Iowa that the connecting carrier might re- CoRP. 143 2246 CAREiEES. § 1447 § 1447. Liability for defaults of common agent,— The em- ployment by connecting carriers of a common agent may render them jointly liable for his, but not for each other's defaults.' But such an agent, having authority, may sometimes by con- tract to carry over all the lines, render one liable for the de- fault of another, at least where the enterprise is joint.^ We think the fact that they have a common agent may be taken into consideration with other circumstances as tending to show a partnership or joint enterprise, and if they hold him out as having authority to make them jointly liable he may do so in favor of one who rightfully relies on the apparent authority, although he has in fact no such authority.'! § 1448. Liability for their own defaults. — As already stated, a connecting carrier is, in all states except Georgia, liable in an action by the shipper for its own defaults.* Consequently, proof that the goods had been lost or damaged somewhere in transit would not necessarily render liable one connecting car- rier not a partner of the others. If there is no assumption of extra-terminal liability by the initial carrier and no partner- ship, the defaulting carrier must be charged singly and the default located as occurring on its line.' But if the act which ceive and transport the goods as re- ' See Dye v. Virginia, etc., R. Co., 9 quired by the statute, upon different Mackey (D.O.) 63; Quimby ».Vander- terms from those specified in the con- bilt, 17 N. Y. 306, s. c. 72 Am. Dec. tract with the initial carrier, and that 469 ; ante, § 1438. it should make a special contract as to * Ante, § 1442. And in Georgia this such terms if it desires not to be held is now the rule in some cases under to have adopted the original contract, the statute. Ga. Code, § 2084; West- ' Hutchinson on Carriers, (2d ed) ern, etc., R. Co. v. Exposition Cotton § 169; Cobb v. Abbot, 14 Pick. 289; Mills, 81 Ga. 522. Briggs V. Vanderbilt, 19 Barb. 222. = Midland Railway v. Bromley, 17 See, also, Smith & Elliott v. Missouri, Com. B. 372, s. c. 33 Eng. L. & Eq. etc., R.Co.,58 Mo. App.80; Ellsworth 235; Gilbartw. Dale, 5 Ad. & El. 543; u. Tartt, 26 Ala. 733. Anchor Line v. Dater, 68 III. 369; 2 See Hart v. Rensselaer, etc., R. Chicago, etc., R. Co. n. Northern, etc., Co., 8 N. Y. 37, s. c. 59 Am. Dec. 447 ; Co., 70 111. 217. See, also, Boston, Cincinnati, etc., R. Co. v. Spratt, 2 etc., R. Co. u. Ordway, 140 Mass. 510; Duv. 4; Braithwaiteu. Power, 1 N.D. Montgomery, etc., R. Co. v. Culver, 455; Southern Pac. R. Co. M. Duncan, 75 Ala. 578, s. c. 51 Am. R. 483; 16 Ky. L. R. 119; Swift v. Pacific Marquette, etc., R. Co. ». Kirkwood, Mail, etc., Co., 106 N. Y. 206. 45 Mich. 51, s. c. 40 Am. R. 453. ThiB § 1449 CONNECTING CARRIEKS. 2247 occasions the loss or injury is that of the carrier against whom the action is brought it may be liable although the injury or loss did not develop or was not discovered until after delivery to a succeeding carrier. Thus, where cattle are poisoned by the negligence of the prior carrier or are not properly fed and watered by it the fact that such cattle did not die until after they were delivered to a succeeding carrier will not relieve the carrier in default from liability, if their death was caused by its failure to perform its duty.' So, as we shall hereafter show, as it is easier for the carrier than for the shipper to trace the goods and as a state of facts once shown to exist is presumed to continue, the last carrier in frequently held liable, in the absence of anything to the contrary, upon the presumption that the loss occurred upon its line. § 1449. Extent and termination of liability. — It is the duty of an intermediate connecting carrier, in the absence of any special agreement or custom to the contrary, not only to carry the goods safely over its own line but also to deliver them to the next succeeding carrier on the route, with proper instructions, if necessary, as to their further "carriage, and it is not relieved of its responsibility as a common carrier by storing them in a warehouse at the end of its line without delivery or notice to the next carrier.^ This last case applies the rule in favor of Alabama, etc., R. Co. v. Searles, 71 the last carrier, as well as intermedi- Miss. 744, s. c. 16 So. E. 255 ; Searles ate carriers, and, contrary to the «. Alabama, etc., E. Co., 69 Miss. 186, weight of authority, denies that there s. c. 13 So. E. 815; Hunt d. Nutt, is any presumption that the goods (Tex. C. App.) 27 S.W. R. 1031; Indi- were received by it in good order, or anapolis, etc., E. Co. v. Strain, 81 111. that the loss occurred on its line. 604. '' Norfolk, etc., E. Co. ■«. Harman, 'Irish ■». Milwaukee, etc., E. Co., 19 (Va.) 22 S. W. E. 490; Galveston, Minn. 376; Hempstead w. New York, etc., R. Co. V. Herring, (Tex.) etc., E. Co., 28 Barb. (N. Y.) 485; 24 S.W. R. 939; Fort Worth, etc., McDonald u. Western R. Co., 34 N.Y. R. Co. V. Daggett, 87 Tex. 322, s. 497; Bancrofts. Merchants', etc., Co., c. 28 S.W. R. 525. So held where 47 Iowa 262; Philadelphia, etc., R. goods were damaged because of un- Co. v. Lehman, 56 Md. 209, s. c. 40 suitable cars furnished by the first Am. R. 415, 6 Am. & Eng. Cas. 194; carrier, which were transported to Rickerson, etc., Co. v. Grand Rapids, their destination with seals unbroken, etc., R. Co., 67 Mich. 110; Alabama, 2248 CARRIERS. §1449 liability as a common carrier continues until delivery to the next carrier or due notice is given and a reasonable time has elapsed for the latter to receive the goods.' But where the carrier's responsibility is limited to its own line it is not liable for delay occasioned by the inability or refusal of the next carrier to receive them.^ It is its duty, however, as a general rule, where the next carrier refuses to take the goods to use reasonable diligence to notify the consignor or the consignee and to take care of them in the mean time.° But failure to give such notice will not render the carrier liable if it would not have prevented the loss and no injury was occasioned by rea- son of such failure.* A carrier can not violate a contract and at the same time claim the benefit of such contract, and etc., R. Co. V. Thomas, 89 Ala. 294, s. c. 7 So. E. 762. But see Melbourne?). Louisville, etc., R. Co., 88 Ala. 443, s. c. 6 So. E. 762. It has no right to as- sume, without cause, that the succeed- ing carrier will refuse to receive them. Railroad Co. v. Manufacturing Co., 16 Wall. (U. S.) 318; Blodgett ?). Abbot, 72 Wis. 516, s. c. 7 Am. St. R. 873. But, after notice and refusal or the lapse of a reasonable time, the carrier may store them and become liable only as a warehouseman. Nutting v. Connecticut, etc., R. Co., 1 Gray (Mass.) 502; Eawson v. Holland, 69 N. Y. 611, s. c. 17 Am. R. 394.- See, also, Hornthal v. Roanoke, etc., Co., 107 N. Car. 76; American Exp. Co. v. Smith, 33 Ohio St. 511, s. c. 31 Am. R. 561 ; Gray v. Jackson, 51 N. H. 9, s. c. 12 Am. R. 1; Nashville, etc., R. Co. V. David, 6 Heisk. (Tenn.) 261, s. c. 19 Am. R. 594. There may, however, be cases where it should forward them by some other route if the carrier to which they are first tendered will not receive them. Ray on Freight Car- riers, 389. 'Wehmann v. Minneapolis, etc., R. Co., 58 Minn. 22, s. c. 59 N. W. R. 546. Deposit of notice in a box in its own depot where the next carrier was accustomed to look for such notices has been held suflBcient notice. Mills v. Michigan Cent. R. Co., 45 N. Y. 622; ^Palmer v. Atchison, etc., R. Co., 101 Cal. 178, s. c. 35 Pac. R. 630, 61 Am. & Eng. R. Cas. 235. See, also. Central R., etc., Co. v. Skellie, 86 Ga. 686, s. c. 12 S. E. R. 1017. But com- pare Southard v. Minneapolis, etc., R. Co., 60 Minn. 382, s. c. 62 N. W. E. 442, 619, 11 Lewis' Am. R. & Corp. R. 629. 'Lesinsky v. Great Western Des- patch, 10 Mo. App. 134; Goold v. Chapin, 20 N. Y. 259; Whitworth «. Erie R. Co. 87 N. Y. 413; Condon v. Marquette, etc., R. Co., 55 Mich. 218; The Convoy's Wheat, 3 Wall. (U. S.) 225; Louisville, etc., R. Co. v. Camp- bell, 7 Heisk. (Tenn.), 253, 261 ; In re Peterson v. Case, 21 Fed. R. 885; Georgia, etc., R. Co. v. Cole, 68 Ga. 623; Denver, etc., R. Co. v. DeWitt, 1 Colo. App. 419; Johnson v. New York, etc., R. Co., 39 How. Pr. (N. Y.) 127. * Regan v. Grand Trunk E. Co., 61 N. H. 579. § 1449' CONNECTING CARRIERS. 2249 whether it is the initial carrier or an intermediate carrier, it may become liable for the loss of goods or injury thereto by a succeeding carrier where, in the absence of an emergency and without any necessity, it has deviated from the route pre- scribed by its contract or instructions and forwarded the goods over another route or in another manner.' But to render the intermediate carrier liable for deviation or to affect its rights in such a case it must, as a general rule at least, have notice that a particular route is specified or of the limitations in the authority of the prior carrier." It has also been held that where a common carrier receives goods known by it to be perishable it must exercise due care and diligence to protect them and must carry them in suitable cars, if such cars are in use, and that it can not escape liability for not carrying them safely upon the ground that they were delivered to it by a pre- ceding carrier in sealed cars and that it was customary to haul such cars received from the preceding carrier without inspect- ing or changing the goods to other cars, nor upon the ground that the freight charged was for transportation in common cars and that it had no refrigerator cars such as were required to keep the goods in perfect condition.' But in another re- cent case it was held that where goods are improperly loaded in sealed cars there is no duty resting upon the connecting carrier to open the cars and inspect their contents in the ab- sence of knowledge that they are of such a character as to re- quire such attention.* Although, as we have elsewhere 'Georgia E. Co. v. Cole,68 Ga. 623; ten v. Union Pac. R. Co., 29 Fed. R. Johnson u. New York, etc., R. Co., 33 590; Louisville, etc., R. Co. v. Odill N. Y. 610, s. c. 88 Am. Dec. 416, and (Tenn.) s. c. 33 S. W. R. 611; Mis- note; Robinson v. Merchants', etc., souri, etc., R. Co. v. Stoner, 5 Tex. Co., 45 Iowa 470; Hinckley ». New Civ. App. 50, s. c. 23 S. W. R. 1020. York, etc., R. Co., 56 N. Y. 429; Gal- ^Beard & Sons v. Illinois Cent. R. veston, etc., R. Co. ■». Allison, 59 Tex. Co., 79 Iowa 518, s. c. 18 Am. St. R. 193 ; Fatman v. Cincinnati, etc., R. 381, 44 N. W. R. 800, 7 L. E. A. 280. Co., 2 Disney (Ohio) 248; Indepeud- See, also, Dixon v. Richmond, etc., R. ence, etc., Co. v. Burlington, etc., R. Co., 74 N. Car. 538; Hamilton v. Des Co., 72 Iowa 535, s. c. 2 Am. St. R. Moines, etc., R. Co., 36 Iowa 31; 258. Cartwright v. Rome, etc., R. Co., 85 « See Price v. Denver, etc., R. Co., Hun 517, s. c. 33 N. Y. Supp. 147. 12 Colo. 402, s. c. 21 Pac. R. 188 ; Pat- * McCarthy v. Louisville, etc., R.Co., 2250 CARRIEKS. §1450 seen,' one railroad company may be liable as a common carrier of the cars of another company, yet it has been held, in the ab- sence of a controlling custom or contract, that a connecting carrier is under no obligation to take freight in the cars in which it is tendered, transport it in such cars when it has cars of its own not in use, and pay the owner of such cars mileage for their use,* and that it is no defense for it to show that the injury to the freight was caused by a defective car furnished by the preceding carrier and used by the carrier sued in trans- porting the freight over its own line in accordance with the contract between the preceding carrier and the shipper.' § 1450. Presumption against last carrier. — When goods are delivered to the first carrier in good order and are after- wards injured, the presumption, in the absence of anything to the contrary, is that they were injured by the last carrier.' It 102 Ala. 193, s. c. 14 So. R. 370, 61 Am. & Eng. E. Cas. 178. ^Ante, §1394. "Oregon, etc., R. Co. v. Northern Pac. R. Co., 51 Fed. R, 465, 472. ' Walllngford v. Columbia, etc., R. Co., 26 S. Car. 258, s. c. 2 S. E. R. 19. ' Texas, etc., R. Co. v. Bamhart, 5 Tex. C. App. 601,23 S.W.R.,801 ;Texas, etc., R. Co. V. Adams, 78 Tex. 372, s. c. 22 Am. St. R. 56, and note ; Lake Erie, etc., R. Co. V. Oakes, 11 111. App. 489; Lindley v. Richmond etc., R. Co., 88 N. Car. 547, s. c. 9 Am. & Eng. R. Cas. 31 ; Flynn v. St. Louis, etc., R. Co., 43 Mo. App. 424; Savannah, etc., R. Co. V. Harris, 26 Fla. 148, s. c. 7 So. R. 544, 23 Am. St. R. 651; Mobile, etc., R. Co. V. Tupelo, etc., Co., 67 Miss. 35, 8. c. 7 So. R. 279; Shriver V. Sioux City, etc., R. Co., 24 Minn. 506; Smith v. New York, etc., R. Co., 43 Barb. 225 ; Memphis, etc., R. Co. v. Holloway, 9 Baxt. (Tenn.)]88; Geor- gia, etc., R. Co. V. Forrester, 96 Ga. 428, 23 S. E. R. 416;Columbu.s, etc., R.Co. V. Tillman, 79 Ga. 607; Beard & Sons V. Illinois Cent. R. Co., 79 Iowa 518, s. c. 44 N. W. R. 800. 18 Am. St. R. 381, 7 L. R.A. 280 ;Laughlint). Chicago, etc., R. Co., 28 Wis. 204; note to Wells V. Thomas, 27 Mo. 17, 72 Am. Dec. 228, 243. But see Marquette, etc., R. Co. V. Kirkwood, 45 Mich. 51, s. c. 40 Am. R. 453 ; Darling v. Boston, etc., R. Co., 11 Allen (Mass.) 295. And this rule is not changed by the fact that the last carrier transports them over its line in the foreign car in which it re- ceived them. Leo v. St. Paul, etc., R. Co., 30 Minn. 438, b. c. 15 N. W. R. 872, 12 Am. & Eng. R. Cas. 35; Fai- son V. Alabama, etc., R. Co., 69 Miss. 569, s. c. 13 So. R. 37; Forrester v. Georgia, etc., R. Co., 92 Ga. 699, s. c. 19 S. E. R. 811. The presumption that the connecting carrier received the goods in the same condition in which they started has also been held to apply to an intermediate carrier sued for their loss or injury to them where it did not show that it delivered them to the last carrier in the same condition in which it received them. § 1450 CONNECTING CARRIERS. 2251 has also been intimated that, in the absence of any evidence upon the subject, they will be presumed to have been delivered to the first carrier in good order, and that this presumption prevails as against each succeeding carrier, but we think this doctrine is unsound, for there is nothing upon which to base such a presumption ; the owner has at least equal means of knowing the condition of the goods when delivered to the first carrier, and if they are in bad order when delivered by the last carrier, the same reason for presuming that they were origi- nally in that condition may exist as for presuming that when started in good order they remained in that condition until after they were received by the last carrier.' Thus, where bar- rels of molasses where shipped and transported to their desti- nation in a sealed car, and there was no evidence as to the number of barrels or their condition at the time the car was sealed by the first carrier, it was held that the last carrier was entitled to the benefit of the presumption that the number of barrels was the same and their contents in the same condition when they wereHaken out and delivered by it as when the car was first sealed, and that it was not liable as for failure to safely carry and deliver one barrel of molasses, where it ap- peared that the barrel was empty and dry when the car was opened by it at the point of destination.^ Where there was evidence that the weather was very cold before the second car- rier received apples which it delivered in a frozen condition, and no evidence that they were delivered to it before they were Savannah, etc., R. Co. v. Harris, 26 consignee, the presumption is against Fla. 148, s. c. 7 So. R. 544, 23 Am. St. the first carrier). E. 551. See, also, Montgomery, etc., 'Missouri Pac. R. Co. v. Breeding, R. Co. V. Culver, 75 Ala. 587, s. c. 51 4 Tex. App. (Civil Cas.) 217, s. c. 16 S. Am. R. 483 (applying the rule in fa- W. R. 184; Gulf, etc., E. Co. v. Holder vor of the intermediate carrier) ; and (Tex.), 30 S.W.R. 383 ; Evans v. Atlan- Louisville, etc., E. Co. v. Jones, 100 ta, etc., R. Co., 56 Ga. 498; Goodman Ala. 263, s. c. 14 So. E. 114 (applying v. Oregon, etc., E. Co., 22 Ore. 14, s. rule in favor of initial carrier and dis- c. 28 Pac. E. 894, 49 Am. & Eng. R. tinguishing Georgia, etc., R. Co. v. Cas. 87, 97 ; Lake Erie, etc., R. Co. v. Hughart, 90 Ala. 36, s. c. 8 So. E. 62, Oakes, 11 HI. App. 489. ■where it was held that if goods are ^ Cooper v. Georgia, etc., E. Co., 92 lost and not delivered at all to the Ala. 329, s. c 9 So. E. 159. 2252 CARRIERS. § 1451 frozen, it was held that it was not liable,' and a similar decis- ion was rendered where it appeared that the goods must have been wet and damaged while in the hands of a preceding car- rier.^ So, where a theater drop-curtain, shipped over several connecting lines, was injured by water, it was held that the defendant might show that it did not rain while the curtain was in transit over its line." As may be seen by an examina- tion of the authorities already cited, the presumption which is usually indulged against the last carrier may not arise under the facts of the particular case, and even if it does arise upon the plaintiff's proof in the first instance, it may be rebutted by proper evidence, either direct or circumstantial, showing that the goods were not received by the defendant in good order, or that they were lost or injured on some other line and not by it. This is true, even where the presumption is strengthened by a receipt, as the latter is prima facie rather than conclusive evidence, and is equally open to contradiction or explanation.* § 1451. Eights and liabilities as to charges. — As a general rule, where goods are delivered to a carrier for shipment to a destination beyond its line, whether the freight is prepaid or not, succeeding carriers who receive the goods in good faith in the ordinary and usual course of business between connecting carriers and without notice of any special directions by the con- signor or limitation upon the apparent authority of the first carrier, are not bound by any secret contract between the con- signor and the first carrier for reduced freight or for shipment 'Swetland v. Boston, etc., R. Co., 37 N. Y. 362 (receipt by connecting 102 Mass. 276. carrier insufficient to relieve initial ^ Carson v. Harris, 4 Greene (Iowa) carrier) . See, generally, as to evi- 516. dence to rebut the presumption,Vicks- *Burwell v. Ealeigh, etc., R. Co., 94 burg, etc., R. Co. v. Stocking, (Miss.) N. Car. 451, s. c. 25 Am. & Eng. R. s. c. 13 So. R. 469; Columbus, etc., Cas. 410. R. Co. v. Tillman, 79 Ga. 607, s. * Burwell v. Raleigh, etc., R. Co., 94 c. 5 S. E. R. 135 ; Goodman v. Oregon, N. Car. 451, s. c. 25 Am. & Eng. R. etc., Co., 22 Ore. 14, s. c. 49 Am. & Cas. 410; Illinois Cent. R. Co. v. Eng. R. Cas. 87, and compare Gulf, Cowles, .32 111. 116; Gulf, etc., R. etc., R. Co. ». Edloff, (Tex.) 34 S. W. Co. V. Holder, (Tex.) 30 S. W. R. R. 410, affirmed in 34 S. W. R. 414. 383; Hunt v. Michigan, etc., R. Co., §1451 CONNECTING CARKIEKS. 2253 over a certain route, but are entitled to reasonable charges for their services and to a lien for their own charges and for freight rightfully paid by them to prior connecting carriers upon the route.' So, where a shipper is present and makes no objection when the connecting carrier receives the goods from the preceding carrier and pays the charges thereon, he can not set off a claim for injury to the goods by the first carrier against the claim of the connecting carrier for charges, notwithstand- ing the connecting carrier knew that the goods had been in- jured and that the shipper intended to demand compensation from such preceding carrier/ And it has been held that al- though the first carrier gives a bill of lading which states a certain sum as the full rate, if the shipper, upon demand of the connecting carrier when the goods arrive at their destina- tion, pays an additional sum, he can not recover it back from the latter.' The theory upon which the connecting carrier is held not to be bound by special instructions or agreements be- tween the shipper and the first carrier is that the shipper ' Potts V. New York, etc., E. Co., 131 Mass. 455, s. c. 41 Am. R. 247 ; Briggs C.Boston, etc., R. Co., 6 Allen (Mass.) 246, s. c. 83 Am. Dec. 626; Price ■;;. Denver, etc., E. Co., 12 Colo. 402, s. c. 21 Pac. E. 188, 37 Am. & Eng. E. Co., 626; Moses v. Port Townsend, etc., E. Co., 5 Wash. 595, s. c. 32 Pac. E. 488; Moore v. Henry, 18 Mo. App. 35; Knight i;. Providence, etc., E. Co., 13 E. I. 572, s. c. 43 Am. E. 46 ; Vaughan V. Providence, etc. E. Co., 13 E. I. 578; Schneider v. Evans, 25 Wis. 241, s. c. 3 Am. E. 56 ; Patten v. Union Pac. E. Co., 29 Fed. E. 590; Loew- enberg v. Eailway Co., 56 Ark. 439, s. c. 19 S. W. E. 1051 ; Georgia, etc., E. Co. V. Murrah, 85 Ga. 343, s. c. 11 S. E. E. 779, 45 Am. & Eng. E. Cas. 334; Sumner v. Southern E. Assn., 7 Baxt. (Tenn.) 345, s. c. 9 Am. & Eng. E. Cas. 18; Missouri, etc., E. Co. v. Stoner, 5 Tex. Civ. App. 50; Wells v. Thomas, 27 Mo. 17, s. c. 72 Am. Dec. 228, and note. But see Fitch v. New- berry, 1 Doug. (Mich.) 1, s. c. 40 Am. Dec. 33, and Marsh ii. Union Pac. E. Co., 3 McCrary (U. S. C. C.) 236, both of which are disapproved in Crossanw. New York, etc., E. Co., 149 Mass. 196, s. c. 21 N. E. E. 367. In Illinois Cent. E.Co. V. Brookhaven,etc.,Co., 71 Miss. 663, s. c. 16 So. E. 252, it is held that this rule does not apply as to charges of a prior carrier which are in excess of the amount fixed by its special con- tract and which the connecting carrier is seeking to collect but has not paid. ^St. Louis, etc., E. Co. i;. Lear, 54 Ark. 399, s. c. 55 Am. & Eng. E. Cas. 414. See, also. Knight v. Providence, etc., R. Co., 13 E. I. 572, s. c. 9 Am. & Eng. E. Cas. 80; Bissel. v. Price, 16 111. 408; Bowman v. Hilton. 11 Ohio 303. 'Mount Pleasant, etc., Co. v. Cape , Fear, etc., E. Co., 106N. Car. 207, s. c. 42 Am. & Eng. E. Cas. 498. 2254 CARRIERS. § 1451 makes the initial carrier his own forwarding agent and should look to it for redress rather than to an independent connecting carrier, which, as it is usually bound to receive and carry goods properly delivered to it in the customary manner, is also enti- tled to its usual charges and the charges of prior connecting carriers advanced by it in the usual course of business. But if the connecting carrier has notice that the initial carrier has fraudulently diverted the goods from the line specifically des- ignated to that of the connecting carrier and the latter becomes a party to the fraud for the purpose of getting the advantage of the rival line over which the contract provided that the goods should be shipped, it is not entitled to a lien either for charges for its own services or for those advanced by it to the first car- rier.' So, generally, if the possession of the property is not obtained in good faith in the usual course of business, but is wrongful and illegal, the carrier is not entitled to a lien thereon either for its own charges or for those advanced to the prior carrier.^ And if a partnership exists between the carriers, or if the connecting carrier holds the initial carrier out to the world as its agent with apparent authority to bind it in such matters it may lose the right which it might otherwise have to a lien for charges in excess of those fixed in the contract with the initial company or payment of charges advanced by it.' So, as against innocent third persons who have taken a bill of lading for value upon the faith of the representations therein that the freight charges were all prepaid, the connecting carrier may not be entitled to enforce a lien for its own charges or for those paid by it to the prior carrier thereafter, particularly 1 Denver, etc., R. Co. v. Hill, 13 O'Connor, 100 Mass. 515; Bissel v. Colo. 35, 8. c. 40 Am. & Eng. R. Cas. Price, 16111.408. But compare Walker 145, 4 L. R. A. 376 ; Bird v. Georgia R. v. Cassaway, 4 La.Ann. 19, b. c. 50 Am. Co., 72 Ga. 655, s. c. 27 Am. & Eng. R. Dec. 551. Cas. 39. 8 See Evansville, etc., R. Co. v. ' Robinson v. Baker, 5 Cash. (Mass.) Marsh, 57 Ind. 505 ; Harp v. The Grand 137; Stevens V. Bcston, etc., R. Co,, 8 Era, 1 Woods (TT, S. C. 0.) 184; Gray (Mass.) 262; Andrews v. Diet- Kniglit v. Providence, etc., R. Co., 13 erch, 14 Wend. (N. Y.) 31 ; Fitch v. R. I. 572, s. c. 9 Am. & Eng. R. Cas. Newberry, 1 Doug. (Mich.) 1, g. c. 40 !)(); Norfolk, etc., R. Co. v. Read, 87 Am. Dec. 33. See, also, Adams v. Va. 185, s. c. 12 S. E. R. 395. § 1452 CONNECTING CARRIERS. 2255 where it has notice or information sufficient to put it upon in- quiry as to the negotiation and ownership of the bill of lading.' It has been held that a connecting carrier is under no obligation to pay accrued charges upon freight tendered to it by a pre- ceding carrier," and that it has no right to detain freight re- ceived by it from another carrier until it has received a bill of back charges;' but it has also been held, on the other hand, that when several independent carriers successively receive goods for transportation each is entitled to payment of the charges in advance or to a lien on the goods for the same,* and that if the initial carrier neglects to inform the succeeding car- rier of the payment of the freight charges the latter may detain the goods for a reasonable time in which to ascertain the facts .' § 1452. Liability of carriers as between themselves — Action over. — It is said that "the common law obligation of a railroad company to a connecting line are the same as to reception, transportation and delivery of freight as those existing between a railroad company and an individual shipper."^ This state- ment, in its unlimited and unqualified form, is, perhaps, too broad, but it is true in the main. Thus, it has been held that the one carrier has no more right to require another carrier to stop its trains and deliver and receive passengers and freight at the junction of the two roads where the former has estab- lished a station only half a mile from a station already estab- lished on the other road than an individual would have to re- ' American Nat. Bank v. Georgia R. ston o. New York, etc., R. Co., 76 N. Co., 96 Ga. 665, s. c. 23 S. E. R. 898. Y. 631. ^Baltimore, etc., R. Co. v. Adams * Knight ». Providence, etc., R. Co., Ex. Co., 22 Fed. R. 32 ; Oregon, etc., 13 R. I. 572, s. c. 9 Am. & Eng. R. Cas. R. Co. V. Northern Pac. R. Co., 51 90. See, also, Randall v. Richmond, Fed. R. 465. etc., R. Co., 108 N. Car. 612, s. c. 13 S. ' Dunham v. Boston, etc., R. Co., 70 E. R. 137, and compare Grand Rapids, Me. 164, s. c. 35 Am. R. 314; Michaels etc., R. Co. v. Diether, 10 Ind. App. V. New York, etc., R. Co., 30 N. Y. 206, s. c. 37 N. E. R. 39, 1069. 664; Root». Great Western R. Co., 45 =Union Ex. Co. v. Shoop, 85 Pa. St. N. Y. 524. But see Judson v. Western 325. E. Co., 4 Allen (Mass.) 520; Living- «Ray on Freight Carriers, 390. 2256 CARRIERS. § 1452 quire the trains of a carrier to stop at the point nearest his house and most convenient to him.' So, the initial carrier stands as to the succeeding carrier, in most respects as the owner of the goods and usually has authority to contract with the succeeding carrier on behalf of the owner." But usage or custom may often exert an important influence upon the rela- tive rights, duties and liabilities of the different carriers as among themselves, particularly in regard to delivering and re- ceiving goods, which, if unknown to the shipper and not such as he ought to take notice of, would not affect the rights of the shipper.' So, carriers may sometimes be held liable to a ship- per as partners when, as between themselves, they are not partners and private arrangements between themselves may bind them without in any way binding the shipper or affect- ing their duties and liability to him.' The shipper may usually sue either an initial carrier which undertakes to transport goods over connecting lines without limiting its liability to its own line or the carrier which is guilty of the default or com- mits the injury, but, as between the carriers, the general rule is that each one is liable for the result of its own negligence or breach of duty, and, although the first carrier may have assumed the responsibility for the transportation of the goods beyond its own line, and damages may be recovered against it by the shipper for a failure in that regard, yet the carrier which actually causes the injury will be liable to it for such damages. ° If the carrier which caused the injury is duly ' Shelbyville, etc., E. Co. v. Louis- ^-^allace v. Rosenthal, 40 Ga. 419; ville, etc., R. Co., 82 Ky. 541, s. e. 21 Conkey v. Milwaukee, etc., E. Co., Am. & Eng. E. Cas. 233. See, also, 31 "Wis. 619, s. c. 11 Am. R. 630; Con- Kentucky, etc.. Bridge Co. v. Louis- don v. ^larquette, etc., R. Co., 55 ville, etc., E. Co. 37 Fed. R. 567, s. c. Mich. 218, s. c. 54 Am. E. 367; Mc- 2 L. E. A. 289. Donald v. Western, etc., R. Co., 34 ' Ray on Freight Carriers, 391, 392 ; N. Y. 497. See ante, § 1444, and notes. Squire v. New York, etc., R. Co., 98 * Ante, §1440. Mass. 239, s.c. 93 Am. Dec. 162; Raw- "Missouri Pac. R. Co. v. Twiss, 35 son V. Holland, 59 N. Y. 611, s. c. 17 Neb. 267, s. c. 53 N. W. R. 76; Chi- Am. R. 394; Marquette, etc., R. Co. cago, etc., R. Co. v. Northern, etc., V. Kirkwood, 45 Mich. 51, a. c. 40. Co., 70 111. 217; Vermont, etc., E. Co. Am. E. 453; York Co. v. Cent. R. Co., v. Fitchburg R. Co., 14 Allen (Mass.) 3 Wall. (U. S.) 113. 462; Conkey i;. Milwaukee, etc., R. § 1452 CONNECTING CAKKIERS. 2257 notified to come in and defend the action against the initial carrier, or, it seems, even if it is not expressly notified to defend, if it knows that it alone caused the injury and is liable over and is aware of the pendency of the suit and its right to defend, the judgment against the initial carrier therein will be conclusive against such connecting carrier as to the amount of the damages in an action against it by the initial carrier.' A contract between a shipper and an initial carrier whereby such carrier agrees to transport goods over its own line and deliver them to a designated independent connecting carrier for trans- portation to their destination may incidentally be of advantage to the connecting carrier, but it is not a contract for the bene- fit of the connecting carrier in such a sense as to give the latter a right of action against the initial carrier for violating the contract by delivering the goods to another connecting car- rier for transportation to their destination.^ Co., 31 Wis. 619. But see New York, also, Elliott on Roads and Streets, etc., R. Co. V. National, etc., Co., 137 656, 657. But compare Baxendale v. N. Y. 23, s. c. 82 N. E. R. 993. As to London, etc., R. Co., 44 L. J. Ex. 20, when the statute of limitations begins s. c. L. R. 10 Ex. 35. The judgment to run against such an action, see is not, of course, conclusive as to the Pennsylvania Co. v. Chicago, etc., R. liability of the second company to the Co., 144 111. 197, 8. c. 55 Am. & Eng. first. Chicago, etc., R. Co. v. North- R. Cas. 424, 33 N. E. R. 415. em, etc., Co., 70 111. 217. 'Missouri Pac. R. Co. v. Twiss, 35 'St. Louis, etc., R. Co. v. Missouri Neb. 267, s. c. 53 N. W. R. 76. See, Pac. R. Co., 35 Mo. App. 272. CHAPTER LX. COMMON LAW DUTIES OF COMMON CARKIKRS. § 1453. Who are railroad carriers — § 1469. Fast freight lines — Union depot companies — Express companies. 1454. General nature of the com- mon law duty. 1455. Act of God — What consti- tutes. 1456. Act of God — Express con- tract. 1457. Burden on carrier to prove that act of God caused loss — Concurring negligence. 1458. Public enemies. 1459. Public enemies — Mobs- Strikes. 1460. Mobs — Violence of does not relieve where there is an express contract. 1461. Public authority — When ex- ercise of exonerates car- riers. 1462. When the liability of the company as a common car- rier attaches. 1463. Railroad company as a ware- houseman — General doc- trine. 1464. When the liability of a rail- road company is that of a warehouseman. 1465. The duty to carry. 1466. Refusal to carry — Excuses for. 1467. Discrimination — Unjust for- bidden. 1468. Discrimination — Like facili- ties to be furnished to all where like conditions exist. (2258) 1470. 1471. 1472. 1473. 1474. 1475. 1476. 1477. 1478. 1479. 1480. 1481. 1482. 1483. 1484. Discrimination — Effect on stipulations limiting lia- bility. Duty to furnish cars. Refusal to carry — Duty to state grounds of refusal. Duty of carriers as to cars and equipment — Standard of. Express contract to furnish cars. Goods requiring unusual fa- cilities — Refrigerator cars. Acceptance of perishable property — Cars and equip, ments. Failure to furnish cars — Offer of goods. Cars— Inability to furnish — Burden on carrier to prove an excuse for failure to fur- nish. Duty of carrier as to cars and equipments — Influence of breach of duty on contracts limiting liability. Facilities for transportation — Yards — Depots. Selection of cars by shipper. Negligence — Handling goods. Delay in transporting goods — General doctrine. Unreasonable delay — What constitutes — Evidence of. Delay- Accidents and obstruc- tions. §1453 COMMON LAW DUTIES OF COMMON CAERIBES. 2259 § 1485. 1486. 1487. 1488. 1489. Accidents do not terminate the duty of the carrier. Care of goods during delay. Delay — Notice to the owner. Delay — Destruction of goods while awaiting transporta- tion hy fire. Delay in transporting goods caused by the act of the owner. § 1490. Directions and instructions of shipper — Duty of obedience to. Fraud of shipper. Negligence of owner — Pack- ing and loading goods. 1493. Placing goods in an exposea position. What law governs — Law of the place — Conflict of laws. 1491. 1492. 1494. § 1453. Who are railroad carriers — ^Fast freight lines — Union depot companies — Express companies. — Under the term railroad carriers we include all persons and corporations that undertake to carry goods over lines of railways. As elsewhere appears, express companies, fast freight companies, despatch companies, and other organizations of a similar character, are regarded by us as railroad carriers.' We have availed ourselves of the privilege which John Stuart Mill says authors possess, of giving our definitions and employing the terms as we have defined them. A fast freight or despatch company is not in the strict sense a railroad carrier, but the courts have treated such companies as railroad carriers and held them sub- ject to the duties and liabilities of railroad carriers. These com- panies often make contracts with the railroad companies, and the latter have endeavored by that means to escape liability in their capacity of common carriers but the courts have steadfastly refused to permit them to avoid liability by any such means." The law will not permit railroad carriers to escape their duties ' Ante, § 140^. ' In the case of The Bank of Ken- tucky V. Adams, etc., Co., 93 U. S. 174, it was said : "Over very many of our railroads the contracts for trans- portation of goods are made, not with the owners of the roads, nor with the railroad companies themselves, but with transportation agencies or com- panies which have arrangements with the railroad companies for the car- riage. In this manner, some of the responsibilities of common carriage are often sought to be evaded ; but in vain. Public policy demands that the right of the owners to absolute se- curity against the negligence of the carrier and of all persons engaged in performing the carrier's duty, shall not be taken away by any reservation in the carrier's receipt, or by any ar- rahgement between him and the per- forming company." See, generally, Insurance Co. v. Railroad Co., 104 U. S. 146; Shearer d. Pacific, etc., Co., 43 111. App. 641. 2260 CARRiEKS. § 1453 as common carriers by assuming the title of "forwarders" or the like, or by employing any similar means. The court will look through form to substance and hold them to a due per- formance of their duties as common carriers.' Union depot companies may, under some circumstances, be common car- riersk* If they undertake any part of the duty of carrying the goods as independent carriers or connecting carriers we suppose that they would be held liable as common carriers.' Where, however, a union depot company is formed of several railroad companies and simply maintains a depot for the re- ceipt and discharge of goods we do not think it could be con- sidered a common carrier, but so much depends upon the statute governing the particular case and upon the facts of such case that it is unsafe to attempt to lay down a general rule. The employes of a union depot company may be, in a restricted sense, the agents of each of the several companies forming the union company. Thus, where the ticket-seller of the union company has authority to sell tickets for all the con- stituent companies the request for a ticket over the line of one of such companies calls upon the ticket-seller to act as the agent of the company over whose line the passenger desires to travel.* In a case where two railroad companies used one de- ' Christenson v. American, etc., Co., rights, powers and duties of union de- 15 Minn. 270, s.c. 2 Am. R. 122; Buck- pot companies, see St. Paul Union land V. Adams Ex. Co., 97 Mass. 124, Depot Co. v. Minnesota, etc., R. Co., s. c. 33 Am. Dec. 68; United States, 47 Minn. 154, s. c. 13 L. R. A. 415; etc., Co. V. Backman, 28 Ohio St. 144; King v. Barnes, 109 N. Y. 267; State Oderkirk v. Fargo, 58 Hun 347; Read v. St. Paul, etc., R. Co., 42 Minn. 142, V. Spaulding, 6 Bosw. 395 ; Merchants', s. c. 6 L. R. A. 234 ; People v. Cheese- etc, Co. V. Joesting, 89111. 152; South- man, 7 Colo. 376, s. c. 16 Am. &Eng. R. em, etc., Co. v. McVeigh, 20 Gratt. Cas. 400; Mayor of Worcester d. Nor- 264. See, generally, Wells v. Amer- wich, etc.,R. Co., 109 Mass. 103; Fort ican, etc., Co., 55 Wis. 23, s. c. 42 Am. St., etc., Co. v. Morton, 83 Mich. 265; R. 695; Gait v. Adams Ex. Co., Mc- Union Depot, etc., Co. v. Chicago, Arth. & M. (U. S. C. C.) 124, 48 Am. etc., Co., 113 Mo. 213, s. c. 56 Am. & R. 742; Southern, etc., Co. v. Glenn, Eng. R. Cas. 245; Challisa v. Atohi- 16 Lea 472; Bardwell v. American, son, etc., R. Co., 45 Kan. 398. etc., Co., 35 Minn. 344 ; Hadd v. United ' Pennsylvania Co. v. Ellett, 132 111. States, etc., Co., 52 Vt. 335, 36 Am. R. 654. ''5'^- * Scott V. Cleveland, etc., R. Co., 'As bearing upon the organization, (Ind.) 43 N. E. R. 133. § 1454 COMMON LAW DUTIES OF COMMON CARRIERS. 2261 pot, but only one of them used it in the night time, it was held that there was no liability on the part of the company not using the depot in the night time for the injury due to a failure to light the depot,' and upon the reasoning of the opin- ion in that case it would seem to follow that each of the sev- eral companies and not the union company would be liable for its torts. But there may, of course, be torts committed by the employes of the union company acting for that company and not for any one of the constituent companies, and in such a case the union company, if the constituent companies were not partners or otherwise jointly bound, would alone be liable.^ Express companies derive their rights from the rail- road companies upon whose lines they do business and an express company can not stipulate that it shall not be liable for the negligence of the company' from which the rights are acquired. As we have elsewhere said, the common law for- bidding discrimination does not inhibit a railroad company from giving the right to do business over its road to one ex- press company to the exclusion of others.'' § 1454. General nature of the common lav7 duty. — As we have elsewhere said railroad carriers are invested with rights of a public nature,' and are charged with duties of a public 1 Louisville, etc., E. Co. v. Tread- etc., Co., 43 N. J. Eq. 77; Pfister v. way, 142 Ind. 475. Central, etc., R.Co., 70 Cal. 169, 11 Pac. ' Indianapolis, etc.,R. Co. v. Cooper, E. 686. See, generally, as to the doo- 6 Ind. App. 202, s. c. 33 N. E. E. 219. trine of unjust discrimination as ap- ' Bank of Kentucky v. Adams, etc., plied to express companies. Interna- Co., 93 U. S. 174. See Packard v. tional, etc., Co. v. Grand Trunk, etc., Taylor, 35 Ark. 402, s. c. 37 Am. E. E. Co., 81 Me. 92, s. c. 16 Atl. E. 370, 37; Boscowitz v. Adams, etc., Co., 93 37 Am. & Eng. E. Cas. 622; Alsop v. 111. 523; Adams, etc., Co. v. Jackson, Southern, etc., Co., 104 N. Car. 278, 92 Tenn. 326, s. c. 21 S. W. 666, 55 s. c. 10 S. E. E. 297, 6 L. E. A. 271, 41 Am. & Eng. E. Cas. 319. Albany L. J. 167; Sargent v. Boston, * Ante, § 1453 ; Memphis, etc., E. Co. etc., E. Co., 115 Mass. 416 ; The D. E. V. Southern, etc., E. Co., 117 U. S. 1, Martin, 11 Blatchf. 233. 6 Sup. Ct. R. 542, 23 Am. & Eng. E. ^Ante, § 1393. As to the rule that Cas. 545; United States v. Delaware, railroad companies are common car- etc, E. Co., 40 Fed. E. 101; Little riers, see St. Joseph, etc., E. Co. ». Eock, etc., E. Co. v. East Tennessee, Palmer, 38 Neb. 463, s. c. 22 L. E. A. etc., E. Co., 47 Fed. E. 771; Ilwaco, 335; Atchison, etc., E. Co. v. Wash- etc, E. Co. V. Oregon, etc., Co., 57 Fed. burn, 5 Neb. 117. E. 673; Delaware, etc., Co. ^'. Central, Corp. 144 2262 CAKRiERS. § 1454 character. As we have heretofore shown, and as we shall hereafter more fully show, they are, in their capacity of com- mon carriers, subjected to governmental control and regulation because of the public nature of their rights and duties. They are, however, regulated and controlled both by statute and by the rules of the common law. Statutes in many of the states have limited the rights, enlarged the duties and increased the liabilities of railroad carriers and so has the statute of the United States generally known as the "Interstate Commerce Law," but it is our purpose in this chapter to treat of the com- mon law rules and not of those prescribed by statutes, state or national. The common law imposes very onerous duties upon carriers and holds them to very strict accountability. These rules prevail except where they have been changed or abrogated by statute. By the common law carriers are bailees for hire but their liability is much greater than those of ordinary bailees for hire or reward. The liability of common carriers is an extraordinary one, and does not depend upon the ques- tion of negligence or no negligence, for they may be liable for the loss of goods or for injury to them, although there has been, on their part, no negligence. They are in effect insur- ers of the goods entrusted to them for transportation,' and ac- cording to the old common law rule can escape liability only upon some one of tlie following grounds, namely, that the loss or injury was caused by the act of God, or by the act of the 'McCarthy v. Louisville, ftc, R. etc., R. Co., 80 .Mo. .340, s. c. 1 S. W. Co., 102 Ala. 19,'3, s. c. 48 Am. St. R. R. .S27, 26 Am. & Eng. R. Cas. 315; 29; Alabama, etc., R. Cm, ii. Thomas, Watson v. Memphis, etc., R. Co., 9 89 Ala. 294, s. c. 7 So. R. 762; Louis- lleisk. 2r,F,; Culbreth v. Philadelphia, ville, etc., R. Co. v. Ni(tliolai, 4 Ind. etc., R. Co., 3 Houst. (Del.) 392; App. 119, s. c. 30 N. E. R. 424; Mc- Railway Co. .'.Cravens, 57 Ark, 112, s. Kinney v. .Tewett, 90 N. Y. 267, s. c 9 c. 20 S. W. R. 803, 7 Am. R. & Corp. Am. & Eng. R. Cas. 209; Packard v. R. (Lewis) 270, and authorities cited Taylor, 35 Ark. 402, p. c. 37 Am, R. note p. 281 ; Willock v. Pennsylvania 37; Chicago, etc., R. Co. v. Shea, 66 R. Co., 166 Pa. St. 184, s. c. 45 Am. 111. 471; Hall v. Renfro, 3 :\Iecf, St. R. 674 ; Lewis t>. Ludwick, 6 Colo. (Ky.) 51 ; Bohannan «. Hammond, 42 368, s. c. 98 Am. Dec. 454 ; Richmond, Cal. 227; Robert.son /-. Kennedy, 2 etc., R. Co. v. Benson, 86 Ga. 203,8. Dana 430; Fillebrown ". Onind Trunk c. 22 Am. St. R. 446. R. Co., 55 Me. 462; Davis v. Wabash. § 1454 COMMON LAW DUTIES OF COMMON CAEEIEKS. 2263 public enemy. The modern rule is more liberal, for, to the old common law grounds which will exonerate the carrier from liability have been added the following, namely, acts of the pub- lic authorities, and loss or injury attributable to the inherent na- ture of the goods. It is sometimes said that another ground has been added by the modern law, namely that arising from the acts of the shipper, but we think there never was a time when the carrier could be held liable where the loss was caused by the wrong or fault of the shipper. The duties of common car- riers as such do not rest upon contract but are imposed by law.' As the duties of common carriers are imposed by law they are not at liberty to arbitrarily refuse to carry, ^ nor to make un- just discriminations nor have they a right to impose such limitations as they choose. But while there is no general right to impose limitations there is according to the great weight of authority, a right within reasonable bounds to impose limita- tions.' •Merritt v. Earle, 29 N. Y. 115; Carroll v. Staten Island, etc., E. Co., 65 Barb. 32; Thurman v. Wells, 18 Barb. 500. 2 Hollister v. Nowlen, 19 "Wend. 234 ; Merchants', etc., Co. v. Cornforth, 3 Colo. 280; York Co. ■». Central E. Co., 3 "Wall. 107; New Jersey, etc., E. Co. V. Merchants' Bank, 6 How. (U. S.) 344; St. Louis, etc., E. Co. v. Weakly, 50 Ark. 397; Western, etc., Co. V. Newhall, 24 111. 466; Kansas Pac. E. Co. V. Eeynolds, 17 Kan. 251 ; Levering ti. Union, etc., Co., 42 Mo. 88; Michigan, etc., E. Co. v. Hale, 6 Mich. 243; Dorr v. New Jersey, etc., Co., 11 N. Y. 485; Schofield v. Eail- way Co., 43 Ohio St. 571 ; Nelson v. Hudson Eiver E. Co., 48 N. Y. 498 ; Kirkland v. Dinsmore, 62 N. Y. 271; Atchison, etc., E. Co. v. Dill, 48 Kan. 210, s. c. 29 Pac. E. 148. 'This question is elsewhere dis- cussed and we simply allude to the subject at this place. See Hart v. Pennsylvania Co., 112 U. S. 331, s. c. 5 Sup. Ct. E. 151, citing and approv- ing, Newburger v. Howard, 6 Phila. 174; Squire v. New York, etc., E. Co., 98 Mass. 239; Hopkins v. Westcott, 6 Blatckf. 64; Belger v. Dinsmore, 51 N. Y. 166; Oppenheimer v. United States, etc., Co., 69 111. 62; Magnin v. Dinsmore, 56 N. Y. 168; Ernest v. Express Co., 1 Woods 573 ; Elkins v. Empire, etc., Co., 81>£ Pa. St. 315; South, etc., E. Co. v. Henlein, 52 Ala. 606 ; Museri). Holland, 17 Blatchf . 412; Harvey v. Terre Haute, etc., E. Co., 74 Mo. 538 ; Graves v. Lake Shore, etc., E. Co., 137 Mass. 33. Disap- proving Southern, etc., E. Co. v. Moon, 39 Miss. 822; United States, etc., E. Co. V. Backman, 28 Ohio St. 144; Black v. Goodrich, etc., Co., 55 Wis. 319, s. c. 13 N. W. E. 244; Chi- cago, etc., E. Co. V. Abels, 60 Miss. 1017; Kansas City, etc., E. Co. v. Simpson, 30 Kan. 645, s. c. 2 Pac. E. 821; Moulton v. St. Paul, etc., E. Co., 2264 CARRIERS. § 1455 § 1455. Act of God— What constitutes.— As we have seen, the common law holds the common carrier exonerated in cases where the act of God is the proximate cause of the loss of goods entrusted to it for transportation. There is no diversity of opinion as to the rule that the act of God does exonerate the carrier/ but there is conflict of opinion as to what may be con- sidered as the act of God. It may safely be said, however, that if there is any intervening human agency which contributes to the production of the loss, the loss can not be considered as caused by the act of God in such a sense as to relieve the carrier from liability.* There may be accidents causing loss without fault 31 Minn. 85, s. c. 16 N. W. E. 497. See, also, upon the general subject. Maxwell v. Southern, etc., Co., (La.) 19 So. E. 287; Smith v. American, etc., Co., (Mich.) 66 N. W. E. 479; Balti- more, etc., E. Co. V. Eagsdale, (Ind. App.) 42 N. E. E. 1106. 1 Eiley v. Home, 5 Bing. 217, s. c. 15 E. 0. L. 549 ; Fen wick v. Schmalz, L. E. 3 C. P. 313 ; The Maggie Hammond, 9 Wall. 435; Gleeson ■!). Virginia, etc., E. Co., 5 Mackey (D. C.) 356; Strouss V. Wabash, etc., E. Co., 17 Fed. E. 209 ; Pendall v. Eench, 4 McLean 259 ; Smith V. Western, etc., E. Co., 91 Ala. 455, s. c. 24 Am. St. E. 929; Hooper v. Wells, 27 Cal. 11, s. c. 85 Am. Dec. 211 ; Converse v. Brainerd, 27 Conn. 607; Eichmond, etc., E. Co. V. White, 88 Ga. 805; Emery v. Hor- sey, 4 Me. 407, s. c. 16 Am. Dec. 268 ; Hastings v. Pepper, 11 Pick. 41 ; Fer- gusson V. Brent, 12 Md. 9, s. c. 71 Am. Dec. 582 ; Ballentine v. North Missouri E. Co., 40 Mo. 491, s. c. 93 Am. Dec. 315; Neal». Saunderson, 2Smed.&M. (Miss.) 572, 8. c. 41 Am. Dec. 609 ; Cobb ■D. McMechen, 6 Johns. 160, s. c. 5 Am. Dec. 200; Michaels «. New York, etc., E. Co., 30 N. Y. 564, s. c. 86 Am. Dec. 415; Black v. Chicago, etc. E. Co., 30 Neb. 197 ; Moses v. Norris, 4 N. H. 304 ; New Brunswick, etc., Co. v. Tiers, 24 N. J. Law 697, s. c. 64 Am. Dec 396 ; Livezey v. Philadelphia, 64 Pa, St. 106, s. c. 3 Am. E. 578; Phil adelphia, etc., E. Co. v. Anderson 94 Pa. St. 351, s. c. 39 Am. E 787; Slater v. South Carolina E. Co. 29 S. Car. 96 ; MeClures v. Hammond 1 Bay (S. Car.) 99, s. c. 1 Am. Dec 598; Merchants', etc., Co. v. Bloch 86 Tenn. 392, s. c. 6 Am. St. E. 847 Murphy v. Staton, 3 Munf. (Va.) 239 Strohn v. Detroit, etc., E. Co., 23 Wis, 126 s. c. 99 Am. Dec. 114; Day v. Eid- ley, 16 Vt. 48, s. c. 42 Am. Dec. 489 McGraw «. Baltimore, etc., E. Co., 18 W. Va. 361, s. c. 41 Am. E. 696. ' Friend v. Woods, 6 Gratt. 189, s. c. 52 Am. Dec. 119; New Brunswick, etc., Co. v. Tiers, 24 N. J. Law 697, s. c. 64 Am. Dec. 396; McArthur v. Sears, 21 Wend. 190 ; Eead v. Spauld- ing, 30 N. Y. 630, b. c. 86 Am. Dec. 426 ; Propeller Niagara v. Cordes, 21 How. 7; Proprietors of Trent Navigation V. Wood, 3 Esp. 127 ; Nugent?). Smith, L. E. 1 C. P. LMv. 423 ; Oakley v. Ports- mouth, etc., Co., 11 Exch. 618; Hill v. Sturgeon, 28 Mo. 323. See, generally, Strouss ■». Wabash, etc., R. Co., 17 Fed. E. 209; Gosling v. Higgins, 1 Oariip. 451 ; Fairchildv. Slocum, 19Wend.329; The Maggie Hammond, 9 Wall. 435; Grafi V. Bloomer, 9 Pa. St. 114; Par- ^1455 COMMON LAW DUTIES OF COMMON CARRIERS. 2265 or negligence on the part of the carriers, and still the carriers will be liable.' It is, however, quite well settled that where the loss is caused by extraordinary storms, tempests or the like, the carrier is exonerated unless some fault on its part concurred in producing the result.^ Thus, in one of the re- ported cases it was held that the carrier was not liable for loss caused by a sudden and extraordinary wind storm.' It has been held that a flood or freshet may be regarded as the act of God, although not unprecedented, if it was extraordinary and unexpected,' but we suppose that the carrier is not exonerated simply because the loss was caused by an unexpected flood.^ An extraordinary and unprecedented flood which causes a de- lay in transportation, resulting in the loss of perishable prop- erty, is such an act of God as will release the carrier from lia- bility.' Where the immediate and sole cause of loss is the ac- ker V. Flagg, 26 Me. 181 ; Miller v. Steam Navigation Co., 10 N. Y. 431; Hays V. Kennedy, 41 Pa. St. 378; Mershon v. Hobensack, 22 N. J. Law 572; Chevallier v. Straham, 2 Tex. 115-125 ; Faulkner v. Wright, Eice L. (S. Car.) 107. 'Forward v. Pittard, 1 T. E. 27; Hyde v. Trent, etc., Co., 5 T. E. 389; American, etc., Co. v. Moore, 5 Mich. 368; Hibler v. McCartney, 31 Ala. 501. * Nashville, etc., E. Co. v. King, 6 Heisk. 269; Nashville, etc., E. Co. v. David, 6 Heisk. 261, s. c. 19 Am. E. 594; Ballentine v. North Missouri, etc., E. Co., 40 Mo. 491, s. c. 93 Am. Dec. 315; Wallace v. Clayton, 42 Ga. 443 ; Pearce v. The Thomas Newton, 41 Fed. E. 106; Packard v. Taylor, 35 Ark. 402; Hibernia,etc.,Co.». St. Louis Transportation Co., 120 U.S. 166; Bow- man V. Teall, 23 Wend. 306, s. c. 35 Am. Dec. 562 ; Harris v. Band, 4 N. H. 259, s. c. 17 Am. Dec. 421 ; Feinberg v. Delaware, etc., E. Co., 52 N. J. Law 451. Loss caused by an earthquake is attributaBle to the act of God. Sla- ter V. South Carolina E. Co., 29 S. Car. 96. 'Blythe v. Denver, etc., E. Co., 15 Colo. 333, s. c. 25 Pac. E. 702. In the case cited a car was blown from the track, a stove overturned, the coals thrown from the stove set Are to and consumed the goods, and it was held that the storm was the proximate cause of the loss. The court cited Insurance Co. v. Transportation Co., 12 Wall. 194; Milwaukee, etc., E. Co. V. Kellogg, 94 TJ. S. 469; Insurance Co. V. Boon, 95 U. S. 117. 'People v. Utica, etc., Co., 22 111. App. 159 ; Smyrl v. Niolon, 2 Bailey Law 421, s. c. 23 Am. Dec. 146. ^Gleeson v. "Virginia, etc., E. Co., 140 U. S. 435, reversing Gleeson v. Virginia, etc., E. Co., 5 Mackey 356. What is to be, or indeed what may be, expected, the carrier must guard against. ^Norris v. Savannah, etc., E. Co., ?3 Fla. 182, s. c. 11 Am. St. E. 355 (citing Eead v. Spaulding, 30 N. Y. 630; Eailroad Co. v. Eeeves, 10 Wall. 176 ; Maslin v. Baltimore, etc., E. Co., 2266 CARRIERS. § 1456 tion of the elements, as by freezing, the carrier is relieved from liability,' but if the fault of carrier concurs he is not re- lieved." § 1456. Act of God — Express contract. — Where there is an express contract to carry and deliver within a specified time and no limitations or qualifications therein, it is held that the carrier can not make available defenses founded upon causes arising from what is termed the act of God.* Where, however, there is no such express contract a different rule prevails and from a loss attributable to causes arising from the act of God the carrier may be exonerated.* A railroad carrier may en- large its liability by contract, but it will not be deemed to have done so unless the provisions of the contract clearly indicate an intention to assume a greater liability than that imposed by law.' § 1457. Burden on carrier to prove that act of God caused loss — Concurring negligence. — The burden is on the carrier 14 W. Va. 180, s. c. 35 Am. R. 748; Williams v. Grant, 1 Conn. 487, s. c. 7 Am. Dec. 235; Hall & Co. v. Eenfro, 3 Meto. (Ky.) 51; 2 Eedfleld on Ey. 6; Friend v. Woods, 6 Gratt. 189, s. c. 52 Am. Dec. 119). See, also, Railroad Co. v. Reeves, ]0 Wall. 176; Black v. Chicago, etc., R. Co., 30 Neb. 197; Wallace v. Clayton, 42 Ga. 443; Hoadley v. Northern, etc., Co., 115 Mass. 304, s. c. 15 Am. E. 106; Vicksburg, etc., R. Co. v. Rags- dale, 46 Miss. 458; American, etc., Co. V. Smith, 33 Ohio St. 511, s. c. 31 Am. E. 561 ; Lipford v. Charlotte, etc., E. Co., 7 Eich. Law 409; Nashville, etc., E. Co. V. David, 6 Heisk. 261, s. c. 19 Am. E. 594. In the case of St. Louis, etc., R. Co. v. Bland, (Tex. Civ. App.) 34 S. W. E. 675, the court held that it was error to instruct that the railroad company in constructing its road should have given heed to the history of previous floods within the memory of living men, as due care in locating and constructing the road may be shown, although no ef- fort was made to obtain the history of previous floods. ' Crosby v. Fitch, 12 Conn. 410, s. c. 31 Am. Dec. 745; Parsons v. Hardy, 14 Wend. 215, s. c. 28 Am. Dec. 521; Harris v. Eand, 4 N. H. 259, s. c. 17 Am. Dec. 421: Empire, etc., Co. v. Wallace, 68 Pa. St. 302, s. c. 8 Am. R. 178; Beckwith v. Frisbie, 32 Vt. 559. ''Milton V. Denver, etc., R. Co., 1 Colo. App. 307. ' Miller w.Chicago,etc., R. Co.,1 Mo. App. R. 474. Reference is made in the opinion in the case cited to Angell on Carriers, § 294 ; Davis v. Smith, 15 Mo. 467; Harrison v. Missouri R. Co., 74 Mo. 364; Harmony v. Burgham, 12 N.Y. 99. * Miller v. Chicago, etc., R. Co., 1 Mo. App. R. 474. ^ Price V. Hartshorn, 44 Barb. 655, s. c. 44 N. Y. 94; Gage ^v. Tirrell, 9 Allen 299. § 1457 COMMON LAW DUTIES OF COMMON CARRIERS. 2267 who relies on the defense that the loss was caused by the act of God to affirmatively prove that the act of God was the cause of the injury or loss.' There is, however, a diversity of opinion upon the question whether the carrier is bound to sup- plement evidence that the loss was caused by the act of God by evidence that its own negligence or fault did not contribute to the injury. Some of the cases affirm that if the carrier shows that the loss was caused by the act of God he is excused,^ while other cases hold that he must affirmatively show that there was no negligence or fault on his part.' If the fault or • Wallingford v. Columbia, etc., R. Co., 26 So. Oar. 258 ; Read v. St. Louis, etc., R. Co., 60 Mo. 199 ; Denton t). Ciii- cago,etc.,R.Co.,52Iowal61,s.c.35 Am. R. 263; Baltimore, etc., Co. v. Brady, 32 Md. 333; Colton v. Cleveland, etc., R. Co., 67 Pa. St. 211, 5 Am. R. 424; Mayo V. Preston, 131 Mass. 304; Davis t). Wabash, etc., R.Co. ,89 Mo. 340; Ag- new u. Steamer Costa Rica,27Cal. 425, s. c. 87 Am. Dec. 87 ; Southern, etc., Co. V. Newby, 36 Ga. 635, s. c. 91 Am. Dec. 783; Van Winkle v. South Carolina R. Co., 38 Gai. 32; Leonard v. Hen- drickson, 18 Pa. St. 40, s. c. 55 Am. Dec. 587; Wertheimer v. Pennsylva- nia Co., 17 Blatchf. 421; Toledo, etc., R. Co. V. Tapp, 6 Ind. App. 304, s. c. 33 N. E. R. 462. See, generally. Dun- son V. New York, etc., R. Co., 3 Lans. 265; Condict v. Grand Trunk, etc., R. Co.,54N.Y.500; Lamb v. Camden, etc., Transp. Co., 2 Daly (N. Y.) 454 ; Heyl V. Inman, etc., Co., 14 Hun 564 ; Whit- worth V. Erie R. Co., 87 N. Y. 413; Beach v. Raritan, etc., Co., 37 N. Y. 457; Long C.Pennsylvania R, Co., 147 Pa. St. 343; Craig v. Chidress, Peck (Tenn.) 270, s. c. 14 Am. Dec. 751 ; Lamb v. Camden, etc., R. Co., 46 N. Y. 271, s. c. 7 Am. R. 327. 'In Railroad Co. v. Reeves, 10 Wall. 176, the court said: "One of the instances always mentioned by the elementary writers of loss by the act of God is the case of loss by flood and storm. Now, when it is shown that the damage resulted from this cause immediately he is excused. What is to make him liable after this? No question of his negligence arises unless it is made by the other party. It is not necessary for him to prove affirmatively that the cause was such as releases him and then to prove affirmatively that he did not contrib- ute to it." See authorities cited in preceding note and see, also, Magnin V. Dinsmore, 56 N. Y. 168; Wolf v. American, etc., Co., 48 Mo. 421, s. c. 97 Am, Dec. 406; The J. C. Steven- son, 17 Fed. R. 5-10; Little Rock, etc., R. Co. u. Corcoran, 40 Ark. 375. ^ Brown v. Adams, etc., Co., 15 W. Va. 812; Ryan W.Missouri, etc., R. Co., 65 Tex. 13, s. c. 57 Am. R. 589 ; Steele V. Townsend, 37 Ala. 247, s. c. 79 Am. Dec. 49; Grey v. Mobile, etc., Co., 55 Ala. 387, 8. c. 28 Am. R. 729; Erie R. Co. ■!!. Lockwood, 28 Ohio St. 358; Richmond, etc., R. Co. v. White, 88 Ga. 805. See, generally, Shriver v. Sioux City, etc., R. Co., 24 Minn. 506, s. c. 31 Am. R. 353; Graham v. Davis, 4 Ohio St. 362, s. c. 62 Am. Dec. 285; Richmond, etc., R. Co. v. Benson, 86 Ga. 203, s. c. 22 Am. St. R. 446; Rich- mond, etc., R. Co, V. White, 88 Ga. 805. 2268 CARRIERS. § 1458 negligence of the carrier concurs or co-operates in causing the loss the rule that the act of God exonerates the carrier from liability will not apply, for the negligence of the carrier will be deemed the proximate cause of the loss.' The carrier is ex- onerated from liability only in cases where the act of God is the proximate cause of the loss, and not where the act of God is a remote cause,'' so that the burden is on the carrier to prove that the act of God was the proximate cause of the loss. Some of the authorities, indeed, require the carrier to show that the act of God was the sole cause of the loss.' § 1458. Public enemies. — The term " public enemies" means those with whom the country is at war, and does not include thieves, rioters or mere insurgents." Where, however, the in- ' McGraw v. Baltimore, etc., R. Co., 18W. Va. 361, s. c. 41 Am. R. 696; Wolf V. American, etc., Co., 43 Mo. 421 ; Columbia, etc., Co. v. Bason, 1 Harp. L. (S. Car.) 262; Williams v. Grant, 1 Conn. 487, s. c. 7 Am. Dec. 235 ; Hand v. Baynes, 4 AVhart. 204 ; Campbell v. Morse, 1 Harp. L. (S. Car.) 468. See, generally, Dunson v. New York, etc., R. Co., 3 Lans. 265; Peck V. Weeks, 34 Conn. 145; Amies V. Stevens, 1 Stra. 128 ; Siordet v. Hall, 4 Bing. 607, 13 E. C. L. 657; Wing v. New York, etc., R. Co., 1 Hilt. (N.Y.) 235; Philleo v. Sandford, 17 Tex. 227; Packard v. Taylor, 35 Ark. 402, s. c. 37 Am. R. 37; Hart v. Allen, 2 Watts (Pa.) 114; Thomas v. Wabash, etc., R. Co., 62 Fed. R. 200, 4 Interest Com. R. 802. 2 Railroad Co. ■». Reeves, 10 Wall. 176; Sullivan -j. Philadelphia, etc., R. Co., 30 Pa. St. 234; Proprietors of Trent, etc., Navigation v. Woop, 4 Doug. 287 ; Hays v. Kennedy, 41 Pa. St. 378, s. c. 80Am. Dec 627; Mer- ritt V. Earle, 31 Barb. 38; McArthur V. Sears, 21 Wend. 190; Merritt v. Earle, 29 N. Y. 115, s. c. 86 Am. Dec. 292 ; Express Co. «. Jackson, 92 Tenn. 326; McHenry v. Philadelphia, etc., R. Co., 4 Harr. (Del.) 448; Chicago, etc., R. Co. V. Shea, 66 111. 471; Read V. Spaulding, 30 N. Y. 630, s. c. 86 Am. Dec. 426; Sprowl v. Kellar, 4 Stewart & P. (Ala.) 382; Coosa, etc., Co. V. Barclay, 30 Ala. 120; Steele v. McTyer, 31 Ala. 667, s. c. 70 Am. Dec. 516; Backhouse v. Sneed, 1 Murph. (N. Car.) 173. 'Read v. Spaulding, 30 N. Y. 630, s. c. 86 Am. Dec. 426; Michaels v. New York, etc., R. Co., 30 N. Y. 564, s. c. 86 Am. Dec. 415; Merritt v. Earle, 29 N. Y. 115 ; McHenry v. Phil- adelphia, etc., R. Co., 4 Harr. (Del.) 448; Siordet v. Hall, 4 Bing. 607; Crosby r. Fitch, 12 Conn. 410, s. c. 31 Am. Dec. 745; Harmony v. Bingham, 12 N. Y. 99, s. c. 62 Am. Dec. 142; Davis r). Garrett, 6 Bing. 716. But see Morrison v. Davis, 20 Pa. St. 171, s. c. 57 Am. Dec. 695; Denny d. New York, etc., R. Co., 13 Gray 481, s. c. 74 Am. Dec. 645. * Coggs V. Bernard, 2 Ld. Raym. 909 ; Gage V. Tirrell, 9 Allen 299; Seligman V. Armijo, 1 N. Mex. 459. § 1459 COMMON LAW DUTIES OF COMMON CAKKIERS. 2269 surgents have so gathered strength as to involve the country in a civil war they are regarded as public enemies.' It is not necessary in order to constitute persons in arms against the gov- ernment public enemies that there should be formal or open declaration of war, for if there be an actual state of war those engaged against the government are public enemies.' It is the duty of the carrier to use due care and diligence to prevent the capture or destruction of goods by public enemies, and al- though the carrier is not liable when the loss is caused by the act of public enemies simply because of the loss, it is liable if its negligence contributed to the loss.^ The principle which supports the rule that the burden of proof is on the carrier to show that the loss was caused by the act of God requires that it be held that the burden is on the carrier who claims exonera- tion on the ground that tlie loss was caused by public enemies to prove that fact. We are inclined to the opinion that where the carrier defends upon the ground that the loss was caused by the public enemies it must supplement evidence that it was so caused by evidence that its negligence did not contribute to the loss, for the course pursued by it must be a matter pecu- liarly within its own knowledge. § 1459. Public enemies — Mobs — Strikes. — Under the an- cient rule the carrier was responsible for the loss of goods although the loss or injury was caused by the acts of mobs or riotous law breakers.* The general doctrine still prevails 'Thorington D. Smith, 8 Wall. 1; ' Holladay u. Kennard, 12 Wall. 254. Nashville, etc., R. Co. v. Estes, 10 *Coggs v. Bernard, 2 Lord Raym. Lea 747 ; McCranie v. Wood, 24 La. 909 ; Railway Co. v. Nevill, 60 Ann. 406; Philadelphia, etc., R. Co. Ark. 375, s. c. 30 S. W. R. 425, 28 D.Harper, 29 Md. 330; HoUaday u. L. R. A. 80; Chevallier «. Straham, 2 Kennard, 12 Wall. 254; Southern, Tex. 115, s. c. 47 Am. Dec. 639; For- etc, Co. V. Womack, 1 Heisk. 256; ward . 134; Cleve- land, etc., E. Co. . Ship Hudson, 11 La. Ann. 427; § 487. Plaisted v. Boston, etc., Co., 27 Me. 'There is, of course, a difference be- 132. tween the obligation of a common * Oakley b. Portsmouth, etc., Co., 11 carrier and that of an insurer who ex- Exch. 618 ; Hyde v. Trent, etc., Co., 5 ecutes a policy of insurance. Lawson Tenn. R. 389; Chicago, etc., R. Co. ■». on Contracts of Carriers, § 2. But in Sawyer, 69 111. 285; Merchants', etc., a general sense the railroad carrier is Co. v. Smith, 76 111. 542 ; Cox v. Peter- an insurer because of the general na- son, 30 Ala. 608 ; Hayes v. Kennedy, ture of the duty imposed upon it by 41 Pa. St. 378 ; Ladd v. Foster, 31 Fed. law. R. 827; The Morning Light, 2 Wall. ' Siordet v. Hall, 4 Bing. 607 ; Ewart 560. In Lipford v. Charlotte, etc., R. V. Street, 2 Bailey L. (S. Car.) 157; Co., 7 Rich. (S. Car.) 409, -^ distinc- McHenry ». Philadelphia, etc.. Rail- tion is made between loss resulting road Co., 4 Harr. (Del.) 448; Merhon from negligence and loss due to the V. Holensack, 22 N. J. Law 372 ; Brous- vis major. L^.JOO CARRIERS. § 1481 but we think that there is a distinction between what are called in- evitable accidents and occurrences resulting from the act of God, as storms, tempests, floods and the like.' In some of the cases, however, tlie term "inevitable accident" has been held to mean the same thing as the term "act of God.'" It makes no difference how mucli care and diligence the carrier may exercise nor wiiat may be the cause of the loss,' the carrier is liable where there is no effective protecting contract stipulation, except, of course, wliere the loss is due to some one of the causes which the law declares shall exonerate the carrier, or is caused by the fault of the shipper or the inherent qualities of the goods. Against loss from decay due to the inherent character of the goods the carrier does not undertake to protect the owner,* and, of course, as there is no duty in that regard tliore can be no negligence, but if the want of proper care and diligence in handling the goods causes the loss there may be negligence and consequent liability. So, upon the same principle, the carrier is not necessarily liable for injury from leakage, fer- mentation, evaporation or the like where it is due to the in- herent nature of the goods or to the conduct of the owner or shipper in preparing them for transportation. * The statement in a bill of lading that goods were in good condition when 'Hale V. New Jorsfy, etc., Co., 15 Pittsburgh, etc., R. Co. v. Ilollowell, Conn. 539, s. c. 39 Am. D.-c. 398; 65 Iml. 188, 194 ; Tuckerman i;. Steph- Central, etc., Boats «. Lowe, 60 Ga. 509; ens, etc., Co., ."JL'N. J. L.320; Crosbyu. Gordon v. Buchanan, 5 Yerg. (Tenn.) Fitch, 12 (Jonn. 410, s. c. 31 Am. R. 79; Trent, etc., Co. v. Wood, 4 745 ; 2 Parsons on Cont. (5th ed.) 145. Dougl. 287, s. c. 26 Eng. C. L. 479; a jt muy not be amiss to bring to Plaisted v. Boston, etc., Co., 27 Me. mind the fact that there is an eesen- 1.32, s. c. 46 Am. Dec. 587 ; Merritt v. tial difference between the liability of Earle, 29 N. Y. 115, s. c. 86 Am. ])(;c. railroads as carriers of goods and as 292. See Furgusson v. Brent, 12 Mil. carriers of piissciigcrs. 9, 8. c. 71 Am. Dec. .582; Poluck v. * Davidson u. Gwynne, 12 East. 381. Pioche, 35 Cal. 410, s. c. 95 Am. Dec. ^Ilu.lHon v. Baxendale, 27 L.J. 115- Exch. 93 ; Ohrloff v. Briscall, 1 L. K. P. ^ Walpolei). Bridges, 5 BIackf.(Ind.) C. 231 ; Hunncwell w.Taber, 2Sprague 222; WhitesidesD.TharlkilI,12 SijkmI. (U. S. C. C.)1. See Tysen j;. Moore, 56 &M. (Miss. )599; Neali'. Saunderson, Barb. 412; Cox v. London, etc., R. 2 8med.& M. (Miss.) .^72, s. .:. 41 Am. Co., 3 E. A F. 77; Warden 'i;. Greer, 6 Dec. 609. See Eiitrslcr )). AVest, 35 Watts 424; Nelson v. Woodruff, 1 La. Ann. 119, s. c. 48 Am. R. 2.32; Black (U. S.) 150 ; Clark i;. Barnwell, ^ 1481 COMMON LAW DUTIES OF COMMON CARRIEKS. received for transportation is held to be a mere admission which may be contradicted, and hence. does not conclude the carrier.' It is the duty of the carrier to exercise due care in loading or stowing the goods and a failure to exercise such care is actionable negligence,* but if the owner voluntarily takes it upon himself to load, with the right of free choice, and there is no act of the carrier misleading him, the carrier will not ordi- narily be liable for an injury caused solely by the mode in which the goods were loaded. The carrier can not, however, compel a shipper to take upon himself a duty which the law requires the carrier to perform nor require the shipper to do that which is unreasonable. ° It is, it may be said generally, the duty of the carrier to exercise such care and diligence in handling the goods as the law declares to be reasonable or or- dinary care and diligence, and in order to determine what is ordinary or reasonable care and diligence it is necessary, as a general rule, to consider the facts and circumstances of the particular case, for while the generally accepted doctrine is that there are no degrees of negligence yet it is nevertheless true that what will constitute negligence under some circum- stances and conditions may not constitute negligence under other circumstances and conditions. 12 How. 272; Notara v. Henderson, 6 ' Missouri, etc., R. Co. v. Fennell, L. R. Q. B. 346. As to the rule where 79 Tex. 448, s. c. 15 S. W. R. 693. the injury is due in part to fault in See Missouri, etc., R. Co. v. Ivy, 79 packing, see Higginbotham v. Great Tex. 444, s. c. 15 S. W. R. 692; St. Northern, etc., R. Co., 2 F. & F. 796; Louis, etc., R. Co. v. Knight, 122 U. Clarke c. Rochester, etc., R. Co., 14 S. 79, 7 Sup. Ct. R. 1132; Clark v. N. Y. 570. See, generally, Arend v. Barnwell, 12 How. 272; Cox v. Bruce, Liverpool, etc., R. Co., 64 Barb. 118; L. R. 18 Q. B. D. 147; Grant v. Nor- Bradstreet v. Heran, 2 Blatchf. 116; way, IOC. B. 665; Millers. Hannibal, Richards v. Doe, 100 Mass. 524 ; Keith etc., R. Co., 90 N.Y. 430. Ante, § 1421. ». Amende,! Bush. 455; Hazard u. Illi- ^jjiijs v. Mackill, 36 Fed. R. 702; nois, etc., R. Co., 67 Miss. 32, s. c. 7 Baxter v. Leland, 1 Blatchf. 526; So. R. 280; McKinlayi). Morrish, 21 Levering v. Union, etc., R. Co., 42 How. 343 ; Ship Howard v. Wissman, Mo. 88, s. c. 97 Am. Dec. 320. 18 How. 231; The Brig Collenberg, 'Joyner v. South Carolina, etc., R. 1 Black (U. S.) 170; Brown v. Clay- Co., 26 So. Car. 49; Rice v. Western, ton, 12 Ga.564; Howe «. Oswego, etc., etc., E. Co., 3 Inters. Com. R. 162. R. Co., 56 Barb. 121. 2302 CARRIERS. § 1482 § 1482. Delay in transporting goods — General doctrine. — A railroad carrier is liable for loss caused by unreasonable delay in transporting goods unless the delay is attributable to some cause which exonerates a common carrier from liability.' It is the duty of a carrier to deliver goods within a reasonable time as well as to safely transport them/ but the duty to pre- vent delay is of a different character from the duty to protect against loss by robbery or the like. It has been held that where the facilities of the carrier for transportation were suffi- cient for ordinary purposes and demands, but were not suffi- cient because of the extraordinary quantity of goods offered for shipment, no action will lie for damages attributable to the de- lay caused by the extraordinary quantity of goods requiring ship- ment." Where a railroad company seeks to escape liability for loss caused by delay upon the ground that the freight charges have not been paid it is competent for the plaintiff to prove the value of the property as tending to show that it had ample security for the charges to which it was entitled.' The silence 'Spence v. Norfolk, etc., E. Co., (Va.), 22 S. E. E. 815. See Leon- ard V. Chicago, etc., R. Co., 54 Mo. App. 293; Central, etc., R. Co. v. Georgia, etc., Co., 91 Ga. 389, s. c. 17 S. E. R. 904, 55 Am. & Eng. R. Cas. 606; Alabama, etc., R. Co. v. Eich- ofer, 100 Ala. 224, s. c. 14 So. R. 56; Johnson v. East Tennessee, etc., R. Co., 90 Qa. 810, s. c. 17 S. E. R. 121. * Gates V. Chicago, etc., R. Co., 42 Neb. 379, s. c. 60 N. W. R. 583, 61 Am. & Eng. R. Cas. 218; Michigan, etc., R. Co. V. Day, 20 111. 375, s. c. 71 Am. Dec. 278; Ohio, etc., R. Co. ii. Dunbar, 20 111. 623, s. c. 71 Am. Dec. 291 ; Parsons v. Hardy, 14 Wend. 215, s. c. 28 Am. Dec. 521 ; Nettles v. South Carolina R. Co., 7 Rich. Law 190, s. c. 62 Am. Dec. 409; Raphael v. Pick- ford, 5 Man. & G. 551 ; Illinois, etc., Co. V. Cobb, 64 III. 128. See, also, Davis V. Jacksonville, etc., R. Co., 126 Mo. 69, s. c. 28 S. W. R. 965; Ruppel V. Allegheny, etc., R. Co., 167 Pa. St. 166, s. c. 31 Atl. R. 478; Wells, etc., Co. ... Fuller, 4 Tex. Civ. App. 213, s. c. 23 S. W. R. 412; Ratlibone v. Neal, 4 La. Ann. 563. ' Bouker«. Long Island, etc., R. Co., 89 Hun 202, 35 N. Y. S. 23 ; Pittsburgh, etc., R. Co. V. Racer, 5 Ind. App. 209, s. c. 31 N. E. R. 853 ; Galena,etc.,R.Co. V. Rae, 18 111.486, s. c. 68 Am. Dec. 574 , Wibert v. New York, etc., R. Co., 19 Barb. 36. In Smith v. Cleveland, etc., R. Co., 92 Ga. 5.'39, a c. 18 S. E. R. 977, it was held that where the delay of thirty-six hours was due to the crowded condition of the company's yard, which prevented an earlier de- livery the company was not liable, but the facts in the case and the pro- visions of the bill of lading were somewhat peculiar so that it can not be justly considered as laying down a general rule. ' Leach v. New York, etc., Co., 89 § 1483 COMMON LAW DUTIES OF COMMON CARRIERS. 2303 of the bill of lading as to the time of delivery is held not to preclude the plaintiff in an action for loss caused by delay from showing that the carrier had notice that the delay would be productive of unusual loss or injury.' § 1483. Unreasonable delay — What constitutes — Evidence of. — There is no fixed rule of law determining what will or will not constitute an unreasonable delay in all cases. The carrier is in all instances bound to use ordinary care and diligence to avoid unreasonable delay/ but many elements must be taken into consideration in determining whether there was or was not unreasonable delay in the particular instance. The fact that there was unusual delay does not always show a breach of duty. There may be cases where duty requires that a course should be pursued which will cause delay.' It is, indeed, the duty of the carrier to delay if delay be necessary to avoid the ex- posure of the goods to unusual danger.* In determining whether there was or was not unreasonable delay in transporting and delivering the goods it is proper to consider whether ordinary care and diligence were exercised in selecting the route, whether there was or was not an improper or unnecessary deviation from the route usually traversed, and like facts and circum- Hun 377, 35 N. Y. S. 305. But it in passing, although somewhat aside seems to us that the doctrine of the from the direct path, that the cases case cited requires limitation. relating to carriage by vessels hold ' Central, etc., Co. v. Savannah, that the question whether there was etc., R. Co., 69 Fed. "R. 683. or was not a deviation is one of law, ^Ruppelu. Allegheny, etc., R. Co., to be determined by the court upon 167 Pa. St. 166, s. c. 31 Atl. R. 478. the facts proved. Suydam v. Marine, 'Crosby I). Fitch,12 Conn. 410,s.c. 31 etc., Co., 2 Johns. 138; Graham v. Am.Dec. 745; Davis t). Garrett, 6 Bing. Commercial, etc., Co., 11 Johns. 352; 716. The principle which supports the Jackson v. Betts, 9 Cow. 208 ; Newell cases holding that necessity may jus- v. Hoadly, 8 Conn. 881. But we think tify or excuse a deviation from the that the doctrine of the cases referred usual route sustains the doctrine to can not be applied to railroad car- stated in the text. Urquhart e. Bar- riers in its full extent, but must be nard, 1 Taunt. 450; Readei». Commer- materially qualified and limited, cial Ins. Co., 3 Johns. 352, s. c. 3 Am. * Empire, etc., Co. W.Wallace, 68 Dec. 495 ; Williams v. Grant, 1 Conn. Pa. St. 302. 487 s c. 7 Am. Dec. 235. We may note 2304 CABRIERS. § 1484 stances.' The delay may be so great as to make it proper for the court to adjudge as matter of law, that it was unreasona- ble,' but, in accordance with the doctrine heretofore stated, the delay may be shown to have been a reasonable one under the facts and circumstances of the particular case. Where the delay is an unusual one and is not explained it is held to he prima facie evidence of negligence, but that in a case where there is only a slight delay the rule is different.' § 1484. Delay — Accidents and obstructions. — The rule in relation to liability for delays in the course of transportation is not so rigorous as that which governs in cases where goods are lost by theft, fraud, or the like.* A railroad carrier is not an insurer against the occurrence of delays and hence is not liable where the delay is attributable to misfortune or unavoidable ac- cident.' Accidents which prevent the running of trains will, if not due to the fault of the carrier, excuse delay." Where, however, the railroad carrier is guilty of negligence which causes the accident to which the delay is attributable it will be liable for the damages resulting from the delay. § 1485. Accidents do not terminate the duty of the carrier. — An accident may exonerate the carrier from loss resulting from 'Atlanta, etc., R. Co. v. Texas, etc., em, etc., R. Co., 14 C. B. 637; Hales Co., 81 Ga. 602, s. c. 9 S. E. R. 600; v. London, etc., Co., 4 Best & S. 66; Lowe i;. East Tenn., etc., R. Co., 90 Geismer v. Lake Shore, etc., R. Co., Ga. 85, s. c. 15 S. E. R. 692. 102 N. Y. 563, s. c. 55 Am. R. 837, 26 ^UlinoisCentralR.Co.w.McClellan, Am. & Eng. R. Cas. 287; Wren v. 54 111. 58, s. c. 5 Am. R. 83. Eastern, etc., R. Co., 1 L. T. R. (N. S.) 8Mann v. Birchard, 40 Vt. 326; 5; Wibert «. New York, etc., R. Co., Davis V. Jacksonville, etc., R. Co., 126 12 N. Y. 245; Nudd v. Wells, 11 Wis. Mo. 69, s. c. 28 S. W. R. 965; Daw- 408. son V. Chicago, etc., R. Co., 79 Mo. ^Vicksburg, etc., R. Co. v Rags- 296. dale, 46 Miss. 458 ; Ballentine v. North * Taylor v. Great Northern Railway Missouri, etc., R. Co., 40 Mo. 491, s.c. Co., L. R. 1 C. P. 385; Philadelphia, 93 Am. Dec. 315; Conger v. Hudson etc., R. Co. v. Lehman, .56 Md. 209; River, etc., R. Co., 6 Duer (N. Y.) Parsons v. Hardy, 14 Wend. 215, 28 375 ; Livingston v. New York, etc., R- Am. Dec. 521. Co., 5 Hun 562; Michigan, etc., R. ^Kinnick v. Chicago, etc., R. Co., Co. v. Burrows, 33 Mich. 6. 69 Iowa 665 ; Hughes v. Great West- § 1486 COMMON LAW DUTIES OF COMMON CAKEIEES. 2305 delay but an accident will not put an end to the carrier's duty. It is the duty of the carrier although delay may be caused by an accident to exercise reasonable care and diligence to trans- port the goods. The contract of carriage must, as a rule, be completed.' As soon as the impediment to the transportation is removed, or as soon as it can be overcome by the exercise of care and diligence the carrier must, without further delay, complete the carriage.' § 1486. Care of goods during delay. — The fact that an acci- dent occurs which excuses delay does not relieve the carrier from the duty to exercise due care to protect the goods from loss or injury during the delay. The authorities require the conclusion that the carrier is at all times responsible for the safe keeping of property in its possession,' and that the hap- pening of an accident does not relieve it from such responsi- bility. The carrier is under a duty to take reasonable precau- tions to preserve the goods from injury,* and for a breach of duty must respond in damages. § 1487. Delay — Notice to the owner. — Where the circum- stances and conditions are such as cause an unusual delay in the transportation of goods, it is the duty of the carrier to give the consignor or owner notice of that fact. If the railroad carrier accepts the goods with knowledge that delays will occur and without informing the owner or consignor of that fact, it will be responsible for loss occasioned by the delay, although 'Hutchinson on Carriers, § 335, cit- E. 7 Q. B. 225; Chouteaux v. Leech, ing Bowman v. Teall, 23 Wend. 306; 18 Pa. St. 224, s. c. 57 Am. Dec, 602; Vickburg, etc., R. Co. v. Ragsdale, 46 Bird v. Cromwell, 1 Mo. 81, s. c. 13 Miss. 458 ; Bennett v. Byram, 38 Miss. Am. Dec. 470 ; Pearce v. The Thomas 17; Loweu. Moss, 12 111. 477; Evans Newton, 41 Fed. E. 106; Swetland ». 11. Hutton, 5 Scott N. E. 670. Boston, etc., R. Co., 102 Mass. 276. ^Baltimore, etc., E. Co. v. O'Don- 'Baltimore, etc., E. Co. v. Keedy, nell, 49 Ohio St. 489, s. c. 32 N. E. E. 75 Md. 320, s. c. 23 Atl. E. 643, 49 Am. 476 ; Hadley v. Clarke, 8 T. E. 259. & Eng. R. Cas. 124. In the case cited ' King t). Shepherd, 3 Story 349 ; EI- it was held that where water was liott V. Rossell, 10 Johns. 1, s. c. 6 poured into a car of grain by a flood, Am. Dec. 306 ; Propeller Niagara v. the company was liable because it Cordes, 21 How. (U. S.) 7; Notara v. failed to remove the grain. Henderson, L. R. 5 Q. B. 346, s. c. L. 2306 CARKiEES. § 1488 the delay may be caused by accident.' It is laid down by the text-writers that where the goods are delayed after acceptance for transportation, the owner should be notified of the delay with reasonable diligence/ § 1488. Delay — Destruction of goods awaiting transportation by lire. — A railroad company is not liable for the loss of goods destroyed by fire while in its warehouse awaiting transporta- tion unless its negligence was the proximate cause of the loss, for the duty as a common carrier does not attach until it receives the goods in that capacity. It is generally held, however, that where goods are placed in a warehouse and the company under- takes to forward them but negligently delays to do so, it will be liable for the loss of the goods while in the warehouse awaiting transportation." The basis of the liability in such a case is held to be negligence in failing to forward the goods without delay. The company can not, however, be liable unless there was negligence on its part.* There is some difficulty in supporting the doctrine that it is liable because of the delay insomuch as there is reason for affirming that the delay can not be justly said to be the proximate cause of the loss of the goods. ^ The cases 'Helliwell v. Grand Trunk, etc., E. 427; Porcher v. Northeastern R. Co., Co., 7 Fed. E. 68 ; Thomas v. Wabash, 14 Eich. (Law) 181 ; Condict v. Grand etc., R. Co., 63 Fed. E. 200; Louis- Trunk, etc., E. Co., 54 N. Y. 500; 111- ville, etc., E. Co. v. Odill, (Tenn.) inois Cent. E. Co. «). Cobb, 64 111. 128; 33 S. W. E. 611. Michigan, etc., E. Co. v. Burrows, 33 ' Hutchinson on Carriers, § 292. cit- Mich. 6 ; Eay Imposed Negl. Carriers ing Toledo, etc., E. Co. v. Lockhart, of Freight, 75, citing some of the 71 111.627; Great Western, etc., E. Co. above cited cases. «. Burns, 60 111. 284 ; Galena, etc., Co. = Missouri, etc., Co. i). McFadden, V. Eae, 18 111. 488; East, etc., E. Co. (Texas Civ. App.) 32 S. W. E. 18, s. c. V. Nelson, 1 Cold. (Tenn.) 272; Sager 33 S. W. E. 853; Jones v. George, 61 W.Portsmouth, etc., E. Co., 31 Me. 228, Tex. 345; Michaels v. New York, s. c. 50 Am. Dec. 659 ; Carter v. Peck, etc., E. Co., 30 N. Y. 564, s. c. 86 Am. 4 Sneed 203 ; Southern, etc., E. Co. v. Dec. 415 ; Chicago, etc., U. Co. v. Saw- Womack, 1 Heisk. 256 ; Empire, etc., yer, 69 111. 285, s. c. 18 Am. E. 613. Co. V. Wamsutta, etc., Co., 63 Pa. St. « Milligan v. Grand Trunk, etc., R. 14, s. c. 3 Am. R. 515 ; Place v. Union, Co., 17 U. C. C. P. 115. etc., Co., 2 Hilt. 19; Illinois Cent. R. « Thomas v. Lancaster Mills, 71 Fed. Co. V. Waters, 41 111. 73; Great West- R. 481. In the case cited it was said, em, etc., R. Co. v. Hawkins, 18 Mich. "The loss would have occurred if the § 1489 COMMON LAW DUTIES OP COMMON CARRIERS. 2307 which hold that where the loss of the goods is caused by a tempest, flood or the like, the carrier is nevertheless liable if its negligence contributed to the loss, support the ruling in the cases cited in the first note to this section,' but on the question decided in those cases there is conflict.^ §1489. Delay in transporting goods caused by the act of the owner. — Where the delay is caused by the act of the owner or consignor, and not by the negligence of the railroad com- pany, it is not liable for loss caused by such delay. The owner or consignor is not, however, bound to give specific directions that there shall be no delay, for if he properly marks the goods and makes an effective delivery of them to the railroad carrier it is under a duty to transport them without unreasona- ble delay." A carrier may be relieved from liability caused barge had arrived at Cairo on the evening of the 28th of December, im- mediately prior to the fire, and had been moored at the place it occupied. The negligent delay was, standing alone, a remote and not a proximate cause, remotely contributing to the injury as an occasion or condition. Railroad Co. v. Reeves, 10 Wall. 176; St. Louis, etc., R. Co. v. Commercial, etc., Co., 139 U. S. 223, s. c. 11 Sup. Ct. R. 554; Hoadley c. Northern, etc., Co., 115 Mass. 304; Morrison v. Davis, 20 Pa. St. 171; Goodlander, etc., Co. V. Standard Oil Co., 63 Fed. R. 400." The case from which we have quoted cites, among others, upon the subject of concurrent negligence the follow- ing cases: Phenix, etc., Co. v. Erie, etc., Co., 117U. S. 312, 6 Sup. Ct. R. 750, 1176; Liverpool, etc., Co. v. Phenix, etc., Co., 129 TJ. S. 397, 9 Sup. Ct. R. 469; California, etc., Co. v. Union, etc., Co., 133 U. S. 387, 10 Sup. Ct. R. 365; Constable v. National, etc., Co., 154 TJ. S. 51,. 14 Sup. Ct. R. 1062. ' Davis V. Garrett, 6 Bing. 716 ; Will- iams V. Grant, 1 Conn. 487 ; Read v. Spaulding, 30 N. Y. 630; Michigan, etc., Co. V. Curtis, 80 111. 324; South- ern, etc., Co. D.Womack, 1 Heisk. 256 ; Bostwick V. Baltimore, etc., R. Co., 45 N. Y.712; Condict v. Grand Trunk, etc., R.Co.,54 N.Y. 500 ; Dunson ». New York, etc., R. Co., 3 Lans. (N. Y.) 265 ; Wolfu. American, etc., Co. ,43 Mo. 421, S.C.97 Am. Dec. 406; Read ii. St. Louis, etc., R. Co., 60 Mo. 199; Pruitt v. Hannibal, etc., R. Co., 62 Mo. 527; San Antonio, etc., R. Co. v. Barnett, (Texas Civ. App.) 27 S. W. R. 676. ^ Denny «. New York, etc., R. Co., 13 Gray 481, s. c. 74 Am. Dec. 645 ; Hoadley v. Northern, etc., Co., 115 Mass. 304, s. c. 15 Am. R. 106; Morri- son ». Davis, 20 Pa. St. 171 ; Railroad Co. V. Reeves, 10 Wall. 176; Gleeson V. Virginia, etc., R. Co., 140 U. S. 435; Daniels v. Ballantine, 23 Ohio St. 632, s. c. 13 Am. R. 264; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6. See Thomas v. Lancaster Mills, 71 Fed. R. 481, 484. ' Gregory v. Wabash, etc., R. Co., 46 Mo. App. 574. 2308 CAKKiERS. § 1490 by delay although there is no positive wrong on the part of the shipper, for if the mistake of the shipper causes the delay there can be no liability on the part of the carrier. But the carrier must in all cases exercise ordinary care to avoid loss, but what is ordinary care must usually depend upon the facts of the particular case. If the owner assumes to perform an act which will shorten the time and prevent delay the failure on his part to perform what he has undertaken may avail the carrier as an excuse for the delay.' §1490. Directions and instructions of shipper — Duty of obedience to. — A railroad carrier that accepts goods from a shipper is, as a general rule, bound to follow the directions or instructions of the shipper.* A wrongful disobedience or a negligent failure to obey the directions of the shipper will render ineffective the stipulations of a contract limiting the liability of the carrier. There may, however, be causes which will not only excuse but will require a departure from the directions or instructions of the shipper." But where instruc- tions are not followed the burden is on the carrier to show a sufficient excuse for departing from them. 'Illinois, etc., R. Oo. «. Miller, 32 Beck, 125 Pa. St. 620; Clark u. St. Louis, 111. App. 259. etc.,R.Co.,64Mo.440;Galveston,etc., ' In Express Co. v. Kountze, 8 Wall. E. Co. v. Allison, 59 Tex. 193 ; Graham 342, 353, the court said, in speaking of v. Davis, 4 Ohio St. 302, s. c. G2 Am. carriers : "They are required to follow Dec. 285; Robinson v. Merchants', the instructions and directions given etc., R. Co., 45 Iowa 470; Magnin d. by the owner of the property concern- Dinsmore, 70 N. Y. 410, s. c. 26 Am. ing its transportation whenever pnic- R. 608; Witbeck v. Holland, 45 N. Y. ticable." Reference was made to Red- 13; Rogers v. Wheeler, 52 N. Y. 202; field on Carriers, §34. See, aluo, Sager «. Portsmouth, etc., R. Co., 31 Streeter v. Horlock, 1 Bing. 34; Dun- Me. 228, s. c. 60 Am. Die. 659; Stew- seth V. Wade, 3 111. (2 Scam.) 285; art u. Merchants', etc, Co., 47 Iowa Johnson v. New York, etc., R. Co., 33 220, s. c. 29 Am. R. 470. N. Y. 610, s. c. 88 Am. Dec. 41G; iMer- ^ Alabama, etc., R. Co. v. Thomas, chants', etc., Co. v. Kahn, 76 III. 520 ; 89 Ala. 294, s. c. 7 So. R. 762 ; Johnson Marckwald v. Oceanic, etc., Co., 11 v. New York, etc., R. Co., 33 N. Y. Hun 402; Alabama, etc., R. Co. v. 610, s. c. 88 Am. Dec. 416; Regan i). Thomas, 89 Ala. 294, 7 So. R. 762. See, Grand Trunk, etc., R. Co., 61 N. H. generally, Philadelphia, etc., Co. v. 579. §1491 COMMON LAW DUTIES OF COMMON CARRIERS. 2309 § 1491. Fraud of shipper. — In analogy to the principle which frees the carrier from liability where the loss is attrib- utable to the negligence of the shipper it is held that the fraud of the shipper may relieve the carrier from responsi- bility.' In one of the cases it was held that where a shipper, in order to obtain lower rates, shipped in a basket tied with a rope, valuable silks, laces and silverware, and remained silent when he heard the agent of the carrier designate and bill the property as "household goods," the shipper was guilty of such a fraud as relieved the carrier from liability.' Where the fraud, or, indeed, the mistake of the owner or consignor is the cause of a misdelivery of the goods the carrier is not liable, unless the carrier, having received information of the mistake, is guilty of negligence in failing to make a proper delivery of the goods.' § 1492. Negligence of owner — Packing and loading goods. — ^The owner of goods can not hold a carrier liable where the 'Orange Co. Bank v. Brown, 9 "Wend. 85; Chicago, etc., E. Co. v. Thompson, 19 111. 278; Belger v. Dinsmore, 51 N. Y. 166; Magnin u. Dinsmore, 62 N. Y. 35; Earnest v. Express Co., 1 Woods 573 ; Everett v. Southern, etc., Co., 46 Ga. 303; Op- penheimer v. United States, etc., Co., 69 111. 62; McCance v. London, etc., E. Co., 7 H. & N. 477; Bradley v. Waterhouse, 1 Moo. & M. 154 ; Eelf V Eapp, 3 Watta & S. 21 ; Hayes v. Wells, 23 Cal. 185; St. John .,, Ex- press Co., 1 Woods 612; Brasher v. Denver, etc., E. Co., 12 Col. 384. See, Walker v. Jackson, 10 M. & W. 161 ; Camden, etc., E. Co. v. Baldauf, 16 Pa. St. 67 ; Little v. Boston, etc., E. Co., 66 Me. 239; Phillips v. Earle, 8 Pick. 182. "Shackt V. Illinois Cent. E. Co., 94 Tenn. 658, s. c. 30 S. W. R. 742, 28 L. R. A. 176, citing Humphreys v. Perry. Corp. 147 148 U. S. 627; Missouri, etc., R. Co. V. York, (Tex.) 18 Am. & Eng. E. Cas. 623. In Humphreys v. Perry, 148 XJ. S. 627, the court denied the doctrine asserted in Kuter v. Michi- gan, etc., E. Co., 1 Biss. 35, s. c. Fed. Cas. No. 7, 955. 'Stimson v. Jackson, 58 N. H. 138 Congar v. Chicago, etc., E. Co., 24 Wis. 157, s.c. 1 Am. E. 164; Southern etc., E. Co. V. Kaufman, 12 Heisk 161; Dobbin v. Michigan, etc., E. Co. 56 Mich. 522; Wernwag v. Philadel- phia, etc., E. Co., 117 Pa. St. 46 Mahon v. Blake, 125 Mass. 477; Erie etc., E. Co. V. Wilcox, 84 111. 239, s c. 25 Am. E. 451; Lake Shore, etc. R. Co. V. Hodapp, 83 Pa. St. 22 O'Rourke v. Chicago, etc., E. Co., 44 Iowa 526; Mahon v. Blake, 125 Mass 477 ; Guillaume V. General Trans. Co. 100 N. Y. 491. 2310 CARRIERS. § 1492 loss or injury is the result of his own fault or that of the con- signor in loading or packing the goods.' There can be no doubt that the doctrine stated is solidly founded on principle, but there is sometimes difficulty in determining whether the fault of the owner or consignor was the cause of the loss of the goods or of the injury to them. It has been held that where the owner or consignor improperly and insufficiently packed and loaded the goods, the carrier is relieved from liability if the loss or injury was attributable to the fault of the owner or consignor, although it had knowledge that the goods were insuf- ficiently and improperly packed and loaded.^ The rule is that carriers are not bound to break open packages to ascertain whether the articles contained in the packages are such as they are forbidden to carry,' and it seems to us that this rule ap- plies to cases where goods have inherent defects, and requires the conclusion that the carrier is under no obligation to search for inherent defects in goods offered for transportion. Inher- ent defects in goods delivered to a carrier often cause their de- struction, and where the loss is caused by such defects the car- rier is not responsible.* The principle which relieves the car- rier where the loss is attributable to the fault of the owner or consignor, applies to such cases, inasmuch as it is the wrong of the owner in requiring the transportation of such articles that is the proximate cause of the loss or injury. Although it is true that where the loss or injury to the goods is attributable to the negligence of the owner the carrier is re- ^ Goodman v. Oregon, etc., Co., 22 R. 774 ; Nitro Glycerine Case, 15 Wall. Ore. 14, 8. c. 28 Pac. R. 894, 49 Am. 524; State v. Goss, 59 Vt. 266, s. c. 59 & Eng. R. Cas. 87; Klauber v. Amer- Am. R. 706. As to the power of the ican, etc., R. Co., 21 Wis. 21, s. c. 91 legislature to enact statutes respecting Am. Dec. 452. See, as to evidence of the transportation of game or other negligence, Missouri Pac. R. Co. v. commodities, see American Express Breeding, 4 Tex. App. (Civ. Cas.) 217, Co. v. People, 133 111. 649, s. c. 23 Am. s. c. 16 S. W. R. 184. St. R. 641 ; "Bennett v. American Ex- 2 Ross V. Troy, etc., R. Co., 49 Vt. press Co., 83 Me. 236, s. c. 23 Am. St. 364, s. c. 24 Am. R. 144. R. 774. "State V. Swett, 87 Me. 99, s. c. 47 < Ohio, etc., R. Co. v. Dunbar, 20 Am. St. R. 306; Bennett v. American, 111. 623, s. c. 71 Am. Dec. 291 (citing etc., Co., 83 Me. 236, s. c. 23 Am. St. Addison on Cont. 807). § 1493 COMMON LAW DUTIES OF COMMON CAREIEKS. 2311 lieved from liability, yet the carrier is not relieved unless the negligence of the owner or consignor was the proximate cause of the injury or loss, for the fault of the owner or consignor will not avail the carrier if its wrong or negligence was the proximate cause of the loss of the goods or of the injury to them.' § 1493. Placing goods in an exposed position. — Where a shipper voluntarily places goods intended for shipment in a place of danger the railroad company is not liable for their loss unless the loss was caused by its negligence. The shipper takes the risk, in such a case, of loss caused by the operation of the road in a reasonably careful and skillful mode, but he does not assume the risk of loss caused by the negligence of the company.' If the goods are put in a place where the company receives and accepts goods for transportation and are, in fact, delivered to the company, either actually or constructively, then the liability of the company is that of a common carrier. We suppose that where the goods are put by the owner or con- signor in a place on the premises of the company where they are exposed to danger the company is not liable if they were put there without right but that if placed there under a license from the company it would be liable for their loss if caused by its negligence.' 'McCarthy v. Louisville, etc., E. Carriers, §202; Hutchinson on Car- Co., 102 Ala. 193, s. c. 48 Am. St. E. riers, § 766. 29. In the case cited it was held that ^St. Louis, etc., E. Co. v. Fire when the carrier relies upon the ex- Asso., 55 Ark. 163, s. c. 18 S. W. E. ception "which rests upon the fault 43; Cook ■». Champlain, etc., Co., 1 of the shipper, he must bring himself Denio 91 ; Grand Trunk Eaiiroad Co. entirely and perfectly within it by v. Eichardson, 91 U. S. 454. negativing all contributory fault of ^ In Grand Trunk E. Co. «. Eichard- his own." The court cited Lawson's son, 91 TJ. S. 454, 473, it was said, "The Contracts of Carriers, 177, 178 ; Steele fact that the destroyed property was V. Townsend, 37 Ala. 247, s. c. 79 Am. located near the line of the railroad did Dec. 49; Grey v. Mobile, etc., Co., 55 not deprive the owners of the protec- Ala. 387, s. c. 28 Am. E. 729; South, tion of the statute,! certainly, if it was etc., E. Co. V. Henlein, 52 Ala. 606, s. placed where it was under a license c. 23 Am. E. 578; Louisville, etc., E. from the defendant. Such a location, Co. V. Touart, 97 Ala. 514 ; Angell on if there was a license, was a lawful 2312 CARRIERS. §1494 § 1494. What law governs — Law of the place — Conflict of law. — The general rule is that the law of the place where the contract is made enters as a silent but important factor into the contract. It is true that this general rule is to be taken in connection with the rule that the place of performance is often of controlling effect and also in connection with the rule that the form of the contract and the convention of the parties over- ride the law.' But it is to be said of the rule last stated that while it is generally competent for the parties to regulate their rights and liabilities by contract,' it is not competent to» con- tract to do a thing forbidden by positive law or by the princi- ples of public policy recognized and enforced by the law of the place where the contract is entered into. The cases fully dis- cuss the question here under immediate consideration and the rule deducible from them is this : where there is no provision or stipulation in the contract expressly or impliedly excluding the law of the place of shipment that law governs, and by it the rights and liabilities of the parties are to be determined.' use of its property by the plaintiffs, and they did not lose their right to compensation for its loss occasioned by the negligence of the defendant." Cook V. Champlain, etc., Co., 1 Denio 91 ; Fero v. Buffalo, etc., R. Co., 22 N. Y. 209. ' Broom's Legal Maxims, 690. 2 Gott V. Gandy, 23 L. J. Q. B. 1, 2 El. & Bl. 845 ; Walker v. Birch. 6 T. B. 258; Facey v. Hurdom, 3B. &C. 213. 'Liverpool, etc., Co. v. Phenix Ins. Co., 129 U. S. 397, s. c. 9 Sup. Ct. R. 469, (citing Cox v. United States, 6 Pet. 172; Scudder «. Union Nat. Bank, 91 U. S. 406; Pritchard v. Norton, 106 U. S. 124; Watts v. Camors, 115 U. S. 353; Morgan v. New Orleans, etc.. Railroad, 2 Woods 244; Hale v. New .Jersey Navigation Co., 15 Conn. 639 ; Dykeu. Erie, etc., R. Co., 45 N. Y. 113; Pennsylvania Co. o. Fairchild,69 111. 260) ; Grand v. Livingston, 38 N. Y. S. 490 ; Arnold v. Potter, 22 Iowa 194 ; Talbott u. Merchants', etc., Co., 41 Iowa 247; Cantu v. Bennett, 39 Tex. 303; First National Bank v. Shaw, 61 N.Y. 283; Don v. Lippmann, 5 CI. & F. 1 ; Brooke ». New York, etc., R. Co., 108 Pa. St. 529; Western, etc., R. Co. V. Exposition, etc., Mills, 81 Ga. 522; Hazel v. Chicago, etc., R. Co., 82 Iowa 477, s. c. 48 N. W. R. 926; Fon- seca V. Cunard, etc., Co., 153 Mass. 553, s. c. 27 N. E. R. 665, (citing Greenwood v. Curtis, 6 Mass. 358; Forepaughi). Delaware, etc., R. Co., 128 Pa. St. 217, 18 Atl. R. 503 ; In re Mis- souri, etc., Co., L. R. 42 Ch. Div. 321) ; Ryan v. Missouri, etc., R. Co., 65 Tex. 13. See upon the general subject Davis V. ^tna, etc., Co., (N. H.) 34 Atl. R. 464; Brown v. Camden, etc., R. Co., 83 Pa. St. 316; Dyke o. Erie R. Co., 45 N.Y. 113 ; McDaniel v. Chicago, etc., R. Co., 24 Iowa 412. In the case of Fonseca v. Cunard, etc., Co., 153 § 1494 COMMON LAW DUTIES OF COMMON CARBIEES. 2313 It seems, however, from the reasoning of the leading English case that the court will accept, as the legal factor, the law the parties had in view at the time of entering into the contract.' But we suppose that what law it was that the parties had in view must be ascertained from the terms and conditions of the contract, read, as contracts must be, by the light of surround- ing circumstances, for, as we believe, a written contract can not be varied by parol either as to the law factor thereof or as to the element of fact which it contains or covers. A contract for the transportation of goods is regarded as "a single one'" and the law which constitutes a factor of the contract, or which acts upon it, influences and controls the contract as a unit and not in severed fragments. It can not, as we conceive, be justly said that the rule that the contract is a unit impinges upon the rule that one of several carriers in a route over which goods are transported is not liable for the negligence or wrongs of the other carriers, for the principle upon which rests the rule that one of several railroad carriers is held liable only for its own negligence or breach of duty is different from that upon which the rule declared in the case referred to is founded. It would, therefore, be misleading to broadly affirm that in- variably and for all purposes a contract of carriage is to be regarded as "a single contract." Mass. 553, s. c. 27 N. E. R. 665, will ^ In re Missouri, etc., Co., L. R. 42 be found a valuable collection of cases Ch. Div. 321. upon the proposition that a shipper is ^ Long v. Straus, 107 Ind. 94, 97; bound by the printed conditions of Tisloe v. Graeter, 1 Blackf . 353 ; Dale v. the bill of lading, among them Parker Evans, 14 Ind. 288. "Undoubtedly V. South Eastern Railway Co., L. R. 2 necessary implication is as much part C. P. Div. 416 ; Harris v. Great West- of an instrument as if that which is so ern Railway Co., L. R. 1 Q. B. Div. implied was plainly expressed." Per 515; Burke v. South Eastern Railway Court in Hudson, etc., Co. v. Pennsyl-- Co., 5 C. P. Div. 1 ; Quimby v. Liver- vania, etc., Co., 8 Wall. 276, 288. pool, etc.. Railroad, 150 Mass. 365, s. 'Liverpool, etc., Co. v. Phenix Ins. c. 23 N. E. R. 205; Steers v. Boston, Co., 129 U. S. 397, s. c. 9 Sup. Ct. R. etc., Steamship Co., 57 N. Y. 1. 469. See, Post, § 1506. CHAPTER LXI. CONTRACTS LIMITING LIABILITY. Power of agents to agree to limitations. Stipulation exempting carrier from liability for loss by fire. Stipulations as to insurance. Stipulations as to value and amount of damages. Stipulation exempting carrier from liability in case of live stock. Stipulations as to manner and time of presenting claims. Miscellaneous stipulations. Waiver of stipulation limit- ing liability or fixing time and manner of presenting claims. Benefit of exemption lost by deviation. Burden of proof. § 1495. The English rule. — It has long been the custom for carriers to include in their bills of lading provisions limiting their liability as insurers, and when such provisions are vol- untarily agreed to, or accepted by the shipper, they become binding upon him in so far as they are lawful and not pro- hibited by statute or against public policy. In England, it was held at a very early date that such a limitation might be made, not only by express contract but also by notice to the owner of the goods.' It was even held that this might be 'Nicholson ?;. Willan, 5 Eaat. .507; Southcote's case, 4 Coke 83; Gibbon Having v. Todd, 1 Starkie59; note to v. Pavnton, 4 Burr. 2298; Smith v. (2314) 1495. The English rule. § 1507. 1496. Conflict among the American decisions. 1508. 1497. No right to contract against liability for negligence in most jurisdictions. 1509. 1498. Right to contract against lia- bility for negligence in 1510. some jurisdictions. 1511. 1499. Eight to limit liabilityprohibit- ed by statute in some states. 1500. Bight to limit liability by special contract in most ju- risdictions. 1512. 1501. Nature of special contract re- 1513. quired. 1514. 1502. Limitation in receipt or bill of lading. 1503 Parol limitation. 1504. Consideration necessary. 1515. 1505. Construction of contract. 1506. Conflict of laws. 1516, § 1496 CONTKACTS LIMITING LIABILITY. 2315 done by a general public notice, brought to the knowledge of the shipper.' This rule, however, gave rise to so much uncer- tainty, confusion and injustice, that certain acts known as the "Land Carrier's Act" and the "Railway and Canal Traffic Act" were passed, in 1830 and in 1854 respectively, to regu- late the matter. Under the former act it was held that, al- though public notices would no longer be sufficient, a special contract or notice might be enough to protect the carrier against liability for loss or injury to any of the articles enu- merated in the act, even though occasioned by the negligence of its servants.^ Under the latter act, however, carriers are prohibited from limiting their liability, except as to the arti- cles named in the prior act, by "any notice, condition or dec- laration," unless it is in writing and signed by the shipper, or other proper party, and unless the conditions or limitation shall also be "adjudged by the court or judge, before whom any question relating thereto shall be tried, to be just and reasonable."' It has been held under this act, as formerly, that where alternative rates are given, a condition in the con- tract signed by the shipper that in consideration of the lower rate the carrier shall not be liable even for the negligence of itself or servants is reasonable and valid.* § 1496. Conflict among the American decisions. — In Amer- Home, 8 Taunt. 144. The English * Lewis v. Great Western R. Co., L. cases are reviewed in Hollister v. R. 3. Q. B. Div. 195, 47 L. J. Q. B. Nowlen, 19 Wend. (N. Y.) 234, s. c. 131; Manchester, etc., R. Co. v. 32 Am. Dec. 455; Cole v. Goodwin, 19 Brov/n,L. R., 8 App. Cas. 703, 53 L. J. Wend. 251, s. c. 32 Am. Dec. 470, and Q. B. 124; White v. Great Western, Railroad Co. v. Lockwood, 17 Wall, etc., R. Co., 2 Com. B. (N. S.) 7, 2fi (U. S.) 357. L. J. C. P. 158; Beal v. South Devon, ' Hutchinson on Carriers, § 229, and etc., R. Co., 3 H. & Colt. 337. But see authorities cited in last note, supra. cases cited in 1 Hodges on Railwiiys, ' See 1 Hodges on Railways, (7th ed.) (7th ed.) 570, and Hutchinson on Car- 563, 574 ; Hutchinson on Carriers, riers, § 234, note, for conditions held § 232. unreasonable. The rule in Canada is ' See 1 Hodges on Railways, (7th similar to that in England. Hamil- ed.) 564, 565; Peek v. North Stafford- ton v. Grand Trunk R. Co., 23 U. C. shire R. Co., 10 H. L. Cas. 473, 32 L. Q. B. 600; Spettigue v. Great Western J. Q. B. 241; Simons v. Great West- R. Co., 15 U. C. C. P. 315. em R. Co., 18 C. B. 805, 829. 2316 CARRIERS. § 1497 ica the question as to the right to limit the extraordinary lia- bility of a carrier seems to have arisen first in New York. It was there held in two well considered cases, decided about the same time, that such liability could not be limited by a mere general notice, although brought to the knowledge of the ship- per, but the question as to the right to limit by an express special contract was not decided.' In a case which arose a few years later, however, it was held that this could not be done even by express contract.'' But this last decision was after- wards disapproved by the highest court of the same state,' as well as by many other courts, including the Supreme Court of the United States.^ It is now held in nearly every state that this liability of the carrier may be limited, to some extent at least, by a special express contract.' There is some conflict, liowever, among the decisions as to how far it may be so lim- ited and as to what is sufficient to constitute a valid special contract. This will more fully appear from a review of the authorities to be considered in the following sections. § 1497. No rij?ht to contract against liability for negli- gence in most jurisdictions. — The rule supported by the weight of authority is that a common carrier can not by any kind of a contract exempt itself from liability as such for loss or injury occasioned by its own negligence or that of its serv- ants.' This rule "rests upon considerations of public policy ' Hollister v. Nowlen, 19 Wen Steele v. Townsend, 37 Ala. 247, s. c. 79 Am. Dec. 49, and note ; Jones v. Cincinnati, etc., R. Co., 89 Ala. 376; Cincinnati, etc., R. Co. v. Pontius, 19 Ohio St. 221, s. c. 2 Am. R. 391 ; Mc- Millian v. Michigan Southern R. Co., 16 Mich. 79; Missouri Pac. R. Co. i). Beeson, 30 Kan. 298; Merrillu. Amer- ican Exp. Co., 62 N. H. 514 ; Boorman v. American Exp. Co., 21 Wis. 154; Louisville, etc., R.Co. v. Brownlee, 14 Bush. (Ky.) 590; Merchants', etc., Co. u. Bloch, 86 Tenn. 392 ; Piedmont, etc., Co. V. Columbia, etc., R.Co., 19S.Car. 353; Bethea -o. Northeastern R.Co., , 26 S. Car. 91 ; Hill v. Syracuse, etc., R. Co., 73 N. Y. 351, s. c. 29 Am. R. 163; Mulhgan v. Illinois Cent. R. Co., 36 Iowa 181 ; Snider v. Adams Exp. Co., 63 Mo. 376; Davis v. Central Vt. R. Co., 66 Vt. 290, s. c. 61 Am. & Eng. R. Gas. 197 ; Calderon v. Atlas Steam- ship Co., 64 Fed. R. 874 (shipper bound by conditions referred to in body of bill of lading and endorsed on back.) Contra, Adams Exp. Co. v. Haynes, 42 111. 89; Erie, etc., R. Co. V. Dater, 91 111. 195, s. c. 33 Am. R. 51 ; Adams Exp. Co. v. Stettaners, 61 111. 184; Merchants', etc., Co. ■«. Leysor, 89 111. 43; Southern Exp. Co. v. Moon, 39 Miss. 822; Mobile, etc., R. Co. ■!). Weiner, 49 Miss. 725; Levering v. Union Trans., etc., Co., 42 Mo. 88. "King V. Woodbridge, 34 Vt. 565; Christenson v. American Exp. Co., 15 Minn. 270; Adams Exp. Co. v. Nock, 2Duv. (Ky.) 562; Morrison I). Phillips, etc., Co., 44 Wis. 405; Baltimore, etc., R. Co. V. Brady, 32 Md. 333 ; Southern Exp. Co. V. Barnes. 36 Ga. 532; Geor- gia, etc., R. Co. V. Beatie, 66 Ga. 438; Strohn v. Detroit, etc., R. Co., 21 Wis. 654, s. c. 94 Am. Dec. 564. ' liOuisville, etc., R.Co.r. Meyer, 78 Ala. 597 ; Grace v. Adams, 100 Mass. 505; Kirkland v. Dinsmore, 62 N. Y. 171 ; Johnstone v. Richmond, etc., R. Co., 39 S. Car. 55, s. c. 17 S. E. R. 512; Germania, etc., Ins. Co. v. Mem- phis, etc., R. Co., 72N. Y. 90; Zim- mer v. New York Central, etc., R. Co., 137 N. Y. 460, s. c. 33 N. E. R. 642; Lawrence v. New York, etc., R. Co., 36 Conn. 63; St. Louis, etc., R. Co. v. Weakly, 50 Ark. 397; Robinson u. Merchants', etc., Co., 45 Iowa 470; Wertheimer v. Pennsylvania, R. Co., 1 Fed. R. 232, s. c. 17 Blatch. 421 ; Durgin v. American Exp. Co., 66 N. H. 277, s. c. 20 Atl. R. 328, 9 L. R. A. 453; Railroad Co. v. Androscoggin §1503 CONTRACTS LIMITING LIABILITY. 2325 not meant by this rule, however, that assent will be conclusively presumed under all circumstances. If a shipper, without neg- ligence on his part, is misled by the fraud or artifice of the car- rier, or the like, so that the minds of the parties can not be presumed to have met, the mere acceptance of the receipt or bill of lading may not be sufficient to bind the shipper to all its terms.' So, where the carrier accepts the goods uncondi- tionally, unless there is some valid and controlling custom to the contrary or other circumstance peculiar to the particular case, the acceptance by the shipper of a receipt or bill of lad- ing containing the proposed special contract, after the goods are shipped, will not relieve the carrier from liability.'' § 1503. Parol limitation. — A special contract limiting the liability of the carrier as an insurer may be verbal as well as written, unless the statute requires it to be in writing. It may be more difficult to establish a specific parol contract, but, when once clearly established, it is as obligatory as a written oue.° Of course, where there is a complete written contract. Mills, 22 "Wall. (U. S.) 594. In the first four cases above cited, it is held that the fact that the shipper did not read it makes no difference. ' See Perry v. Thompson, 98 Mass. 249; Blossom v. Dodd, 43 N. Y. 264; Madan v. Sherard, 73 N. Y. 329; Eosenfeld v. Peoria, etc., E. Co., 103 Ind. 121 ; Camden, etc., E. Co. v. Bal- dauf, 16 Pa. St. 67, s. c. 55 Am. Dec. 481; Verner v. Sweitzer, 32 Pa. St. 208 ; Butler v. Heane, 2 Camp. 415 ; Atchison, etc., E. Co. v. Dill, 48 Kan. 210, s. c. 29 Pac. E. 148. 'Southard v. Minneapolis, etc., E. Co., 60 Minn. 382, s. c. 62 N. W. E. 442, 619, 61 Am. & Eng. E. Cas. 282 ; Blossom V. Griffin, 13 N.Y. 569; Park V. Preston, 108 N. Y. 434; Gaines v. Transportation Co., 28 Ohio St. 418; Bostwick V. Baltimore, etc., E. Co., 45 N. Y. 712 ; Swift v. Pacific, etc., Co., 106 N. Y. 206; Wilde v. Merchants' Corp. 148 Dispatch Co., 47 Iowa 247; Gott v. Dinsmore, 111 Mass. 45 ; Union Pac. E. Co. V. Marston, 30 Neb. 241, s. c. 46 N. W. E. 485 ; Michigan Cent. E. Co. V. Boyd, 91 111. 268; Merchants', etc., Co. V. Furthman, 149 111. 66, s. c. 36 N. E. E. 624, 9 Lewis' Am. E. & Corp. E. 19; Merchants' Dispatch Co. ■V. Cornforth, 3 Colo. 280; Snow v. Indiana, etc.. E. Co., 109 Ind. 422; Central etc., E. Co., DwightMfg. Co., 75 Ga. 609; Wheeler v. New Bruns- wick, etc., E. Co., 115 U. S. 29. But see as to the effect of a custom to send bill of lading after receipt of goods. Shelton ■;;. Merchants', etc., Co., 59 N. Y. 258. ^ Eoberts v. Eiley, 15 La. Ann. 103 ; Illinois Cent. E. Co. Morrison, 19 111. 136; American Transp. Co. u. Moore, 5 Mich. 368. See, also. Mobile, etc., E. Co. V. Jurey, 111 U. S. 584, s, c. 4 Sup. Ct. E. 566. 2326 CAERiERs. § 1504 it can not, as a rule, be contradicted or varied by oral evidence, and all verbal agreements made prior to the execution of the bill of lading are usually merged therein ;' but, as we have seen,'' there are cases in which, after the carrier has once ac- cepted and shipped the goods under an unconditional parol contract, it can not afterwards limit its liability by a receipt or bill of lading; and so, on the other hand, after a receipt or bill of lading has been executed, a new contract may doubtless be made, in parol, upon a new consideration, whereby the lia- bility of the carrier may be properly limited or other changes made in the terms of the original contract.' § 1504. Consideration necessary. — It is frequently stated in general terms that a common carrier may, by contract, limit its common law liability as an insurer. But, as we have al- ready said, the contract must be reasonable and must have some consideration to support it.' The carrier has no right to force such a contract upon the shipper, and the latter must usually have the option of having his goods carried without any such restriction upon the liability of the carrier at a higher rate of freight proportionate to the risk.^ If he is given such ' Ante, §§ 1415, 1423. * Wehmann v. Minneapolis, etc., R. 'Ante, §1502, p. 2325, note 2. See, Co., 58 Minn. 22, s. c. 59 N. W. E. particularly, Merchants' Dispatch, 546, 61 Am. & Eng. E. Cas. 273 ; Ad- etc, Co. V. Furthmann, 149 111. 66, s. ams Exp. Co. v. Harris, 120 Ind. 73, c. 36 N. E. E. 624, 61 Am. )., 112 U. Chicago, etc., R. Co. v. Chapman, 133 H. 331, s. c. 5 Sup. Ct. R. 151; South, 111. 96, s. c. 23 Am. St. R. 587, and etc., R. Co. t>. Henlein, 52 Ala. 606, note, 8 L. R. A.508; Moulton i). St. s. c. 23 Am. R. 578; Durgin v. Amer- Paul, etc., R. Co., 31 Minn. 85, s. r. ican Exp. Co., 66 N. II. 277, s. c. 20 47Am. R. 781; Kellerman ii. Kansas Atl. R. 328, 9 L. R. A.453; Louisville, City, etr., R. Co., (Mo.) 34 S. W. R. etc., R. Co. iJ. Sherrod, 84 Ala. 178; 41; McFadden »'. Missouri Pacific R. Louisville, etc., R. Co. v. Oden, 80 Co., 92 Mo. 343, s. c. 1 Am. St. R. Ala. 38; Richmond, etc., R. Co. v. 721; Georgia Puc. R. Co. ■». Ilughart, Payne, 86 Va. 481, s. c. 10 Atl. R. 749, 90 AIii. 36, s. c. 8 So. R. 62; Louis- 6 L. R. A. 849; Belger i). Dinsmore, ville, etc., R. Co. «. Sherrod, 84 .\la. 51 N. Y. 166, 8. c. 10 Am. R. .575; St. 178; Kansas City, dr., R. Co. v. Louis, etc., R. Co. v. Weakly, 60 Ark. Simpson, .30 Kan. 645, s. c. 46 Am. R. 397, s. c. 7 Am. St. R. 104; Brown w. 104; San Antonio, etc., R. Co. ". Wabash, etc., R. Co., 18 Mo. App. Barnett, (Tex. Civ. App.) 34 S. W. R. .568; Harvey 1!. Terra Haute, etc., R. 139. Co., 74 Mo. 638; Earnest v. Express Hlart v. Pennsylvania R. Co., 112 Co., 1 Woods (U. S. C. C.) .573. U. S. 331, s. c. 5 Sup. Ct. R. 151. ' Rosenfeld v. Peoria, etc., R. Co., 1510 CONTRACTS LIMITING LIABILITY. fairly made, in advance, upon sufficient consideration, fixing the value of the property or the rule for ascertaining its value in case of loss or injury, even if the carrier is guilty of negli- gence, is valid and enforceable, and, if based upon a lower rate of freight in proportion to the decreased liability, "will be upheld as a proper and lawful mode of securing a due pro- portion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuation.'" 2. A stipulation arbitrarily limiting the amount of recovery, in case of the negligence of the carrier, without regard to the value of the property is invalid,^ except, perhaps, in the few ju- 'Hart V. Pennsylvania E. Co., 112 U. S. 331, s. c. 5 Sup. Ct. E. 151 ; Graves v. Lake Shore, etc., E. Co., 137 Mass. 33; Hill v. Boston, etc., E. Co., 144 Mass. 284, s. c. 10 N. E. E. 836 ; Alairti. Northern Pac. E.Co., 53 Minn. 160, s. c. 54 N. W. E. 1072, s. c. 8 Lewis' Am. E. & Corp. E. 445, and valuable note by Mr. Lewis ; The Hadji, 18 Fed. E.459 ; The Lydian Monarch,23 Fed.E. 298; Eogan v. Wabash E. Co., 51 Mo. App. 665; Coupland v. Housatonic E. Co., 61 Conn. 531, s. c. 23 Atl. E. 870; Ballou v. Earlfe, 17 E. I. 441, s. c. 22 Atl. E. 1113, 14 L. E. A. 433, and note; Louisville, etc., E. Co. v. Oden, 80 Ala. 38; Elkins v. Empire Transp. Co., 81>^ Pa. St. 315 ; Durgin v. Ameri- can Exp. Co., 66 N. H. 277, s. c. 20 Atl. E. 328; Louisville, etc., E. Co. v. Sowell, 90 Tenn. 17, s. c. 15 S. W. E. 837.; Zimmer v. New York, etc., E. Co., 137 N. Y. 460, s. c. 33 N. E. E. 642 ; Starnes v. Louisville, etc., E. Co., 91 Tenn. 516, s. c. 19 S. "W. E. 675. See, also, authorities cited at the end of the next note infra. But compare Galveston, etc., E. Co. v. Ball, 80 Tex. 602, s. c. 16 S. W. E. 441; Shea V. Minneapolis, etc., E. Co., (Minn.) 65 N. "W. E. 458 ; Grogan v. Adams Eicp. Co., 114 Pa. St. 523; Gait V. Adams Exp. Co., McArthur & M. 124, s. c. 48 Am. E. 742. Such a contract is not in any proper sense a contract primarily against liability for negligence. The carrier has a right to be compensated according to the value of the property, and if the shipper, to obtain a lower rate of freight, fixes that value at less than it really is, it is his own fault, and the fact that, incidentally the effect may be to lessen the liability of the carrier for its own negligence can make no difference. Any other rule would be to encourage bad faith and dishonest dealing on the part of the shipper. ^ Abrams v. Milwaukee, etc., E. Co., 87 Wis. 485, s. c. 58 N. W. E. 780; Chicago, etc., E. Co. v. Witty, 32 Neb. 275, s. c. 49 N. W. E. 183 ; Chicago, etc., E. Co. V. Chapman, 133 111. 96, s. c. 24 N. E. E. 417, 23 Am. St. E. 587 and note; Eells w. St. Louis, etc., E. Co., 52 Fed. E. 903; Moulton v. St. Paul, etc., E. Co., 31 Minn. 85; Eailway Co. v. Wynn, 88 Tenn. 320, s. c. 3 Lewis' Am. E. & Corp. E. 13; Boscowitz v. Adams Exp. Co., 93 HI. 523; United States Exp. Co. V. Backman, 28 Ohio St. 144; Adams Exp. Co. v. Hoeing, 88 Ky. 373; Nickey v. St. Louis, etc., E. Co., 2338 CARKIKRS. § 1510 risdictions in which a carrier can contract for an exemption from liability for its own negligence. 3. The agreement as to value must be made in good faith and not forced upon the shipper by unreasonable rates for a higher valuation.' 4. A carrier may make reasonable regulations, graduating its com- pensation according to the value of the property and requiring a disclosure of such value for the purpose of fixing its com- pensation, and providing that, in case of the failure of the shipper to disclose the value as required, it shall be deemed not to exceed a certain specified sum.^ 5. If the shipper, upon inquiry duly made by the carrier as to the value of the goods, gives a false valuation, in order to obtain reduced rates, and deceives the carrier thereby, he will be estopped by his 35 Mo. App. 79; Southern Pac. E. Co. V. Maddox, 75 Tex. 300, s. c. 12 S. W. W. R. 815; Baltimore, etc., R. Co. V. Ragsdale, (Ind. App.) 42 N. E. R. 1106; Louisville, etc., R. Co. v. Owens, 93 Ky. 201, 19 S. W. R. 590; Weiller v. Pennsylvania R. Co., 134 Pa. St. 310, s. c. 19 Atl. R. 702; Chi- cago, etc., R. Co. o. Abels, 60 Miss. 1017 ; Kember v. Southern Exp. Co., 22 La. Ann. 158, s. c. 2 Am. R. 719; Georgia, etc., R. Co. v. Hughart, 90 Ala. 36. But see Richmond, etc., R. Co. V. Payne, 86 Va. 481, s. c. 10 S. E. R. 749, 1 Lewis' Am. R. & Corp. R. 475; Johnstone v. Richmond, etc., R. Co., 39 S. Car. 55, s. c. 17 S. E. R. 512; Zouch v. Chesapeake, etc., R. Co., 36 W. Va. 524, s.c. 15 S. E. R. 185; Western R. Co. v. Harwell, 91 Ala. 340, s. c. 8 So. R. 649, in all of which the distinction we have sought to make is recognized, but the limita- tion was held valid on the ground that agreeing to the amount of lia- bility was in effect agreeing to the value. 'Overland, etc., Co. v. Carroll, 7 Colo. 43; Louisville, etc., R. Co. v. Sherrod, 84 Ala. 178, s. c. 4 So. R. 29; Louisville, etc., R. Co. v. Gilbert, 88 Tenn. 430, s. c. 1 Lewis' Am. E. & Corp. R. 468; Harrison v. London, etc., R. Co., 2 Best & S. 122; Wilson V. Freeman, 3 Camp. 527. See, also, ante, p. 2326, note 5. * Graves v. Lake Shore, etc., R. Co., 137 Mass. 33 ; Duntley v. Boston, etc., R. Co., 66 N. H. 263, s. c. 20 Atl. R. 327, 3 Lewis' Am. R. & Corp. R. 259; St. Louis, etc., R. Co. v. Weakly, 50 Ark. 397, s. c. 7 Am. St. R. 104;- New- burger V. Howard & Go's Express, 6 Phila. (Pa.) 174; Hart v. Pennsyl- vania R. Co., 112 U. S. 331, s. c. 5 Sup. Ct. R. 151 ; Oppenheimerw.United States Exp . Co . , 69 111 . 62 ; Lawrence V. New York, etc., R. Co., 36 Conn. 63; Boorman v. American Exp. Co., 21 Wis. 152; Brehme ■». Adams Exp. Co., 25 Md. 328 ; Magnin v. Dinsmore, 62 N. Y. 35, s. c. 20 Am. R. 442; Pa- cific R. Co. V. Foley, 46 Kan. 457, s. c. 26 Pac. E. 665; Calderon v. Atlas Steamship Co., 64 Fed. R. 874. But see Conover v. Pacific Exp. Co., 40 Mo. App. 31. §1511 CONTRACTS LIMITING LIABILITY. 2339 fraud from claiming and recovering any greater amount in case they are lost or injured.' § 1511. Stipulation exempting carrier from liability in case of live stock. — A carrier may contract with the owner of live stock against liability for losses arising from the inherent na- ture, vice or propensity of the animals themselves and not from its own negligence in running its trains or the like. Such a contract, especially where the owner or his agent goes with the animals to take care of and load and unload them, may exempt the carrier from liability for injury to the animals from over- loading, suffocation, heat, or. any like cause apart from the negligence of the carrier or its servants.^ But, according to the weight of authority, it can not thus obtain an exemption from liability for its own negligence in regard to any duty which it owes as a common carrier.' So, it has been held that 'Chicago, etc., R. Co. v. Shea, 66 111. 471; Hayes v. Wells, Fargo Co., 23 Cal. 185, s. c. 83 Am. Dec. 89; Rosenfeld v. Peoria, etc., R. Co., 103 Ind. 121, s. c. 53 Am. R. 500; Harvey V. Terre Haute, etc., R. Co., 74 Mo. 538; McCance v. London, etc.,R. Co., 7 Hurl. & N. 477 ; Ballou v. Earle, 17 R. I. 441, s. c. 22 Atl. R. 1113 ; Shackt V. Railroad Co., 94 Tenn. 658, s. c. 30 S. W. R. 742. Failure to dis- close the value has, however, been held not to be fraud upon the carrier, under ordinary circumstances, where no inquiry is made. Railroad Co. V. Fraloff, 100 11.8.24; South- ern Exp. Co. V. Crook, 44 Ala. 468, s. c. 4 Am. R. 140; Chicago, etc., R. Co. V. Chapman, 133 HI. 96, s. c. 24 N. E. R. 417, 23 Am. St. R. 587. But see Duntley v. Boston, etc., R. Co., 66 N. H. 263, s. c. 20 Atl.^. 327, 3 Lewis' Am. R. & Corp. R. 259; Magnin v. Dinsmore, 62 N. Y. 35. * Georgia R. Co. v. Beatie, 66 Ga. 438, s. c. 42 Am. R 75; Georgia R. Co. V. Spears, 66 Ga. 485 ; Central R., etc., Co. V. Smitha, 85 Ala. 47, s. c. 4 So. R. 708; Hlinois Cent. R. Co. v. Scruggs, 69 Miss. 418, s. c. 13 So. R. 698; Texas, etc., R. Co. v. Davis, 2 Tex. App. (Civil Cases) 156; Betts v. Farmers' Loan & T. Co., 21 Wis. 80; Morrison v. Phillips Constr. Co., 44 Wis. 405; Lake Shore, etc., R. Co. v. Bennett, 89 Ind. 457, s. c. 6 Am. & Eng. R. Cas. 391 ; Atchison v. Chi- cago, etc., R. Co., 80 Mo. 213. ^Moulton V. St. Paul, etc., R. Co., 31 Minn. 85; East Tenn., etc., R. Co. V. Johnston, 75 Ala. 596, s. c. 51 Am. R. 489; Chicago, etc.,R. Co. u. Witty, 32 Neb. 275, s. c. 49 N. W. R. 183; In- dianapolis, etc., R. Co. V. Allen, 31 Ind. 394; Welch ti. Boston, etc., R. Co., 41 Conn. 333 ; Baughman v. Louis- ville, etc., R. Co., 94 Ky. 150, 21 S. W. R. 757; Welsh v. Pittsburg, etc, R. Co., 10 Ohio St. 65; Gulf, etc., R. Co. V. Wilhelm, 3 Tex. App. (Civil Cases) 558; Powell v. Pennsylvania R. Co., 32 Pa. St. 414; Virginia, etc., R. Co. V. Sayers, 26 Gratt. (Va.) 328; Atchison, etc., R. Co. v. Ditmars, (Kan. App.) 43 Pac. R. 833. 2340 CARRIERS. § 1512 it can not contract against liability for loss on account of delay thus caused/ nor for an exemption from liability for injuries to animals caused by its failure to furnish suitable cars or facilities for loading, unloading, watering and feeding them.^ § 1512. Stipulations as to manner and time of presenting claims. — A valid contract may be made requiring claims for loss or damage to freight to be presented in a certain manne?;' or within a certain time, provided it is reasonable.' So, stipulations requiring suit to be brought within a specified time, less than the statute of limitations, have been upheld.' ' Ormsby v. Union Pac. E. Co., 4 Fed. R. 706; Ball v. Wabash, etc., R. Co., 83 Mo. 574. But see Bartlett v. Pittsburgh, etc., R. Co., 94 Ind. 281, s. c. 18 Am. & Eng. R. Cas. 549. 2 Chesapeake, etc., R. Co. v. Ameri- can Exch. Bank, ( Va.) 23 S. E. R. 9.35 ; Norfolk, etc., E. Co. v. Harman, 91 Va. 601, s.c. 22 S. E. P.. 490; Taylor, etc., R. Co. V. Montgomery, (Tex. App.) 16 S. W. R. 178; Rhodes v. Louisville, etc., R. Co., 9 Bush, (Ky.) 688; Kan- sas City, etc., R. Co. v. Holland, 68 Miss. 351, s. c. 8 So. R. 516; Nash- ville, etc., R. Co. V. Heggie, 86 Ga. 210, s. c. 12 S. E. R. 363; St. Louis, etc., R. Co. V. Lesser, 46 Ark. 236. But seeMyers v. Wabash, etc., R. Co., 90 Mo. 98, s. c. 2 S. W. R. 263; Hood V. Grand Trunk R. Co., 20 U. Can. C. P. 361. See as to effect of §§ 4386 and 4387 Rev. St. U. S., Ft. AVorth, etc., R. Co. V. Daggett, 87 Tex. 322, s. c.28 S. W. R. 525; Nashville, etc., R. Co. V. Heggie, 86 Ga. 210, s. c. 12 S. E. R. 363; Missouri Pac. R. Co. v. Texas, etc., R. Co., 41 Fed. R. 913; Hale v. Missouri Pac. R. Co., 36 Neb. 260, s. c. 54 N. W. R. 517. ' Express Company v. Caldwell, 21 Wall. (U. S.) 264; Chicago, etc., R. Co. V. Simms, 18111. App. 68; Gulf, etc., R. Co. u. Trawick, 80 Tex. 270, s. c. 15 S. W. R. 568; Black v. Wabash, etc., R. Co., Ill 111. 351; United States Ex. Co. V. Harris, 51 Ind. 127; Owen V. Louisville, etc., R. Co., 87 Ky. 626; Armstrong v. Chicago, etc., R. Co., 53 Minn. 183, s. c. 54 N. W. R. 1059 ; Atchison, etc., R. Co. v. Temple, 47 Kan. 7, s. c. 27 Pac. R. 98; Rice v. Kansas Pac. R. Co., 63 Mo. 314; Southern Ex. Co. v. Hunnicutt, 54 Miss. 566 ; Jennings v. Grand Trunk E. Co., 127 N. Y. 438, s. c. 5 Lewis' Am. R. & Corp. R. 548 ; Bennett v. Northern Pac. E. Co., 12 Ore. 49; Selbyc. Wil- mington, etc., E. Co., 113 N. Car. 588, s. c. 18 S. E. E. 88. *Gulf, etc., E. Co. V. Gatewood, 79 Tex. 89, s.c. 14 S.W.E.913; McCarty V. Gulf, etc., Co., 79 Tex. 33, s. c. 15 S. W. R. 164; Gulf, etc., E. Co. v. Tra- wick, 68 Tex. 314; Thompson v. Chi- cago, etc., R. Co., 22 Mo. App. 321; Central Vermont R. Co. v. Soper, 59 Fed. R. 879. But see Gulf, etc., R. Co. II. Hune, 87 Tex. 211, 27 S. W. E. 110, and Galveston, etc., E. Co. v. Herring, (Tex.) 36 S. W. E. 129, in which it is held that under the Texas act of March 4, 1891, no contract can be made, even in case of an interstate shipment, limiting the time for bring- ing suit to less than two years. § 1512 CONTRACTS LIMITING LIABILITY. 2341 In many of the cases cited the claim was also required to be presented in writing, and in one case it was held that a stipu- lation that it should be verified was valid.' Like other stipu- lations of a similar nature, however, it must be fairly made and agreed to, without extortion,^ and must be reasonable as applied to the facts of the particular case in order to be en- forced. If the circumstances are such that the loss or damage can not, by the exercise of reasonable diligence, be discovered within the time limited, the presentation of the claim within a reasonable time thereafter will be sufficient;^ and, indeed, it has been held that, if the stipulation is unreasojiable as ap- plied to the circumstances of the particular case, no notice at all is necessary.* Provisions requiring claims to be presented within three,' five,' ten,' thirty' and ninety' days from the date of the receipt of the goods, or the unloading of the stock, have ' Brown v. "Wabash, etc., E. Co., 18 Mo. App. 568. ''Atchison, etc., R. Co. v. Dill, 48 Kan. 210, s. c. 29 Pac. R. 148. 'Western R. Co. v. Harwell, 91 Ala. 340, s. c. 8 So. B. 649, 45 Am. & Eng. R. Cas. 358; Memphis, etc., R. Co. v. Holloway, 9 Baxter 188; Glenn v. Southern Ex. Co., 86 Tenn. 594, s. c. 8 S. W. R. 152. See, also, Rice v. Kan- sas Pac. R. Co., 63 Mo. 314 ; Atchison, etc., R. Co. V. Temple, 47 Kan. 7, s. c. 27 Pac. R. 98 ; Ghormley v. Dinsmore, 51 N. Y. Super. Ct. 196; Louisville, etc., R. Co. V. Steele, 6 Ind. App. 183 ; Harned v. Missouri Pac. R. Co., 51 Mo. App. 482; Wichita, etc., R. Co.». Koch, 47 Kan. 753, s. c. 28 Pac. R. 1013. * Jennings v. Grand Trunk, etc., R. Co., 127 N. Y. 438, s. c. 5 Lewis' Am. R. & Corp. R. 548; Ormsby v. Union Pac. R. Co., 2 McCrary 48, s. c. 4 Fed. R. 706; Baltimore, etc., R. Ex. Co. v. Cooper, 66 Miss. 558, s. c. 40 Am. & Eng. R. Cas. 97. In Texas, etc., R. Corp. 149 Co. B. Adams, 78 Tex. 372, s. c. 14 S. W. R. 666, it was held a question of fact for the jury to determine whether the time limited was reasonable under the circumstances, but as we shall hereafter see the courts have fre- quently decided the reasonableness or unreasonableness of such a stipula- tion in general as a matter of law. 5 Oxley V. St. Louis, etc., R. Co., 65 Mo. 629 ; Lewis v. Great Western R. Co., 5 H. & N. 867. 8 Black V. Wabash, etc., R. Co., Ill 111. 351 ; Dawson v. St. Louis, etc., R. Co., 76 Mo. 514; Pavitt v. Lehigh, etc., R. Co., 153 Pa. St. 302, s. c. 25 Atl. R. 1107. ' Case V. Cleveland, etc., R. Co., 11 Ind. App. 517, s. c. 39 N. E. R. 426. ' Southern Ex. Co. v. Glenn, 16 Lea (Tenn.) 472; Weir ti. Express Co., 5 Phila. (Pa.) 355; United States Ex. Co. V. Harris, 51 Ind. 127. 'Express Company v. Caldwell, 21 Wall. (U. S.) 264. 2342 CARRIERS. § I0I2 been held reasonable, and so has a stipulation requiring writ- ten notice of the claim to be given before the stock was re- moved at the place of destination and mingled with other stock.' But similar provisions have been held unreasonable in other cases where the shipment was for a great distance and the claim was required to be presented at the place of ship- ment within the time limited from the date of the contract," or where the company had no agent of the class specified at the place where the notice was required to be given to such an agent.' There is much apparent, and some real, conflict among the authorities, and so much depends upon the circum- stances of each particular case that no general rule of any great value can be laid down. If the loss or damage can be discovered and the claim presented by the exercise of reasona- ble diligence within twenty-four hours, we believe that even so short a time as that would not necessarily be unreasonable ; but if the loss or damage could not be discovered within that time, or if there is no agent present to whom notice can be given, or if it has to be given at the place of shipment, a long distance away, or the like, a much longer time than twenty- four hours would be insufficient and unreasonable, especially when it begins to run from the date of the contract rather than from the time the goods are delivered at their destination. In some jurisdictions the burden of proving the reasonableness of such a stipulation is upon the carrier, and it is held that the plaintiff need not allege or prove that he duly presented his claim nor give any excuse for failing to do so ; * but in some •Selbyc. Wilmington, etc., R. Co., 21; Southern Ex. Co. v. Bank of 113 N. Car. 588, s. c. 18 S. E. R. 88; Tupelo, (Ala.) 18 So. R. 664; Southern Goggin V. Kansas Pac. R. Co., 12 Ex. Co. v. Caperton, 44 Ala. 101 ; Por- Kan. 416; Owen v. Louisville, etc., R. ter v. Southern Ex. Co., 4 S.Car. 135; Co., 87 Ky. 626; Rice t. Kansas Pac. Pacific Ex. Co. v. Darnell, (Tex.) 6 S. R. Co., 63 Mo. 314; Sprague v. Mis- W. R. 765; Central Vermont R. Co. v. souri Pac. R. Co., 34 Kan. 347; Soper, 59 Fed. R. 879. Wichita, etc., R. Co. o. Koch, 47 'Good «. Galveston, etc., R. Co., Kan. 753, B.C. 28 Pac. R. 1013. But see (Tex.) 11 S. W. R. 854, 40 Am. & Eng. Orrasby j>. Union Pac. R. Co., 4 Fed. R. Cas. 98; Missouri Pac. R. Co. E. 706. V. Harris, 67 Tex. 166. ' Adams Ex. Co. v. Reagan, 29 Ind. * Ft. Worth, etc., R. Co. v. Great- § 1513 CONTRACTS LIMITING LIABILITY. 2343 other jurisdictions such a stipulation is regarded as a condi- tion precedent, even when not expressly so declared, and per- formance thereof must be alleged and proved by the plaintiff, or a good excuse shown for failing to present the claim as re- quired.' § 1513. Miscellaneous stipulations. — We have considered the most important stipulations limiting the liability of the carrier which are usually found in bills of lading or other special contracts, but there are others which have also been ad- judged to be valid. Thus, it has been held that a carrier may stipulate against liability for loss by thieves or robbers where its own negligence has in no way occasioned the loss.^ So, it may stipulate that it shall not be liable for delay caused by strikes or mobs, at least where they are not caused by its own fault and are of such magnitude as to require military force to overcome them.' Liability from "leakage" or "breakage" may also be provided against if the carrier is free from negli- gence.* And the carrier is not liable for loss caused by the breaking of an axle without its fault, where the special con- tract exempts it from liability for any loss caused by any "ac- cident to machinery."^ house, 82 Tex. 104, s. c. 17 S. W. B. Lang v. Pennsylvania R. Co., 154 Pa. 834; St. Louis, etc., E. Co. v. Hays, St. 342, s. c. 20 L. E. A. 360; Spinetti (Tex. Civ. App.) 35 S. W. E. 476; v. Atlas Steamship Co., 80 N. Y. 71; Missouri Pac. R. Co. v. Harris, 67 Tex. Shaw v. Great Western E. Co., L. E. 166; Gulf, etc., E. Co. v. Vaughn, 4 (1894) 1 Q. B. 373. But compare De Tex. App. (Civil Cases) 269, s. c. 16 S. Eothschildj).Eoyal,etc., Steam Packet W. E. 775 ; Wescott v. Fargo, 61 N. Y. Co., 7 Exch. 734 ; Taylor v. Liverpool, 542. etc.. Steam Co., L. E., 9 Q. B. 546. 'United States Ex. Co. v. Harris, 51 'Gulf, etc., E. Co. v. Gatewood, 79 Ind. 127; Louisville, etc., E. Co. v. Tex. 89, s. c. 14 S. W. E. 913; Hall Widman, 10 Ind. App. 92 ; Case v. v. Pennsylvania R. Co., 14 Phila. (Pa.) Cleveland, etc., E. Co., 11 Ind. App. 414. 517; Chicago, etc., E. Co. v. Simms, «The Barracouta, 39 Fed. E. 288; 18 111. App. 68. This seems to us the Marx b. The Britannia, 34 Fed. E. 906 ; better rule where the stipulation is Hill v. Sturgeon, 28 Mo. 323 ; Lawson clearly a condition precedent, at least on Contracts of Carriage, § 184. when the plaintifi sues on the con- 'Fairbanks & Co. v. Cincinnati, tract which contains it. etc., E. Co., 66 Fed. E. 471. *The Saratoga, 20 Fed. E. 869; 2344 CARRIERS. § 1514 § 1514. Waiver of stipulation limiting liability or fixing time and manner of presenting claims. — A stipulation limiting the liability of the carrier or fixing the time and manner of giving notice or presenting claims may be waived by the car- rier impliedly, by conduct, as well as expressly.' Thus where a claim is received and acted upon, after the expiration of the time limited, without any objection on that account, the car- rier may be deemed to have waived the benefit of the limita- tion as to the time for presenting it.^ So, although it is re- quired to be in writing, receiving and acting or promising to act upon a verbal claim, without objection on that account, will operate as a waiver of such requirement." And a stipula- tion limiting the liability of the carrier to a certain sum is waived where the carrier, in adjusting the damages, agrees to take the property and pay the shipper a larger sum than that stated in the contract limiting its liability.* But it has been held that a shipper has no right to rely upon the promise of a station agent to waive a provision as to the time within which suit must be brought where he knows that such agent has no authority to adjust the claim without first obtaining the con- sent of the company.^ § 1515. Benefit of exemption lost by deviation. — The car- rier may lose the benefit of an exemption from liability, or lim- ' Galveston, etc., E. Co. v. Ball, 80 ing it or bringing suit until after the Tex. 602, s. c. 16 S. W. R. 441; Hess time limited. Galveston, etc., R. Co. V. Missouri Pac. E. Co., 40 Mo. App. v. Ball, 80 Tex. 602; Gulf, etc., E. Co. 202 1 Merrill v. American Exp. Co., 62 v. Trawick, 80 Tex. 270 ; Peoria, etc., N. H. 514; Glenn v. Southern Exp. Ins. Co. v. Hall, 12 Mich. 202. Co., 86Tenn. 594; Hudson ». North- "Bennetts Northern Pac. Exp. Co., ern Pac. R. Co., (Iowa) 60 N. W. E. 12 Ore. 49; Eice v. Kansas Pac. R. 608. Co., 63 Mo. 314; Atchison, etc., R. "International, etc., E. Co. v. Un- Co. v. Temple, 47 Kan. 7, s. c, 27 Pac, derwood, 62 Tex. 21; Hudson v. E. 98; Wabash E. Co. ». Brown, 152 Northern Pac. E. Co., (Iowa) 60 111. 484, s. c. 39 N. E. E. 273 (veriflca- N. W. E. 608, 61 Am. & Eng. E. Cas. tion waived). 329. So, of course, where the car- * Chicago, etc., E. Co. v. Katzen- rier knows of the loss and the de- bach, 118 Ind. 174. lay is caused by the promise of the ^Gulf, etc., E. Co. v. Brown, (Tex. carrier to pay the claim, and the ship- Civ. App.) 24 S, W. R. 918. per is thus induced to refrain from fil- § 1516 CONTRACTS LIMITING LIABILITY. 2345 itation thereof, by deviation as -well as by a waiver in other ways. We have already considered the liability of the carrier for delay or loss occasioned by deviation irrespective of its ef- fect on the stipulation exempting the carrier from liability. If the deviation in no way occasions the loss it would seem that the carrier ought not to be held liable for a loss clearly within the terms of a valid exemption, but it is doubtful whether the law makes any such distinction. The contract is an entirety, and if the carrier desires the benefit of the exemption it is not unreasonable to hold that all the conditions of the contract should be performed by the carrier on its part. The general rule, therefore, is that, during the deviation at least, the car- rier loses the benefit of its exemption by special contract and is subject to the common law liability of such carriers for losses then occurring.' This is certainly just, where the loss would not have occurred except for an unnecessary and unjustifiable deviation. § 1516. Burden of proof. — It frequently becomes of the ut- most importance, where the carrier claims that its liability is limited by special contract, to determine upon whom rests the burden of proof. Upon some phases of this subject there is sharp conflict among the authorities. Two propositions, however, seem to be pretty well settled. Proof of loss or non-delivery or injury to freight while in the possession of the carrier usually raises a presumption of negligence or fault on its part and casts the burden upon the carrier to explain or account for the same in some way which will exonerate it,'' and, if the carrier 'Maghee ». Camden, etc., R. Co., 45 Taber, 2 Sprague 1; Sleat «. Flagg, 5 N. Y. 514 ; Keeney v. Grand Trunk R. B. & Aid. 342. Co., 47 N. Y. 525; Uptegrove v. Cen- ^Canfleld v. Baltimore, etc., R. Co., tral R. Co., 37 N. Y. Supp. 659 ; Good- 93 N. Y. 532 ; Grogan v. Adams Exp. rich V. Thompson, 44 N. Y. 324; Rob- Co., 114 Pa. St. 523, s. c. 7 Atl. R. 134; inson v. Merchants' Dispatch, etc., Merchants' Dispatch, etc., Co. uBloch, Co., 45 Iowa 470; Hand v. Baynes, 4 86 Tenn. 392, s. c. 6 S. W. R. 881; "Whart. (Pa.) 204; Pavitt v. Lehigh Adams Exp. Co. «. Haynes, 42 111. 89 ; Valley R. Co., 153 Pa. St. 302 (car- Mann ». Birchard, 40 Vt. 326; Chap- riage by freight train instead of pas- man v. New Orleans etc., R. Co., 21 senger train as agreed) ; Hunnewellu. La. Ann. 224, s. c. 99 Am. Dec. 722; 2346 CARRIERS. §1516 claims that the loss or damage occurred from some cause ex- cepted in the special contract the burden is upon the carrier to show that fact.' As we have seen, however, the carrier is generally liable for its own negligence even though the loss was from some excepted cause, such as fire or the like, occa- sioned by its failure to exercise due care. In many of the states the burden is upon the carrier to show not only that the cause of the loss was within the terms of the exception, but also that there was, on its part, no negligence or want of due care,'' or, at least, none which was a proximate cause of Nelson v. Woodruff, 1 Black (U. S.) 156; Eintoul v. New York, etc., R. Co., 17 Fed. E. 905; Transportation Co. V. Downer, 11 Wall. (U. S.) 129; Chesapeake, etc., R. Co. v. Radbourne, 52 111. App. 203 ; Georgia R., etc., Co. ■V. Keener, 93 Ga. 808, s. c. 21 S. E. R. 287; St. Louis, etc., R. Co. v. Parmer, rXex. Civ. App.) 30 S. W. R. 1109; George v. Chicago, etc., R. Co., 57 Mo. App. 358; Witting v. St. Louis, etc., R. Co., 101 Mo. 631 ; Inman v. South Carolina R. Co., 129 U. S. 128, s. c. 37 Am. & Eng. R. Cas. 663, 669; Pennsylvania R. Co. v. Liveright, (Ind. App.) 41 N. E. R. 350, 43 N. E. R. 162; Little v. Boston, etc., R. Co., 66 Me. 239; Tygert Co. v. The Charles P. Sinnickson, 24 Fed. R. 304 ; Brown- ing V. Goodrich Transp. Co., 78 Wis. 391. s. c. 10 L. R. A. 415. 'Gaines v. Union, etc., Co., 28 Ohio St. 418; Merchants' Dispatch, etc., Co. V. Bloch, 86 Tenn. 392, s. c. 6 Am. St. R. 847 ; Verner u. Sweitzer, 32 Pa. St. 208; St. Louis, etc., R. Co. v. Les- ser, 46 Ark. 236 ; Bennett v. Filyaw, 1 'Fla. 403; Alden v. Pearson, 3 Gray (Mass.) 342; South, etc., R. Co. v. Henlein, 52 Ala. 606; Kallman v. United States Exp. Co., 3 Kan. 205; Baltimore, etc., R. Co. v. Brady, 32 Md. 333; Western R. Co. v. Harwell, 91 Ala. 340, s. c. 8 So. R. 649; Linds- ley V. Chicago, etc., R. Co., 36 Minn. 539, s. c. 1 Am. St. R. 692; Gumming V. The Barracouta, 40 Fed. R. 498 ; The Freedom, L. R. 3 P. C. 594; Walling- ford u. Columbia, etc., R. Co., 26 S. Car. 258, s. c. 2 S. E. R. 19 ; Witting v. St. Louis, etc., R. Co., 28 Mo. App. 103; Terre Haute, etc., R. Co. v. Sherwood, 132 Ind. 129, s. c. 31 N. E. R. 781 ; Chapman i;. New Orleans, etc., R. Co., 21 La. Ann. 224, s. c. 99 Am. Dec. 722; Wheeler's Modern Law of Carriers, 252 ; Lawson's Contr. of Carriers, §§ 246, 247. Many of the above cases hold that the burden is upon the carrier to plead and prove the special contract limiting its liabil- ity. To this effect are also Schaeffer V. Philadelphia, etc., R. Co., 168 Pa. St. 209, s. c. 31 Atl. R. 1088; Missouri Pac. R. Co. II. Wichita, etc., Co., (Kan.) 40 Pac. R. 899; Atchison, etc., R. Co. Bryan (Tex. Civ. App.) 28 S. W. R. 98; Western Transp. Co. «. New- hall, 24 111. 466, s. c. 76 Am. Dec. 760; McMillan v. Michigan, etc., R. Co., 16 Mich. 79, s. c. 93 Am. Dec. 208; Fillebrown v. Grand Trunk R. Co., 55 Me. 462, s. c. 92 Am. Dec. 606. But we do not believe that this rule can prevail in all cases in all jurisdictions. ^Shea V. Minneapolis, etc., R. Co., (Minn.) 65 N. W. R. 458; Shriver V. Sioux City, etc., R. Co., 24 Minn. 506; Ryan v. Missouri, etc., R. Co., 65 Tex. 13; Chicago, etc., R. Co. §1516 CONTRACTS LIMITING LIABILITY. 2347 the loss. But the weight of authority supports the rule that, after the loss is once shown to be within the exception, the burden is upon the plaintiff to show negligence upon the part of the carrier.' Eminent judges and text writers approve the former rule and much may be said in its favor,' but we are in- V. Moss, 60 Miss. 1003; Johnson v. Alabama, etc., R. Co., 69 Miss. 191, s. c. 11 So. R. 104; Berryo. Cooper, 28 Ga. 543; Columbus, etc., R. Co. v. Kennedy, 78 Ga. 646 (under a stat- ute) ; Graham v. Davis, 4 Ohio St. 362 ; Gaines v. Union, etc., Co., 28 Ohio St. 418; Wallingford v. Columbia, etc., R. Co., 26 S. Car. 258 ; Slater v. South Car. R. Co., 29 S. Car. 96 ; Brown v. Adams Exp. Co., 15 W. Va. 812; Steele v. Townsend, 37 Ala. 247; Louisville, etc., R. Co. V. Touart, 97 Ala. 514, s. c. 11 So. R. 756. See, also, Boies, v. Hartford, etc., R. Co., 37 Conn. 272; Adams Exp. Co. v. Stattaners, 61 111. 184; Dunseth v. Wade, 3 111. 285; Chicago, etc., R. Co. v. Manning, 23 Neb. 552. 'Little Rock, etc., R. Co. v. Talbot, 39 Ark. 523; Little Rock, etc., R. Co. ■0. Harper, 44 Ark. 208; Mitchell v. United States Exp. Co., 46 Iowa 214 ; New Orleans, etc., Co. v. New Orleans, etc., R. Co., 20 La. Ann. 302; Kail- man t;. United States Exp. Co., 3 Kan. 205; Kansas Pac. R. Co. v. Reynolds, 8 Kan. 623; Sager v. Portsmouth, etc., R. Co., 31 Me. 228; Jordan v. Ameri- can Exp. Co., 86 Me. 225, 29 Atl. R. 980; Read v. St. Louis, etc., R. Co., 60 Mo. 199; Davis U.Wabash, etc., R. Co., 89 Mo. 340; Witting v. St. Louis, etc., R. Co., 101 Mo. 631, s. c. 14 S. W. R. 743, 10 L. R. A. 602; Smith v. Ameri- can Exp. Co., (Mich.) 66N.W.R.479; French v. Buffalo, etc., R. Co., 4 Keyes (N. Y.) 108; Whitworth v. Erie, etc., R. Co., 87 N. Y. 413; Smith V. North Carolina R. Co., 64 N. Car. 235; Farnham v. Camden, etc., R. Co., 55 Pa. St. 53; Hubbard v. Hern- den's Express Co., 10 R. I. 244; Railway Co. v. Manchester Mills, 88 Tenn. 653; Clark v. Barnwell, 12 How. (U. S.) 272; Transportation Co. V. Downer, 11 Wall. (U. S.) 129; Wertheimer v. Pennsylvania R. Co., 17 Blatch. (U. S.) 421; Marsh v. Home, 5 Barn. & Cress. 322; Ohrloff V. Briscall, L. R. 1 P. C. App. 231. See, also, Terre Haute, etc., R. Co. v. Sherwood, 132 Ind. 129; Indianapo- lis, etc., R. Co. V. Forsythe, 4 Ind. App. 326, s. c. 29 N.^ E. R. 1138. Where there is no evidence as to how the loss occurred the presumption may be against the carrier, but where it is shown to be within the exception and the circumstances do not import negligence on the part of the carrier the burden is upon the plaintiff to prove negligence, which is generally a question of fact for the jury. Buck v. Pennsylvania R. Co., 150 Pa. St. 170, s. c. 24 Atl. R. 678. 2 See 2 Greenl. Ev., § 219; Hutchin- son on Carriers, § 766; Lawson's Contr. of Carriers, §§ 249, 250. The reasons for this rule are that the facts are best known to the carrier and that it is required by public policy. It may also be urged with plausibility that when the plaintiff makes out a prima facie case by showing the deliv- ery and loss it can not be justly said that this is rebutted by showing that it occurred by reason of a cause which was within the exception, where the exception does not cover negligence and such cause does not exclude neg- ligence, but is compatible therewith. 2348 CAKRIEES. § 1516 clined to think that the latter is supported by the better rea- son as well as by the weight of authority.' It has also been held by some of the courts that where the property consists of live stock or perishable fruit, or the like, which is peculiarly liable to injury or deterioration because of its inherent nature or vice, it is not enough for the shipper to show that it was delivered by the carrier in a damaged condition;^ and so it has been held that where the shipper goes with the stock and agrees to take care of it he must show negligence on the part of the carrier and freedom from negligence on his part.' It ' The burden is upon the plaintiff, where a loss is from an excepted cause, to make out a case entitling him to recover, and this he can not do without showing negligence on the part of the carrier. It is well settled that negligence is a wrong which is never presumed, although it may be proved by circumstances or inferred therefrom. When the loss is shown to be within the exception the case does not rest upon the common law duty or liability of the carrier as an insurer, but upon negligence, and it does not seem just to indulge the same presumption against the carrier in the latter as in the former case. It seems to us that public policy cer- tainly does not require it and that the rule that the burden is upon him who best knows the facts was not meant to be applied to such a case. If that rule were applied indiscriminately it would cast the burden in very many cases upon the defendant to show that he was not guilty of wrong and reverse the usual presumption of in- nocence and care rather than guilt and negligence. "When he (the car- rier) has shown a loss within the exception of his contract, without ap- parent negligence, he has brought himself within the terms of his bar- gain. On what principle is that bar- gain to be nullified by requiring of him the production of that evidence, the loss or difficulty of obtaining which was the very reason for limit- ing his responsibility?" Patterson v. Clyde, 67 Pa. St. 500. ^Pennsylvania E. Co. v. Raiordon, 119 Pa. St. .577, s. c. 13 Atl. R. 324; Hussey v. The Saragossa, 3 Woods (U. S. C. C.) 380. See, also, Pittsburgh, etc., R. Co. V. Hollowell, 65 Ind. 188; Bartlett v. Pittsburgh, etc., R. Co., 94 Ind. 281 ; Pittsburgh, etc., R. Co. v. Hazen, 84 111. 36, s. c. 25 Am. R. 422; Michigan, etc., R. Co. v. McDonough, 21 Mich. 165; Clarke v. Rochester, etc., R. Co., 14 N. Y. 570, s. c. 67 Am. Dec. 205 ; The Hindoustan, 67 Fed. R. 794. ^Terre Haute, etc., R. Co. v. Sher- wood, 132 Ind. 129; St. Louis, etc., R. Co. V. Weakly, 50 Ark. 397, s. c. 7 Am. St. R. 104, 117 ; Louisville, etc., Q. Co. V. Hedger, 9 Bush (Ky.) 645; McBeath v. Wabash, etc., R. Co., 20 Mo. App. 445. See, also, Harvey ». Rose, 26 Ark. 3 ; Clark v. St. Louis, etc., R. Co., 64 Mo. 440, 448. In such a case he is presumed to know the facts as well as the carrier, and the rule that the burden is upon the party who has peculiar knowledge of the facts which is sometimes invoked to cast the burden upon the carrier, is held not to apply, no matter what the rule may be in other cases. § 1516 CONTRACTS LIMITING LIABILITY. 2349 can not be said, however, that either of these propositions is settled law in all jurisdictions.' But the rule which affirms that the burden is on the shipper in such cases rests, we think, on solid foundations. It seems to have been sometimes over- looked, but there are few, if any, well considered cases in which it has been expressly denied. ' See Central E., etc., Co. v. Hassel- Phoenix, etc.. Works v. Pittsburg, etc., kus, 91 Ga. 382, s. c. 17 S. E. E. 838, 8 E. Co. 139 Pa. St. 284, s. c. 20 Atl. R. Lewis' Am. E, & Corp. E. 395; 1058. CHAPTER LXII. DELIVERY BY THE CARRIER. § 1527. Notice by consignee or his agent. 1528. Reasonable time to inspect and remove. 1529. Rule where goods are to be held until called for. 1530. Rule where goods are not to be delivered until paid for. 1531. Waiver by consignee. 1532. Carrier's right to receipt or surrender of bill of lading. 1533. Duty to store^Liability aa warehouseman . § 1517. Generally. — A common carrier engages not only to carry safely but also to deliver.' Its duty as a common carrier and its liability as an insurer is not terminated, ordinarily, until there is a delivery of the goods,^ either actual or under such circumstances as to constitute a constructive delivery. Stated in the most general and comprehensive terms, the de- livery must be made within and at a reasonable time, to the § 1517. Generally. 1518. Personal delivery. 1519. Place of delivery. 1520. Time of delivery. 1521. Manner of delivery. 1522. Custom and usage. 1523. Delivery must be to right per- son. 1524. Delivery to agent. 1525. Eight of carrier to require identification of consignee. 1526. Misdelivery. ' Bodenham v. Bennett, 4 Price 31 ; R. Cas. 419 ; Bartlett v. Steamboat Duff V. Budd, 3 Brod. & B. 177 ; Parker Philadelphia, 32 Mo. 256. V. Flagg, 26 Me. 181 ; Lamb v. Cam- ^Smitli v. Nashua, etc., R. Co., 27 N. den, etc., R. Co., 2 Daly (N. Y.) 454; H. 86; Southern Ex. Co. v. Newby, Shenk o. Philadelphia Steam, etc., 36 Ga. 635; Richards v. London, Co., 60 Pa. St. 109; Wilson v. Call- etc., R. Co.,j7 C. B. 839; Fowles «. fornia, etc., R. Co., 94 Cal. 166, s. c. Great Western, etc., R. Co., 7 Exch. 29 Pac. R. 861; North Pennsylvania 699; Hall v. Boston, etc., R. Co., 14 E. Co. V. Commercial Nat. Bank, 123 Allen (Mass.) 439 ; Hutchinson on V. 8. 727, s. c. 8 Sup. Ct. R. 266, 269; Carriers (2d ed.) §338, 3 Woods on South and North Alabama R. Co. v. Railroads, (Minor's ed.) § 441. Wood, 66 Ala. 167, s. c. 9 Am. & Eng. (2350) § 1517 DELIVERY BY THE CAKRIBK. 2351 right person, at the proper place and in a proper manner.' As we shall hereafter show, however, an actual personal delivery is not always required, especially in the case of a railroad com- pany/ No general rule, applicable to all cases, can be stated as to what constitutes a good and sufficient delivery. Much necessarily depends upon the circumstances of each particular case, and whether there has or has not been a sufficient de- livery in the particular case is usually, but not always, a ques- tion of fact, or a mixed question of law and fact, for the jury under proper instructions by the court.' § 1518. Personal delivery — At common law ordinary car- riers, such as carriers by wagon, were required to make a per- sonal delivery of the goods to the consignee or other proper person at his house or place of business, but, in the case of railroad companies, which have fixed routes and depots or places for delivery, a well-settled custom has grown up, as in the case of vessels, to deliver at those places, and personal delivery at the residence or place of business of the consignee is not required.* But if the goods are directed to a particular 'Hutchinson on Carriers, (2d ed.) mond, etc., R. Co., 38 So. Car. 365, s. § 340 ; Bartlett v. Steamboat Philadel- c. 17 S. E. R. 147. phia, 32 Mo. 256 ; Hill u. Humphreys, * South and North Ala. R. Co. v. 5 Watts & S. (Pa.) 123; Eagle u. "Wood, 66 Ala. 167, s. c. 9 Am. & Eng. White, 6 Whart. (Pa.) 505, s. c. 37 R. Cas. 419; Jeffersonville, R. Co. v. Am. Dec. 434. Cleveland, 2 Bush (Ky.) 468; Banse- 'Post, § 1518. mer v. Toledo, etc., R. Co., 25 Ind. 434, 'Hedges D.Hudson River R. Co., 6 s. c. 87 Am. Dec. 367; Witbeck v. Robt. (N. Y.) 119 ; Derosia v. Winona, Holland, 45 N. Y. 13 ; Thomas v. Bos- etc, R. Co., 18 Minn. 133; Quiggin v. ton, R. Co., 10 Mete. (Mass.) 472; New Duff, 1 M. & W. 174; McGraw v. Orleans, etc., R. Co. D.Tyson, 46 Miss. Baltimore, etc., R. Co., 18 W. Va. 729; Francis w. Dubuque, etc., R. Co., 361, s. c. 41 Am. R. 696, s. c. 9 Am. & 25 Iowa 60. Even where a statute re- Eng. R. Cas. 188; Columbus, etc., R. quires the delivery of grain to the Co. 11. Flournoy, 75 Ga. 745. The warehouse or elevator to which it is first case above cited was reversed on consigned, the company is required appeal, the court holding that as the only to do so when it can by using the facts were undisputed, the question tracks which it has a right to use, and was one of law for the court. Hedges can not be compelled to run its cars V. Hudson River R. Co., 49 N. Y. 223. over tracks which it does not own and See, also, Whitney Mfg. Co. v. Rich- has no right to use. Hoyt v. Chicago, 2352 CARRIERS. § 1519 place by street and number and "streetage" or "cartage," is charged for transporting and delivering them there, in addi- tion to the regular charges for transportation and delivery at the depot, it is the duty of the carrier to deliver them at the designated place.' So, where the consignee had his elevator on the line of the road and was prepared to receive grain shipped to such place directly from the cars into the elevator it was held that the reason for relaxing the common law rule requiring personal delivery did not apply and that it was the duty of the railroad company to make a personal delivery at the elevator to which the grain was consigned.' We think there can be no doubt that the company may bind itself to make a personal delivery, in such cases, by express contract, and that even in the absence of such a contract, custom may, in the particular instance, require it to do so. § 1519. Place of delivery. — The delivery must be made at a suitable place. ^ As a general rule the depot or warehouse of the company at the town or station to which the goods are ship- ped is the proper place.' But if the carrier, having no depot or warehouse in such town, is directed by the proper party to leave them at a particular place therein, compliance therewith will be sufficient.' This rule applies where the consignee di- rects them to be delivered at a different place from that speci- fied in the contract, or accepts them at a different place.' etc., R. Co., 93 111. 601. See, also, R., 1 Gray (Mass.) 263, s. c. 61 Am. Stetler v. Chicago, etc., R. Co., 49 Dec. 423; Ray on Freight Carriers Wis. 609, s. c. 6 N. W. R. 303. 888. 'Baltimore, etc., R. Co. r. Green, * Rowe v. Pickford, 8 Taunt. 83 s. c. 25 Md. 72; Sohroederu. Hudson River 1 Moore 526; Dixon u. Baldwen, 5 R. Co., 5 Duer (N. Y.) 55; Calm «. East 175; Scott v. Pettit, 3 Bos. & P. Michigan Cent. R. Co., 71 111. 96. 469. 'Vincent v. Chicago, etc., R. Co., « London, etc., Ry. v. Bartlett, 7 H. 49 III. 33, approved in State u. Repub- & N. 400; Cork Distilleries Co. v. lican Valley R. Co., 17 Neb. 647, s. c. Great Southern, etc., Co., L. R. 7 H. 24 N. W. R. 329, 52 Am. R. 424. L. 269; Sweet v. Barney, 23 N. Y. 'Jewell u. Grand Trunk R. Co., 55 335; Cleveland, etc., R. Co. v. Sar- N. H. 84; Rooth t». Northeastern R. gent, 19 Ohio St. 438; Lewis v. Co., L. R. 2 Exch. 173. Western R. Co., 11 Met. (Mass.) * Norway Plains Co. v. Boston, etc., 509. But not if the carrier knows § 1519 DELIVERY BY THE CARRIER. 2353 There is no obligation, however, as a general rule, to receive goods at a different station or place from that to which they are consigned, and the company can not escape liability by tender- ing the goods at a different place.' But, in the absence of any- thing to the contrary, custom, known and acquiesced in by the parties, may justify the railroad company in delivering the freight at a public or an independent warehouse or elevator.^ Where goods were shipped to a place named Flesherton and it appeared that such was the name both of the railroad station and of a village, about five miles away, where the consignee had his place of business, it was held that the destination of the goods was the station and not the village, and that a shed at such station where the company was in the habit of unloading and storing goods was a warehouse within the meaning of a bill of lading providing that the responsibility of the company should cease when the goods were placed in the company's warehouse at their final destination.' So, where a company simply agreed to carry goods to a certain place, it was held that its duty was performed when it carried them safely to its depot at that place and then notified and gave the consignee an oppor- tunity to receive, inspect and take them away, and that, in the absence of any controlling custom, it was under no obligation to deliver them to another company for ultimate delivery at a that the title has not passed to the etc., R. Co. v. Rose, 20 111. App., note consignee or that he has no right to 670; Perkins v. Smith, 1 Wils. 328; change the destination. Southern Meyer v. Chicago, etc., R. Co., 24 Ex. Co. V. Dickson, 94 U. S. 549. Wis. 566. Trover will usually lie as 'Toledo, etc., R. Co. v. Hammond, for conversion of the goods. 33 Ind. 379, s. c. 5 Am. R. 221; « Arthur ». St. Paul, etc., R. Co., 38 Railroad Co. v. O'Donnell, 49 Ohio Minn. 95, s. c. 35 N. W. R. 718; Black St. 489; Mahon v. Blake, 125 Mass. v. Ashley, 80 Mich. 90, s. c. 44 N. W. 477; Gulf , etc., R. Co. ■». Clark, 2 Tex. R.1120. See, also,OstranderM. Brown, App. (Civil Cases) 459, s. c. 18 Am. & 15 Johns. (N. Y.) 39, s. c. 8 Am. Dec. Eng. R. Cas. 628. See, also, Edwards 211; Farmers', etc.. Bank v. Cham- V. Railroad Co., 32 S. Car. 117; plain, etc., Co., 16 Vt. 52, s. c. 42 Am. Benbowu. North Car. R. Co., Phillips Dec. 491, and note. Law 421, s. c. 98 Am. Dec. 76; Hous- ^ Richardson tJ.CanadianPac.R. Co., ton, etc., R. Co. v. Adams, 49 Tex. 19 Ont. R. 369, s. c. 45 Am. & Eng. R. 748,8. c. 30 Am. R. 116; St. Louis, Cas. 413. 2354 CARRIERS. § 1520 more convenient place.' In another recent case the same court held that when goods are shipped to a place where the company- has no depot and no agent it is a good delivery to leave the car on a side-track, and if there is no side-track, it may unload them, at least where they are not perishable — the freight in this case being a carload of bricks — and leave them on the ground even though the consignee is not present, and that it has no right to carry them to the next station upon finding no one present at the former place to receive them.^ It seems, however, that a vendor who contracts to deliver goods "f. o. b." at a place to which they are shipped, and has fully performed his contract, is not entitled to recover for the loss of the goods by fire after their arrival and before they are unloaded, although, as between the owner to whom they were consigned and the carrier, the goods might not have been completely delivered.' § 1520. Time of delivery. — The delivery must be made at a proper time* as well as at a proper place. So, it is the duty of the carrier to deliver within a reasonable time.^ What is a 'Melbourne v. Louisville, etc., R. Sleadet). Payne, 14La. Ann.453;Shel- Co., 88 Ala. 443, s. c. 6 So. B. 762. ton v. Merchants', etc., Co., 59 N. Y. ^Louisville, etc., R. Co. «. Gilmer, 258. 89 Ala. 534, s. c. 7 So. E. 654, 42 Am. ^ JicGraw v. Baltimore, etc., E. Co., & Eng. E. Cas. 450. See, also, South, 18 W. Va. 361, s. c. 41 Am. E. 696; etc., E. Co. V. Wood, 66 Ala. 167. Philadelphia, etc., E. Co. v. Lehman, ' Capehart v. Furman Imp. Co., 66 Md. 209, s. c. 40 Am. E. 415, s. c. 103 Ala. 671, 16 So. E. 625. 6 Am. & Eng. E. Cas. 194; Gates v. 'Eagle V. White, 6 Whart. (Pa.) Chicago, etc., E. Co., 42 Neb. 379, s.c. 505; The Grafton, 1 Blatchf. (U. S.C, 60 N. W. E. 583; Hughes v. Great C.) 173; Ely v. New Haven, etc., Co., Western, etc., E. Co., 14 C. B. 637; 53 Barb. (N. Y.) 207. It would seem Coffin v. New York, etc., E. Co., 64 that Sunday, a legal holiday, or after Barb. (N. Y.) 379; Cope v. Cordova, business hours is not a reasonable 1 Rawle (Pa.) 203 ; St. Louis, etc., E. time and that the consignee is not Co. v. Heath, 41 Ark. 476; Hewett v. bound to take the goods away on such Chicago, etc., E. Co., 63 Iowa 611; a day. See Russell Mfg. Co. ■». New Ostranders. Brown, 15 Johns. (N. Y.) Haven Steamboat Co., 50 N. Y. 121; 39, s. c. 8 Am. Dec. 211, and note; Missouri Pac. E. Co. v. Wichita, etc., Davis v. Jacksonville, etc., E. Co., 126 Co., 55 Kan. 525, 40 Pac. 899. Butithas Mo. 69, 28 S. W. E. 965; Kennedy w. been held that a carrier is not liable American Ex. Co., 22 Ont. App. 278; for unloading on a holiday. Eichard- Chickering v. Fowler, 4 Pick. (Mass.) son«. Goddard, 23 How. (IT. S.) 28; 371; Pickett «. DowHer, 4 Vt. 21. But § 1521 DELIVERY BY THE CARRIER. 2355 reasonable time necessarily depends, to some extent, upon the peculiar circumstances of each particular case, and is usually a question of fact, or a mixed question of law and fact, for the jury, under proper instructions.' Where the consignee sent for the goods on Saturday afternoon, but was told that they would be late in arriving, and that he need not call for them again until Monday, and the goods arrived about sundown Saturday evening and were burned in the company's ware- house before Monday morning, it was held that the carrier was liable, although the consignee had been informed in the meantime of their arrival.^ But where heavy freight was shipped on a steamboat, and it was customary for the con- signee to be present to receive the goods at the dock, it was held that the carrier was not liable as for conversion, although, in the absence of any one to guard the goods, or any conven- ient place to store them, they were kept on board the boat until its return the next day.' § 1521. Manner of delivery. — We have already considered the mode or manner of delivery in treating of personal delivery and the time and place of delivery and little remains to be said upon the subject. The carrier must afford the consignee an opportunity to remove the goods and should provide reason- see Geismerv. Lake Shore, etc.,R-Co., 'Columbus, etc., R. Co.i).Flournoy, 102N. Y. 563,s.c.7N.E. R. 828,hold- 75 Ga. 745; McGraw v. Baltimore, ing that this is not an absolute duty, etc., R. Co., 18 "W. Va. 361, s. c. 41 Circumstances may excuse the failure Am. R. 696; Derosia v. Winona, etc., to deliver in what would ordinarily R. Co., 18 Minn. 133; Illinois Cent, be a reasonable time. Davis v. Gar- R. Co. v. Haynes, 64 Miss. 604; Wren ret, 6 Bing. 716; Taylor I). Great North- v. Eastern, etc., R. Co., 1 L. T. N. S. ern R. Co.,L R. 1 C. P. 385; Briddon 5; Hales v. London, etc., R. Co., 4 B. V. Great Northern R. Co., 28 L. J. & S. 66. Exch. 51; Illinois Cent. R. Co. v. ^ Wood u. Crocker, 18 Wis. 345, s.c. Haynes, 64 Miss. 604 ; Lipford v. Char- 86 Am. Dec. 773. See, also, Parker v. lotte R. Co., 7 Rich. (S. Car.) 409. But Milwaukee, etc., R. Co., 30 Wis. 689. if it has expressly contracted to de- But compare Francis u. Dubuque, etc., liver in a certain time it must do so. R. Co., 25 Iowa 60, s. c. 95 Am. Dec. Donohoe v. London, etc., R. Co., 15 769. Week. R. 792 ; Pickford u. Grand June- "The Hattie Palmer, 63 Fed. R. tion R. Co., 12 Mees. & W. 766. 1015. 2356 CAEEIERS. § 1521 able facilities for unloading and enabling him to remove them." Delivery in a particular manner may doubtless be provided for by contract, but in the absence of any specific provision upon the subject it is determined very largely by custom. In delivering grain, coal or similar articles in an elevator or warehouse the carrier should not mix it with other articles of the same kind so that it can not be separated, for in the ab- sence of any provision or controlling custom to the contrary, the consignee is not bound to accept anything in place of the spe- cific article shipped, and the carrier is liable if it wrongfully mixes it with articles of an inferior kind or grade so that it can not deliver the specific article.^ But a custom has grown up to store grain in elevators with other grain of the same kind and quality and it is generally held in such a case that it is sufficient if the owner receives an equivalent quantity of grain of the same quality, although not the identical grain that he originally owned.' Where goods are shipped to a place where there is a side-track, but no depot, platform or agent of the carrier, and this is known to the parties, and is not unreason- able in view of the small amount of business, it has been held that leaving the car of goods upon the side-track is a good de- livery and relieves the company from further responsibility.' It was also held, upon a second appeal of the case just referred to, that, while the burden is usually upon the carrier to excul- pate itself where goods are delivered in a damaged condition, yet, as the plaintiff claimed that there was a failure to deliver ' See Covington Stock Yards Co. v. 3 0nt. R. 92,s. c. 16 Am.&Eng. R.Cas. Keith, 139 IT. S. 128, s. c, 11 Sup. Ct. R. 287. See, also, Eaton v. Neumark, 37 461 ; Oregon, etc., R. Co. v. Ilwaco, Fed. R. 375 ; The Idaho, 93 F. S. 575. etc., Co., 51 Fed. R. 611; Owen v. 'Forbes v. Fitchburg R. Co., 133 Louisville, etc., R. Co., 87 Ky. 626, s. Mass. 154, s. c. 9 Am. & Eng. R. Cas. c. 9 S. W. R. 698; Myrickw. Michigan 80; Arthur v. Chicago, etc., R. Co., 61 Cent. R. Co., 9 Biss. (U. S. C. C.) 44; Iowa 648, s. c. 16 Am. & Eng. R. Cas. Independence Mills Co. v. Burlington, 283. See, also, Rice v. Nixon, 97 Ind. etc., R. Co., 72 Iowa 535; Moses?;. 97, s. c. 49 Am. R. 430. Boston, etc., R. Co., 32 N. H. 523, s. « South & North Alabama R. Co. v. c. 64 Am. Dec. 381 ; Hungerford v. Wood, 66 Ala. 167, s. c. 41 Am. R. Winnebago, etc., Co., 33 Wis. 303. 749, citing Wells v. Wilmington, etc., ^Rice V. Boston, etc., R. Co., 98 B. Co., 6 Jones L. (N. Car.) 47. Mass. 212; Leader?;. Northern R. Co., § 1521 DELIVERY BY THE CARRIER. 2357 part of the goods and not that they were injured, aad as the car had remained for several days on the side-track with no one in charge of it the burden was upon him to show that the loss occurred between the time when they were received by the company and the time when the car was left upon the side- track.' So the rule has been laid down in other cases that "where the carrier is not required in the usual course of busi- ness or expected to remove the freight from the car, as in the case of grain in bulk, coal, lumber and the like," its liability as a common carrier is terminated "by delivering the car in a safe and convenient position for unloading at the elevator, warehouse or other place designated by the contract or required in the usual course of business, or, if no place of delivery is thus designated or required, on its side-track in the usual and customary place for unloading by consignees."^ We do not mean to approve this rule to the full extent of admitting that, under ordinary circumstances, the carrier's liability is at once terminated without notice or the lapse of a reasonable time for the consignee to unload or remove the freight, but we refer to it and the authorities in which it is announced in support of the doctrine that, under some circumstances, delivery may be made in the cars of the company on a side track or other proper and customary place. A railroad company is not bound ' South & North Alabama E. Co. v. directly from the cars. It is also true Wood, 71 Ala. 215, s. c. 46 Am. R. * * * that there is nothing to pre- 309, 16 Am. & Eng. E. Cas. 267. vent a carrier, at least under special ' Gregg V. Illinois Cent. E. Co., 147 circumstances, from using the car as a 111. 550, s. c. 61 Am. & Eng. E. Cas. warehouse for the storage of freight. 208, 35 N. E. E. 343, and other lUi- But in the case of portable boxes or nois cases there cited. See, also, valuable merchandise we think that Pittsburgh, etc., E. Co. v. Nash, 43 under ordinary circumstances, * * Ind. 423; Southwestern E. Co. v. in order to terminate the carrier's Felder, 46 Ga. 433; Whitney Mfg. Co. liability he must remove the goods V. Richmond, etc., E. Co., 38 S. Car. from the car in which they were trans- 365, s. c. 17 S. E. R. 147; Armistead ported and place them for safe-keep- Lumber Co. v. Louisville, etc., E. Co., ing in his freight house." Kirk v. (Miss.) 11 So. E. 472. "It is usual Chicago, etc., E. Co., 59 Minn. 161, s. for the consignees themselves to un- c. 60 N. W. E. 1084, 61 Am. & Eng. E. load and carry away these kinds of Cas. 203. freight: (coal, lumber and the like) Corp. 150 2358 CARRIERS. § 1522 to deliver goods piecemeal and at different times, and the owner or consignee has no right to require it to do so to suit his convenience.' § 1522. Custom and usage. — As we have said, custom fre- quently exerts an important influence in determining the time, place and manner of delivery.^ A general custom of the busi- ness or a well established usage at the place of delivery usually becomes a part of the contract and governs as to the place, time and mode of making the delivery." Thus, carriers have been held liable for loss occasioned by departing from an established custom,' and so, on the other hand they have been relieved from further liability by complying with such a cus- tom. It has been held, however, that if the carrier relies on a custom or upon the instructions of the consignee as to the manner of delivering the goods, it must show that it has fully complied with such custom or instructions.' An example of the influence of custom is found in a recent case. It was shown that the carrier had been accustomed to deliver goods to an independent warehouseman whose custom it was to notify the consignee and that the consignee was aware of this custom and had long acquiesced in it. The court held that the liability of the carrier ended with the delivery of the goods to the ware- houseman, and that its was not liable for the loss of the goods 'Morris, etc., R. Co. M. Ayres, 24 N. Dec. 491 and note; Farmers', etc., J. L. 393, s. c. 80 Am. Dec. 215. Bank v. Champlain Transp. Co., 23 ^Sheltonw. Merchants' Disp.Transp- Vt. 186; Loveland t). Burke, 120 Mass. Co., 59N. Y. 258; Sleadeu. Payne, 14 139, s. c. 21 Am. R. 507; Gibson «. La. Ann. 453; Weed ^. Barney, 45 N. Culver, 17 Wend. (N. Y.) 305; New Y. 344, s. c. 6 Am. R. 96; Lawson on York Cent., etc., R. Co. v. Standard Usages and Customs, §96; Brown on Oil Co., 87 N. Y. 486. Parol Ev., §58. ^Southern Exp. Co. v. Everett. 37 3 Richardson v. Goddard, 23 How. Ga.688. See, also, Richmond ». Union (U. S.) 28; Higgins u. United States, Steamboat Co., 87 N. Y. 240. etc., Co., 3 Blatchf . (U. S. C. 0.) 282 ; , = Baldwin v. American Exp. Co., 23 Blossom V. Smith, 3 Blatchf. (U. S. 111. 197; Haslam v. Adams' Exp. Co., C. C.) 316; The Glover, 1 Brown 6 Bosw. (N. Y.) 235. And custom or Adm. 166; Arthur v. St. Paul, etc., R. usage will not relieve it from liability Co., 38 Minn. 95, s. c. 35 N. W. R. 718 ; for negligence. Hibler v. McCartney, Farmers', etc., Bank v. Champlain 31 Ala. 501. Transp, Co., 16 VI. 52, s. c. 42 Am. § 1523 DELIVERY BY THE CARRIER. 2359 by fire while in the warehouse.' So, it has been held that where there are two places in the same town for the delivery of freight, one being the depot proper and the other a plat- form, where heavy and bulky articles were usually deposited, the usage of the place as to which would be the proper point for delivering cotton bales, may be shown, where neither is specifically designated." As a general rule, however, unless the course of dealing between the parties has been such as to render proof of a general custom unnecessary,' the usage must be lawful, general, uniform and certain, and no usage can over- ride a valid express and specific contract.* § 1523. Delivery must be to right person. — The rule in re- gard to the person to whom delivery must be made is very strict. It must be made to the right person, ° and it seems that neither the fraud or imposition of any one else nor mis- take on the part of the carrier will excuse it from liability if it deliver the goods to the wrong person. ° The right person is, ordinarily, the consignee or his authorized agent.' But if 1 Brack V. Ashley, 80 Mich. 90, s. c. N. Y. 23 ; McEntee v. New Jersey, 44 N. W. E. 1120. etc., Co., 45 N. Y. 34; Guillaume v. ' Homesly v. Elias, 66 N. Car. 330. General Transp. Co., 100 N. Y. 491 ; See, also, McMasters v. Pennsylvania Winslow v. Vermont, etc., E. Co., 42 E. Co., 69 Pa. St. 374. Vt. 700; American, etc., Exp. Co. v. ' See Barnes v. Foley, 5 Burr. 2711 ; Milk, 73 111. 224 ; American Exp. Co. Loveland v. Burke, 120 Mass. 139, s. v. Stack, 29 Ind. 27 ; Little Eock, etc., c. 21 Am. E. 507. E. Co. v. Glidewell, 39 Ark. 487, s. c. * Benson v. Gray, 154 Mass. 391, s. 18 Am. & Eng. E. Cas. 539; Houston, c. 28 N. E. E. 275. See, also, Dickin- etc., E. Co. v. Adams, 49 Tex. 748; son V. Gay, 7 Allen (Mass.) 29; Emery Meyer v. Chicago, etc., E. Co., 24 V. Boston, etc.. Insurance Co., 138 Wis. 566, s. c. 1 Am. E. 207; "Wern- Mass. 398 ; Collender v. Dinsmore, 55 wag v. Philadelphia E. Co., 117 Pa. St. N. Y. 200 ; Simmons v. Law, 3 Keyes 46 ; Shenk v. Philadelphia Propeller (N. Y.) 217; Powell v. Thompson, 80 Co., 60 Pa. St. 109, s. c. 100 Am. Dec. Ala. 51; Broom's Leg. Max. (5th Am. 541; Southern Exp. Co. ». Crook, 44 ed.) 828; Browne on Parol Ev., §§58, Ala, 468, s. c. 4 Am. E. 140; Duff v. 59, 2 Greenl. Ev., §246; Carver's Car- Budd, 3 Brod. & B. 177; Stephenson riage of Goods by Sea, 185. u. Hart, 4 Bing. 476. See, also, post, ^Ante, § 1426, and following notes to § 1526. this section. See, also, note to Sword ''Ante, § 1426, and authorities there V. Young. 3 Lewis' Am. E. & Corp. E. cited. See, also, Dyer v. Great North- 451. ern E. Co., 51 Minn. 345; Hoare v. «Viner v. New York, etc., Co., 50 Great Western E., 37 L. T. E. (N. S.) 2360 CAREiERs. § 1523 the carrier delivers to any one, even to the consignee, without the production of the bill of lading, it runs the risk of having to show a delivery in accordance with the terms thereof,' and where a vendor ships goods and takes a bill of lading in his own name or to his order, the carrier can not safely deliver the goods to any one else unless the bill is indorsed or trans- ferred by him and produced by the person to whom they are delivered/ Indeed, it has been held that where the bill of lad- ing requires the goods to be delivered to the consignor, the mere production of the bill by another, unindorsed by the consign- or, will not justify the carrier in delivering them to such other person, unless the consignor intended to pass the title to the goods by the transfer of the bill of lading without indorse- ment, and that a mere local custom to deliver goods to any person who produces the bill of lading unindorsed does not bind the shipper, at least where he has no knowledge of such custom.' But in another recent case it was held that a rail- road company could safely deliver goods to the consignee in good faith, without the production of the bill of lading, where 186, 25 W. E. 63; Southern Exp. Co. L. B. A. 650, citing Shaw v. Rail- ■u. Everett, 37 Ga.688 ; Adams v. Blank- road Co., 101 U. S. 557 ; Hutch. Carr., enstein, 2 Cal. 413. §§ 129, 130, 344, 348 ; Congar v. Galena, 'Furman v. Union Bac. R. Co., 106 etc., R. Co., 17 Wis. 477; Krulder v. N. Y. 579, s. c. 13N. E. R. 587; City Ellison, 47 N. Y. 36; Lawrence o. Bank v. Rome, etc., R. Co., 44 N. Y. Minturn, 17 How. (U. S.) 100; AI- 136; McEweni;. Jeffersonville,etc.,R. derman v. Eastern R. Co., 115 Mass. Co., 33 Ind. 368, s. c. 5 Am. R. 216; 233; Couch v. Watson Coal Co., 46 Houston, etc., R. Co. i). Adams, 49 Iowa 17; Berkshire Woollen Co. v. Tex. 748, s. c. 30 Am. R. 116; Benn- Broctor, 7 Cush. (Mass.) 417; Wilson sylvania R. Co. ». Stem, 119 Ba. St. 24 ; v. Bauman, 80 111. 493 ; 2 Greenl. Ev., First Nat. Bank «. Northern R. Co., §251; and distinguishing Merchants' 58 N. H. 203; Nat. Bank of Chester Bank v. Union R., etc., Co., 69 N. Y. V. Atlanta, etc., R. Co., 25 S. Car. 216 ; 374 ; Lickbarrow v. Mason, 2 T. R. 63, JeBersonville, etc., R. Co. v. Irvin, 46 1 Smith Lead. Cas. *848 (8th ed. 1159) ; Ind. 180. Dows V. Greene, 24 N. Y. 638 ; Allen v. = Young v. East Alabama R. Co., 80 Williams, 12 Bick. (Mass.) 297; Fear- Ala. 100; Douglas v, People's Bank, on v. Bowers, 1 H. Bl. 364 note, 1 86 Ky. 176, s. c. 5 S. W. R. 420. See Smith Lead. Cas. (5th ed. 705.) See ante, §§ 1426, 1427. anU, §§ 1428, 1429, 1430. See, also, 'Weyand v. Atchison, etc., R. Co., North Pennsylvania R. Co. v. Com- 75 Iowa 573, s. c. 39 N. W. R. 899, 1 mercial Bank, 123 U. S. 727. § 1524 DELIVERY BY THE CARRIEB. 2361 they were billed "straight" to the consignee and not to either his or the consignor's "order," by showing a custom to so de- liver goods, without the production of the bill of lading, in reliance upon the way-bill, and that such delivery would be good as against parties who had made advances to the con- signee and taken the bill of lading as security.' §1524. Delivery to agent. — So strict is the rule in regard k) delivery to the right person that the carrier who delivers the goods to any one for the consignee without the bill of lading or an order from the latter does so at its peril. Thus, a de- livery to a drayman or cartman who has no authority from the consignee to receive the goods for him is made at the risk of the carrier.^ So, it has been held that where goods are directed to the consignee the carrier is not discharged from liability by delivering them to the general agent of the consignee at the place of destination,' even though the consignee can not be found at that place.* But, on the other hand, it was held in a recent case, that notice to a drayman who was accustomed to receive the consignee's goods was sufficient notice of their ar- rival where the consignee was out of town and could not be notified in person.' So, it is said that no greater proof of the authority of the person to whom they are delivered is required than in any other case,* and a delivery to one who has been accustomed to receive goods for the shipper and consignee has been held sufficient.' 'Forbes v. Boston, etc., E. Co., 133 'Ela v. American Merchants' Un. Mass. 154, s. c. 9 Am. & Eng. R. Gas. Exp. Co., 29 Wis. 611, s. c. 9 Am. R. 76, 80. But see ante, §§ 1426, 1429. 619. ^Alabama, etc., R. Co. u. Kidd, 35 * Wilson Sewing Mach. Co. ». Louis- Ala. 209; Bartlett v. Steamboat Pliil- ville, etc., R. Co., 71 Mo. 203. adelphia, 32 Mo. 256; Hermann v. 'Burdett^. Canadian Pac. E. Co., 10 Goodrich, 21 Wis. 536; Williams v. Manitoba R. 5. Holland, 22 How. Pr. (N. Y.) 137; « Wilcox v. Chicago, etc., R. Co., 24 Dean v. Vaccaro, 2 Head (Tenn.) 488. Minn. 269. See, also. Angle v. Mississippi, etc., R. ' Ontario Bank v. New Jersey Steam- Co., 18 Iowa 555; Nebenzahl v. Fargo, boat Co., 59 N. Y. 510. In this case 15 Daly (N. Y.) 130 ; Waldron v. Chi- the bill of lading stated that the prop- cago, etc., R. Co., 1 Dak. 351, s. c. 46 erty was addressed to order of the N. W. R. 456 ; Adams v. Blankenstein, shipper at New York and deliverable 2 Cal. 413. at Coentie's Slip, with instructions to 2362 CAEEiERS. § 1525 § 1525. Eight of carrier to require identification of con- signee. — As the carrier is held so strictly to the performance of its duty to deliver to the right person, it is no more than just that it should be allowed to require reasonable identifica- tion of the consignee where that appears to be necessary in or- der to protect itself. Indeed, it is its duty as well as its right, in case of doubt, to require proper identification.' A reasona- ble delay in the delivery of the goods in such a case for that purpose is, therefore, unobjectionable and the consignee can not complain, especially when he has no bill of lading or there are other suspicious circumstances. It is generally for the jury to determine whether the delay and the requirements of the carrier as to identification are reasonable or not.' The carrier can not, of course, lawfully insist upon unreasonable requirements or take advantage of this rule to cover up its own defaults. § 1526. Misdelivery. — The effect of a misdelivery of goods is in general the same as a total failure to deliver them at all and is deemed a conversion of the property by the carrier.' No "advise" the person to whom they ». Van Meter, 17 Fla. 783, s. c. 35 Am. were there delivered. It also ap- E. 107; American Exp. Co.w. Fletcher, peared that such person, who was a 25 Ind. 492; GulJ,. etc., R. Co. v. commission merchant, had received Freeman, 4 Tex. App. (Civil Cas.) 419, goods shipped in the same way as s.o. 16 S. W. R. 109 (carrier not liable agent or correspondent of the shipper for refusal to deliver to unidentified in many previous instances without consignee who produces no bill of lad- objection on the part of the shipper, ing, even though he offers to give se- So, it has been held that the agent of curity.) the company is also made the agentof ^ Baltimore, etc., R. Co. v. Humph- the consignee and if the goods are rey, 59 Md. 390, s. c. 9 Am. & Eng. R. consigned in care of such agent a de- Cas. 331 ; Watt u. Porter, 2 Mason, livery to him will be sufficient, al- (U. S. C.C.) 77; McEntee u. New Jer- though it would be otherwise if the sey Steamboat Co., 45 N. Y. 34; Ball goods were consigned directly to such v. Liney, 48 N. Y. 6; Alexander v. agent and the carrier knew he was Southey, 5 B. & AM. 247. See, also, not the real owner and had no author- Sargent v. Gile, 8 N. H. 325; Dent v. ity to receive them for the real ow,ner Chiles, 5 Stew. & P. (Ala.) .383. or consignee. Bennett M. Northern Pac. » Forbes i). Fitchurg, etc., R. Co., 133 Express Co., 12 Ore. 49. Mass. 154, s. c. 9 Am. & Eng. R. Cas. ' McEntee v. New Jersey Steamboat 80, and note ; Bowlin v. Nye, 10 Cush. Co., 45 N. Y. 34; Southern Exp. Co. (Mass.) 416; Claflin v. Boston, etc., § 1526 DELIVERY BY THE CARRIER. 2363 demand is necessary in such a case/ but if there is simply a refusal to deliver because of non-payment of freight, or the like, and no misdelivery, a demand must usually be made be- fore trover will lie.^ Leaving goods at the wrong place may constitute a misdelivery and conversion of them as well as delivering them to the wrong person/ After the carrier be- comes a warehouseman it is liable for a misdelivery only where it is negligent, but so long as it remains liable as a common carrier the general rule, as admitted by all the authorities, is that it must deliver to the right person and that the exercise of even a high degree of care on its part will not excuse a mis- delivery. There are, however, cases in which it is difficult to determine whether there has been a misdelivery and cases in which the carrier has been misled by the shipper or consignee or the latter have, by their own acts, enabled a swindler to perpetrate a fraud upon the carrier and thus obtain the goods. When we come to cases of this kind we find conflict among the authorities. Without attempting to review all, or any great number, of them we shall briefly state the facts and rulings in enough of the cases to show what has been held to be a mis- E. Co., 7 Allen (Mass.) 341 ; Hall v. Mass. 201 ; Missouri Pac. R. Co. v. Boston, etc., R. Co., 14 Allen (Mass.) Heidenheimer, 82 Tex. 195, s. c. 17 S. 439; Newhall v. Central Pac. R. Co., W. R. 608, 27 Am. St. R. 861 ; Railroad 51 Cal. 345 ; "Winslow v. Vermont, etc., v. O'Donnell, 49 Ohio St. 489, s. c. 21 R. Co., 42 Vt. 700; Devereux v. Bar- L. R. A. 117; Fulton v. Lydecker, 17 clay, 2 B. & A. 702 ; St. Louis, etc., R. N. Y. Supp. 451 ; Schroeder v. Hudson Co. !). Lamed, 103 ni. 293; Gibbons «. River R. Co., 5 Duer (N. Y.) 55; Parwell, 63 Mich. 344, s. c. 29 N. W. Louisville, etc., R. Co. v. Meyer, 78 R. 855; Hior ». London, etc., R. Co., Ala. 597, s. c. 27 Am. & Eng. R. Cas. L. R. 4 Ex. Div. 188, s. c. 40 L. T. R. 44. (N. S.) 674; Cheshire R. Co. V.Foster, ^ggg Michigan, etc., R. Co. v. 61 N. H. 490; St. Louis, etc., R. Co. Bivens, 13 Ind. 263; Northern Transp. V. Rose, 20 111. App. 670, note ; Louis- Co. v. Sellick, 52 111. 249 ; Bird v. ville, etc., R. Co. v. Barkhouse, 100 Georgia R. Co., 72 Ga. 655, s. c. 27 Am. Ala. 543, s. c. 13 So. R. 534 ; First Nat. & Eng. R. Cas. 39; Rome R. Co. ». Bank v. Northern R. Co., 58 N. H. Sullivan, 14 Ga. 277. 203; Price v. Oswego, etc., R. Co., 50 ^ Railroad Co. v. O'Donnell, 49 Ohio N. Y. 213, s. c. 10 Am. R. 475; Mer- St. 489, s. c. 21 L. R. A. 117, 32 N. E. chants' Dispatch Co. v. Merriam, 111 R. 476; Perkins v. Smith, 1 Wils. 328; Ind. 5. Houston, etc., R. Co. v. Adams, 49 Wiggin V. Boston, etc., R. Co., 120 Tex. 748, s. c. 30 Am. R. 116. 2364 CARRIBBS. § 1526 delivery and how the rule has been applied to peculiar cir- cumstances by different courts. Delivery to the wrong person upon a forged order or the like has been held a misdelivery for which the carrier is liable.' So has a delivery to an im- porster of goods ordered by him in a fictitious name." Where goods were consigned to "E. Kline," at Louisville, but the wrong street was named in stating his address it was held that delivery to "I. Kling" at such address was a misdelivery for which the carrier was liable. ° So, where the carrier was in- formed and knew that the goods were the property of the ship- per it was held that it was liable for delivering them to a third person at the place of shipment upon the order of the con- signee.' On the other hand, it has been held that where goods are ordered in a fictitious name with intent to defraud the shipper and the carrier is directed to send them to a certain address and there deliver them to such person it is not liable for so doing although the shipper was imposed on by such per- son. ° So, where there are two persons of the same name in the same city, and one of them, being a swindler, in- duces the shipper to sell goods to him in the belief that he is the other, who is a reputable merchant, it is held that the car- rier is not liable for delivering the goods to the swindler to 'Gosling V. Higgins, 1 Camp. 451; 126, a. c. 14 S. W. E. 481, 604; Pacific Lubbock v. Inglis, 1 Stark. 83; Ameri- Exp. Co. v. Shearer, (111.) 43 N. E. can, etc., Exp. Co. v. Milk, 73 111. R. 816 ; arafc, § 1523. In most of such 224; Powell V. Myers, 26 Wend. (N. cases, however, the carrier was negli- Y.) 591 ; Wernwag v. Philadelphia, gent in not requiring any identifica- etc, R. Co., 117 Pa. St. 46; Houston, tion, in delivering the goods when it etc., R. Co. V. Adams, 49 Tex. 748, s. ought to have known that there was c. 30 Am. R. 116; Southern Exp. Co. no such person or firm at the place of V. Van Meter, 17 Fla. 783, s. c. 35 Am. delivery, or the like. R. 107; note to Sword v. Young, 3 'McCulloch v. McDonald, 91 Ind. Lewis' Am. R.& Corp. R. 451. But see 240. Western Union Tel. Co. v. Meyer, 61 'Southern Exp. Co. v. Dickson, 94 Ala. 158, 8. C.32 Am. R. 1. U. S. 549. See, also, Wright v. North- ^Winslow V. Vermont, etc., R. Co., em Cent. R. Co., 8 Phila. (Pa.) 19; 42 Vt. 700, s. c. 1 Am. R. 365 ; Price v. Jeffersonville R. Co. v. White, 6 Bush Oswego, etc., R. Co., 50 N. Y. 213, s. (Ky.) 251. c. 10 Am. R. 475 ^an extreme case) ; ^McKean v. Mclvor, L. R. 6 Exch. American Exp. Co. v. Fletcher, 25 36. Ind, 492; Sword v. Young, 89 Tenn. § 1527 DELIVERY BY THE CAHEIER. 2365 whom they are directed.' A similar decision was rendered where the swindler assumed the name of a reputable merchant and the goods were sold and shipped to him in that name at the address which he gave, the carrier being free from negli- gence and the swindler receipting for the goods in his assumed name/ So, where goods were sold to a swindler under a dif- ferent name and shipped to him in his assumed name, it was held that, as there was no one else in the place who bore the name which he had assumed and as he was the person to whom they had been sold and were shipped, the company was not liable for delivering the goods to him although he was known to the delivery clerk under a different name and pretended that he was acting as agent for such fictitious person.' It is difficult to tell just what limitations or exceptions, if any, there are to the general rule requiring the carrier at all events to deliver to the right person, but we think that if the misdelivery is caused by misdirection or other negligence on the part of the shipper, or if fraud is perpetrated upon him by a third person in such a manner that he really parts with the title to the goods to such third person the carrier, acting on the faith of appear- ances which the owner himself has created and in accordance with his directions, ought not to be held liable to him for de- livering the goods to such third person, although the owner was imposed on by him.* §1527. Notice to consignee or his agent. — Attention has al- ready been directed to the diversity of opinion upon the ques- tion as to the time when the liability of the railroad company, as a common carrier, ceases and that of a warehouseman at- ' Wilson ». Adams Exp. Co., 27 Mo. * See Southern Exp. Co. u. Kauf- App. 360; The Drew, 15 Fed. R. 826; man, 12 Heisk. (Tenn.) 161; Bush v. Edmunds v. Merchants' Disp. Transp. St. Louis, etc., R. Co., 3 Mo. App. 62; Co., 135 Mass. 283, s. c. 16 Am. & Wilson v. Adams Exp. Co., 27 Mo. Eng. R. Cas. 260. App. 360; The Huntress, 2 Ware (V. "Samuel v. Cheney, 135 Mass. 278, S.) 89; Congar'u. Chicago, etc., R. Co., s.c.46Am. R.467. See, also, Heugh ». 24 Wis. 157, s. c. 1 Am, R. 164; Ten London, etc., R. Co., L. R. 5Exch. 50. Eyck v. Harris, 47 111. 268, and Mas- ' Dunbar u. Boston, etc., R. Co,, 110 sachusetts Cases above cited. See, 26, s. c. 14 Am. R. 576. also, ante, §§ 1419, 1523. 2366 CAKRiERS. § 1527 taches, and many of the cases have been cited.' The question is one of difficulty. The two great lines of opposing decisions are commonly called respectively the "New Hampshire rule" and the "Massachusetts rule." The New Hampshire rule af- firms that the liability of the company does not terminate un- til the arrival of the goods at the place to which they were shipped and a reasonable time is allowed the consignee in which to remove them/ while the Massachusetts rule affirms that the liability of the company as a common carrier termi- nates when the goods reach their destination and are de- livered upon the platform, or other proper place, or placed in a warehouse or otherwise properly stored by the company.' We are inclined to think, although it is with hesitation that we venture to express an opinion, that the true rule is that the li- ability of the company as a common carrier does not end until the consignee has had reasonable time after the arrival of the goods at their place of destination to remove them, but that this rule is a general one broken by well marked exceptions. It can not be justly affirmed that a consignee is bound at all times to be at the station to receive the goods, inasmuch as it is a matter of common knowledge and, therefore, a matter ju- dicially known to the courts, that freight trains because of a press of business, accidents and other causes do not always reach the station at the time fixed by the schedule, so that it can not be justly said that he is in fault for not being at the station, nor can it justly be said that the railroad company can expect him to be there. There is, it is obvious, an es- sential difference between railroad carriers who are provided with depots or warehouses and carriers who are not so pro- Mn«e, §§ 1463, 1464. etc., Co. v. Boston, etc., R. Co., 1 'Ante, § 1463; Moses v. Boston, etc., Gray 263, s. u. 61 Am. Dec. 423; Lake R. Co., 32 N. H. 523; Kennedy v. Erie, etc., R. Co. v. Hatch, (Ohio Mobile, etc., R. Co., 74 Ala. 430; Co- St.) 11 Lewis' Am. R. & Corp. R. lumbus, etc., R. Co. v. Ludden, 89 611, notes p. 61.5. See, also, Co- Ala. 612, s. c. 42 Am. & Eng. R. Cas. lumbus, etc., R. Co. v. Ludden, 89 404, 3 Lewis' Am. R. & Corp. R. 46, Ala. 612, s. c. 42 Am. & Eng. R. Cas. and authorities, note p. 5.5. 404, 3 Lewis' Am. R. & Corp. Rep. 46. ^AntK, §1464; Thomas v. Boston, and note 52-54; Spears v. Spartan- etc, R. Co., 10 Met. 472; Norway, burg, etc., R. Co., 11 S. Car. 158. § 1527 DELIVERY BY THE CAKKIER. 2367 vided and do not assume to possess such facilities. The rail- road company from the time there is an effective delivery of the goods to it for transportation has entire charge and control of them, and neither the consignor nor the consignee can watch the movement of the goods nor directly control their move- ment by the carrier, neither can either of them know precisely when the transit has ended, but this the railroad company in contemplation of law, and in fact, does know. So, too, the railroad carrier is, as a rule, in a position to care for the goods, or should be in such position, while the consignee can not ordinarily (there may be, and,' doubtless, are, exceptional instances), be assumed to be prepared to receive the goods im- mediately on their arrival at the place of destination. It is, therefore, just to hold that the company is not relieved from liability as a common carrier of goods until a reasonable time after their arrival at the place of destination has elapsed. The Massachusetts rule has been commended for the merit of be- ing practicable and easy of application, but, with profound re- spect for the great judge by whom the rule was formulated, we think the fact that a rule is practicable and easy of application is not sufl&cient to outweigh the considerations of justice and public policy which undergird the doctrine that there must be a reasonable time for removal after the goods arrive at their destination. In view of the considerations which we have out- lined it seems to us that a railroad company receiving goods for transportation impliedly undertakes that it will retain the goods in its capacity of a common carrier for such a reasonable length of time as will enable the consignee to remove them, but that the consignee must exercise reasonable care and dili- gence in removing them ; otherwise the company will be liable as a warehouseman and not as a common carrier, that is, it ceases to be an insurer and is liable only in the event that the loss of the goods is caused by its negligence. The general rule, as we have said, must be subject to iuiportant exceptions. One of these exceptions is that where the consignee is at the station when the goods arrive, knows of their arrival, has op- portunity to remove them and declines to do so he can not in- 2368 CARRIERS. §1527 sist that the company be held as a common carrier; he can not, indeed, insist that it be held even as a warehouseman if he is informed that the company can not store the goods.' So, when the goods are shipped to a place where there are no station buildings or warehouses the liability of the carrier terminates as soon as the goods are unloaded, or if left on the cars, are placed in a position ready for immediate delivery to the con- signee.^ We do not believe that it can be justly said that a railroad company is under an absolute duty to provide build- ings for storing goods at all places where its freight trains stop, as, for example, an isolated rural stopping place where goods are very seldom received or discharged, and that a con- signee has no right to assume that goods will be stored at such places. It is usually said that there are two lines of de- cisions, those we have discussed, but there is in fact a third line composed of the cases which affirm that it is the duty of the railroad company to give notice of the arrival of the goods.' 'Smith V. Nashua, etc., E. Co., 27 N. H. 86, s. c. 59 Am. Dec. 364. ' McMastera v. Pennsylvania E. Co., 69 Pa. St. 374; South, etc., E. Co. ti. Wood, 66 Ala. 167. 'Lake Erie, etc., E. Co. v. Hatch, (Ohio St.), 11 Am. E. & Corp. E. (Lewis) 611 ; Derosia v. Winona, etc., R. Co., 18 Minn. 133; Pinney v. First Division of St. Paul, etc., E. Co., 19 Minn. 251 ; Fenner v. Buffalo, etc., R. Co., 44 N. Y. 505; Hedges v. Hudson Eiver E. Co.,49N. Y. 223; McAndrew V. Whitlock, 52 N. Y. 40; Gleadell v. Thompson, 56 N. Y. 194: Pelton v. Eensselaer, etc., E. Co., 54 N. Y. 214; Faulkner v. Hart, 82 N. Y. 413; Mc- Kinny v. Jewett, 90 N. Y. 267; Tarbell v. Eoyal Exchange, etc., Co., 110 N.Y. 170. See Chicago, etc., E. Co. V. Scott, 42 111. 132 ; Michigan, etc., E. Co. V. Ward, 2 Mich. 538; Buckley v. Great Western, etc., R. Co., 18 Mich. 121; McMillan v. Michigan, etc., R. Co., 16 Mich. 79; Mitchell v. Lanca- shire, etc.. Railway Co., 10 L. R. Q. B. 256; Tanner v. Oil Creek, etc., R. Co., 53 Pa. St. 411. In the case of North Pennsylvania, etc., R. Co. v. Commercial, etc.. Bank, 123 U. S. 727, s. c. 8 Sup. Ct. R. 266, it was said in speaking of a provision of the bill of lading requiring carrier to notify the consignees that: "If they were the consignees, the direction to notify them would be entirely unnecessary, because the duty of the carrier is to no- tify the consignee on the arrival of the goods at their place of destination." The question as to the duty to give notice in order to terminate the lia- bility of the railroad company as a carrier was not before the court and we do not think the decision in the case referred to can be regarded as authoritative adjudication that there is a duty to give notice or that notice must be given in order to terminate the duty of a railroad company as a com- mon carrier of goods. In the case of § 1527 DELIVERY BY THE CARRIER. 2369 These cases, in effect, add to the rule that reasonable time must be given the consignee in which to remove the goods, another duty, namely, that of giving notice. There is reason for affirming that it is not essential in order to terminate the liability of a railroad company as a common carrier that it should give notice to the consignee of the arrival of the goods, since, as it seems to us when the goods are carried to their destination, there stored and a reasonable time allowed the consignee to remove them, the railroad company has performed the duty imposed upon it as a common carrier, and after it has done these things it holds the goods as a warehouseman and as such is liable for the loss of the goods where the loss is caused by its negligence or that of its employes. In other words, is still under a duty but is not an insurer. The general rule is that the duty of diligence and care is a reciprocal one and it is not easy to perceive why this rule does not make it the duty of the consignee to exercise diligence to ascertain when the goods have arrived and to remove them within a reasonable time after their arrival. There are, however, rea- sons for the opposite view, and these reasons have been pre- sented in some of the cases we have cited. It is true that the rule requiring a personal delivery of the goods has been abro- gated but this is due to a change in the mode of transporta- tion, and it seems to us that of this change the consignee must take notice and do what the change makes necessary, and that one of the consequences of the change is that when goods have arrived at the place of destination, have been there stored and a reasonable length of time allowed for their removal, the liabil- ity of the company as an insurer is at an end . But it is with hesi- tation that we venture an opinion for we fully recognize the fact that the question is a close one and that able courts have given opinions antagonistic to the rule we incline to favor. Circumstances or custom may make it essential to the termina- tion of the liability of a railroad company that it should give The Thames, 14 Wall. 98, language is nate the liability as a common carrier, used which indicates that notice to but the point was not directly decided, the consignee is necessary to termi- 2370 CARRIERS. § 1527 notice to the consignee of the arrival of the goods at the place of destination but as indicated we think that as a matter of law, it can not be said that the termination of liability as a carrier is in all cases dependent upon notice to the consignee of the arrival of the goods. It may be necessary to give no- tice and make inquiry where the consignee is unknown and claim to the goods is made by a person not known to the carrier,' but it it does not necessarily follow from this that the liability of the company is anything more than that of a warehouseman in cases where it stores the goods and gives the consignee a rea- sonable time in which to remove them. It is true that the decisions in reference to carriers by water^ and those in refer- ence to carriers of packages require notice, but it seems to us that those decisions can not be applied to railroad companies, at least in cases where the only question is when their liability as common carriers ends and that of a warehouseman begins. The adjudged cases recognize the force of usage and custom and affirm that custom may require notice or may dispense with notice.' Usage and custom, it may be said in passing, are aP ways important factors in controversies involving the rights and duties of railroad carriers.* Notice to an agent of the con- » The Thames, 14 Wall. 98. OBtrander v. Brown, 15 Johns. 39; 'Liverpool, etc., Co. v. Snitter, 17 Farmers', etc., Bank v. Champlain, Fed. R. 695; Richardson v. Goddard, etc., Co., 16 Vt. 52; Van Santvoord v. 23 How. 28; De Grau <;. Wilson, 17 St. John, 6 Hill 157; Stone u. Rice, 58 Fed. R. 698 ; Zinn v. New Jersey Ala. 95 ; McMasters v. Pennsylvania Steamboat Co. 49 N. Y. 442. See, R. Co., 69 Pa. St. 374. Usage may be Sherman v. Hudson River R. Co., 64 shown upon the question of the mode N. Y. 254 ; Union, etc., Co. v. Knapp, of delivery and kindred questions, and 73 111. 506. is of much importance in cases of the ' Gibson v. Culver, 17 Wend. (N. Y.) class referred to. Hooper v. Chicago, 305; Richmond, etc., R. Co. v. White, etc., R. Co., 27 Wis. 81 ; Hodgdon v. 88 Ga. 805, s. c. 15 S. E. R. 802; Rus- New York, etc., R. Co., 46 Conn. 277; sell Mfg. Co. V. New Haven, etc., Co., New Orleans, etc., R. Co. v. Hurst, 36 52N. Y. 657; Burlington, etc., R. Co. Miss. 660; Whitehouse v. Halstead, V. Arms, 15 Neb. 69, s. c. 17 N. W. R, 90 111. 95 ; Crawford v. Clark, 15 111. 351. 561 ; Sleade v. Payne, 14 La. Ann. * Russell, etc., Co. v. New Haven 453; McKeon v. See, 4 Rob. (N. Y.) Steamboat Co., 50 N. Y. 121; Ely v. 449; Gatliffe v. Bourne, 4 Bing. N. 0. New Haven Steamboat Co., 53 Barb. 314; Tierney v. NewYork, etc., R. Co., 207; Gibson ». Culver, 17 Wend. 305 ; 76 N. Y. 305; Peel i). Chicago, etc.. § 1528 DELIVEKY BY THE CARRIER. 2371 signee is suflficient in cases where the agent is authorized to act for the consignee, especially if the consignee is absent and can not be found. The proposition stated is, of course, not a debatable one, but the controversy is as whether the person to whom the notice was given was an agent acting within the scope of his authority.' § 1528. Seasonable time to inspect and remove. — Where the rule of the jurisdiction in which the case arises requires that reasonable time be given the consignee, after the arrival of the goods, in which to remove them, the question of what is a reasonable time is one of importance. In determining what is a reasonable time, regard must be had to the requirements of commerce, to usage and custom,' and to the demands of business, for both the carrier and consignee must be deemed to contract and to act with reference to such matters. Their respective rights and duties can not be justly ascertained and determined without giving to such matters due consideration. On the one hand the carrier is chargeable with notice that the affairs of commerce and business require that it keep the goods for the consignee for such a time as will enable him to remove them, while, on the other hand, the consignee is bound to know that the course of business and the requirements of com- merce impose upon him the duty of exercising diligence in re- moving the goods. The duty of the railroad carrier being a public one, a consignee can not, by want of care or diligence, hinder or embarrass it in the performance of that duty. There are cases in which the question whether a reasonable time has been allowed in which to remove the goods is a question of R. Co., 20 Wis. 594; Missouri Pac. R. Constable v. National, etc., Co., 154 Co ». Faa;an, 72Tex. 127,s.c.9S.W.R. U. S. 51, s. c. 14 Sup. Ot. R. 1062; 749; Leonardo. Fitchburg R. Co., 143 Pennsylvania R. Co. v. Stern, 119 Pa. Mass. 307. See, generally, as to the St. 24; Weyand d. Atchison, etc., R. effect of usage or custom in relation to Co., 75 Iowa 573, s. c. 39 N. W. R. 899. the duties of carriers, Bush & Son's '4re(e, §1524; Burdett i;. Canadian, Co. V. Thompson, 65 Fed. R. 812; etc., R. Co., 10 Manitoba 5; Collins ». Good V. Chicago, etc., R. Co., (Iowa) Alabama, etc., R. Co., 104 Ala. 390, s. 60 N. W. R. 631; Mundy v. Louis- c. 16 So. R. 140. ville, etc., R. Co., 67 Fed. R. 633; 'Ante, ^1527. 2372 CARRIERS. § 1528 fact, but in many, perhaps in most, instances, where the facts are undisputed, it must be, it seems to us, a question of law,' inasmuch as matters of which the courts take judicial notice enter so largely into it. We think it may be safely said that the general rule is that where the facts are undisputed and but one reasonable inference can be drawn from them, or, perhaps, where the controversy is controlled by custom and usage, or de- pends upon facts of which the court takes judicial knowledge, the question is one of law, but in other cases it is one of fact." It has been said that " what is meant by a reasonable time is such as would give a person residing at the place to which the goods are consigned, and informed of the usual course of busi- ness on the part of the company, a suitable opportunity with- in business hours after the goods are ready for delivery, to come to the place of delivery, inspect the goods and take them away."' The definition we have quoted, while in the main an accurate one, is not free from objections. It can not be justly said that the person to whom the goods are consigned must necessarily be informed of the company's usual course of business, for knowing himself to be consignee he must, as we conceive, exercise reasonable care and diligence in removing the goods, whether informed as to the company's usual course of business or not, although such information, if he possessed it, would exercise an important influence upon the question of whether a reasonable time in which to remove the goods had elapsed.* It is held in many of the cases that the consignee ' Elliott's Gen. Prac, § 442, n. 2. Bush. 468; Buckley v. Great Western, ' Roth V. Buffalo, etc., E. Co., 34 N. etc., R. Co., 18 Mich. 121 ; Maignan v. Y. 548; Hedges v. Hudson River R. New Orleans, etc., R. Co., 24 La. Ann. Co., 49 N. Y. 223 ; Derosia v. Winonia, 333 ; Faulkner u. Hart, 82 N. Y. 413. etc., R. Co., 18 Minn. 133; Lemke ii. ^Pinney u. First Division of St. Chicago, etc., R. Co.. 39 Wis. 449; Paul, etc., R. Co., 19 Minn. 2-51. Parker v. Milwaukee, etc., R. Co., 30 * Mr. Wood says: "The rule may Wis. 689; Collins i). Alabama, etc., R. perhaps be better stated to be, that Co., 104 Ala. 390, s. c. 16 So. R. 140, 61 the liability of a carrier, as such, con- Am. & Eng. R. Cas. 229 ; The Steamer tinues until the goods are ready to be Kathleen Mary, 8 Benedict 16.5 ; Fen- delivered at their place of destination, ner v. Buffalo, etc., R. Co., 44 N. Y. and the consignee has had a reasona- 50.5; Wood U.Crocker, 18 Wis. 34.5; Jef- ble opportunity, during the hours fersonville, etc., R. Co. v. Cleveland, 2 when such goods are usually deliv- § 1529 DELIVERY BY THE CAKKIER. 2373 must have a reasonable opportunity to inspect the goods.' Some of the cases hold that the carrier may permit the con- signee to take away the goods for the purpose of inspection, but, of course, when the goods are removed by the consignee and are rightfully in his possession, there is no liability on the part of the carrier. It is barely necessary to suggest that if there is no right to permit the goods to be taken by the con- signee, and loss is caused the consignor by the wrong of the railroad carrier in suffering the consignee to obtain posses- sion of the goods, it will be liable to the consignor. We doubt whether it can be justly held that the consignee, as against the carrier, can rightfully insist upon permission to make a minute inspection, and we think that when the term " inspect " or the term " inspection " is used by the courts, it means no more than that the consignee shall have a right, if he demands it, to make a general examination of the goods. The decisions which •declare and enforce the right of inspection where goods are shipped "C. 0. D.," can not, in all their scope at least, apply in other cases. § 1529. Kule where goods are to be held until called for. — The rules which determine the duty of the carrier in regard to the delivery of goods in the absence of any specific contract upon the subject may, of course, be inapplicable where there is an express contract. Thus, it is sometimes provided that the goods shall be held until called for. This does not bind ered, in which to examine them so rive, suitable time within the business far as to judge of their outward ap- hours to talie them away." pearance, and to remove them. As 'Hutchinson on Carriers, § 293; to what constitutes a reasonable op- Bay Negligence of Imposed Duties, portunity, it may be said that no ref- Freight Carriers, 906, citing Meyer v. erence is to be had to the peculiar Lemcke, 31 Ind. 208; Old Colony, circumstances of the consignee, but etc., Co. v. Wilder, 137 Mass. 536; the question is whether he had an op- Murray v. Warner, 55 N. H. 546, s. c. portunity such as would give a person 20 Am. R. 227; Union, etc., Co. v. residing in the vicinity of the place of Riegel, 73 Pa. St. 72 ; American Ex- delivery, and informed of the usual press Co. v. Lesem, 39 111. 312; course of the business and the time Great Western, etc., E. Co. o. Crouch, when the goods are expected to ar- 3 Hurlst. & N. 188. Corp. 151 2374 CARRIERS. § 1530 the carrier to keep them forever, but it is bound to hold them for a reasonable time, and after the expiration of a reasonable time for the consignee to call for and receive them it is held that the liability of the carrier as such is terminated.' So, if the carrier has agreed to keep the goods for a certain time it may, at the expiration of such time, deliver them to a ware- houseman for the owner, and such warehouseman will not be deemed to be the agent of the carrier so as to render it liable for his negligence.'' § 1530. Rule where goods are not to be delivered until paid for. — A common carrier is not obliged to collect or re- quire the payment of the purchase price of goods offered to it for transportation before delivering them to the purchaser, as one of its common law duties; but where it expressly agrees to do so, or accepts a consignment of goods with instructions not to deliver them until paid for, it becomes the agent of the consignor to collect the money and is liable if it delivers the goods without doing so.' The undertaking may be either ex- press or implied. Thus, it has been held that where it receives goods marked "C. O. D." and so bills them, it is its duty to collect on delivery and return the charges to the consignor, especially where it is shown to be the custom to do so when goods are so marked.* But such an undertaking is not always implied from the mere acceptance of goods so marked, with- out anything in the bill of lading or receipt to show it.' So, where the carrier accepted the consignee's check in payment ^Chapman v. Great Western, etc., R. Co., 91 Ala. 392, s. c. 8 So. R. 824, R. Co., 42 L. T. R. N. S. 252. 49 Am. & Eng. R. Cas. Ill, and note ; ^Bickfordu. Metropolitan, etc., Co., Murray v. Warner, 65 N. H. 546; 109 Mass. 151. American Exp. Co. v. Lesem, 39 111. *Cox V. Columbus, etc., R. Co., 91 312. Ala. 392, s. c. 8 So. R. 824, 49 Am. & « Chicago, etc., R. Co. v. Merrill, 48 Eng. R. Cas. Ill, and note; Meyer v. 111. 425; Rennie v. Northern R. Co., Lemcke, 31 Ind. 208; Old Colony R. 27 U. C. C. P. 153. It has also been Co. V. Wilder, 137 Mass. 536; Jellett held that a local station agent has no V. St. Paul, etc., R. Co., 30 Minn. 265, authority to make such an agreement s. c. 16 Am. & Eng. R. Cas. 246. and render the company liable for its * United States Exp. Co. v. Keefer, performance. Cox v. Columbus, etc., 59 Ind. 263; Cox v. Columbus, etc., R. Co., 91 Ala. 392, s. c. 8 So. R. 824. § 1531 DELIVERY BY THE CARKIEB. 2375 and sent it to the consignor, it was held that the uncondi- tional acceptance of it by the consignor, without objection, was a waiver of collection in money and a ratification of the carrier's act, and that he could not recover in an action against the carrier.' A reasonable time should be allowed the pur- chaser to inspect the goods and make the payment, and the carrier can not be held liable on account of its compliance with this rule.^ After tender of the goods and refusal to ac- cept them the carrier is liable only as warehouseman.' It may then return them to the consignor or give notice to him and await his instructions.* It is also customary to send bills of lading to the shipper's order with drafts attached, and in- structions to "notify" the purchaser. This has been held to be a plain indication that the goods are not to be delivered to such person without the production of the bill of lading,' and so it has been held that the mere fact that a draft upon the consignee is attached to a bill of lading indicates an intention that the goods are not to be delivered until the draft is paid.' § 1531. Waiver by consignee. — If one to whom goods are shipped accepts them without objection when delivered at an improper time or place, or in an improper manner he thereby waives any objections on account of the place, time, or man- ner of delivery.' So, if they are delivered, at his request, or 'Rathbunu.Citizens' Steamboat Co., §392. See American Exp. Co. v. 76 N. Y. 376, distinguishing Walker Greenhalgh, 80 111. 68. V. Walker, S^Heisk. (Tenn.) 425. ^Ante, § 1427. ^ Aaron v. Adama Exp. Co., 27 ^ Wells v. Oregon, etc., E. Co., 32 Weekly L. Bull. 183 ; Great Western, Fed. E. 51. See, also, McEwen v. etc., R. Co. V. Crouch, 3 Hurlst. & N. Jeffersonville, etc., R. Co., 33 Ind. 183; Lyons v. Hill, 46 N. H. 49; Her- 368; Joslyn v. Grand Trunk R. Co., rick V. Gallagher, 60 Barb. (N. Y.) 51 Vt. 92. 566 ; Avery v. Stewart, 2 Conn. 69 ; Ish- ' Sweet v. Barney, 23 N. Y. 335 ; erwood v. Whitmore, 11 M. & W. 347. Jewell v. Grand Trunk R. Co., 55 N. 'Marshall v. American Exp. Co., 7 H. 84; Cleveland, etc., R. Co. v. Sar- Wis. 1, s. c. 73 Am. Dec. 381 ; Gibson gent,19 Ohio St. 438 ; Bartlett v. Steam- V. American, etc., Exp. Co., 1 Hun boat Philadelphia, 32 Mo. 256 ; Lewis (N.Y.) 387; Storr». Crowley, McClell. ■». Western R. Co., 11 Mete. (Mass.) & Y. 129. 509 ; Hill v. Humphreys, 5 Watts & S. * Hutchinson on Carriers, (2d ed.) (Pa.) 123; Converse v. Boston, etc.,. 2376 CABRiERS. § 1532 upon his order, at some other place than that to which they were shipped.' There may also be a waiver where the owner rightfully resumes control of the goods or knowingly ratifies a wrong delivery/ But the mere fact that the consignee ac- cepts a portion of the goods at an improper place will not nec- essarily operate to release the carrier from its obligation to properly deliver the remainder." § 1532. Carrier's right to receipt or surrender of bill of lad- ing. — Although a railroad company should usually require the production of the bill of lading before it delivers goods to the person demanding them, yet it is notentitled under all circum- stances to insist upon the surrender and cancellation of the bill of lading as a condition precedent to the delivery of the property.* But where the statute prohibits the delivery unless the bill of lading is surrendered and canceled a delivery to the consignee in violation of the statute will not protect the carrier as against one to whom the bill of lading has been assigned.' So, we think it clear that, even if the carrier is not entitled to the surrender and cancellation of the bill of lading, it is en- titled, ordinarily to its production or presentation as evidence of the right of the person demanding the goods to receive them, and that it may also require him to give it a receipt upon the delivery of the goods. ° E. Co., 58 N. H. 521. So held where Converse v. Boston, etc., R. Co., 58 N. the goods were delivered to the wrong H. 521. But see Sanquer v. London, person and the consignee ratified it. etc., E. Co., 16 C. B. 163. O'Dougherty v. Boston, etc., E. Co., 'Cox v. Peterson, 30 Ala. 608; 1 T. & C. (N. Y.) 477. Home Ins. Co. v. Western Transp. 'London, etc., R. Co. v. Bartlett, 31 Co., 51 N. Y. 93. L. J. Exch. 92, s. c. 7 H. & N. 400; ^Gulf, etc., E. Co. «. McCown,(Tex. Strong V. Natally, 4 B. & P. (1 New Civ. App.) 25 S. W. R. 435, (rehearing E.) 16. See, also, Dobbin v. Michigan granted on another ground in 26 S. Cent. R. Co., 56 Mich. 522, s. c. 21 Am. W. R. 745) ; Dwyer v. Gulf, etc., E. & Eng. R. Cas. 85. Co., 69 Tex. 707, s. c. 7 S. W. E. 504. 2 Stone V. Waitt, 31 Me. 409; Dob- ^ Colgate v. Pennsylvania Co., 102 bin V. Michigan Cent. E. Co., 56 N. Y. 120. Mich. 522, s. c. 21 Am. & Eng. R. ^See Bass v. Glover, 68 Ga. 745; Cas. 85; Brasher v. Denver, etc., R. Skinner v. Chicago, etc., E. Co., 12 Co., 12 Col. 384 ; Eeynolds v. New Iowa 191. York, etc., E. Co., 3 N. Y. Supp. 331 ; §1533 DELIVERY BY THE CAKRIER. 2377 § 1533. Duty to store — Liability as warehouseman, — We have elsewhere treated in a general way of the liability of a railroad carrier in possession of goods in the capacity of a warehouseman/ and it is not our purpose to repeat what was there said. The general rule is that the duty of a railroad com- pany does not end with the arrival of the goods at the place to which they were shipped, for it is incumbent upon the carrier to exercise reasonable care and diligence to prevent injury to the goods by storing or otherwise protecting them/ but when it has performed its duty as a carrier and then warehouses the goods its responsibility is not the extraordinary one which the law imposes upon common carriers.' It remains liable, not, however, as a common carrier but as a bailee for hire.* The reasoning of the courts which assert that the company is bound to warehouse is that the circumstances under which the goods came into its possession are such as to imply an under- taking on its part to exercise reasonable care to protect them from injury.' We do not think that the cases which hold that ^Ante, §§1463, 1464. ''Rice V. Boston, etc., R. Co., 98 Mass. 212 ; The Captain John, 33 Fed. E. 927; Farmers' Loan, etc., Co. v. Oregon, etc., R. Co., 73 Fed. R. 1003; Rice V. Hart, 118 Mass. 201, s. c. 19 Am. R. 433; St. Louis, etc., E. Co. V. Plannagan, 23Ill.App. 489. Adams, etc., Co. V. Cressap, 6 Bush 572; Al- dridge ». Great Western, etc., R. Co., 15 C. B. (N. S.) 582; Independence, etc., Co. V. Burlington, etc., R. Co., 72 Iowa 535, B. c. 2 Am. St. R. 258. 'Ante, §§1463, 1464; Arthur v. St. Paul, etc., R. Co., 38 Minn. 95, s. c. 35 N. W. R. 719; Gleadell v. Thom- son, 56 N. Y. 194; Gatliffe v. Bourne, 4 Bing. N. C. 314; Union, etc., E. Co. V. Moyer, 40 Kan. 184, s. c. 10 Am. St. R. 183; Missouri, etc., R. Co. t). Haynes, 72 Tex. 175; Kansas City, etc., R. Co. V. Morrison, 34 Kan. 502, s. c. 55 Am. R. 252 ; Aldrich v. Boston, etc., R. Co., 100 Mass. 31, s. c. 97 Am. Dec. 74; Alabama, etc., R. Co. v. Grabfelder, 83 Ala. 200; Anniston, etc., R. Co. V. Ledbetter, 92 Ala. 326. The effect of part delivery was con- sidered in a recent case and it was held that there was no such a deliv- ery as terminated the duty of the rail- road company as a common carrier. Jeffris V. Fitching R. Co., (Wis.) 67 N. W. R. 424. As elsewhere shown the rule is that while the goods are stored by a railroad company during transit, and as incident thereof, its liability is that of a common carrier. Railroad Co. v. Manufacturing Co., 16 Wall. 318. * As to when the duty of the com- pany as a common carrier ends is not here considered. 5 Smith V. Nashua, etc., R. Co., 27 N. H. 86, s. c. 59 Am. Dec. 364. Citing as to the implied duty. Ostrander v. Brown, 15 John. 39, s. c. 8 Am. Dec. 211 ; Fisk v. Newton, 1 Denio 45, s. c. 43 Am. Dec. 649. See Deming v. Mer- chants', etc., Co., 33 Am. L. Reg. 391. 2378 CARRIERS. § 1533 payment of charges may be deemed compensation for ware- housing are well decided, for the reason that, except where storage is part of the transportation, the company is entitled to compensation for storage. There may, it is obvious, be addi- tional charges where the goods are held a considerable time or where there is a right to demurrage, terminal charges or the like. While it is the general rule that it is the duty of a rail- road company to store or warehouse goods the rule is by no means free from exceptions. The goods may be such as can not be stored as, for instance, coal, stone or the like, and in such cases it seems clear to us that there is no duty to ware- house.' So the conduct of the consignee may relieve the com- pany from the duty to store. Thus, where the consignee was present when the goods arrived, was notified to take them and was informed that the company could not store them it was held that there was no obligation to warehouse the goods, ^ but if the company was able to store the goods and the consignee was not prepared to remove them the doctrine of the case cited would probably not apply. ' The expressions found in some of carried by a railroad company are the books asserting that there is al- such as are not capable of being stored ways a duty to warehouse may cor- or such as are not usually stored, rectly state the rule as to carriers of ^ Smith v. Nashua, etc., R. Co., 27 packages or the like but they do not N. H. 86, s. c, 59 Am. Dec. 364. correctly state it where the articles CHAPTER LXIII. EXCUSES FOE FAILUKE TO DELIVER. § 1534. Difference between cases not within the scope of duty and cases involving excuses for non-delivery. 1535. Excuses for non-delivery aris- ing from acts of the shipper, owner or consignee. 1536. Countermanding orginal ship- ing directions — Change of instructions. 1537. Seizure under legal process — Generally. 1538. Attachment — Garnishment. 1539. Stoppage in transitu — General doctrine. 1540. 1541. Who may exercise the right of stoppage in transitu. Against whom the right of stoppage in transitu may be exercised. 1542. Mode of exercising the right of stoppage in transitu — Du- ty of carrier to give notice. Termination of the right of stoppage in transitu. Adverse claimants — Proced- ure on part of carrier — In- terpleader. 1543. 1544. § 1534. Difierence between cases not within the scope of duty and cases involving excuses for non-delivery. — It is often said that a railroad carrier is excused for a failure to deliver goods when the failure is caused by the vis major, or the act of God, by the act of public enemies, or by public authority, but it seems to us that strict accuracy requires it to be said that the undertaking of a common carrier, unless there is an express contract, does not cover or embrace loss or injury due to such causes, so that where the loss or injury directly results without fault on the part of the carrier from such causes it is not covered or embraced by its undertaking and hence there is no breach of duty, and, for that reason no liability, but, what- ever may be the true ground on which the conclusion rests, it is true beyond controversy that a carrier, free from fault, is not liable for a failure to deliver in cases where the failure is attributable to any of the causes above enumerated. But it is important to remember that where the fault of the railroad (2379) 2380 CARRIEKS. § 1535 carrier concurs in producing the loss or injury it can not avail itself of a defense founded upon any of the causes men- tioned, since the negligence of the carrier will be adjudged to be the proximate cause of the loss or injury.' The duty of the carrier does not cover injuries resulting from the inherent nature of the goods, improper packing or the fraud of the shipper, although there may be a liability, not, however, as an insurer, but for loss caused by the carrier's negligence/ The examples we have given are sufficient to show that there is a difference between cases where the scope of the carrier's duty is not such as to make it liable for the loss, and cases where there is a duty but a valid excuse for non-delivery. This difference, as we believe, supplies a sound foundation for the cases which affirm that where the carrier shows that the loss was due to one of the causes which the law declares shall exonerate it from liability it need not go further and prove that it was not guilty of negligence.' Where, however, the loss is one from which the law does not exonerate the car- rier or from which the contract does not relieve it, and the defense is founded upon an excuse for non-delivery then we think the burden is on the carrier to show the excuse. § 1535. Excuses for non-delivery arising from acts of the shipper, ovpner or consignee. — Where the fault or mistake of the shipper' is the cause of the failure to deliver, the carrier is excused unless guilty of negligence.' The mistake or negli- 'lAnte, § 1457. Nugent v. Smith, L. R. * Ante, § § 1489-1492 ; Southern, etc., 1 C. P. D. 19; Powers ». Davenport, 7 Co. v. Kaufman, 12 Heisk. 161 ; Erie, Blackf . 497 ; Robinson v. Dunmore, 2 etc., R. Co. v. Wilcox, 84 111. 239 ; Lake B. & P. 416. Shore, etc., R. Co. v. Hodapp, 83 Pa. 'Ante, § 1492. St. 22; Stimson v. Jackson, 58 N. H. 3^nte,§1516; Railroad Co.w.Reeves, 138; Congar v. Chicago, etc., R. Co., 10 Wall. 176 ; New Jersey, etc., Co. v. 24 Wis. 157, s. c. 1 Am. R. 164 ; Mont- Merchants' Bank, 6 How. 344; Trans- gomery, etc., R. Co. v. Culver, 75 Ala. portation Co. v. Downer, 11 Wall. 129; 587; Cooper v. Georgia, etc., R. Co., Hunt V. The Propeller Cleveland, 6 92 Ala. 329, s. c. 9 So. R. 159. McLean 76; Christie iJ. The Craigton, = Mahon v. Blake, 125 Mass. 477; 41 Fed. R. 62. But as elsewhere shown Guillaume ». General Transportation there is stubborn conflict upon this Co., 100 N. Y. 491; O'Rourke v. Chi- question. cago, etc., R. Co., 44 Iowa 526. § 1535 EXCUSES FOR FAILUKE TO DELIVER. 2381 gence of the shipper in marking or directing the goods or in like matters relieves the carrier, since the performance of such acts is no part of the duty imposed by law upon the carrier, but where the carrier knows that a mistake has been made then it is under a duty to use reasonable care and diligence to prevent loss or injury from resulting from such mistake. If there is such a mistake shown then the burden of showing neg- ligence, and that it was the proximate cause of the loss, is upon the shipper or the consignee. The conclusion which we have just stated is not opposed to the rule that proof of loss ordi- narily makes aprima facie case, for it implies that the railroad carrier has the burden of showing an excuse for a failure to deliver but affirms that it destroys the prima facie case when it shows that the loss was caused by the negligence, fault or wrong of the shipper or consignee. It is unquestionably the rule, in cases where there are no contract stipulations limiting liability, that where a loss is shown after complete delivery of the goods to the carrier, the presumption is against the carrier,' but this presumption is, of course, a rebuttable one and is overcome when it is shown that there was such fault or wrong on the part of the shipper or consignee, and when the presumption is overthrown the plaintiff's case is gone, unless negligence on the part of the carrier is established. There must, of course, be evidence of delivery and of loss or the presumption will not arise.* It is clear that where the consignee is not ready or ' Rogers u. Head, Cro.Jac. (4 Croke) «>. Stettaners, 61 111. 184; American, 262; Ross v. Hill, 2 0. B. 877; Harris etc., Co. v. Sands, 55 Pa. St. 140; Da- V. Costar, 1 0. & P. 636; Dudley v. vidson ». Graham, 2 Ohio St. 131. But Smith, 1 Camp. 167; Beauchamp u. see Canfleld u. Baltimore, etc., E. Co., Powley, 1 M. & Rob. 38; Cairns o. 75N. Y. 144; Husseyc.The Saragossa, Robins, 8 M. & W. 258; Campagnie, 3 Woods (U. S. C. C.) 380; Laffrey v. etc., R. Co. V. Portier, (Montreal) L. Grummond, 74 Mich. 186. R. 5 Q. B. 224; Southern, etc., Co. v. ' Cooper v. Georgia, etc., R. Co., 92 Seide, 67 Miss. 609; Chicago, etc., R. Ala. 329, s. c, 9 So. R. 159; Tucker v. Co. V. Dickinson, 74 111. 249; Mont- Cracklin, 2 Stark. 339; Woodbury b. gomery, etc., E. Co. v. Moore, 51 Ala. Frink, 14 111. 279; Griffiths v. Lee, 1 394 ; Whitesides v. Russell, 8 Watts & Car. & P. 110 ; Wood's Browne on S. 44; Little v. Boston, etc., R. Co., Carriers, p. 834; 2 Greenleaf on Ev., 66 Me. 239; Adams, etc., Co. v. §213. Haynes, 42 111. 89; Adams, etc., Co., 2382 OARRiEKS. § 1535 able to receive the goods delivery will be excused, but in such cases there is ordinarily the duty of a warehouseman resting on the railroad company although the extraordinary duty of a common carrier terminates' when there is ability and^ readi- ness on the part of the company to deliver and inability or re- fusal on the part of the consignee to receive the goods. ^ We think that where it is the duty of the person insisting upon a delivery to produce the bill of lading and he fails or refuses to do so non-delivery is excused and that the excuse has for its basis the act of the party.' It is proper in this connection to direct attention to the rigorous rule against common carriers which prevails in cases where goods are delivered to persons to whom they are consigned under fictitious names, and in cases where a swindler or an impostor procures the owner to consign goods to him.' The rule to which we refer as applied in some of the cases trenches upon the rule which protects car- riers in cases where the negligence or wrong of the shipper is the cause of the loss, for many of the cases afl&rm that a rail- road carrier must at its peril deliver the goods to the proper person. Some of the cases carry the rule very far, and a fail- ure to deliver is held not to be excused where the delivery is to a person who has assumed a fictitious name or is an impostor or a swindler, and this, according 'to some of the cases, is so ' The Reuben Doud, 46 Fed. 800 ; deliver is excused by the act of the Cahn V. Michigan, etc., R. Co., 71 111. consignee. 96; Cincinnati, etc., R. Co. ■». McCool, '.4re«e, §§1427-1429. See, Pennsyl- 26 Ind. 140. See, Independence, etc., vania Co. v. Stern, 119 Pa. St. 24; Co. V. Burlington, etc., R. Co., 72 Dows v. National, etc.. Bank, 91 V. Iowa 535; Mohr v. Chicago, etc., R. 8. 618; Cox v. Columbus, etc., R.Co., Co., 40 Iowa 579. 91 Ala. 392; Farmers', etc., Bank t). "^ We do not at this place enter the Logan, 74 N. Y. 568; North, etc., E. field of conflict wherein the cases so Co. v. Commercial Bank, 123 TJ. S. stoutly fight over the question whether 727; Louisville, etc., R. Co. ■». Bark- in order to -constitute complete de- house; 100 Ala. 543. livery by the carrier, notice must be * A striking illustration of the rigor given the consignee. We simply af- of the rule is supplied by the case of firm that where there is ability and Pacific, etc., Co. v. Shearer, 160 111. readiness to deliver, including therein 215. See the comments on that deci- all acts required to constitute side- sion in the National Corp. R., July 23, livery by the carrier, the failure to 1876, for collection of cases. § 1536 EXCUSES FOE FAILURE TO DELIVER. 2383 even though the act of the owner may have had an important influence in misleading the carrier, and the carrier may have acted in the utmost good faith.* But there are cases affirming, justly as we believe, that the acts of the owner, although there may be fraud and imposture, may be such as to excuse the fail- ure to deliver.^ We do not at this place enter into a discussion of the doctrine of the cases referred to, since our immediate purpose is simply to direct attention to the fact that the rule that the carrier is excused where the failure to deliver is caused by the act of the owner or consignor is not to be extended to all cases wherein it may seem that the act of the owner caused the failure to duly deliver goods. § 1536. Countermanding original shipping directions^ Change of instructions. — Where goods are brought to a com- mon carrier by one who appears to be the owner, and there are no facts or circumstances indicating that he is not the owner, the carrier has a right, and, indeed, is bound to, obey shipping directions or iVistructions given at the time goods are accepted for transportation,' but after the goods have been ac- cepted and the duty of transportation undertaken, the question 'Duff V. Budd, 3 Brod. & B. 177; c. 14 S. W. E. 481, 604; Angles. Mis- Stephenson D.Hart, 4 Biug.476; Ross sissippi, etc.,R. Co., 18 Iowa 555; Claf- «. Johnson, 5 Burr. 2825; Brown v. lin v. Boston R. Co., 7 Allen 341. As Hodgson, 4 Taunt. 189 ; Meyer v. Chi- to the carriers liability for fraud of its cago, etc., R. Co., 24 Wis. 566; Wins- agent, see Jasper, etc., Co. v. Kansas low V. Vermont, etc., R. Co., 42 Vt. City, etc., E. Co., 99 Ala. 416, s. c. 14 700; American, etc., Co. t». Stack, 29 So. R. 546. Ind. 27 ; McEntee v. New Jersey, etc., ^Dunbar v. Boston, etc., R. Co., 110 Co., 45 N. Y. 34; Southern, etc., Co. Mass. 26, s. c. 14 Am. R. 576; Heugh V. Crook, 44 Ala. 468; Southern, etc., v. London, etc., E. Co., L. R. 5 Exch. Co. V. Van Meter, 17 Fla. 783, s. c. 35 50; McKean v. Mclvor, L. R. 6 Exch. Am. R. 107; American, etc., Co. ». 36; Fisk u. Newton, 1 Denio 45; Sam- Fletcher, 25 Ind. 492 ; Price C.Oswego, uel v. Cheney, 135 Mass. 278, s. c. 46 etc., R. Co., 50 N. Y. 213. See, gen- Am. R. 467; Edmunds v. Merchants', erally, Western Union Tel. Co. v. etc., Transportation, Co., 135 Mass. Meyer, 61 Ala, 158, s. c. 32 Am. R. 1; 283; Wilson v. Adams, etc., Co., 27 Norwalk Bank v. Adams, etc., Co., 4 Mo. App. 360; Bush v. St. Louis, etc., Blatchf. 455; Houston, etc., R. Co. «. R. Co., 3 Mo. App. 62. See ante, Adams, 49 Tex. 748, s. c. 30 Am. R. § 1526. 116; Sword v. Young, 89 Tenn. 126, s. ^ Ante, § 1490. 2384 CARRIERS. § 1536 as to the right to give instructions or directions assumes a dif- ferent character. Where the shipper is both consignor and consignee, and there are no intervening rights of third per- sons, the shipper may change directions or instructions, and obedience to the instructions as changed will excuse a failure to deliver when the failure is attributable to the change and there is no negligence on the part of the carrier. The general rule is that where the consignor or shipper has a right to coun- termand the shipping directions, and does so, due obedience to such countermanding orders will relieve the carrier for a failure to deliver, except in cases where the carrier is guilty of negligence ; ' but it is to be borne in mind that in some in- stances the shipper can not rightfully countermand shipping directions and thus prevent the goods from reaching the con- signee,^ nor can he do so where a change will impair the rights of third persons who have acquired rights which can not be impaired by a shipper, so that the question as to the right to countermand orders is often one of controlling importance. Where the consignee, if the owner or the person entitled to control the movements of the goods, gives orders counter- manding those originally given, the carrier is not in fault in obeying them,' but, as in the case of the shipper or consignor, the question hinges upon the right of the consignee to give countermanding instructions or directions. As the consignee is ordinarily regarded as the owner, the presumption is, there being no countervailing facts, that he has a right to give such orders.' It is obvious that if the failure to deliver is caused ^Ante, §1431; Scothorn v. South, are cases in which directions can not etc., R. Co., 8 Exch. 341. See Lewis be countermanded by the shipper or V. Galena, etc., R. Co., 40 111. 281; consignor. Southern, etc., Co. v. Michigan, etc., R. Co. v. Day, 20 111. Dickson, 94 U. S. 549; Thompson v. 375; Straus B. Martha, 35 Fed. R. 313. Fargo, 49 N. Y. 188; ante, §§1429, *As the consignee, nothing to the 1431. contrary being shown, is presumptive- » London, etc., R. Co. v. Bartlett, 7 ly the owner of the goods, and as H. & N. 400. See Pollard v. London, third persons acting on the faith of etc., R. Co., 22 L. T. R. (N. S.) 551. acts done by the carrier may acquire ' The consignee, where there is no rights which carrier can not justly im- contract, duty, or notice to the con- pair, it necessarily follows that there trary, maybe treated by the canier as §1537 EXCUSES FOR FAILURE TO DELIVER. 2385 by the directions of a consignee, provided he can rightfully give such orders, the carrier is relieved from liability. § 1537. Seizure under legal process — Generally. — In dis- cussing the subject of the exoneration of a railroad carrier in cases where the loss is attributable to the exercise of public authority we considered the question of the effect of the seizure of goods under legal process.' It is now the general rule, whatever may have been the doctrine of earlier cases, that where the goods are taken from the carrier by a writ issued from a court which appears to possess jurisdiction the failure to deliver is excused.^ We do not believe that, strictly speak- ing, the carrier is bound at its peril to ascertain that the pro- cess is valid. Our opinion is, that if an officer armed with a writ, which appears fair on its face, and to be issued by a court having jurisdiction of the general subject, duly demands the goods, it is the duty of the carrier to yield possession.' We the owner. Bailey v. Hudson Eiver, etc., E. Co., 49 N. Y. 70; Fitzhugh v. "Wiman, 9 N. Y. 559; Hotchkiss v. Artizans' Bank, 2 Abb. App. Dec. (N. Y.) 403. The carrier may, therefore, usually act upon the orders or direc- tions of the consignee, but can not do so in all cases ; as, for instance, where there is fraud on the part of the consignee. ^Ante, §1461. ^In a note to Kohn v. Richmond, etc., R. Co., (37 S. Car. 1) 34 Am. St. E. 726, 735, the rule is thus stated by Mr. Freeman: "A common carrier is excused from liability for not carrying and delivering goods when, without any act, fault or connivance on his part they are seized by legal process and taken out of his possession. This proposition is universally admitted and established, no matter by or against whom the process is served, provided it is valid." Bliven v. Hud- son River, etc., R. Co., 36 N. Y. 403; Savannah, etc., R. Co. v. Wilcox, 48 Ga. 432; Ohio, etc., R. Co. v. Yohe, 61 Ind. 181, s. c. 19 Am. E. 727 ; Mc- Alister v. Chicago, etc., E. Co., 74 Mo. 351 ; Pingree v. Detroit, etc., E. Co., 66 Mich. 143, s. c. 11 Am. St. E. 479; Burton i>. Wilkinson, 18 Vt. 186, s. c. 46 Am. Dec. 145 ; French v. Star, etc., Co., 134 Mass. 288; Furman v. Chicago, etc., E. Co., 57 Iowa 42, s. c. 62 Iowa 395, 68 Iowa 219 ; Jewett v. Olsen, 18 Ore. 419, s. c. 17 Am. St. E. 745; Wells v. Maine, etc., Co., 4 Cliff. 228; Lemont v. New York, etc., E. Co., 28 Fed. E. 920. Some of the courts seem to hold that although the carrier gives notice, it is bound to show that the officer had a legal right to seize the goods. Gibbons v. Far^ well, 63 Mich. 344, s. c. 29 N. W. E 855. See, generally, Nickey v. St Louis, etc.,"E. Co., 35 Mo. App. 79 Edwards v. White Line Co., 104 Mass 159. •Stiles V. Davis, 1 Black 101, 106. 2386 CAKRIEKS. § 1537 do not believe that the carrier is bound to ascertain whether there was a right to issue the writ,' nor to determine whether there is jurisdiction of the persons of the parties.'' If there is no defect apparent on the face of the writ, nothing to arouse distrust, and there is jurisdiction of the general subject, then, as we believe, all questions as to the right to the writ and its validity, as well as all questions going to the regularity of the proceedings, are questions for the court and not questions which the carrier at its peril must decide. As we have said, the carrier must be free from fraud, collusion or connivance, or else it cannot make the proceedings the basis of a defense.' Notice must be given promptly by the carrier, inasmuch as the failure to exercise care and diligence in that regard is a breach of duty.* It is held that where the carrier yields possession to an oflficer who has no writ it is not excused, ° but we suppose that if the officer was actually entitled to the possession and the consignor or consignee was not, the carrier would be excused. We base our conclusion upon the rule that if the delivery is, in fact, made to the right person, the carrier is not guilty of a breach of duty.* If, however, the 'As indicated at another place, it in serving' it, it certainly ouglit to has heen held that the carrier is ex- justify the carrier in yielding to it." cused although the statute under Note to Kohn v. Richmond, etc., E. which the writ was issued was uncon- Co., (37 S. Car. 1) 34 Am. St. R. 726, ditional. McAlister v. Chicago, etc., 736. But see Gibbons v. Farwell, 63 R. Co., 74 Mo. 351. There would be, Mich. 344, s. c. 6 Am. St. R. 301; it seems to us, great difficulty in sus- Kiff v. Old Colony, etc., R. Co., 117 taining the doctrine of decision in Mass. 591, s. c. 19 Am. R. 429; Ed- the case cited if the statute had been wards v. White Line, etc., Co., 104 adjudged unconstitutional, and it is, Mass. 159, s. c. 6 Am. R. 213. indeed, somewhat diflBcult even where ^ Ante, § 1461. there has been no such adjudication *Ante, § 1461. for an unconstitutional statute is ab- ^ Bennett u. American, etc., Co., 83 solutely void. Me. 236, s. c. 23 Am. St. R. 774, 13 L. ^ We concur in the views of Mr. R. A. 33. Freeman, who thus states the law: ^ The Idaho, 93 TJ. S. 575; Biddle d. "The better rule would seem to be, Bond, 6 Best & S. 225; King?;. Rich- however, that all that should be re- ards, 6 Whart. 418, s. c. 37 Am. Dec. quired of the carrier is to ascertain 420; Sheridan ?j. New Quay, etc., Co., that the process is fair and valid on 4 Com. B. (N. S.) 618; Western, etc., its face, for if it will justify the officer Co. v. Barber, 56 N. Y. 544; Wells v. § 1538 EXCUSES FOR FAILURE TO DELIVER. 2387 carrier assumes to yield without a writ, it takes upon itself the burden of showing that the officer was the right person, and this it could not do without showing that neither the consignor nor the consignee was entitled to the goods, for it is quite clear that a surrender to an officer simply because he was an officer would not be a sufficient foundation for a defense. If the officer were a mere intruder or volunteer having no color of right or authority, or if the question of ownership was vol- untarily made by the carrier, we think the conclusion required by authority is that a surrender to the officer could not be made available as a defense.' If goods are levied upon under an attachment which is subsequently dissolved it then be- comes the duty of the carrier to transport them as nearly as may be according to its original undertaking.^ It has been held, one of the judges dissenting, that a carrier is not bound to deliver possession to a mortgagee,' but we suppose that if the carrier could show that the mortgagee was justly entitled to possession it would be protected.* §1538. Attachment — Garnishment. — The question whether property in the hands of a common carrier while in transitu American, etc., Co., 55 Wis. 23, s. c. Co., 4 Com. B. (N. S.) 618; Wells v. 42Am. R. 695; Wolfe «. Missouri Pac. American, etc., Co., 55 Wis. 23, s. c. R. Co., 97 Mo. 473, 480. 42 Am. R. 695; Hutchinson on Car- ' Laclouch V. Towle, 3 Esp. 114 ; riers, § 404. Kieran v. Sandars, 6 Ad. & El. 515; ^ Faust v. Soutli Carolina E. Co., 8 Shelbury v. Scotsford, Yelv. 23 : Wil- S. Car. 118. son V. Anderton, 1 B. & Ad. 450; Gos- ^ Kohn v. Richmond, etc., E. Co., hngu. Birnie,7Bing.339; Burroughes 37 S. Car. 1, s.c. 16 So. R.376, 34 Am. V. Bayne, 29 L. J. Exch. 185 ; Crouch v. St. R. 726, 55 Am. & Eng. R. Cas. 675. Great Western, etc., R. Co., 26 L. J. *The conclusion asserted in the Exch.418 ; Wood's Browne on Carriers, text may be supported upon the prin- 342 ; Hutchinson on Carriers, § 406. ciple that delivery to the right person Attention has been called to the relieves the carrier. But, of course, change in the statements in Story on the carrier assumes the burden of Bailments by the courts and text proving that the delivery was to the writers, and to the fact that in the proper person. We suppose, also, earlier editions the rule was asserted that the carrier must not, on its own to be that delivery to the real owner volition without an effective demand, would protect the carrier, while in deliver possession to a mortgagee, later editions a different doctrine was Rosenfleld v. Express Co., 1 Woods stated. Sheridan v. New Quay, etc., (U. S.) 131. 2388 CARRIERS. § 1538 can be attached or reached by process in garnishment has not been so much discussed in reference to railroad companies as with reference to express companies, and the rules upon the subject have not been very clearly laid down. We think, how- ever, that the authorities warrant the conclusion that property while in itinere can not be attached by creditors nor reached by process in garnishment.' This is certainly so where the property is not within the jurisdiction of the court out of which the process issues.^ Where the custody of the railroad com- pany in the capacity of common carrier has terminated and the company is in possession as warehouseman and title in the principal attachment defendant has vested, then, as we believe, the goods may in the proper case be seized under a writ of at- tachment, ° but even then there may be rights paramount to those of the attaching creditor, for the creditor can not secure greater rights as against the lien of the company or as against prior equities than the debtor had at the time the attachment lien became effective.* In cases where an attachment is issued and levied the carrier must at once give proper notice or the proceedings will not of themselves constitute a defense. As a rule an attachment can not be effective as against the consignor^ since the consignee is presumptively the owner of the goods from the time of their delivery to the carrier," but the rule that 'Western, etc., R. Co. ■B.Thornton, 'Cooleyw. Minnesota, etc., R. Co., 60 Ga. 300; Illinois Central R. Co. ■;;. 53 Minn. 327, s. c. 55 N. W. R. 141, Cobb, 48 111. 402; Michigan, etc., R. citing Drake on Attachment, 453; Co. V. Chicago, etc., R. Co., 1 111. App. Stiles v. Davis, 1 Black 101. 399; Bates v. Chicago, etc., R. Co., 60 * An attachment lien is, as a rule, Wis. 296, s. c. 50 Am. R. 369; 2Shinn subordinate to the vendor's right of on Attachment, p. 967 ; Louisville, stoppage in transitu. In Dreyfus v. etc.,R. Co. V. Spalding, (Ky.) 22 Am. Mayer, 69 Miss. 282, s. c. 12 So. B. & Eng. R. Cas. 418. But see Adams 267, it was held that the vendor's V. Scott, 104 Mass. 164. right of stoppage in transitu extended ^Montrose, etc., Co. v. Dodson, etc., to the money in the hands of an offl- Co., 76 Iowa 172, s. c. 40 N. W. R. cer derived from the sale of property 705 ; Bates v. Chicago, etc., R. Co., 60 under a writ of attachment. Wis. 296, s. c. 19 N. W. R. 72, 50 Am. «Redd v. Burrus, 58 Ga. 574; Blng- R. 369. See Pennsylvania, etc., R. ham v. Lamping, 26 Pa. St. 340. As Co. V. Pennock, 51 Pa. St. 244, 254; to when goods may be attached, see Shinnon Attachment, §§489, 490. Peabody v. Maguire, 79 Me. 572; § 1539 EXCUSES FOE FAILURE TO DELIVER. 2389 the consignee is the owner is, as we shall see hereafter, subject to important limitations and qualifications and the presump- tion of which we have spoken is a rebuttable one. § 1539. Stoppage in transitu — General doctrine.— Among the excuses for non-delivery of goods by a railroad carrier, is generally considered that founded upon the exercise of the right of stoppage in transitu, for in cases where this right is justly exercised the carrier is excused for a failure to deliver the goods entrusted to it for transportation. Under the set- tled rule that the consignee, nothing to the contrary appear- ing, is entitled to have a delivery made to him, the carrier is not excused unless the right of stoppage in transitu exists and is properly exercised. The right of stoppage in transitu is not an absolute right nor can it be made available by all who have an interest in the goods in the hands of the carrier,' nor, in- deed, can it be always effectively exercised by the vendor of the goods, since the rights of third persons may intervene or other circumstances may make it unjust to permit the exercise of the right. It may be said generally that the right of stop- page in transitu^ is a right residing in the vendor of goods to stop them while in the possession of the railroad company and before they have reached the purchaser or consignee." The Grant v. Shaw, 16 Mass. 341 ; Balders- = Stiles v. Howland, 32 N. Y. 309 ton V. Manso, 2 Cranch CO. 623; Babcock v. Bonnell, 80 N. Y. 244 Price V. Bradford, 4 La. 35 ; Dolsen v. Lickbarrow v. Mason, 2 Term R. 63 Brown, 13 La. Ann. 551 ; Walker v. Nioholls v. Le Feuvre, 2 Bing. N. C. Detroit, etc., R. Co., 49 Micli. 446. 81 ; James v. Griffin, 1 M. & W. 20 ; Ed- ' Sweet V. Pym, 1 East 4 ; Jenkyns wards v. Brewer, 2 M. & W. 375 ; ». Usborne, 7 Man. & G. 678. Rights Coates v. Railton, 6 B. & C. 422; of third persons may of coarse inter- Gibson v. Carruthers, 3 Mees. & W. vene and defeat the vendor's right to 321 ; Oppenheim v. Russell, 3 Bos. & stop in transitu. P. 42 ; Wright v. Snell, 5 Barn. & Aid. 'As to the persons against whom 350; Rucker ». Donovan, 13 Kan. 251 ; the right may be exercised, see Shep- Howe v. Stewart, 40 Vt. 145; Pool v. pard V. Newhall, 54 Fed. R. 306; Columbia, etc., R. Co., 23 S. Car. 286; Stanton e. Eager, 16 Pick. 467; Aker- Oppenheim v. Russell, 3 Bos. & P. 42. man v. Humphery, 1 Car. & P. 53 ; The right of stoppage in transitu is a Newhall v. Central, etc , R. Co., 51 favored one, and will avail against Cal. 345. creditors, even though they may be Corp. 152 2390 CARRIERS. 1539 rule which permits the stoppage of goods in transitu is said to be founded on the principle that the property of one person who has not received payment for it shall not be taken by creditors of the vendee in satisfaction of their debts/ and as this is the foundation of the rule, it follows that insolvency of the vendee must appear in order to justify an exercise of the right. ^ The authorities require the conclusion that the right of stoppage in transitu does not exist, even though the buyer is insolvent, if that fact was known to the seller at the time the sale was made.^ A valuable opinion upon the question as to what is sufficient evidence of insolvency is found in a case re- cently decided by the supreme court of Wisconsin, as well as upon other questions affecting the right of stoppage in tran- situ.* The question as to the duty of the carrier to act upon lienholders. Kingman v, Denison, 84 Mich, 608, s. c. 11 L. B. A. 347; Farrell v. Richmond, etc., R. Co., 102 N. Car. 390, s. c. 3 L. R. A. 647; Schuster v. Carson, 28 Neb. 612, s. c. 44 N. W. R. 734, 42 Am. & Eng. R. Cas. 360; Estey v. Truxel, 25 Mo. App. 238; Durgy, Cement, etc., Co. V. O'Brien, 123 Mass. 13; Chicago, etc., R. Co. V. Painter, 15 Neb. 394. As to waiver of right by owners suing out a writ, see Woodruff v. Noyes, 15 Conn. 335; Allyn v. Willis, 65 Tex. 65; Halff v. Allyn, 60 Tex. 278. See, generally, Thompson v. Thompson, 4 Cush. (Mass.) 127; Blum v. Monks, 21 La. Ann. 268 ; Blackman v. Pierce, 23 Cal. 508; Hause v. Judson, 4 Dana 7, s. c. 29 Am. Dec. 377. See Benjamin on Sales, §§ 1229, 1231 ; 2 Kent Com. 628. ' Burghall v. Howard, 1 H. Bl. 366, n. ; Snee v. Prescot, 1 Atk. 245. ^Bayonne v. TJmbenhauer, (Ala.) 18 So. R. 175; Benedict v. Schaettle, 12 Ohio St. 515; Allyn v. Willis, 65 Tex. 65; Harris v. Pratt, 17- N. Y. 249;!;Chicago, etc., Co. v. Paint- er, 15 Neb. 394 ; Cox v. Burns, 1 Iowa 64; Chandler v. Fulton, 10 Tex. 2; Gustine v. Phillips, 38 Mich. 674; Loeb V. Peters, 63 Ala. 243 ; Clark v. Lynch, 4 Daly 83 ; Conyers v. Ennis, 2 Mason 236; Buckley v. Furniss, 15 Wend. 137; Naylor v. Dennie, 8 Pick. 198; Reynolds v. Boston, etc., Co., 43 N. H. 580. 'Fenkhausen v. Fellows, 20 Nev. 312, s. c. 4 L. R. A. 732; Farrell v. Richmond, etc., R. Co., 102 N. Car. 390, s. c. 3 L. R. A. 647; Blum v. Marks, 21 La. Ann. 268; O'Brien v. Norris, 16 Md. 122; 2 Redfleld on Railways, 160; Parsons Mercantile Law, 61. It was argued in the case of The Bird of Paradise, 5 Wall. 545, that where a carrier undertook to transport goods, and in payment of charges accepted a time draft it could stop the goods, but the court held otherwise. Counsel based their contention upon the analogy supplied by the cases affirming the right of stoppage in transitu, and cited Bene- dict i). Field, 16 N. Y. 595. * Jeffris V. Fitchburg R. Co., (Wis.) 67 N. W. R. 424, 12 National Corp. B. 691. §1540 EXCUSES FOR FAILURE TO DELIVER. 2391 the demands of the vendor and his assertion that the buyer was insolvent, has received consideration, and it has been held that the carrier is justified in acting upon the assertion and yielding to the demand.' We think it quite clear that if the assertion of insolvency is true, and the right to stoppage in tran- situ is not impaired by the intervening rights of third persons, the carrier is exonerated, but we suppose that, at all events, the carrier must exercise care and diligence in regard to the demands of the vendor, and in yielding to it assumes some risk.^ § 1540. Who may exercise the right of stoppage in transitu. — The right may, in the proper case, be exercised by an agent or representative of the seller, as for example, by a factor, or purchasing agent.' The rule is that the seller' can only exer- cise the right against his own vendee.' In the absence of a statute the general rule is that a surety of the vendee can not exercise the right.* The assignee who succeeds to the rights ' The E. H. Pray, 27 Fed. E. 474, citing The Tigress, Browning & L. 38. ' The Vidette, 34 Fed. R. 396 ; Allen V. Maine, etc., E. Co., 79 Me. 327; Poole D.Houston, etc., E. Co., 58 Tex. 134; Bloomingdale v. Memphis, etc., E. Co., 6 Lea 616. ' Feise v. Wray, 3 East 93 ; Eey- nolds V. Boston, etc., E. Co., 43 N. H. 680; Chandler v. Fulton, 10 Tex. 2, s. c. 60 Am. Dec. 188. See, as to the rights of an agent seeking to protect himself. Gwyn v. Eichmond, etc., E. Co.. 85 N. C. 429, s. c. 39 Am. E. 708, 6 Am. & Eng. E. Cas. 452; Cassa- boglou 1!. Gibb, L. E. 11 Q. B. D. 797; Phelps V. Comber, L. E. 29 Ch. Div. 813; Ilsley v. Stubbs, 9 Mass. 71, s. c. 6 Am. Dec. 29 ; Seymour v. Newton, 105 Mass. 272 ; Imperial Bank v. Lon- don, etc., Co., L. E. 5 Ch. D. 195; Newhall v. Vargas, 13 Me. 93, 92 Am. Dec. 489. See, generally, Kinloch v. Craig, 3 T. R. 119. * As to the rights of a pledgee, see next section. See, also, Missouri, etc., E. Co. V. Heidenheimer, 82 Tex. 195, s. c. 17 S. W. E. 608, 27 Am. St. E. 861 ; First National Bank v. Meyer, 43 La. Ann. 1 ; Eatzer v. Burlington, etc., E. Co., (Minn.) 66 N. W. E. 988. 'Memphis, etc., E. Co. v. Freed, 38 Ark. 614, s. c. 9 Am. & Eng. E. Cas. 212. As to the effect of a seizure under legal process upon the right of stop- page in transitu, see Schuster v. Car- son, 28 Neb. 612, s. c. 44 N. W. E. 734, 42 Am. & Eng. E. Cas. 360; Estey v. Truxel, 25 Mo. App. 238; Couture v. McKay, 6 Manitoba L. 273. * Freeman v. Birch, 3 Q. B. 492, note ; Leuckhart v. Cooper, 3 Bing. N. C. 99, S. C. 32 E. C. L. 54; Morley v. Hay, 3 M. & Eyland 396. But is held that where the transfer is procured by fraud the right of stoppage is not lost. Evans- ville, etc., E. Co. v. Erwin, 84 Ind 457, 476. See Ante, §§1428, 1429; St. Paul, etc., E. Co. v. Great Western, etc., E. Co., 27 Fed. E. 434; Sheppard 2392 CARRIERS. § 1541 of the seller of a bill of lading is held to have a right to stop goods in transitu.^ The vendor's right may be effectively taken away by the intervention of the rights of third persons entitled to protection, as, for example, by the intervention of the rights of an assignee of the bill of lading." § 1541. Against whom the right of stoppage in transitu may be exercised. — It would be foreign to the scope of our work to fully discuss the questions which arise where the rights of third persons intervene, but it seems necessary to briefly treat the general subject. Where bona fide purchasers acquire the goods the right is gone, but if the railroad carrier is ignorant of the acquisition of such rights, acts in good faith and exercises reasonable care and diligence it will not be liable if it yields to the right when properly asserted by the vendor. Where, however, the indorsement of bills of lading, or, doubt- less, the absence of an outstanding bill of lading,' shows or in- dicates that the vendor's right has been assigned or has ceased to exist the carrier can not rightfully yield to the claim of the vendor. In cases where bills of lading have been so effect- ively indorsed as to transfer title to the assignee the vendor can not rightfully exercise the right of stoppage in transitu.* It is held that a bona fide holder of a bill of lading assigned as collateral security is invested with a title to the goods para- ». Newhall, 54 Fed. R. 306. As to the etc., R. Co., 44 Minn. 224, s. c. 9 L. difference between cases where a third R. A. 263. person buys property and receives 'Ratzer v. Burlington, etc., R. Co. bill of lading and where no bill of (Minn.) 66 N. W. R. 988. Where the lading is transfered, see Pattison v. bill of lading is issued without author- Culton, 33 Ind. 240; distinguishing ity the assignee is not protected. Coxe V. Harden, 4 East 211 ; Dews v. National Bank, etc., v. Chicago, etc., Greene, 32 Barb. 490; Leev. Kimball, R. Co., 44 Minn. 224, s. c. 46 N. W. R. 45 Me. 172. 342, 560. ' Gossler v. Schepeler, 5 Daly (N.Y.) * Sheppard v. Newhall, 54 Fed. R. 476 ; Morison v. Gray, 2 Bing. 260, s. c. 306 ; Stanton v. Eager, 16 Pick. 467 ; 9E.0. L.570. But see Waring u. Cox, Akerman v. Humphery, 1 Car & P. 1 Camp. 369. 53; Newhall v. Central, etc., R. Co., 'Missouri Pac. R. Co. v. Heiden- 51 Cal. 345; Missouri, etc., R. Co. v. sheimer, 82 Tex. 195, B. c. 17S. W. R. McLiney, 32 Mo. App. 166. See ante, 608. See National Bank v. Chicago, §§ 1426, 1429. § 1542 EXCUSES FOE FAILURE TO DELIVER. 2393 mount to the vendor's right of stoppage in transitu, but that one who receives the bill of lading as collateral security for an antecedent debt is not a bona fide holder as against the vendor whose claim for the price of the goods is unpaid,' although he would be such a holder as against the assignor of the bill, for as between the immediate parties an antecedent debt is a valid consideration.^ §1542. Mode of exercising the right of stoppage in transitu — Duty of carrier to give notice. — The earlier authorities in- clined to the doctrine that in order to an effective exercise of the right of stoppage in transitu the vendor must secure pos- session of the goods but the rule now is that it is not necessary that the vendor should obtain actual possession. Notice is, however, essential to an effective exercise of the vendor's right. ° When a demand is made upon the railroad carrier it must promptly give notice to the consignee of the vendor's assertion of the right of stoppage in transitu. § 1543. Termination of the right of stoppage in transitu. — It is obvious that where the goods have come into the hands of the consignee by actual delivery the right of stoppage in transitu is at an end.* This is true although the vendor may 'Dymock v. Missouri, etc., R. Co., Ch. Div. 813; Clementson v. Grand 54 Mo. App. 400 ; Missouri, etc., R. Trunk, etc., R. Co., 42 TJ. 0. Q. B. 263. Co. V. Heidenheimer, 82 Tex. 195, s. c. See, generally, Poole v. Houston, etc., 17 S. W. R. 608, 27 Am. St. R. 861; R. Co., 58 Tex. 134, s. c. 9 Am. & First National Bank v. Meyer, 43 La. Eng. R. Cas. 197 ; Kemp v. Falk, L. Ann. 1. R. 7 App. Cas. 573; Litt v. Cowley, 7 " Hewitt ». Powers, 84 Ind. 295. Taunt, 169; Mottram v. Heyer, 5 •Allen V. Maine, etc., R. Co., 79 Denio. 629. See, also, 23 Am. & Eng. Me. 327, s. c. 30 Am. & Eng. R. Cas. Ency. of Law 926; Wood's Browne 122; Ascher v. Grand Trunk, etc., R. on Carriers, 350. Co., 36 IT. C. Q. B. 609; Reynolds v. *In a case where goods were placed Boston, etc., R. Co., 43 N. H. 580. in possession of a drayman and by We suppose that, although no great him taken to the store o( the con- formality or precision is required, the signees, who declined to receive them vendor's notice must be such as to for the reason that their store had fairly apprize the carrier of the vend- been destroyed by fire and the goods or's purpose to regain possession of were returned to the company it was the goods. Phelps v. Comber, L. R. 29 held that the transit was at an 2394 CAREiEKS. § 1543 lawfully exercise the right of recaption since the right of re- caption is not the same thing as the right of stoppage in transitu} It will be found upon an examination of the ad- judged cases that the dispute has fallen upon the question as to what is a sufficient delivery to defeat the right of stoppage in transitu for there is no controversy as to the effect of a suffi- cient delivery nor has there been from the earliest years of the common law, since it has been steadily held that a sufficient delivery to the consignee defeats the right/ It may be said generally that the test as to the sufficiency of a delivery to a consignee is not the same where the question is solely between the railroad company and the consignee or owner as the test where the question arises in cases between vendor and pur- chaser and involves the right to stop the goods in transitu, for a delivery may be sufficient to relieve from liability as a car- rier and yet not sufficient to defeat the right of stoppage in transitu.^ The carrier is not, it is manifest, greatly concerned with the question as to the sufficiency of the delivery to defeat the right of stoppage in transitu in cases where the delivery is such as terminates its liability but it is concerned with the ques- tion as to when its duty to yield to the vendor's right to stop in transitu has ended in cases where it has possession of the goods. If the goods have reached the place to which they were shipped end so far as concerned the right 107; Dixon v. Yates, 5 B. & Ad. 313; of stoppage in transitu. O'Neal v. Tanner v. Scovell, 14 M. & W. 28; Day, 53 JIo. App. 139; Shoninger v. Sheppard ». Newhall, 54 Fed. R. 306; Day, .53 JIo. App. 147. See Mollison Wallace v. The Natchez, 31 Fed. R. v. Lockhart, 30 N. Brunswick 398. 615; Langstaff v. Stix, 64 Miss. 171, 'In cases where the owner may s. c. 1 So. R. 97; Greve v. Dunham, lawfully retake goods under the right 60 Iowa 108, s. c. 14 N. W. R. 130; of recaption and he properly exercises Hall v. Dimond, 63 N. H. 565, s. c. 3 such right and retakes the goods there Atl. R. 423; Symns v. Schotten, 35 can not be any liability on the part of Kan. 310, s. c. 10 Pac. R. 828; More the carrier to the consignee, but while v. Lott, 13 Nev. 376; Macon, etc., R. this is true, it is also true that while Co. ■«. Meador, 65 Ga. 705; Kleins, there is a close resemblance between Fischer, 30 Mo. App. 568 ; United the right of recaption and the right of States, etc., Co. v. Oliver, 16 Neb. 612, stoppage in transitu there are well- s. c. 21 N. W. R. 463. See Benjamin marked differences. on Sales, §§839, 844. ' Lickbarrow ». Mason, 2 Term R. ' Harris v. Tenney, 85 Tex. 254, s. c. 63; Foster v. Frampton, 6 B. & C. 34 Am. St. R. 796. § 1543 . EXCUSES FOR FAILURE TO DELIVER. 2395 and the railroad company there accepts them as the agent of the consignee and undertakes to hold possession of them as his agent and so holds possession the right of stoppage in transitu is at an end,' but the right does not terminate when the goods arrive at the place to which they were shipped unless they go into the hands of the company as the agent of the consignee, insomuch as there must be a change in the capacity in which the company holds the goods for if it continues to hold them in its capacity as carrier or holds them as a warehouseman the right of the vendor is not at an end. The fact that the goods go into the possession of the company in its capacity of a ware- houseman does not defeat the vendor's right, unless they are taken possession of, as just indicated, by the company in the capacity of agent for the consignee. As long as the goods are in transit or in the hands of a warehouseman or other person as incidental to or connected with their transportation the right of stoppage in transitu exists.^ It may, indeed, be safely said that the general rule is that as long as the company in any capacity except as agent of the consignee has control of the goods whether in the capacity of carrier or warehouseman the vendor's right is not terminated, for as long as anything re- mains to be done in order to complete a delivery to the con- signee that long the right of stoppage in transitu endures.' The ' Wentworth v. Oathwaite, 10 M. & 21 Ohio St. 281 ; Buckley v. Furniss, W. 436; Wood's Browne on Carriers, 15 Wend. 137; Bartramu. Farebrother, 352. See, also, Whitehead v. Ander- 4 Bing. 579; Harris v. Pratt, 17 N. Y. son, 9Mees. & W. 518; Williams d. 249; Weber ^. Baessler, 3 Colo. App. Hodges, 113 N. Car. 36, s. c. 18 S. E. 459, s. c. 34 Pac. R. 261. See, gener- E. 83, citing 1 Parsons on Cont. 603; 2 ally, Langstaff v. Stix, 64 Miss. 171, Benjamin on Sales, § 1117 ; 2 Addison s. c. 60 Am. R. 49, 57; Rucker v. on Cents., § 600. • Donovan, 13 Kan. 251, s. c. 19 Am. R. « Jenks V. Fulmer, 160 Pa. St. 527, s. 84, 92; Sawyer v. Joslin, 20 Vt. 172, c. 28 Atl. R. 841 ; Lewis «. Sharvey, 58 s. c. 49 Am. Dec. 768. Minn. 464, s. c. 59 N. W. R. 1096 ; Ca- ' Rogers v. Schneider, 13 Ind. App. been u. Campbell, 30 Pa. St. 254; Har- 23, s. c. 41 N. E. R. 71; Bethell u. ris V. Tenney, 85 Tex. 254, s. c. 20 S. Clark, L. R. 20 Q. B. D. 615 ; Lyons v. W. R. 82; Inslee v. Lane, 57 N. H. Hoftnung, L. R. 15 App. Cas. 391; 454; White w. Mitchell, 38 Mich. 390 ; Bolton v. Lancashire, etc., R. Co., Scott V. William B. Grimes, etc., Co., 1 L. R. C. P. 431 ; Scott v William 48Mo.App. 521; McFetridgeu. Piper, B. Grimes, etc., Co., 48 Mo. App. 40 Iowa 627; Calahan v. Babcock, 521. A carrier may, by contract. 2396 CARKIJiRS. §1544 effect of a partial delivery received consideration in a late case and it was held that delivery of part of the goods will not defeat the right of stoppage in transitu, "as a delivery of part will not be a delivery of the whole unless the circumstances show that it was intended so to operate.'" § 1544. Adverse claimants — ^Procedure on part of carrier — Interpleader. — In cases where claims are made to goods in the hands of a railroad carrier by persons not known in the con- tract of carriage proper notice should be promptly given.^ It is, however, not safe to rely on notice alone in cases where legal proceedings have not been taken, for where the carrier as- sumes to decide betweeen rival claimants it may incur a liabil- ity, since if it yields possession it takes the risk of correctly determining which of the rival claimants is entitled to the property. It has been held that a bill of interpleader filed by a carrier in a case where goods were in controversy is not suf- ficient where it shows that the attachment was not levied,' but waive its lien for freight and make a complete delivery, without treating the freight as paid. Kemp v. Falk, 7 App. Cas. 573; Jeffris v. Fitohburg E. Co., (Wis.) 67 N. W. E. 424. There is no presumption that the lien was waived and a complete delivery made. Jeffris ij. Fitchburg E. Co., (Wis.) 67 N. W. E. 424, citing Ex parte, Cooper, L. E. 11 Ch. Div. 68; Buckley v. Fen- niss, 17 Wend. 504; Crawshay v. Fades, IBarn. & C. 181; Calahan v. Babcock, 21 Ohio St. 281 ; Symns v. Schotten, 35 Kan. 310, s. c. 10 Pac. E. 828. 'Jeffries ■». Fitchburg E. Co., (Wis.) 67 N. W. E. 427, 12 National Corp. E. 691. 2 The M. M. Chase, 37 Fed. E. 708. See, generally, Eobinsonu. Memphis, etc., E. Co., 16 Fed. E. 57 ; MacVeagh V. Atchison, etc., E. Co., 3 N. Mex. 205, s. c. 5 Pac. R. 457, 18 Am. & Eng. E. Cas. 651; Livingston v. Miller, 48 Hun. 232, s. c. 16 N. Y. S. R. 71; Sa- vannah, etc., E. Co. V. Wilcox, 48 Ga. 432. 'Crass V. Memphis, etc., E. Co., 96 Ala. 447, s. c. 11 So. E. 480. It was also held that where the carrier's lien for freight is not assented to by the parties a bill of interpleader will not lie as against a party asserting his right of stoppage in transitu. See Cleveland, etc., E. Co. v. MolinePlow Co., 13 Ind. App. 225, where it is held that one who forcibly takes goods from the depot platform may be brought into a case brought against the company by the owner of the goods. We deferentially suggest that the court erred in holding that, under the code, a cross-complaint was nec- essary, inasmuch as where the parties are all before the court upon plead- ings answered or replied to, complete relief will be awarded. Humphrey v. Thorn, 63 Ind. 296 ; Shattuck v. Cox, 97 Ind. 242. § 1544 EXCUSES FOR FAILURE TO DELIVER. 2397 we think that where hostile claims are clearly shown and it is made to appear that there is an actual controversy a bill of in- terpleader is sufficient. The safe course is for the carrier to file a complaint in the nature of a bill of interpleader and se- cure a judgment determining the rights of the contesting par- ties.' This course may certainly be pursued in the code states, and there is, as we conceive, no valid reason why substantially the same course may not be pursued in other states." 1 For decisions under the English Co., 45 Neb. 487, s. c. 63 N. "W. R. 859, statute see Scott v. Lewis, 2 Cromp. 12 Am. E. & Corp. R. (Lewis) 27 ; M. & R. 289 ; Allen v. Gilby, 3 Dowl. Hutchinson on Carriers, § 407. But P. C. 143. see McGaw v. Adams, 14 How. Pr. 'Shellenberg v. Fremont, etc., B. 461, a case of doubtful soundness. CHAPTER LXIV. CAREIERS OF LIVE STOCK. i 1545. Railroad companies are com- mon carriers of live stock. 1546. No liability for injuries aris- ing from inherent nature of stock. 1547. Duty to receive and carry. 1548. Liability for negligence — Bur- den of proof. 1549. Rule where owner accompa- nies the stock. 1550. Contributory negligence of owner. § 1551. Cars and appliances — Termi- nal charges. Loading and unloading. Duty to feed, water and care for stock. Statutory regulations. Liability for delay. Liability for loss or failure to deliver. Limiting liability. 1552. 155S. 1554. 1555. 1556. 1557. § 1545. Railroad companies are common carriers of live stock. — The earlier English reports and some of the decisions in this country contain many conflicting opinions upon the subject of the liability of railroad companies as carriers of live stock.' But it is now well settled in most jurisdictions that carriers of live stock are, in a sense at least, common carriers. The rule, as now established by the great weight of modern authority, is that railroad companies are common carriers of live stock, with substantially the same duties and responsibil- ities that existed at common law with respect to the carriage of goods, except that they are not liable as insurers against loss and injury resulting from the inherent nature, propensities or "proper vice" of the animals themselves.^ In Michigan, how- ' See McManus v. Lancashire, etc., R. Co., 2 H. & N. 693, s. c. 27 L. J. Exch. 201, 4 H. & N. 328; Palmer v. Grand Junction R. Co., 4 M. & W. 749; Pardington v. South Wales R. Co., 1 H. & N. 392, 396, s. c. 38 Eng. Law & Eq. 432 ; Michigan Southern (2398) R. Co. V. McDonough, 21 Mich. 165; Nashville, etc., R. Co. v. Jackson, 6 Heisk. (Tenn.) 271; Baker t). Louis- ville, etc., R. Co., 10 Lea (Tenn.) 304; Louisville, etc., R. Co. v. Hedger, 9 Bush. (Ky.) 645. Louisville, etc., R. Co. v. Wynn, 88 §1546 CARRIERS OF LIVE STOCK. 2399 ever, it was held many years ago in a strongly reasoned opinion that a railroad company is not a common carrier of live stock, and that decision has been steadily adhered to, notwithstand- ing the weight of modern authority to the contrary.' § 1546. No liability for injuries arising from inherent na- ture of stock. — It is not, perhaps, strictly correct to say that the rule that the carrier is not liable for injuries resulting from the inherent nature or propensities of the stock is an exception to the common law rule governing the liability of common carriers, for this was the rule at common law respect- ing other kinds of property, as well as with respect to live stock and was frequently applied to shipments of fruit and other perishable articles.'' But whether it should be treated as Tenn. 320, s. c. 14 S. W. E. 311, 3 Lewis' Am. E. & Corp. E. 13 ; Hart v. Pennsylvania E. Co., 112 U. S. 331, s. c. 5 Sup. Ct. E. 151 ; South, etc., Ala- bama, etc., E. Co. V. Henlein, 52 Ala. 606; Central E., etc., Co. v. Smitha, 85 Ala. 47, s. c. 4 So. E. 708; Agnew v. Steamer Contra Costa, 27 Cal. 425; Union Pac. E. Co. v. Eainey, 19 Colo. 225, 61 Am. & Eng. E. 302 ; East Tenn., etc., E. Co. V. Whittle, 27 Ga. 535; Georgia, etc., E. Co. v. Beatie, 66 Ga. 438, s. c. 42 Am. E. 75 ; St. Louis, etc., E. Co. V. Dorman, 72 111. 504 ; Kansas City, etc., E. Co. v. Simpson, 30 Kan. 645, s. c. 2 Pac. E. 821 ; Peters v. New Orleans, etc., E. Co., 16 La. Ann. 222; Sager v. Portsmouth, etc., E. Co., 31 Me. 228; Philadelphia, etc., E. Co. V. Lehman, 56 Md. 209; Smith v. New Haven, etc., E. Co., 12 Allen (Mass.) 531; Evans v. Fitchburg, etc., E. Co., Ill Mass. 142; Moulton v. St. Paul, etc., E. Co., 31 Minn. 85, s. c. 16 N. "W. E. 497; Lindsley v. Chicago, etc., E. Co., 36 Minn., 539, s. c. 33 N. W. E. 7; Chicago, etc., E. Co. v. Abels, 60 Miss. 1017; McFadden «. Missouri, etc., E. Co., 92 Mo. 343, s. c. 4 S. W. E. 689; Atchison, etc., E. Co. V. Washburn, 5 Neb. 117; McCoy v. Keokuk, etc., E. Co., 44 Iowa 424; My- nard v. Syracuse, etc., E. Co., 71 N. Y. 180; Clarke v. Eochester, etc., E. Co., 14 N. Y. 570; Lee v. Ealeigh E. Co., 72 N. Car. 236; Welsh v. Pitts- burg, etc., E. Co., 10 Ohio St. 65; Bamberg v. South Carolina E. Co., 9 S. Car. 61; Powells. Pennsylvania E. Co., 32 Pa. St. 414; Kimball v. Eut- land, etc., E. Co., 26 Vt. 247; Vir- ginia, etc., E. Co. V. Sayers, 26 Gratt. CVa.)328; Maslin v. Baltimore, etc., R. Co., 14 W. Va. 180; Ayres v. Chica- go, etc., E. Co., 71 Wis. 372, s. c. 37 N. W. E. 432. See, also, Kendall v. London, etc., E. Co., L. E. 7 Exch. 373 ; Palmer ?). Grand Junction E. Co., 4 M. & W. 749; Blower v. Great West- ern R. Co., L. E. 7 C. P. 655; Mof- fatt V. Great Western E. Co., 15 L. T. 630, 19 Cent. L, Jour. 161. 'Heller v. Chicago, etc., E. Co., (Mich.) 66 N. W. E. 667; Michigan, etc., E. Co. V. McDonough, 21 Mich. 165; Lake Shore, etc., E. Co. v. Per- kins, 25 Mich. 329. ' Moulton V. St. Paul, etc., E. Co., 31 Minn. 85, s. c. 47 Am. E. 781; Bamberg v. South Carolina R. Co., 9 2400 CARRIERS. § 1546 an exception to the general rule or not, it is well settled that, although insurers in other respects to the same extent as at common law in the carriage of goods, railroad companies are not liable as insurers for losses and injuries caused to live stock by the inherent nature and propensities of the animals.' Thus, it has been held that the carrier is not liable for the death of a bullock, which, after it has been properly fastened in the car, by its own exertions releases itself and is killed without any negligence on the part of the carrier;' nor for the overheat- ing of an animal caused by its own propensities, lack of vitality or exertion;' nor for injuries to one animal inflicted by another where the carrier is free from fault.* But, as we shall here- after show, the carrier is liable for loss or injury caused by its own negligence, although, but for the nature or propensities of the animals no loss or injury would have resulted. ° S. Car. 61; Louisville, etc., R. Co. v. ^Blower v. Great Western B. Co., Bigger, 66 Miss. 319 ; Illinois Cent. L. E. 7 C. P. 655. See, also, Hall v. E. Co. V. Brelsford, 13 111. App. 251 ; Eenfro, 3 Mete. (Ky.) 51 ; Indianap- ante, § 1481. olis, etc., E. Co. u Jurey, 8 111. App. » Nugent V. Smith, L. R. 1 C. P. 160. Div. 423, s. 0. 45 L. J. C. P. 697 ; Penn ' Chicago, etc., E. Co. v. Owen, 21 V. Buffalo, etc., R. Co., 49 N. Y. 204, 111. App. 339; Maslin v. Baltimore, s. c. 10 Am. E. 355; Cragin v. New etc., E. Co., 14 W. Va. 180; Chicago, York, etc.. E. Co., 51 N. Y. 61, s. c. etc., E. Co. v. Harmon, 12 111. App. 10 Am. E. 559; Wabash, etc., E. Co. 54. See, also, Kirby «. Great West- V. McCasland, 11 111. App. 491 ; Illi- ern E. Co., 18 L. T. N. S. 658. nois Cent. E. Co. B. Scruggs, 69 Miss. * Evans v. Fitchburg R. Co., Ill 418, s. c. 13 So. E. 698; Boehl ?;. Chi- Mass. 142, s. c. 15 Am. E. 19; Louis- cago, etc., E. Co., 44 Minn. 191, s. c. ville, etc., R. Co. v. Bigger, 66 Miss. 46 N. W. R. 333; Black «;. Chicago, 319, s. c. 6 So. R. 234; Gabay u. Lloyd, etc., R. Co., 30 Neb. 197; Louisville, 3 B. & C. 793; Conger v. Hudson etc., R. Co. ■«. Bigger, 66 Miss. 319, s. River R. Co., 6 Duer (N. Y.) 375; c. 6 So. R. 234; St. Louis, etc., R. Co. Lawrence v. Aberdein, 5 B. & Aid. V. Lesser, 46 Ark. 236; St. Louis, etc., 107. R. Co. u. Clark, 48 Kans. 321 ; Texas, ^ Post, § 1548. See, also, Illinois etc., R. Co. V. Stribling, (Tex. Civ. Cent. R. Co. v. Adams, 42 111.474; App.) 34 S. W. R. 1002; Missouri Ritz u. Pennsylvania R. Co., 3 Phila. Pac. R. Co. o. Fagan, (Tex. Civ. App.) (Pa.) 82 ; Powell v. Pennsylvania R. 27 S. W. E. 887 ; Coupland v. Housa- Co., 32 Pa. St. 414 ; Indianapolis, etc., tonic E. Co., 61 Conn. 531, s. c. 23 E. Co. v. Allen, 31 Ind. 394; Shaw v. Atl. E. 870. Most of the authorities Great Southern, etc., E. Co., 8 L. R. cited in the preceding note recognize Ir. 10; Eoot v. New York, etc., B. this exception. Co., 83 Hun 111, s. c. 31 N. Y. Supp. § 1547 CAEKIEKS OF LIVE STOCK. 2401 § 1547. Duty to receive and carry. — As railroad companies which carry live stock for hire are common carriers, it follows that they are bound to receive and carry such stock on reason- able terms for all who properly offer it for transportation, and are liable for refusal to carry without a good excuse.' It has been held that neither the fact that the stock was delivered to it by a connecting carrier on Sunday,' nor the fact that it con- sisted of Texas cattle, the transportation of which was forbid- den by an unconstitutional statute, is a good excuse.' But it has been held, on the other hand, that a railway company is not liable in damages by reason of its refusal to receive cattle for transportation into a county in which a license is lawfully required as a prerequisite thereto and the owner of the cattle has failed to procure such license;* and we suppose it would be justified in refusing to receive and carry diseased cattle likely to injure others, or cattle which it is prohibited from carrying by a constitutional and valid statute. ° So, a railroad company would doubtless be justified in refusing or failing to carry live stock under circumstances similar to those which would justify it in refusing to receive and carry other kinds of freight.' § 1548. Liability for negligence — Burden of proof. — The carrier is, of course, liable for injuries caused to the live stock 357; Alabama, etc., R. Co. v. Sparks, * Williams v. Great Western E. Co., 71 Miss. 757, s. c. 16 So. E. 263; Crow 52 L. T. R. 250, s. c. 49 J. P. 439. V. Chicago, etc., R. Co., 57 Mo. App. ^See as to constitutionality of such 135. statutes and liability of the carrier •Ballentine v. North Missouri R. under them. Railroad Co. v. Husen, Co.,40Mo. 491; Chicago, etc., R. Co. 95 U. S. 465; Furley ». Chicago, V. Erickson, 91 111.613; Texas, etc., etc., R. Co., 90 Iowa 146, 57 N. W. E. Co. V. Nicholson, 61 Tex. 491; Mis- R. 719; Missouri Pac. E. Co. v. Fin- souri Pac. E. Co. v. Pagan, 72 Tex. ley, 38 Kan. 550, s. c. 16 Pac. R. 127, s. c. 9S.W.E. 749, 2L. E. A. 75; 951; Wilson v. Kansas City, etc., R. South Alabama, etc., E. Co. ■». Hen- Co., 60 Mo. 184; Coyle v. Chicago, lein, 52 Ala. 606. See, also, ante, etc., R. Co., 27 Mo. App. 584; Re- §§1454, 1465, 1468-1471. ceivers of International, etc., R. Co. 'Philadelphia, etc., E. Co. v. Leh- v. Wright, 2 Tex. Civ. App. 198, s. c. man, 56 Md. 209; Guinn «. Wabash, 21 S. W. E. 56; Grimes v. Eddy, 126 etc., R. Co., 20 Mo. App. 453. Mo. 168, 61 Am. & Eng. R. Cas. 343, 'Chicago, etc., E. Co. ». Erickson, and note. 91 111. 613. «See ante, §§ 1466, 1474. 2402 CARRIERS. §1548 by its own negligence/ and this is true although the animals, owing to their natural propensities, may have contributed thereto/ provided their owner, or his agent, was not guilty of contributory negligence. Thus, where animals, by being overcrowded, become heated and die by reason of the failure of the carrier to water arid cool them, it is liable therefor, and the fact that its pump is out of order is no excuse.' So, where the train is delayed by a snowstorm and the carrier negligent- ly permits them to die of cold.* So, where the carrier negli- gently furnishes an infected car,° or negligently sets the bed- ding on fire and thus injures the stock.* But the fact that a railroad company did not provide any bedding for the stock has been held not to be of itself prima facie evidence of negli- gence on its part.' Although animals are injured by becom- ing restive, if the restiveness was caused by the negligence of the carrier it will be liable, and the carrier has been held lia- ' Indianapolis, etc., R. Co. v. Allen, 31 Ind. 394 ; Moulton v. St. Paul, etc., R. Co., 31 Minn. 85, s. c. 47 Am. R. 781; Oxley v. St. Louis, etc., R. Co., 65 Mo. 629; Virginia, etc., R. Co. v. Sayers, 26 Gratt. (Va.) 328; South, etc., R. Co. V. Henlein, 52 Ala. 606, s. c. 23 Am. R. 578; German u. Chicago, etc., R. Co., 38 Iowa 127; Gulf, etc., R. Co. V. Ellison, 70 Tex. 491, s. c. 7 S. W. R. 785; East Tenn., etc., R. Co. V. Johnston, 75 Ala. 596, s. c. 51 Am. R. 489, 22 Am. & Eng. R. Cas. 437; Cooke V. Kansas City, etc., R. Co., 57 Mo. App. 471; Abrams v. Milwaukee, etc., R. Co., 87 Wis. 485, s. c. 58 N. W. R. 780; Louisville, etc., R. Co. v. Grant, 99 Ala. 325, s. c. 13 So. R. 599; Atchison, etc., R. Co. v. Ditmars, (Kan.) 43 Pac. R. 833; Norfolk, etc., R. Co. V. Sutherland, 89 Va. 703; Leonard v. Fitchburg R. Co., 143 Mass. 307. ^ Kinnick v. Chicago, etc., R. Co., 69 Iowa 665, s. c. 27 Am. & Eng. R. Cas. 55; Betts v. Chicago, etc., R. Co., (Iowa) 60 N. W. R. 623; Galves- ton, etc., R. Co. V. Herring, (Tex. Civ. App.) 36 S. W. R. 129; Wil- loughby V. Horridge, 12 Com. B. 742, s. c. 22 L. J. C. P. 90; New York, etc., R. Co. v. Estill, 147 U. S. 591, s. c. 13 Sup. Ct. R. 444; Giblin v. National, etc., Co., 28 N. Y. Supp. 69; Haynes v. Wabash, etc., Co., 54 Mo. App. 582; Sturgeon v. St. Louis, etc., R. Co., 65 Mo. 569, and authorities cited in following notes. 'Illinois, etc., R. Co. v. Adams, 42 111. 474 ; Toledo, etc., R. Co. v. Thomp- son, 71 111. 434. * Peinberg v. Delaware, etc., R. Co., 52 N. J. L. 451, s. c. 20 Atl. R. 33. ^Railway Co. v. Henderson, 57 Ark. 402. See, also, Shaw v. Great South- em R. Co., 8 L. R. Ir. 10; Tattersall V. National, etc., Co., L. R. 12 Q. B. Div. 297. ° Powell V. Pennsylvania R. Co., 32 Pa. St. 414. See, also, Holsapple «. Rome, etc., R. Co., 86 N. Y. 275. 'East Tenn., etc., R. Co. v. Johns- ton, 75 Ala. 596, s. c. 51 Am. R. 489, 22 Am. & Eng. R. Cas. 437. § 1548 CARRIERS OF LIVE STOCK. 2403 ble in such a case, notwithstanding a stipulation in the con- tract for transportation that the carrier should not be liable for any accident occasioned by the restiveness of the animals.' So carriers have been held liable in many cases for injuries caused by defective cars, stock-pens and the like,^ and it has been held that where stock are suffering or become frightened or unruly, it is the duty of the company, when properly requested, to side- track the car where it can reasonably do so.' There is some conflict among the authorities as to the burden of proof in such cases ; but the prevailing rule, where the owner or his agent does not go with the stock, is that when the animals are shown to have been delivered to the carrier in good condition, and to have been lost or injured on the way, the burden of proof then rests upon the carrier to show that the loss or in- jury was not caused by its own negligence.* There is much, however, that might be said in favor of the opposite rule, for, although the facts may sometimes be peculiarly within the knowledge of the carrier, yet, as it is well known that animals are peculiarly liable to injure themselves and each other, we 'Moore u. Great Northern, etc., R. Squire v. New York, etc., E. Co., 98 Co., L. R. 10 Ir. 95; Gill v. Manches- Mass. 239, s. c. 93 Am. Dec. 162. ter, etc., R. Co., L. R. 8 Q. B. 186, s. « Louisville, etc., R. Co. v. Wynn, c. 42 L. J. Q. B. 89. 88 Tenn. 320, s. c. 14 S. W. R. 311, 3 ^ Smith V. New Haven, etc., R. Co., Lewis' Am. R. & Corp. R. 13; Mis- 12 Allen (Mass.) 531; Great Western souri Pac. R. Co. v. Texas, etc., R. R. Co. V. Hawkins, 18 Mich. 427; St. Co., 41 Fed. R. 913; Boehl v. Chica- Louis, etc., R. Co. v. Dorman, 72 111. go, etc., R. Co., 44 Minn. 191^ s. c. 46 504; Indianapolis, etc., R. Co. v. N. "W. R. 333; Lindsley «. Chicago, Strain, 81 111. 504; Gulf, etc., R. Co. etc., R. Co., 36 Minn. 539, s. c. 33 N. V. Trawick, 80 Tex. 270, s. c. 15 S. W. W. R. 7; Doan v. St. Louis, etc., E. R. 568; Mason v. Missouri Pac. R. Co., 38 Mo. App. 408; Western R. Co. Co., 25 Mo. App. 473; Wilson v. v. Harwell, 91 Ala. 340, s. c. 8 So. E. Hamilton, 4 Ohio St. 722. 649; Ft. Worth, etc., R. Co. v. Great- ' Coupland v. Housatonic R. Co., 61 house, 82 Tex. 104, s. c. 17 S. W. R. Conn. 531, s. c. 23 Atl. R. 870; John- 834, 49 Am. & Eng. R. Cas. 157; Dow son V. Alabama, etc., R. Co., 69 Miss. v. Portland, etc., Co., 84 Me. 490, s. c. 191, s. c. 11 So. R. 104. But compare 24 Atl. R. 945; Chicago, etc., E. Co. Illinois Cent. E. Co. v. Peterson, 68 v. Abels, 60 Miss. 1017; Wallingford Miss. 454, s. c. 10 So. E. 43, 49 Am. & v. Columbia, etc., E. Co., 26 S. Car. Eng. R. Cas. 171. See, also. Bills v. 258; McCoy v. Keokuk, etc., R. Co., New York, etc., R. Co., 84 N. Y. 5; 44 Iowa 424; Chapin ■». Chicago, etc., R. Co., 79 Iowa 582. 2404 CARRIERS. § 1549 think it is going very far to cast the burden upon the compa- ny to show that they were not injured by its own negligence where the plaintiff introduces no evidence to show how the in- juries were inflicted or that any accident occurred to the train, or the like, and there is nothing to show that the injuries might not have been caused solely because of the inherent na- ture and propensities of the animals themselves. This view is not entirely without the support of authority.' § 1549. Rule where owner accompanies the stock. — The fact that the owner, or his agent, is furnished transportation by the carrier and goes with his cattle or horses to look after and care for them, especially if he has agreed to do so in the contract of carriage, often exerts an important influence in de- termining the duties and liabilities of the carrier in the partic- ular case. As we shall hereafter show it may relieve the car- rier from the duty to feed and water and otherwise give par- ticular attention to the stock;^ but it will not relieve the carrier from the duty to afford the owner reasonable opportunities for so doing. The fact that the owner accompanies the stock and takes charge of it may also be important upon the question of contributory negligence. So, where the owner accompanies the stock, under a special contract to care for them himself, he may well be presumed to be as well acquainted with the facts ^ Pennsylvania E. Co. v. Eaiordon, Boehl v. Chicago, etc., R. Co., 44 119 iPa. St. 577, a. c. 13 Atl. E. 324; Minn. 191, s. c. 46 N. W. E. 333, 334, International, etc., E. Co. v. Smith, 1 citing Ang. Carr., §214, etseq.; Hutch. Tex.'App. (Civil Cases) 484; Smith v. Carr. § 217 ; Clarke v. Eochester, etc., MidlandE. Co.,.57L.T.E. 813; Hub- E. Co., 14 N. Y. 570, 67 Am. Dec. 205; sey V. The Saragossa, 3 Woods (U. S. Evans v. Fitchburg E. Co., Ill Mass. C. C.) 380; Harris v. Midland E. Co., 142; 3 Am. & Eng. Ency. of Law 6; 25 W. E. 63 ; Kendall v. London, etc., Moulton v. Eailroad Co., 31 Minn. a5, E. Co., L. E. 7 Exch. 373. See, also, s. c. 16 N. W. E. 497; 2 Wait Act. & ante, § 1516, note 1, on page 2347 ; St. Def., 32. This statement is, perhap8,ra Louis, etc., E. v. Piper, 13 Kan. 505; little too sweeping,a8 the mere fact that Bankard v. Baltimore, etc., E. Co., 34 the shipper accompanied the stock Md. 197. will not necessarily relieve the ship- ^ "Of course, the carrier is relieved per from liability for failing to feed from special care and oversight of the and water, or the like, unless there is animals, where the owner or his agent a special contract to that eflect. accompanies them for that purpose." § 1550 CARRIERS OF LIVE STOCK. 2405 in regard to their loss or injury as the carrier, and as they may have been injured because of his own negligence, or because of their inherent nature and propensities, and not by the neg- ligence of the carrier, it is but just to require him to show the facts. The rule in such cases, therefore, is that the burden of proof is upon the plaintiff to show that a breach of duty upon the part of the carrier caused the injury or loss, and if the car- rier is liable only for negligence the burden is upon the plaintiff to show such negligence.' It has also been held that a railroad company is not liable as an insurer where the car in which animals are shipped is in the possession and con- trol of their owner under a contract that he should take care of them, and that if they are injured by the act of the owner the carrier is not liable no matter whether such act was negli- gent or not.* The court further held, in the case just referred to, that even if the special contract was prohibited by statute, and therefore invalid, there could be no recovery." § 1550. Contributory negligence of owner. — The contribu- tory negligence of the owner of the stock will defeat a recovery by him.' Thus, where there was evidence tending to show that he had attached the halter to a horse in such a manner as to cause restiveness and bad temper and had failed to take off 'Terre Haute, etc., R. Co. u. Sher- Moulton ». St. Paul, etc., E. Co., 31 wood, 132 Ind. 129, s. c. 31 N. E. R. Minn. 85, s. c. 47 Am.E. 781. 781, 55 Am. & Eng. R. Caa. 326, 17 L. ' See, also, Roderick v. Railroad Co., R. A. 339; Clark v. St. Louis, etc., R. 7 W. Va. 54. Co., 64 Mo. 440; McBeath v. Wabash, « Pratt v. Ogdensburg, etc., R. Co., etc., R. Co., 20 Mo. App. 445; St. 102 Mass. 557; Illinois, etc., R. Co. v. Louis, etc., R. Co. v. Weakly, 50 Ark. Brelsford, 13 111. App. 251 ; White v. 397, s. c. 7 Am. St. R. 104, 117, 8 S. W. Winnisimmit Co., 7 Cush. (Mass.) R. 134; Louisville, etc., R. Co. v. 155; Dudley tJ. Camden, etc., Co., 42 Hedger, 9 Bush (Ky.) 645; Boehl v. N. J. L. 25, s. c. 36 Am. R. 501; Boaz Chicago, etc., R. Co., 44 Minn. 191, s. v. Central R., etc., Co., 87 Ga. 463, s. c. 46 N. W. R. 333. c. 13 S. E. R. 711 ; Mobile, etc., R. "Hart V. Chicago, etc., R. Co., 69 Co. v. Mullins, 70 Miss. 730, s. c. 12 Iowa 485, s. c. 29 N. W. R. 597. But So. E. 826 ; Western R. Co. ». Harwell, compare McDaniel v. Chicago, etc., 91 Ala. 340, s. c. 45 Am. & Eng. R. R. Co., 24 Iowa 412; Peters t;. New Cas. 358. Orleans, etc., R. Co., 16 La. Ann. 222; Corp. 153 2406 CARRIERS. § 1550 its shoes it was held that the carrier was entitled to an instruc- tion that if the injuries complained of were caused by the negligence of the plaintiff in such particulars he could not re- cover.' So, where the owner contracts to do the loading and negligently fails to close the door of the car he can not recover for cattle killed by jumping through the open door.^ Indeed, it has been held that where a shipper who agrees to load the stock and knows that one of the car doors is unsafe merely neglects to inform the company's agent, who has no knowledge of the fact, the shipper can not recover for the escape of cattle through the door.' But it has been held, on the other hand, that the mere fact that the shipper, or his agent accompanies the stock,' or assists in loading or unloading,' or knows that the car or stock pens are defective,* will not necessarily con- stitute contributory negligence or relieve the carrier from re- sponsibility. If, however, the shipper selects his own car, with knowledge of the defects,' or having full control negli- gently loads the stock,' or wrongfully and negligently inter- ' Evans v. Fitchburg R. Co., Ill Mass. 142, s. c. 15 Am. R. 19. See, also, Richardson v. Northeastern R. Co., L. R. 7 C. P. 75 ; Northeastern R. Co. V. Richardson, 41 L. J. C. P. 60. ^Newby v. Chicago, etc., R. Co., 19 Mo. App. 391 ; Hutchinson u. Chicago, etc., R. Co., 37 Minn. 524, s. c. 35 N- W. R. 433. 'Betts V. Farmers', etc., Co., 21 Wis. 80, followed in Miltimore v. Chi- cago, etc., R. Co., 37Wis. 190; Jenk: ins V. Chicago, etc., R. Co., 41 Wis. 112. «Moulton V. St. Paul, etc., R. Co., 31 Minn. 85, s. c. 47 Am. R. 781. ° Combe v. London, etc., R. Co., 31 L. T. R. N. 8. 613. 'White V. Cincinnati, etc., R. Co., 89 Ky. 478, s. c. 12 S. W. R. 936, 42 Am. & Eng. R. Cas. 547; Paddock v. Missouri Pac. R. Co., 1 Mo. App. R. 87; Mason v. Missouri Pac. R. Co., 25 Mo. App. 473; Pratt v. Ogdensburg, etc., R. Co., 102 Mass. 557; Gulf, etc., R. Co. V. Trawick, 80 Tex. 270, s. c. 18 S. W. R. 948; Peters v. New Orleans, etc., R. Co., 16 La. Ann. 222. But see Great Western R. Co. v. Hawkins, 18 Mich. 427; Chicago, etc., R. Co. v. Van Dresar, 22 Wis. 511 ; Harris v. Northern Indiana R. Co., 20 N. Y. 232. 'Harris v. Northern Indiana R. Co., 20 N. Y. 232; Coupland v. Housatonic, etc., R. Co., 61 Conn. 531, s. c. 23 Atl. R. 870; Illinois Cent. R. Co. v. Hall, 58 111. 409; Chicago, etc., R. Co. i>. Van Dresar, 22 Wis. 511 ; Carr v. Schafer, 15 Colo. 48; Squire v. New York Cent. R. Co., 98 Mass. 289. 'East Tennessee, etc., R. Co. v Whittle, 27 Ga. 535; Bowie v. Balti more, etc., R. Co., 1 McArthur 94 The Powhatan, 21 Blatch. (U. S. C C.) 18 ; Hutchinson v. Chicago, etc R. Co., 37 Minn. 524, s. c. 35 N. W. R 433; Fordyce v. McFlynn, 56 Ark § 1551 CARRIERS OF LIVE STOCK. 2407 ieres with the managemeiit of the animals during their trans- portation' and thus causes loss or injury to them he can not recover for such loss or injury. § 1551. Cars and appliances — Terminal charges. — As a gen- eral rule the carrier is bound to furnish suitable cars and ap- pliances for the transportation of live stock/ but it is not bound to provide the "safest and best approved motive power with the best appliances in use.'" Some of the authorities hold that the cars must be absolutely safe and sufficient/ but others, in stating the rule, say that they must be reasonably safe for the transportation of stock.' The carrier is bound to provide a suitable car, having in view the usual and ordinary conduct under such circumstances of stock of the kind which it under- takes to carry in the particular instance, even though such conduct may be the result of its natural propensities, but if such a car is provided and the animals are injured because of their natural propensity to kick or otherwise conduct them- selves it is not liable in the absence of negligence in some other respect.* It must furnish a car strong enough to trans- port animals that are ordinarily unruly, but not such as are 424; Fort Worth, etc., E. Co. v. Manchester, etc., R. Co., 16 Q. B. 600; Word, (Tex. Civ. App.) 32 S. W. R. ante, §1478. A statute requiring rail- 14. road companies to furnish double- ' Roderick «. Railroad Co., 7W. Va. decked cars for sheep has been held 54; Leei!. Raleigh, etc., R. Co., 72 N. constitutional. Emerson v. St. Louis, Car. 236; Hart v. Chicago, etc., E. etc., R. Co., Ill Mo. 161, s. c. 19 S. Co., 69 Iowa 485, s. c. 29 N. W. R. 597. W. R. 1113. But see Stanley v. Wa- ■^ Smith V. New Haven, etc., R. Co., bash, etc., R. Co., 100 Mo. 435, 3 In- 12 Allen (Mass.) 531, s. c. 90 Am. terstate Com. R. 176. Dec. 166 ; Union Pac. R. Co. v. Rainey, ^ Illinois Cent. R. Co. v. Haynes, 63 19 Colo. 225, s. c. 34 Pac. R. 986, s. c. Miss. 485; ante, §§ 1472-1475. 61 Am. & Eng. R. Cas. 302 ; Welsh v. * Smith v. New Haven, etc., R. Co., Pittsburg R. Co., 10 Ohio St. 65; 12 Allen (Mass.) 531. Indianapolis, etc., R. Co. v. Strain, 81 = Betts B.Chicago, etc., R. Co., (Iowa) 111. 504; Railroad Co. v. Pratt, 22 60 N. W. R. 623. See, also, Mor- Wall. (U. S.) 123; St. Louis, etc., R. rison v. Phillip etc. Co., 44 Wis. 405, Co. u. Dorman, 72 111. 504 ; Haynes v. s. c. 28 Am. R. 599 ; The Mondego, 56 Wabash R. Co., 54 Mo. App. 582; Fed. R. 268. Rhodes o. Louisville, etc., R. Co., 9 « Betts W.Chicago, etc., R. Co.,(Iowa) Bush (Ky.) 688 ; McDaniel v. Chicago, 60 N. W. R. 623. etc., R. Co., 24 Iowa 412; Austin t). 2408 CARRIERS. § 1551 unusually and extraordinarily vicious for animals of their kind,' at least, where it has no knowledge of that fact. It has been held that a connecting carrier is not bound to transport animals in the same car in which they were delivered to it;' and if it does do so it is liable for injuries caused by defects therein to the same extent as if it were its own car.' So, a railroad company may be liable for injuries caused by de- fects in its stock pens or platforms for loading and unload- ing stock.* But, as we have seen, where the shipper selects his own cars, with full knowledge of defects therein the better rule seems to be that he can not complain of injuries caused by such defects, especially if he has released the carrier and assumed all risk of injuries by reason thereof.^ There is, how- ever, some conflict among the authorities as to whether a provision relieving the carrier from liability, even in the ab- sence of negligence, for injuries caused by unsafe, unsuitable or defective cars, or imposing upon the shipper the duty of deter- mining their safety and sufficiency, is valid." The authorities to which we have already referred in this section in support of the rule that it is the duty of railroad companies to furnish suitable cars and equipments for the transportation of live ' Selby V. Wilmington, etc., R. Co., W. R. 237; Owen v. Louisville, etc., 113 N. Oar. 588, s. c. 18 S. E. R. 88. R. Co., 87 Ky. 626; Chesapeake, etc.. See, also, Wilson v. Hamilton, 4 Ohio R. Co. v. American, etc., Bank, (Va.) St. 722. 23 S. E. R. 935. ^McAlisterw. Chicago, etc., R. Co., ^8ee, ante, §§1480,1550. 74 Mo. 351; Combe v. London, etc., «See Squire v. New York Cent. R. R. Co., 31 L. T. N. S. 613. See, also, Co., 98 Mass. 239; Chippendale c. Morris v. Delaware, etc., R. Co., 2 Lancashire, etc., R. Co., 7 Eng. L. Interstate Com. Rep. 617. & Eq. 395; Kansas City, etc., R. Co. sWallingford v. Columbia, etc., R. v. Holland, 68 Miss. 351; Wilson ». Co., 26 8. Car. 258, s. c. 2 S. E. R. 19, New York, etc., R. Co., 27 Hun (N. 30 Am. &Eng. R. Cas. 40; Combeu. Y.) 149, 'upholding such contracts. London, etc., R. Co., 31 L. T. N. S. But compare Western R. Co. v. Har- 613. See, also, Louisville, etc., R. Co. well, 91 Ala. 340, s. c. 45 Am. & Eng. V. Dies, 91 Tenn. 177, s. c. 18 S. W. R. R. Cas. 358 ; Railroad Co. v. Pratt, 22 266. Wall. (U. S.) 123; Rhodes i). Louis- « Cooke V. Kansas City, etc., R. Co., ville, etc., R. Co., 9 Bush (Ky.) 688; 57 Mo. App. 471 ; Missouri, etc., R. Welsh v. Pittsburg, etc., E. Co., 10 Co. V. Woods, (Tex. Civ. App.) 31 S. Ohio St. 66. § 1551 CARRIERS OF LIVE STOCK. 2409 stock are those in which the liability of such companies for injuries caused by defective or unsuitable cars and the like has been determined. The rule is not, however, limited, in its application, to such cases. A railroad company which is a common carrier of live stock is also liable for loss occasioned by its refusal or failure, upon proper request, to furnish any cars at all, without a good excuse.' It is, in general, bound to furnish suitable cars upon reasonable notice and with reasonable •diligence whenever it can do so without jeopardizing its other business.^ But the duty is not absolute under all circum- stances to furnish any particular number of cars at any par- ticular time, in the absence of a special contract.' Such a carrier is also bound to furnish such suitable stock pens, cat- tle chutes, or other facilities for loading and unloading stock as are reasonably sufficient for the business of the place, and it has been held that where a stock yard is required under this Tule, the carrier can not exact terminal charges for receiving and delivering the cattle through such yard in addition to its regular and legitimate charges for transportation.' But it is held in a very recent case that a railroad company which has been accustomed to deliver cattle at the yards of a stock yard company, off of its own line, by transporting them over the 'Pittsburgh, etc., B. Co. v. Eacer, 596, s. c. 18 Am. & Eng. R. Cas. 530; 5 Ind. App. 209, s. c. 31 N. E. E. 853 ; Galena, etc., R. Co. v. Eae, 18 111. 488, Ballentine v. North Missouri E. Co., s. c. 68 Am. Dec. 574, and note; Bal- 40 Mo. 491, s. c. 93 Am. Dec. 315, and lentine v. North Missouri R. Co., 40 authorities cited in following note. Mo. 491, s. c. 93 Am. Dec. 315; New- ^Ayres v. Chicago, etc., R. Co., 71 port News, etc., R. Co. v. Mercer, 96 Wis. 372, s. c. 37 N. W. E. 432, 5 Am. Ky. 475, 29 S. W. E. 301. St. R. 226, 35 Am. & Eng. R. Cas. 679 ; « Covington Stock Yards Co. v. Pruitt V. Hannibal, etc., R. Co., 62 Keith, 139 U. S. 128, s. c. 11 Sup. Ct. Mo. 527; Guinn v. Wabash, etc., R. E. 461. See, also, Oregon, etc., E. Co. ■Co., 20 Mo. App. 453; Texas, etc., R. v. Ilwaco R. etc., Co., 51 Fed. R. 611 ; Co. u. Nicholson, 61 Tex. 491 ; Scofield Indian River, etc., Co. v. East Coast T. Lake Shore, etc., E. Co., 2 Interstate Transp. Co., 28 Fla. 387, 10 So E. Com. E. 67; Hazel Milling Co. ii. St. 480; Kalamazoo Hack, etc., Co. v. Louis, etc., E. Co., 3 Interstate Com. Sootsma, 84 Mich. 194, s. c. 47 N. W. R. 701; Newport News, etc., E. Co. v. E. 667; Keith v. Kentucky Cent. E. Mercer, 96 Ky. 475, 29 S. W. E. 301. Co., 1 Interstate Com. E. 601; Owen 'Ante, §§1470, 1472-1476; Richard- v. Louisville, etc., E. Co., 87 Ky. 626. son V. Chicago, etc., E. Co., 61 Wis. 2410 CARRIERS. § 1552 stock yard company's line and paying it a fixed sum per car for the right to do so, is under no obligation to a consignee whose place of business is at the stock yard to furnish pens, chutes, or other unloading facilities at its own station in a different part of the city, and is not, therefore, bound in de- fault of such facilities at its own station, to deliver cattle at the stock yards without a separate or additional charge, but by complying with the interstate commerce law and posting schedules, may make a separate terminal charge for delivery at the stock yards.' § 1552. Loading and unloading. — We have shown, in the last preceding section, that it is the duty of a common carrier of live stock to provide reasonable facilities for loading and unloading the stock. It is also bound to afford the shipper reasonable opportunities to load and unload even where he as- sumes the duty of loading and unloading.'' The duty to load and unload stock rests primarily upon the carrier, but it may be imposed upon the shipper by special contract.' If loss or injury is caused by the negligence of the shipper in such a case he can not recover therefor,' and so, if it is caused by his failure to comply with his contract. ° But a railroad company must furnish proper facilities or opportunities for loading and ' Walker v. Keenan, 73 Fed. R. 755. when cattle are received in the com- ' Wabash, etc., R. Co. v. Pratt, 15 pany's pens ready for shipment. 111. App. 177; Abrams v. Milwaukee, Gulf, etc., E. Co. v. Trawick, 80 Tex. etc., R. Co., 87 Wis. 485; Bills?). New 270, s. c. 15 S. W. R. 568; Pruitt v. York Cent. R. Co., 84 N. Y. 5; .John- Hannibal, etc., R. Co., 62 Mo. 527; son V. Alabama, etc., R. Co., 69 Miss. Deming v. Grand Trunk R. Co., 48 191 ; International, etc., R. Co. v. Mc- N. H. 455. Rae, 82 Tex. 614, s. c. 18 S. W. R. 672 ; * Newby v. Chicago, etc., R. Co., 19 Dunn?). Hannibal, etc., R. Co., 68 Mo. Mo. App. 391; Ohio, etc., R. Co. v. 268; Owen v. Louisville, etc., R. Co., Dunbar, 20 111. 623; Chicago, etc., R. 87 Ky. 626, s. c. 9 S. W. R. 698. But Co. v. VanDresar, 22 Wis. 511 ; For- see Roberts v. Great Western R. Co., dyce v. McFlynn, 56 Ark. 424, s. c. 19 4 C. B. N. S. 506, 27 L. J. C. P. 266. S. W. R. 961. 'Squire v. New York, etc., R. Co., sggujrg ^ j^ew York, etc., R. Co., 98 Mass. 239; South, etc., R. Co. v. 98 Mass. 239; Myers «. Wabash, etc.. Henlein, 52 Ala. 606, s. c. 23 Am. R. R. Co., 90 Mo. 98, s. c. 2 S. W. R. 578; Dawson v. St. Louis, etc., R. Co., 263; Penn o. Buffalo, etc., R. Co., 49 76 Mo. 514. Delivery is complete N. Y. 204, s. c. 10 Am. R. 355. § 1553 CAKRIEES OF LIVE STOCK. 2411 unloading the stock and can not make a valid contract exempt- ing itself from all liability by reason of its own negligence in that regard.' And so, on the other hand, it has been held that a contract that the shipper shall load and unload at his own risk does not deprive the carrier of the right to reasona- bly and justly determine when and where the exigencies of traiisportation may require the ^ock to be unloaded.^ If the ways and means for loading are in proper condition and the shipper has assumed the duty of loading, he must have the car loaded so that the train which is to take it will not be un- reasonably delayed, and if he fails to do so he can not recover as for a refusal to receive and carry the stock because the train did not wait for him to finish loading.' § 1553. Duty to feed, water and care for stock. — It is the duty of the carrier, where there is no special contract, to feed, water and care for the stock during transportation,* and it has been held that a usage or custom of the company requiring the shipper to accompany cattle and feed and water them at his own risk and expense will not relieve it from this duty and transfer it to the shipper.* So, the mere fact that the company gives the shipper a pass in order that he or his serv- ant may accompany them will not relieve it from responsi- bility for its failure to take proper care of them.* But the 'Abramsu. Milwaukee, etc., R. Co., etc., E. Co., 68 Mo. 268; Harris v. 87 Wis. 485; Norfolk, etc., R. Co. v. Northern Ind. R. Co., 20 N. Y. 232; Sutherland, 89 Va. 703; Chesapeake, Alabama, etc., R. Co. ■«. Thomas, 89 etc., R. Co. V. American, etc., Bank, Ala. 294, s. c. 7 So. R. 762; Bryant v. (Va.) 23 S. E. R. 935. Southwestern R. Co., 68 Ga. 805, s. c. 'McAHster v. Chicago, etc., R. Co., 6 Am. & Eng. R. Cas. 388; Taff Vale 74 Mo. 351. R. Co. V. Giles, 23 L. J. Q. B. 43. But 'Louisville, etc., R. Co. ■«. Godman, see Cragin v. New York, etc., R. Co., 104 Ind. 490, s. c. 4 N. E. R. 163 ; Era- 51 N. Y. 61. zier V. Kansas City, etc., R. Co., 48 'Missouri Pac. R. Co. v. Eagan, 72 Iowa 571. But see Illinois Cent. R. Tex. 127, s. c. 2 L. R. A. 75, 9 S. W. Co. V. "Waters, 41 111. 73 ; Alabama, R. 749. etc., R. Co. V. Sparks, 71 Miss. 757. ^Feinberg ». Delaware, etc., R. Co., * Illinois Cent. R. Co. v. Adams, 42 52 N. J. L. 451, s. c. 20 Atl. R. 33; 111.474; Toledo, etc., R. Co. ». Ham- Clarke v. Rochester, etc., R. Co., 14 ilton, 76 111. 393; Dunn v. Hannibal, N. Y. 570, s. c. 67 Am. Dec. 205. 2412 CARKIERS. § 1554 owner may assume the duty of feeding and watering the stock and relieve the company therefrom by a valid special contract.' Even then, however, the carrier must furnish proper facilities to the shipper for that purpose in order to escape liability,' and it has been held that it is not relieved from liability by reason of a great rush of business or the like.' It has also been held in Texas that the carrier can not avoid liability without offering the shipper an opportunity and reasonable facilities to feed and water the stock although he did not request it;* but in Mississippi it is held that an instruction that the car- rier is liable if it failed to give the shipper an opportunity to feed and water the stock is erroneous, where there is a special contract in which the shipper assumes that duty and no evi- dence that he requested the carrier to give him an opportunity to do so.° § 1554. Statutory regulations. — In many of the states it is provided by statute that live stock transported by railroad companies shall not be confined for a longer time than a cer- tain period therein specified without food and water.* So, it 'Central R. Co. v. Bryant, 73 Ga. W. R. 651; Gulf, etc., R. Co. v. Gann, 722; Georgia, etc., R. Co. v. Reld, 91 8 Tex. Civ. App. 620, 28 S. W. R. 349. Ga. 377, 8. c. 17 S. E. R. 934 ; South, » International, etc.. R. Co. v. Lewis, etc., R. Co. V. Henlein, 52 Ala. 606, s. (Tex. Civ. App.) 23 S. W. R. 323; c. 23 Am. R. 578; Boazti. Central, etc., Nashville, etc., R. Co. v. Heggie, 86 R. Co., 87 Ga. 463 ; Heineman v. Ga. 210, s. c. 12 S. E, R. 363 ; Gulf, Grand Trunk R. Co., 31 How. Pr. (N. etc., R. Co. v. McAulay, (Tex. Civ. Y.) 430; Ft. Worth, etc., R. Co. v. App.) 26 S. W. R. 475. Daggett, 87 Tex. 322, s. c. 28 S. W. R. * Taylor, etc., R. Co. v. Montgomery, 525, 61 Am. & Eng. R. Cas. 322; 4 Tex. App. (Civil Cases) 401, s. c. 16 Duvenick v. Missouri Pac. R. Co., 57 S. W. R. 178. See, also, Nashville, Mo. App. 550. etc., R. Co. v. Heggie, 86 Ga. 210, s. c. ^Wabash, etc., R. Co. v. Pratt, 15 12 S. E. R. 363. III. App. 177; Taylor, etc., R. Co. t). ' jyjgijjig^ gt^^ j^ q^ ^ Francis, Montgomery, 4 Tex. App. (Civil (Miss.) 9 So. R. 508. Cases) 401, s. c, 16 S. W. R. 178; « Other or additional statutory regu- Dunn V. Hannibal, etc., R. Co., 68 Mo. tions also exist in some of the states. 268 ; Clarke v. Rochester, etc., R. Co., Most of them are referred to in 3 Am. 14 N. Y. 570; Abrams v. Milwaukee, & Eng. Ency. of Law. I6g. See, also, etc., R. Co., 87 Wis. 485, s. c. 61 Am. "Transportation of Live Stock," 19 & Eng. R. Cas. 313 ; Smith v. Michigan Cent. L. Jour. 161, 168. Cent. R. Co., 100 Mich. 148, s. c.58N. § 1554 CARRIERS OF LIVE STOCK. 2413 is provided by act of congress that no railroad company "whose road forms any part of a line of road over which cat- tle, sheep, swine or other animals are conveyed from one state to another" shall confine such stock in cars for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water and feeding, unless prevented from so unloading by storm or other accidental causes.' It is also provided that animals so unloaded shall be properly fed and watered during such rest by the owner or person having the custody thereof, or, in case he fails to do so, by the railroad company, which shall have a lien thereon for food, care and custody furnished, and shall not be liable for any detention of such animals.^ The penalty for failure to comply with the re- quirements of the statute is fixed at not less than one hundred nor more than five hundred dollars, to be recovered in a civil action in the name of the United States.' It has been held that this statute is constitutional, as being within the power of congress to regulate interstate commerce;* that it applies only to the carriage of animals from one state to another, and not where the shipment is from one point to another in the same state;' that the confinement of the entire number of animals in one shipment without unloading for rest, water and feeding in violation of the statute is a single offense, so that the penalty which it prescribes can not be multiplied by the number of an- imals carried,^ and that the carrier is not excused from un- loading as the statute requires by reason of an accident due to its own negligence.' The statute does not, of course, author- ize the carrier to confine the animals for twenty-eight hours 'U. S. Rev. St., §4386. It is pro- * United States v. Boston, etc., R. vided in another section, however, Co., 15 Fed. R. 209. that when animals are carried in cars ^ United States v. East Tennessee, "in which they can and do have etc., R. Co., 13 Fed. R. 642, s. c. 9 proper food, water, space, and oppor- Am. & Eng. R. Cas. 259. tunity to rest, the provisions in regard * United States v. Boston, etc., R. to their being unloaded shall not ap- Co., 15 Fed. R. 209. ply." U. S. Rev. St., § 4388. ' Newport News, etc., Co. v. United 'U.S. Rev. St., §4387. States, 61 Fed. R. 488. See, also, 'U.S. Rev. St., §§4388, 4389. Nashville, etc., R. Co. u. Heggie, 86 Ga. 210, 8. c. 12 S. E. R. 363. 2414 CAKEIEES. § 1555 without food or water if it would be negligent to do so, nor does it relieve the carrier from its common law liability to the owner in damages for injuries or loss caused by its neglect to unload them or its failure to furnish him with facilities or op- portunities for so doing.' Indeed, it has been held that the statute gives the shipper a cause of action for damages for loss or injuries resulting from its violation, which is enforceable in the state courts,^ and that the violation of its provisions by keeping live stock upon the cars for more than twenty-eight consecutive hours, without unloading them for rest, water and feeding, is negligence per se." But it has also been held that the complaint should negative the two exceptions contained in the statute,* and that damages can not be recovered from a railroad company for carrying cattle for more than tvsrenty- eight hours without unloading them where there is a special contract that the shipper shall feed and water them at his own risk, and the evidence is not sufficiently specific to show how much of the damage was caused by the failure to feed and water, the cattle being in poor condition when shipped.' So, where cattle were unloaded and detained twelve hours for rest, water and food in order to comply with the statute, but were reloaded and taken to their destination on the first regular train after they were unloaded it was held that the company was not liable in an action for damages resulting from the de- lay.= § 1555. Liability for delay. — We have elsewhere considered the duty of common carriers to transport goods without un- reasonable delay and their liability for negligently failing to transport and deliver good within a reasonable time,' and little 'Missouri Pac. E. Co. v. Ivy, 79 . R. Co., 20 N. J. Eq. 379. Portland R. Co., 52 N. H. 430. 'Scofield V. Lake Shore, etc., R. Co., ^ Hutchinson on Carriers, (2d ed.) 43 Ohio St. 571, s. c. 54 Am. R. 846; § 447«. McCoy V. Cincinnati, etc., R. Co., 22 §1564 FREIGHT CHAKGES AND DEMURRAGE. 2431 signee, or other proper party entitled to the goods, may ob- tain them by paying the charges exacted as a condition of their delivery, and then sue the carrier for the unlawful ex- cess,' unless the payment was voluntarily made without com- pulsion or duress.^ It is held in some jurisdictions that a protest is necessary,' but the weight of authority is to the ef- fect that, as the parties are not on equal terms, and a protest would be idle, it is unnecessary where the owner is compelled to pay the charges demanded in order to get his goods carried, or to have them delivered to him and released from illegal re- straint.* So, of course, where the payment is made under a mistake of fact, as, for instance, where it is supposed to be the true balance due on legal charges,' or is made in ignorance of 'Parker v. Bristol, etc., E. Co., 6 Exch. 702 ; Parker v. Great Western R. Co., 7 M. & G. 253; Lancashire, etc., R. Co. V. Gidlow, L. E. 7 H. L. Cas. 517,s.c.32L.T.R.573; Crouch v. London, etc., R. Co., 2 C. & K. 789; Lafayette, etc. E. Co. v. Pattison, 41 Ind. 312; Chicago, etc., E. Co. v. Wolcott, 141 Ind. 267, 39 N. E. E. 451 ; Lake Erie, etc., E. Co. v. Condon, 10 Ind. App. 536, s. c. 38 N. E. E. 71 ; McGregor v. Erie R. Co., 35 N. J. L. 89; Harmony v. Bingham, 12 N. Y. 99; Atchison, etc., E. Co. v. Miller, 16 Neb. 661, s. c. 21 N. W. E. 451; Memphis, etc., Co. v. Abell, (Ky.) 30 S. W. R. 658; Atchison, etc., R. Co. V. Goetz, etc., Co., 51 111. App. 151; Galveston, etc., R. Co. v. Short, (Tex. Civ. App.) 25 S. W. E. 142; Seawell v. Kansas City, etc., E. Co., 119 Mo. 224, 9 Lewis' Am. R. & Corp. R. 606, and note. As to the statute of limitations, and when it begins to run, see Carrier v. Chicago, etc., E. Co., 79 Iowa 80, s. c. 6 L. E. A. 799; note in 45 Am. & Eng. E. Cas. 299. 'Killmer v. New York Cent., etc., R. Co., 100 N. Y. 395, s. c. 3 N. E. E. 293, 23 Am. & Eng. E. Cas. 659; Ar- nold V. Georgia, E. etc., Co., 50 Ga. 304; Lafayette, etc., E. Co. v. Patti- son, 41 Ind. 312, and see cases cited in the following note. 'Evershed v. London, etc., E. Co., L. E. 3 Q. B. Div. 134; London, etc., E. Co. V. Evershed, L. E. 3 App. Cas. 1029; Arnold v. Georgia, E. etc., Co., 50 Ga. 304 ; Kenneth v. South Carolina E. Co., 15 Rich. (S. Car. Law) 284; Potomac Coal Co. v. Cumberland, etc., E. Co., 38 Md. 226. * Heiserman v. Burlington, etc., E. Co., 63 Iowa 732, s. c. 16 Am. & Eng. E. Cas. 46, 18 N. W. E. 903; Mobile, etc., E. Co. V. Steiner, 61 Ala. 559; West Virginia Trans. Co. v. Sweetzer, 25 W. Va. 434, s. c. 22 Am. & Eng. R. Cas. 469; Peters v. Marietta, etc., E. Co., 42 Ohio St. 275, s. c. 18 Am. & Eng. E. Cas. 492, 51 Am. E. 814 ; Gra- ham V. Chicago, etc., E. Co., 53 Wis. 473, s. c. 10 N. W. E. 609; Louisville, etc., E. Co. V. Wilson, 132 Ind. 517, s. c. 32 N. E. E. 311 ; Chicago & A. R. Co. v.- Chicago, etc., Coal Co., 79 111. 121 ; Mount Pleasant, etc., Co. v. Cape Fear, etc., R. Co., 106 N. Car. 207, s. c. 42 Am. & Eng. E. Cas. 498. ' Baltimore, etc., E. Co. v. Faunce, 6 Gill (Md.) 68. See, also. National Tube Works v. Baltimore, etc., E. Co., 2432 CARRIERS. § 1565 the fact that rebates were allowed to others and upon the posi- tive representations of the company that no rebates were al- lowed in any case,' the payment is not voluntary in such a sense as to prevent a recovery of the unlawful excess. We have considered this subject without reference to the interstate commerce law, for that is elsewhere treated, and we have stated the rules which govern in the absence of state legislation pro- hibiting unjust discrimination and providing new remedies or denouncing penalties for such discrimination and excessive charges. Most of the state statutes upon the subject prescribe a certain penalty to be recovered at the suit of the shipper or owner of the goods, and, in Kansas, it has been held that the statutory remedy is exclusive and abrogates the common law remedy for the recovery of excessive charges.^ But in other states it has been held that, as the statutes confer no new rights, the remedies which they give are not exclusive of the common law remedy to recover for overcharges.' § 1565. Discrimination — Kebates. — As we have seen,* unjust discrimination in freight charges was not allowed at common law. It is also prohibited by statute in many states, and by the interstate commerce law, which is elsewhere considered. The subject of reasonable rates and unjust discrimination (Pa.) 8 Atl. R. 6, 28 Am. & Eng. K. Swift v. Philadelphia, etc., R. Co., 58 Cas. 13 (mistake as to distance). Fed. R. 858, 64 Fed. R. 59 (with which 'Cook V. Chicago, etc., R. Co., 81 compare Murray v. Chicago, etc., R. Iowa 551, s. c. 46 N. W. R. 1080, 3 Co., 62 Fed. R. 24); Gatton b. Chica- Lewis' Am. R. & Corp. R. 550. go, etc., R. Co., (Iowa) 63 N. W. "Beadle ti. Kansas City, etc., R. Co., R. 589. See, also, Atchison, etc., R. 51 Kan. 248, s. c. 32 Pac. R. 910. See, Co. v. Denver, etc., R. Co., 110 U. S. also, WinsorCoal Co. v. Chicago, etc., 667, s. c. 4 Sup. Ct. R. 185; Chicago, R. Co., 52 Fed. R. 716. etc., R. Co. v. Osborne, 52 Fed. E. ' Young V. Kansas City, etc., R. Co., 912 ; Wabash R. Co. v. Illinois, 118 U- 33 Mo. App. 509; Murray v. Gulf, S. 557, s. c. 7 Sup. Ct. R.4. etc., R. Co., 63 Tex. 407, s. c. 22 Am. *Ante, § 1467. See, also, the elab- & Eng. R. Cas. 464; Heiserman v. orate notes in 9 Lewis' Am. E. & Burlington, etc., R. Co., 63 Iowa 732, Corp. R. 273, et seq., and 619, et seq.. B. c. 18 N. W. R. 903; Fuller v. Chi- in 8 Lewis' Am. R. & Corp. E. 700, cago, etc., R. Co., 31 Iowa 187. But et seq., and in 11 Am. St. R. 647, as to see, as to interstate commerce and the what is unjust discrimination, effect of the interstate commerce law. §1565 FREIGHT CHARGES ANB DEMURRAGE. 2433 under the various state statutes has likewise been treated.' If there is no unjust discrimination an agreement by a railroad company that it will carry goods at a certain rate and repay the shipper a part thereof as a rebate after the shipment is not illegal, and the rebate may be recovered by the shipper in a proper case.' But the allowance of a rebate or drawback to a particular shipper may be an important matter to be consid- ered with other circumstances as tending to show partiality and an unjust discrimination. Thus, it has even been held that the allowance of a rebate to favorite shippers from the regular schedule or tariff rates charged other customers generally for similar services under like conditions is suf- ficient to show an unjust discrimination which gives the customers against whom it is made a right to recover the amounts paid by them in excess of the rates charged the favor- ite shipper after deducting the rebate.' If the contract to pay a rebate is legal and valid the shipper may, as we have seen, recover for a breach thereof, but if there is unjust discrimina- ' Ante, § § 146, 1469. ^Cleveland, etc., R. Co. v. Closser, 126 Ind. 348, s. c. 26 N. E. E. 159, 9 L. E. A. 754, and note; Bayles u. Kansas Pac. E. Co., 13 Colo. 181, s. c. 5 L. E. A. 480; Kansas Pac. R. Co. v. Bayles, 19 Colo. 348, 35 Pac. E. 744; Christie v. Missouri Pac. E. Co., 94 Mo. 453, s. c. 7 S. W. E. 567; Goodridge v. Union Pac. E. Co., 37 Fed. R. 182; McNees v. Missouri Pac. R. Co., 22 Mo. App. 224; Root v. Long Island R. Co., 114N. Y. 300, s. c. 4 L. E. A. 331 ; Ex parte, Benson, 18 S. Car. 38, s. c. 44 Am. E. 564. Nor is it neces- sarily illegal because it is kept secret by the parties. Hoover v. Pennsyl- vania E. Co., 156 Pa. St. 220, s. c. 27 Atl. R. 282, 9 Lewis' Am. E. & Corp. R. 252; Borda v. Philadelphia, etc., R. Co., 141 Pa. St. 484, s. c. 21 Atl. R. 665. 'Cook V. Chicago, etc., R. Co., 81 Iowa 551, s. c. 9 L. R. A. 764. But, as we have elsewhere shown, there are many authorities which hold that it does not necessarily follow that a charge is unreasonable from the mere fact that another is charged less and that the charge is not necessarily un- lawful at common law, unless it in- jures the complainant or has a tend- ency to foster a monopoly, or the like. See, however. Messenger v. Pennsyl- vania R. Co., 36 N. J. L. 407, s. c. 37 N. J. L. 581 (distinguished and modi- fied in Stewart v. Lehigh Valley R. Co., 38 N. J. L. 505); Sharpless v. Mayor, 21 Pa. St. 147; Audenried «. Philadelphia, etc., R. Co., 68 Pa. St. 370; McDuffee v. Portland, etc., E. Co., 52 N. H. 430; New England Ex. Co. V. Maine Cent. E. Co., 57 Me. 188; Scofield v. Lake Shore, etc., E. Co., 43 Ohio St. 571, s. c. 3 N. E. E. 907; Union Pac. E. Co. v. Goodridge, 149 U. S. 680, s. c. 13 Sup. Ct. R. 970. 2434 CAKKIERS. § 1566 tion and the shipper is compelled to rely upon an illegal promise to pay as the gist of his action he can not recover the rebate from the carrier after paying the freight in full.^ So, where the carrier's agent by mistake names a lower rate than that fixed in the schedule, and the contract based thereon is in violation of the interstate commerce law, such contract is void and the carrier is entitled to demand the proper schedule rate as a condition of the delivery of the goods. ^ The shipper can maintain no action against the carrier, in such a case, in which he is compelled to rely upon the illegal contract, and no matter whether the agent of a carrier gives an illegal rate by mistake or intentionally, the shipper can not enforce it against the connecting carrier which is not a party to the con- tract and receives and transports the goods without knowledge of any special agreement.' § 1566. Compensation for special services. — Charges for extra or special services in addition to those required in the transportation of goods are not necessarily excessive and un- lawful even where the total amount charged the shipper is thus caused to exceed the maximum charges allowed by stat- ute for the carriage in the usual manner. Thus, as we shall hereafter show, a railroad company may sometimes charge demurrage for the use of its cars. So, it may charge for ter- minal services rendered after the completion of the transporta- tion,* or for services rendered in conveying property from its depot or regular place for receiving and delivering goods to an 1 Fitzgerald v. Grand Trunk R. Co., ern Pac. R. Co., 10 Mont. 168, s. c. 11 63 Vt. 169, 8. c. 13 L. R. A. 70, 22 Atl. L. R. A. 246. See, also, Merchants' R. 76; Indianapolis, etc., R. Co. v. Cotton Press Co. o. Insurance Co. of Davis, 32 111. App. 67; Indianapolis, North America, 151 U. S. 368, s. c. 14 etc., R. Co. V. Ervin, 118 111. 250; Sup. Ct. R. 367. Hawley v. Kansas, etc., Co., 48 Kan. ^ Savannah, etc., R. Co. v. Bundick, 593, B. c. 30 Pac. R. 14; Parks v. Jacob 94 Ga. 775, s. c. 21 S. E. R. 995. Dold, etc., Co., 27 N. Y. Supp. 289. « Chicago, etc., R. Co. ■!). Hubbell, 54 See, also, Hancock v. Louisville, etc., Kan. 232, s. c. 38 Pac. R. 266. R. Co., 145 U. S. 409, s. c. 12 Sup. Ct. * Ante, § 1551 ; National Tube "Works R. 969. As to the efiect of the inter- Co. v. Baltimore, etc., R. Co., (Pa.) 8 state commerce law on existing con- Atl. R. 6, s. c. 28 Am. & Eng. R. Gas. tracts for rebates, see Bullard v. North- 13. § 1566 FREIGHT CHARGES AND DEMUKEAGE. 2435 elevator' and the like/ or for furnishing food necessary for live stock where it is the owner's duty to furnish it and he fails to do so.' But extra charges can not be made under ordinary circumstances for furnishing proper station accommodations, weighing, checking, loading and unloading goods, or the like, as these things are usually incidents of the carriage and come within the ordinary duty of the carrier as such.* It is some- what difficult to formulate a general rule upon the subject, but we suppose that if the services are such as are customarily ren- dered as part of the transportation itself, or as properly inci- dent thereto, no more than the maximum rate allowed by statute can be' demanded, and a charge of more th&n is custom- arily charged others for like services under like conditions would be unreasonable and excessive, while for services which can not be deemed part of the transportation itself, or are not such as are usually rendered in transporting and delivering goods, a reasonable charge may be made in addition to the statutory or customary rate for the mere transportation itself. It has been held that for a special service, such as the trans- portation of perishable goods by fast freight, requiring the cars to be specially fitted up for that purpose, their withdrawal from other service, their return empty on fast time and un- 'Owen V. St. Louis, etc., E. Co., 83 *Hall v. London, etc., E. Co., L. E., Mo. 454, s. c. 25 Am. & Eng. E. Cas. 15 Q. B. Div. 505, s. c. 22 Am. & Eng. 371. See, also, Providence Coal Co. v. E. Cas. 446 ; Pegler v. Monmouthshire Providence, etc., E. Co., 15 E. I. 303, E. Co., 6 H. & N. 644, s. c. 30 L. J. 26 Am. & Eng. E. Cas. 42. Exch. 249. See, also, Lancashire, etc., ^See Johnson v. Cayuga, etc., E. E. Co. v. Gidlow, L. E., 7 H. L. Cas. Co., 11 Barb. (N. Y.) 621; Pryce v. 617, s. c. 32 L.T. 573; Burlington, etc., Monmouthshire E. Co., 49 L. J. Exch. E. Co. v. Chicago, etc., Co., 15 Neb. 130, s. c. L. E. 4 App. Cas. 197; Dun- 390, a. c. 19 N. W. E. 451; Neston kirk Colliery Co. v. Manchester, etc., Colliery Co. v. London, etc., E. Co., 4 E. Co., 2 Nev.& Mac. 402; Monmouth- E. Canal Tr. Cas. 257. Where con- shire B. Co. V. "Williams, 27 L. T. E. tract for special rate was void, it was 134; London, etc., E. Co. v. Price, L. held that carrier might collect usual E. 11 Q. B. Div. 485, b. c. 62 L. J. Q. rate. Chicago, etc., E. Co. v. Hub- B. Div. 764. bell, 54 Kan. 232, 38 Pac. 266. See, ' Great Northern E. Co. ■s.Swaffield, also. Savannah, etc., E. Co. v. Bun- 43 L. J. Exch. 89, s. c. L. E. 9 Exch. dick, 94 Ga. 776, 21 S. E. E. 995. 132. See, also. Story on Bailments, 686. 2436 CARRIERS. § 1567 usually prompt delivery of the goods at their destination, a carrier may charge a higher rate than that for the carriage of ordinary freight.* So, it has been held that a miller whose flour is taken directly from his mill into the cars of the car- rier can not complain that the carrier bears a portion of the expense of cartage of other millers in the same city whose flour has to be carted to the cars of the carrier.^ §1567. Demurrage. — It has been said that the right to de- murrage exists only in maritime law and is confined to carriers by water.^ But, while it is probably true that this right is de- rived by analogy from the maritime law as administered in America,* the more recent authorities have almost unanimously upheld the right of railroad companies to make demurrage charges in proper cases. As said by one of the courts, "we see no satisfactory reason why carriers by railroads should not be entitled to compensation for the unreasonable delay or de- tention of their vehicles as well as carriers by sea.'" After a carrier has completed its services as such, it has a right to charge extra compensation for storing the goods in a warehouse and keeping them after the consignee has had a reasonable time in which to remove them.* Why, then, when its duties as a carrier have been performed, and a reasonable time has elapsed, is it not as much entitled to additional compensation 'Delaware State Grange, etc., v. Lumber Co., 15 Neb. 390, b. c. 19 N. New York Cent., etc., R. Co.,. 3 Inter- W. R. 451; Chicago, etc., R. Co. ». state Com- R. 554. See, also. Loud v. Jenkins, 103 HI. 588; Hutchinson on South Carolina R. Co., 4 Interstate Carriers, (2d ed.) §473a. See, also, Com. R. 205; Burton Stock Car Co. ■!). Crommelin v. New York, etc., R. Co., Chicago, etc., R. Co., 1 Interstate 4 Keyes (N. Y.) 90. Com. R. 329. « In England, it has been said, ^Macloon v. Chicago, etc., R. Co., 3 no such right exists even under the Interstate Com. R. 711 ; Hezel Milling maritime law in the absence of any Co. V. St. Louis, etc., R. Co., 3 Inter- contract for damages. See note in 22 state Com. R. 701. See, also, Chicago, L. R. A. 530. etc., R. Co. ». People, 67 111. 11, s. c. 5]vij]ler v. Georgia R. etc., Co., 16Am. R. 599; Dunkirk Colliery Co. 88 Ga. 563, s. c. 15 S. E. R. 316, 50 V. Manchester, etc., R. Co., 2 Nev. & Am. & Eng. R. Cas. 79, 18 L. R. A. Mac. 402; Savitz v. Ohio, etc., R. Co., 323. 150 111. 208, 37 N. E. R. 235. « Hutchinson on Carriers, (2d ed.) Burlington, etc., R. Co. v. Chicago §378. §1567 FREIGHT CHARGES AND DEMURRAGE. 2437 for the use of its cars and tracks as for the use of its warehouse. Certainly a customer whose duty it is to unload or who un- reasonably delays the unloading of a car for his own benefit ought not to complain if he is made to pay a reasonable sum for the unreasonably delay caused by his own act. But this is not all. The public interests also require that cars should not be unreasonably detained in this way. Railroad companies as common carriers are "bound to furnish cars for transportation of freight, and they must have control over their cars in order to perform their duties to the public. A car in motion is a useful thing, but a car standing idle and unloaded on the track is useless, and an incumbrance. If A. be allowed to hold a car unloaded (or loaded) at his pleasure or convenience, with- out cost or charge, and thus deprive the railroad company of the use of its vehiples for transportation of the freight of B. it is obvious that both the railroad company and the public will suffer injury.'" It is also well settled that common carriers may make reasonable rules and regulations for the convenient ' Per Fauntleroy, J., in Norfolk, etc., R. Co. V. Adams, 90 Va. 393, s. c. 18 S. E. R. 673, 22 L. R. A. 530. In the case of Miller v. Georgia E. etc., Co., 88 Ga. 563, s. c. 15 S. E. E. 316, 50 Am. & Eng. R. Cas. 79, the court said : "The law compels the carrier to re- ceive the goods of the public, and to transport and deliver them within a reasonable time. * * * To do this it is necessary that the means of trans- portation shall be under the carriers' control, and that after the duty of car- riage has been performed its vehicles shall not be converted into store- houses, at the will of consignees, to remain such indefinitely and without compensation. If no check could be placed on such detention, itis plain that the business of transportation would be at the mercy of private interest or caprice, and that carriers thus hamp- ered in their facilities, and unable to Corp. 155 foresee the time or extent to which their vehicles would be diverted from the work of carriage, could not pro- vide properly for the demands of trafiic, or perform with dispatch their legitimate function. It would place upon the carrier the burden and ex- pense of supplying numerous vehicles not needed for the hauling of freights, thus requiring it to provide extra fa- cilities as well as to render extra service, without compensation beyond that received for transportation. It would result in the accumulation of cars on the carriers' tracks, and the obstruction in a greater or less degree of the movement and unloading of trains. Not only would loss ensue to the carrier, but consignees and ship- pers in general and the people at large must suffer seriously from this hin- drance to the due and regular course of transportation." 2438 CARRIERS. § 1567 transaction of their business. It follows, from this line of reasoning, that railroad companies may adopt and enforce gen- eral rules, which are, or ought to be, known to their customers, making a reasonable charge for the unreasonable detention of their cars.' In a number of cases a charge of one dollar a day for the detention of a car after the lapse of forty-eight hours, Sundays and legal holidays excepted, has been held not to be unreasonable as a matter of law.^ So, a charge of two dollars a day, after the lapse of twenty-four hours has been enforced where the customer knew of the rule at the time the shipment was made.' Where corn was shipped to a way-station, subject to the shipper's order, and he allowed it to remain there until he sold it, knowing that the person he had expected to receive and pay for it could not do so and that he was expected to pay a dollar a day for the use of the car while the corn was in it, the court held that he could not recover such demurrage which he had been compelled to pay either upon the ground that it was an "overcharge in freight," or "money paid in excess of what was due the defendant for services rendered."* So where a statute forbade railroad companies to charge or receive any fee ' Miller ?). Georgia R., etc., Co., 88 tucky Wagon, etc., Co. v. Ohio, etc., Ga. .563, s. c. 15 S. E. R. 316, 18 L. R. R. Co., (Ky.) ?,2 S. W. R. 595, s. c. 12 A. 323, 50 Am. & Eng. R. Cas. 79, and Lewis' Am. R. & Corp. R. 48 ; Griffith note quoting from Union Pac. R. Co. V.Kansas City, etc., R. Co., Circuit V. Cooke, Diet. Ct. of Arapahoe Co., Ct. of Jackson Co., Mo., February, Col., April, 1892, and Kentucky 1896; Kansas Pac. R. Co. ». McCann, Wagon, etc., Co. v. Louisville, etc., 2 Wyom. 3. R. Co., Law & Eq. Ct., of Louisville, ' Kentucky Wagon, etc., Co.!). Ohio, Ky., Dec. 20, 1891; Norfolk, etc., R. etc., R. Co., (Ky.) 32 S. W. R. 595, s. Co. V. Adams, 90 Va. 393, 8. c. 18 S. E. c. 12 Lewis' Am. R. & Corp. R. 48; R. 673, 22 L. R. A. 530, and note Miller v. Georgia R. etc., Co., 88 Ga. citing Ohio, etc., R. Co. u. Bannon, .563, s. c. 15 S. E. R. 316, 50 Am. & Common Pleas Ct. of Louisville, Ky., Eng. R. Cas. 79, and note. See, also, June 20, 1892; Chicago, etc., R. Co. v. reports of railroad commissioners re- Pioneer Fuel Co., Dist. Ct. of Wood- ferred to in note in 22 L. R. A. 532. bury Co., Iowa, January, 1892; Mil- » Miller b. Mansfield, 112 Mass. 260; waukee, etc., R. Co. v. Lynch, Cir- Union Pac, etc., R. Co. v. Cooke, cuit Ct. of Oneida Co., Wisconsin, Dist. Ct. of Arapahoe Co., Colorado, October 15, 1892, and Gofi v. Old March 25, 1892. Colony R. Co., Sixth Dist. Ct. of * Hunt w. Missouri, etc., R. Co., (Tex. Rhode Island, January 19, 1893 ; Ken- Civ. App.) 31 S. W. R. 523. § 1567 FREIGHT CHARGES AND DEMURRAGE. 2439 or commission for transportation, storage or delivery other than the regular transportation fees, storage and other charges authorized by law for manifesting, receiving or shipping, it was held that a rule imposing a charge of one dollar a day for the detention of a car, after notice to the consignee of its ar- rival and the lapse of seventy-two hours, was not unreason- able or in violation of the statute.' The court said that such charge was not for transportation, storage or delivery, but was for the use and occupation of the cars and the obstruction of the track by the consignees for an unreasonable time after the contract for transporting and delivering the freight had been fulfilled. Where a shipper consigned a certain number of car loads of grain to himself at a station on a connecting line, and the grain in transit was transferred from the cars of the initial carrier to the cars of the connecting line, a notice by the car- rier to the shipper of the arrival of the number of cars of grain consigned, in its cars bearing certain numbers, was held suffi- cient notice to render him liable for demurrage on his failure to unload it within proper time after arrival, without stating in what cars it was originally shipped or into what particular cars it had been transferred.^ It was held in the cases cited in the first note to this section that a railroad company can have no lien for demurrage charges, but, as we have seen, those cases deny in toto the right to charge for delay or detention of cars, in the absence of a contract, and, to that extent at least, are contrary to the weight of authority. In several of the cases which assert the right to charge demurrage it is expressly held that the company may have a lien for such charges, and in others there are intimations to the same effect.' 'Norfolk, etc., R. Co. v. Adams, 90 Ct. of Rhode Isand, January 19, 1893 Va. 393, s. c. 18 S. E. R. 673, 22 L. R. Kentucky Wagon, etc., Co. v. Ohio A. 530. etc., R. Co., (Ky.) 32 S. W. B. 595, s "Galveston, etc., R. Co. «. Hunt, c. 12 Lewis' Am. R. & Corp. R. 48,54, (Tex. Civ. App.) 32 S. W. R. 549. See, also, Barker v. Brown, 138 Mass ' Griffith 1). Kansas City, etc., R. Co., 340; Schmidt «. Blood, 9 Wend. (N decided by the Circuit Court of Jack- Y.) 268, 24 Am. Dec. 143, 148, and son Co., Missouri, February, 1896; note; Steinman v. Wilkins, 7 W. & Miller v. Mansfield, 112 Mass. 260; S. (Pa.) 466, 42 Am. Dec. 254, and Groff «. Old Colony R. Co., Sixth Dist. note; Alden u. Carver, 13 Iowa 253. 2440 CARRIERS. § 1568 § 1568. Car service associations. — Where there are connect- ing carriers it is frequently more convenient both for them and for their customers to enforce demurrage charges by means of "Car Service Associations." Such associations are usually formed by the voluntary act of the different companies each of which usually has a representative upon the executive com- mittee, and the rules adopted by the association in regard to demurrage charges are accepted by them and become their own rules. "That there may be a reasonable charge for the deten- tion of the carrier's cars by the consignee or consignor beyond a reasonable time within which to load and unload them can not now be doubted, and that such charges may be imposed and enforced through what are known over the country as 'Car Service AsiBociations,' is equally well settled.'" Such associations, formed for the purpose of making and enforcing reasonable regulations to facilitate business and secure the prompt loading, unloading and return of cars, can not be held illegal upon the ground that the constituent companies by be- coming members surrender their corporate functions and con- trol to the associations, nor upon the ground that, under the rules adopted, one of the members is authorized to collect charges on cars that belong to other members, nor because imposing and enforcing charges for detention through the as- sociation, involves, in effect at least, an agreement by the dif- ferent members to make their charges uniform.^ § 1569. Collecting cliarges. — Connecting carriers. — We have already seen that a carrier may require the payment of freight in advance, but that if it fails to do so and there is no contract to pay before delivery, it can not, as a general rule, maintain an action for the freight until it has delivered or properly offered to deliver the goods. A demand, by mistake, of more But compare East Tenn., etc., R. Co. ^ Kentucky Wagon, etc., Co. v. V. Hunt, 15 Lea (Tenn.) 261. Ohio, etc., R. Co., (Ky.) 32 S. W. 1 Kentucky Wagon, etc., Co. v. R 595, s. c. 12 Lewis' Am . R. & Corp. Ohio, etc., E. Co., (Ky.) 32 S. W. R. 48. R. 595, s. c. 12 Lewis' Am. R. & Corp. R. 48. 4 1569 FKEIGHT CHARGES AND DEMURRAGE. 2441 than is due is no defense to an action for what is due and does not waive a tender of the proper amount.' But it has been held that a carrier, by limiting its claim to services performed between certain dates, may make those dates material so as to prevent a recovery in such action for services performed before or after the time designated.* The carrier usually, however, enforces the payment of freight or collects it by holding and selling the goods, if necessary, by virtue of its lien, of which we shall treat in the next section. As a general rule the con- signor, whether the owner or the agent of the owner of the goods, is regarded as having authority to agree to the terms of transportation,' and a carrier receiving goods for transporta- tion beyond its own line has the implied authority, in the absence of anything to the contrary, to select any of the usual routes, and is regarded as the forwarding agent of the owner, so that a subsequent independent connecting carrier, receiving the goods in the usual and ordinary course of business, with- out notice of any special agreement with the initial carrier, is entitled to demand the ordinary and usual freight for its services in transporting them to their destination.* It has also been held that it may require prepayment of the freight, ° and is entitled to a lien not only for its own charges but also for freight properly paid by it to the preceding carrier.^ But ' Loewenberg v. Arkansas, etc., R. 149 Mass. 196; ante, § 1451, where nu- Co., 56 Ark. 439, s. c. 19 S. W. E. merous authorities are cited. 1051. ^Eandall v. Richmond, etc., R. Co., ^ Manchester, etc., R. Co. v. Fisk, 108 N. Car. 612, s. c. 49 Am. & Eng. 33 N. H. 297. R. Cas. 74; ante, § 1558. ^Ryan v. Missouri, etc., R. Co., 65 ^Potts v. New York, etc., R. Co., 131 Tex. 18, s. c. 23 Am. & Eng. R. Cas. Mass. 455, s. c. 41 Am. R. 247 ; Moore 703; Hutchinson on Carriers, § 265; v. Henry, 18 Mo. App. 35; Briggs v. ante, §§ 1408, 1507. Boston, etc., R. Co., 6 Allen (Mass.) •Price V. Denver, etc., R. Co., 12 246; Bird v. Georgia, etc., R. Co., 72 Colo. 402, 8. c. 21 Pac. R. 188; Patten Ga. 655, s. c. 27 Am. & Eng. E. Cas. V. Union Pac. R. Co., 29 Fed. R. 590 Missouri, etc., R. Co. ■». Stoner, 5 Tex Civ. App. 50, s. c. 23 S. W. R. 1020 Schneider v. Evans, 25 Wis. 241. See also. Wolf V. Hough, 22 Kan. 659 Crossan v. New York, etc., R. Co., 39; Knight ij. Providence, etc., R. Co., 13 E. I. 572, s. c. 9 Am. & Eng. E. Cas. 90 ; Moses v. Port Townsend, ete., E. Co., 5 Wash. St. 595, s. c. 32 Pac. R. 488, 1000. See, also, ante, § 1451. 2442 CARRIERS. § 1570 it has been held that although goods are shipped under a special contract as to charges without notice to the connecting carrier, and the waybill shows charges in excess of the contract rate, if the connecting carrier, without paying such charges, carries the goods to their destination but refuses to deliver them on tender of the contract price, which exceeds the amount due it, such connecting carrier is liable for damages sustained by the consignee by its failure to deliver after having a reasonable time to ascertain the facts about the special contract.' If the initial carrier agrees to transport goods to their destination be- yond its own line at a guaranteed rate and the connecting car- riers charge the shipper a higher rate the initial carrier is lia- ble to him for the excess.'' It is not unusual for the last car- rier, as agent for the first, to collect the freight due the first carrier as well as its own.' § 1570. Carrier's lien for freight. — It is well settled that a carrier is entitled to a lien upon the goods transported by it to secure the freight which is justly due for their transportation. Speaking generally, this lien is co-extensive with the right to recover freight.' It is a specific and not a general lien, that is, it is confined to charges and advances upon the particular goods* for, or incident to, their transportation.* The carrier has no general lien, in the absence of a contract, statute or governing custom to that effect, upon goods transported by it, ' Illinois Cent. R.Co.b. Brookhaven, * Bacharach v. Chester Freight Line, etc., Co., 71 Miss. 663, s. c. 16 So. R. 133 Pa. St. 414, s. c. 19 Atl. R. 409; 252. See, also, Evansville, etc., R. Co. Pennsylvania R. Co. v. American Oil V. Marsh, 57 Ind. 505. Works, 126 Pa. St. 485 ; Pharr v. Col- * Detroit, etc., R. Co., «. McKenzie, Kns, 35 La. Ann, 939, s. c. 48 Am. R. 43 Mich. 609, s. c. 9 Am. & Eng. R. 251. Caa. 15; Little Rock, etc., R. Co. ii. « Miller u. Mansfield, 112 Mass. 260; Daniels, 49 Ark. 352, s. c. 32 Am. & Steamboat Virginia v. Kraft, 25 Mo. Eng. R. Cas. 479. 76 ; Illinois Cent. R. Co. v. Alexander, 'Trottier v. Red River, etc., Co., 20 111.23; Culbreth D.Philadelphia, Manitoba (T. Wood) 255. etc., R. Co., 3 Houst. (Del.) 392; 'Ewart V. Kerr, Rice L. (S. Car.) Lambert v. Robinson, 1 Esp. 119; 203; Hall v. Dimond, 63 N. H. 565; Kinnear v. Midland R. Co., 19 L. T. Dyer v. Grand Trunk R. Co., 42 Vt. N. S. 387. 441. §1570 FREIGHT CHARGES AND DEMURRAGE. 2443 for a general balance of account or freight due it upon other goods previously transported.' But, as we have seen, the car- rier's lien may include the charges of a prior connecting car- rier.^ So, import duties paid by the carrier may be included,' and a more comprehensive lien than that which existed at common law is provided for by statute in many of the states.* But a connecting carrier which receives goods with notice that the freight has been paid in advance for through transporta- tion, or that the goods have been wrongfully diverted to its route is not entitled to a lien for charges.' So, as against the tri;e owner who is no way in fault, a carrier acquires no right to a lien for charges upon the goods which it carries for one who wrongfully has possession of them and has no authority to direct their shipment.* But where there is no question of this kind and the carrier is entitled to a lien, such lien is su- perior to the owner's right of stoppage in transitu and he ' Eushforth v. Hadfleld, 6 East 519; Butler V. Woolcott, 2 B. & P. N. E. 64 ; Leonard's Exrs. v. Winslow, 2 Grant (Pa.) 139; Bacharach v. Chester Freight Line, 133 Pa. St. 414, s. c. 19 AtL E. 409; McFarland r;. Wheeler, 26 Wend. (N. Y.) 467; note in 42 Am. & Eng. E. Cas. 364. ^Ante, §§ 1451, 1569. See, also, Bis- sel V. Price, 16 111. 408, 413; Vaughan ». Providence, etc., R. Co., 13 E. I. 578; Wells v. Thomas, 27 Mo. 17; Georgia R. Co. v. Murrah, 85 Ga. 343, 8. c. 11 S. E. R. 779. 'Guesnard v. Louisville, etc., E. Co., 76 Ala. 453, s. c. 23 Am. & Eng. E. Cas. 691 ; Dennie v. Harris, 9 Pick. (Mass.) 364; Harris v. Dennie, 3 Peters (U. S.) 292. See Cleveland, etc., R. Co. V. McClung, 119 U. S. 454, s. c. 28 Am. & Eng. R. Cas. 70; Wyman v. Lancaster, 32 Fed. R. 720. * See 13 Am. & Eng. Ency. of Law, 580. "Marsh v. Union Pac. R. Co., 9 Fed. R. 873, s. c. 6 Am. & Eng. R. Cas. 359; Travis t-. Thompson, 37 Barb. (N. Y.) 236; Bird v. Georgia, etc., R. Co., 72 Ga. 655, s. c. 27 Am. & Eng. R. Cas. 39; Denver, etc., E. Co. V. Hill, 13 Colo. 35, s. c. 4 L. E. A. 376. But compare Wolf v. Hough, 22 Kan. 659 ; Crossan v. New York, etc., E. Co., 149 Mass. 196, s. c. 40 Am. & Eng. R. Cas. 136, and note. See ante, § 1451. * Stevens v. Boston, etc., R. Co., 8 Gray (Mass.) 262 ; Robinson v. Baker, 5 Cush. (Mass.) 137; Gibsonc. Gwinn, 107 Mass. 126; Pingree v. Detroit, etc., R. Co., 66 Mich. 143, s. c. 33 N. W. R. 298; Kohn v. Richmond, etc., R. Co., 37 S. Car. 1; Travis v. Thomp- son, 37 Barb. (N. Y.) 236; Collman v. Collins, 2 Hall (N. Y.) 569; Vaughan V. Providence, etc., R. Co., 13 R. I. 578, s. c. 9 Am. & Eng. R. Cas. 41 ; Ames V. Palmer, 42 Me. 197; ante, § 1451. But the rule seems to be otherwise in England. Hutchinson on Carriers, (2d ed.) § 489, et seq. ; Redman's Law of Railway Carriers, (2d ed.) 84. 2444 CARRIERS. § 1571 must pay the carrier's charges on the particular goods before he is entitled to their possession/ although the goods can not be held by the carrier to compel him to pay a general balance due it from the consignee.^ The lien of a carrier and ware- houseman for transporting and keeping goods is also superior to that of a pledgee who procured such transportation and storage/ But the fact that the carrier has a superior lien and may detain the goods, does not give it the right to injure or abandon them, and it is bound to take reasonable measures for their preservation and protection while it detains them for its charges.* § 1571. Enforcement of lien. — If the freight is not paid within a reasonable time after the arrival of the goods at their destination, the carrier, having performed its part of the con- tract of carriage and being ready to deliver upon payment of the carriage, may store the goods with a responsible ware- houseman, either in the name of the owner, subject to its lien, or in its own name,^ and such warehouseman will hold them as the representative of the carrier for the purpose of preserv- ing its lien.° The carrier may proceed in equity to obtain a 'Potts V. New York, etc., R. Co., Co., 53 Minn. 327, s. c. 55 N. W. E. 131 Mass. 455, s. c. 3 Am. & Eng. R. 141. Gas. 424; Pennsylvania Steel Co. v. 'St. Louis, etc., R. Co. ■«. Flanna- Georgia, R. etc., Co., 94 Ga. 636, s. c. gan, 23 lil. App. 489; Scarfe v. Mor- 21 S. E. R. 577; Raymond i>. Tyson, gan, 4 M. & W. 270; Georgia, R. 17 How. (IT. S.) 53; Chandler v. Bel- Co. u. Murrah, 85 Ga. 343, s. c. 11 S. den, 18 Johns. (N. Y.) 157; Benjamin E. R. 779, (not liable if they are lost on Sales, § 836. See, also, Rucker v. or destroyed without fault or negli- Donovan, 13 Kan. 251, s. c. 19 Am. gence on its part). R. 84, holding that such lien takes ^Western Transp. Co. ». Barber, 56 precedence of any claims against the N. Y. 544 ; Gregg v. Illinois Cent. B. owner or consignee of goods. Co., 147 111. 550, s. c. 35 N. E. R. 343; ' Oppenheim v. Russell, 3 B. & P. Hall v. Dimond, 63 N. H. 565, s. c. 3 42; Jackson o. Nichol, 5 Bing. N. Atl. R. 423. Safer, perhaps, in its Cas. 508; Farrell v. Richmond, etc., own name. R. Co., 102 N. Car. 390, s. c. 3 L. R. « Alden v. Carver, 13 Iowa 253 ; The A. 647; Pennsylvania R. Co. v. Amer- Eddy, 5 Wall (U. S.) 481; Brittan v. ican Oil Works, 126 Pa. St. 485. See, Barnaby, 21 How. (IT. S.) 527; West- also. Mercantile, etc.. Bank v. Glad- ern Transp. v. Barber, 56 N. Y. 544; stone, L. R. 3 Exch. 233. Compton v. Shaw, 1 Hun (N. Y.) 441; 'Cooley V. Minnesota Transfer R. Indianapolis, etc., R. Co. B. Hemdon, § 1572 FREIGHT CHAKGES AND DEMURRAGE. 2445 judicial decree for their sale to satisfy its lien,' but it can not, in the absence of statutory authority, proceed to sell them without a judicial decree,^ except, perhaps, in case of necessi- ty. There are, however, statutes in many of the states pro- viding for the sale of goods to satisfy the lien of the carrier without resorting to the courts.' The provisions of the gov- erning statute should be carefully followed in such a case and the sale fairly conducted.* So, where the goods are of a per- ishable character and the consignee will not accept them," or there are other reasons requiring a sale without delay, the car- rier may be justified in selling the goods because of the neces- sity in the particular case.' The carrier is not, however, con- fined to its lien for the collection of its charges. It may main- tain an action at law to recover them, in a proper case, even if it has waived its lien.' § 1572. Waiver and loss of lien. — The lien of the carrier is lost by an unconditional delivery or voluntary surrender of the goods upon which it was held.' But there may be a con- 81 111. 143; Gregg v. Illinois Cent. E. 'See 13 Am. & Eng. Ency. of Law, 147 111. 550, s. c. 35 N. E. R. 343. 580, et seq. for a synopsis of the pro- ' Crass V. Memphis, etc., R. Co., 96 visions of many of statutes. Ala. 447, 8. c. 11 So. R. 480, 55 Am. & « Martin v. McLaughlin, 9 Col. 153 ; Eng. R. Cas. 659. See, also, Indian- Nathan Bros. v. Shivers, 71 Ala. 117 ; apohs, etc., R. Co. v. Herndon, 81 111. North v. London, etc., R. Co., 14 C. 143; Westmoreland v. Foster, 60 Ala. B. N. S. 132, 32 L. J. C. P. 156; Field 448; Rankin u. Memphis, etc., Packet v. Newport, etc., R. Co., 3 H. & N. Co., 9 Heisk. (Tenn.) 564, s. c. 24 Am. 409, s. c. 27 L. J. Exch. 396 ; Adams R. 339; Saltus v. Everett, 20 Wend. Exp. Co. e. Schlessinger, 75 Pa. St. (N. Y.) 267, s. c. 82 Am. Dec. 541. 246. "Myers v. Bay more, 10 Pa. St. 114, ^Rankin v. Memphis, etc., Co., 9 s. c. 49 Am. Dec. 586; Fox ». McGre- Heisk. (Tenn.) 564, s. c. 24 Am. R. gor, 11 Barb. (N. Y.) 41; Hall v. 339. Ocean Ins. Co., 37 Fed. R. 371 ; Hunt « Notara v. Henderson, L. R. 5 Q. B. V. Haskell, 24 Me. 339; Gracie ». 346; Butler v. Murray, 30 N. Y. 88; Palmer, 8 Wheat. (U. S.) 605; Briggs Propeller Mohawk, 8 Wall. (U. S.) V. Boston, etc., R. Co., 6 Allen (Mass.) 153. 246; Lickbarrow ». Mason, 6 East 21, 'See ante, § 1559; Gait v. Archer, 7 note; Wilson v. Dickson, 2 Barn. & Gratt. (Va.) 307. Aid. 2; Jones ». Pearle, 1 Strange 556. ' Gregg v. Illinois Cent. R. Co., 147 The purchaser would not get a good 111. 550, s. c. 35 N. E. R. 343; Reine- tit'le. man u. Covington, etc., R. Co., 51 2446 CAKKIERS. §1572 ditional delivery reserving the lien,' and if the delivery is ob- tained by fraudulent representations/ or if the possession of the goods is tortiously taken away from the carrier/ its lien is not waived. Nor is it waived either in whole or in part by a delivery of part of the property unless such is the intention of the parties. The whole amount of the freight is a lien upon each and every part of the goods, and, while the delivery of a part releases the lien upon that part it does not operate as a waiver of the lien upon the balance for the entire amount of the freight due upon all the goods.' A refusal to deliver the goods upon other grounds, without asserting or claiming any lien, has been held to be a waiver of the carrier's right to detain them on the ground that it has a lien on them for its freight.' So, it has been held that the carrier waives its lien by suing out an attachment and causing it to be levied on the same property.' It may also be waived by giving credit in the contract of car- riage beyond the time when the property is to be delivered Iowa 338, s. c. 1 N. W. R. 619; Ge- neva, etc., R. Co. V. Sage, 35 Hun (N. Y.)9.5; Bigelowc. Heaton, 4 Denio (N.Y.) 496; Lake Shore, etc., R. Co., V. Ellsey, 85 Pa. St. 283 ; Sears v. "Wills, 4 Allen fMass.) 212; Bailey v. Quint, 22 Vt. 474 ; Egan v. Cargo of Laths, 43 Fed. R. 480. 'The Eddy, 5 Wall. (U. S.) 481; Bags of Linseed, 1 Black (U. S.) 108; CoBtelloc. Seven Hundred, etc., Laths, 44 Fed. R. 105; McCullough v. Hell- wig, 66 Md. 269, s. c. 7 Atl. R. 455; Cuff V. Ninety-five tons of Coal, 46 Fed. R. 670. • Bigelow V. Heaton, 4 Denio. (N. Y.) 496, 8. c. 6 Hill 43 ; One Hundred, etc., Tons of Coal, 4 Blatchf. (U. S.) 368; Hays v. Riddle, 1 Sandf. (N. Y.) 248; Wallace v. Woodgate, Ryan & M. 193. 'Bogys V. Martin, 13 B. Mon. (Ky.) 2.39. See, also. Lane v. Old Colony, etc., R. Co., 14 Gray (Mass.) 143. 'New Haven, etc., Co. v. Campbell, 128 Mass. 104, s. c. 35 Am. R. 360; Lane v. Old Colony R. Co., 14 Gray (Mass.) 143 ; Fuller v. Bradley, 25 Pa. St. 120. See, also, Philadelphia, etc., R. Co. V. Dows, 15 Phila. (Pa.) 101 ; Chicago, etc., R. Co. v. Northwestern, etc., R. Co., 38 Iowa 377 ; Fox v. Holt, 36 Conn. 558; Sodergren v. Flight, 6 East 622, note, and compare New York, etc., R. Co. V. Sanders, 134 Mass, 53. A partial delivery will not be deemed a constructive delivery of all, so as to waive the carrier's lien, unless such was the intention of the parties, and that is usually a question of fact. Boggs V. Martin, 13 B. Mon. (Ky.) 2.39; New Haven, etc., Co. v. Camp- bell, 128 Mass. 104. 5 Adams Ex. Co. v. Harris, 120 Ind. 73, s. c. 21 N. E. R. 340, 7L. R. A. 214, 40 Am. & Eng. R. Cas. 151 ; Lehigh v. Mobile, etc., R. Co., 58 Ala. 165. See, also, Louisville, etc., R. Co. v. Mc- Guire, 79 Ala. 395. * Wingard v. Banning, 39 Cal. 543. § 1572 FREIGHT CHAHGES AND DEMUKEAGE. 2447 and placed out of the carrier's possession and control.' But this is true only when the contract or stipulation is clearly in- consistent with the idea that the freight is to be paid as a con- dition precedent to delivery or that the carrier is to have its lien, for the presumption is in favor of its existence, in the absence of anything to the contrary, and the carrier will not be deprived of the security which is thus afforded it, unless the terms of the agreement, or other circumstances, are clearly inconsistent with the retention of the goods for that purpose." iPinney v. Wells, 10 Conn. 104; « The Bird of Paradise, 5 Wall. (U. Chandler v. Belden, 18 Johns. (N. Y.) S.) 545 ; The Kimball, 3 Wall. (U. S.) 157; Chase v. Westmore, 5 M. & S. 37; Crawshay i). Honfray, 4 B. & Aid. 180; Eaymond ». Tyson, 17 How. (U. 50; Howard «. Macondray, 7 Gray S.) 53; Alsager v. St. Katherine's (Mass.) 516; Tate v. Meek, 8 Taunt. Dock Co., 14 M. & W. 794; Tomvaco 280; The Schooner Volunteer, 1 Samn. V. Simpson, 19 Com. B. N. S. 453, L. (U. S.) 551. R. 1 0. P. 363. CHAPTER LXVI. RAILROADS AS CAEKIERS OF PASSENGERS. ) 1573. 1574. 1575. 1576. 1577. 1578. 1579. 1580. 1581. 1582. 1583. The general doctrine. The duty to carry. Refusal to carry— Extraordi- nary press of business. Excuses for refusal to carry — Disregard of rules and regulations. Excuses for refusal to carry — Improper or unfit persons. Who are passengers. The relation of passenger and carrier — When it begins. Relation of passenger and carrier — Authority of sub- ordinate employes to create. Trespassers and intruders. Taking passage on freight trains, hand-cars and the like. Nature of the liability as a carrier of passengers. §1584. 1585. 1586. 1587. 1588. 1589. 1590. 1591. 1592. Accidents. Degree of care required of railroad passenger carriers — General rule. Duty as to road-bed and tracks. Duty as to engines, cars, equipments and appliances. Duty to provide and equip trains with modem and improved appliances. Care required in operation of trains. Station buildings — Depots — Negligence in maintaining. Duty to protect passengers from injury by third per- sons. Termination of the relation of carrier and passenger. § 1573. The general doctrine. — Railroad companies are, as a general rule, public carriers of passengers. There may, of course, be railroad companies that are not public carriers of passengers, as for instance, a company operating a road ex- clusively for its own private purpose,' or for the exclusive ' Wade ■». Lutcher, etc., Co., 74 Fed. who rode on one of the trains by R. 517, citing Hutchinson on Car- direction of the company's superin- riers, §57. In the case of Albion tendent, and the rule that the happen- Lumber Co. v. DeNobra, 72 Fed. R. ing of an accident is prima fade evi- 739, it was held that a lumber com- dence of negligence was also applied, pany operating a railroad for the pur- It seems to us that in some respects pose of hauling logs was liable as a the case goes too far. The cases of carrier of passengers to an employe Hoar v. Maine, etc., R. Co., 70 Me. (2448) § 1573 CAKRIEES OF PASSENGERS. 2449 transportation of freight, but these are exceptional instances for the rule that railroad companies are public carriers is almost universal. It is safe to say that a company incorpo- rating under a general law, or accepting a special charter, grant- ing the franchise of owning and operating a railroad becomes a public carrier of passengers insomuch as the consideration for the grant is the implied undertaking on its part to serve the community as a public carrier.' It is not, however, the duty of a railroad company to carry passengers on all of its trains for it may designate the trains on which passengers shall be carried and no one can justly demand to be trans- ported as a passenger on any other trains than those provided and equipped for the transportation of passengers or those on which passengers are customarily carried or on which the company invites them to travel. Where a railroad company holds out to the public that it will carry passengers on speci- fied trains or cars it may be held bound to carry passengers on such cars or trains.^ But it does not follow that because a person runs trains over a railroad he is necessarily a public carrier of passengers.' It has been held that where trains are run over a railroad the presumption is that they are managed 65; Duff V. Allegheny, etc., E. Co., 91 Wall. 369, the distinction between a Pa. St. 458, and Morris v. Brown, 111 private and public carrier was pointed N. Y. 318, were distinguished. out and it was held that a contractor ^Ante, §§1392, 1393; Beckman v. who ran construction trains over the »a, etc., R. Co., 3 Paige 45. road was not a public carrier of pas- See Gibson v. Mason, 5 Nev. 283; sengers. The court cited the case of Davig v. Mayor, 14 N. Y. 506; Slatten Sullivan v. Philadelphia, etc., R. Co., V. Des Moines, etc., R. Co., 29 Iowa 30 Pa. St. 234. But one who runs 148. trains for the carriage of passengers "International, etc., Co. ■». Prince, over a railroad owned by a railroad 77 Tex. 560. See Nashville, etc, R. company may be a public carrier. Co. V. Messino, 1 Sneed 220; Dlabola Davis v. Button, 78 Cal. 247, s. c. 18 V. Manhattan, etc., R. Co., 29 N. Y. Pac. R. 133, 20 Pac. R. 545. See, S. R. 149; Oviatt u. Dakota, etc., R. generally, Caldwell v. Richmond, Co., 43 Minn. 300; Kellow v. Central etc., R. Co., 89 Ga. 550, s. c. 15 S. E. Iowa, etc., R. Co., 68 Iowa 470; Citi- R. 678; Truex v. Erie, etc., R. Co., 4 zens', etc., R. Co. v. Twiname, 111 Lans. 198; Gruber v. Washington, Ind. 587; Galveston, etc., E. Co. v. etc., R. Co., 92 N. C. 1, s. c. 21 Am. Hewitt, 67 Tex. 473. & Eng. E. Cas. 438. "In Shoemaker v. Kingsbury, 12 2450 CAREiEES. § 1573 and controlled by the company owning the road, and the burden is on such company to prove that it did not operate the road^ but, although the trains run over the same road, it may be shown that the particular train was not operated by the company owning the road.^ We suppose that where differ- ent and independent carriers run trains over the same road and a person takes passage on one of the trains under a con- tract with one of the companies that the company with which the contract is made is to be regarded as the carrier and an- swerable for injuries resulting from negligence in managing the particular train/ although the company owning the road may be responsible for injuries caused by a negligent breach of duty in respect to the track, the road-bed or the like.* It is probably true that a passenger would have a right of action against the lessee company for injuries received while travel- ing on one of its trains, because of the negligence of such company in running trains over an unsafe track/ According to the prevailing view the passenger in such a case might maintain an action against both companies.* We have hereto- fore considered the rule regarding the liability of lessor and lessee and expressed the opinion that where the lease is author- ized and the lessor has no control over the trains it is not liable for injuries resulting from negligence in operating the trains.' 'Ferguson v. Wisconsin, etc., R. ' See authorities cited in tlie follow- Co., 63 Wis. 145, s. c. 23 N. W. R. ing note. 123. Mrefe, §§459, 466,467,468,469. See, * Andersons. Des Moines, etc., Co., also, Nugent v. Boston, etc., E. Co., (Iowa) 66 N. W. R. 64. 80 Me. 62 ; Mahoney v. Atlantic, etc., 'Chicago, etc., R. Co. v. Groves, R. Co., 63 Me. 68; Naglee ti. Alexan- (Kan.) 44 Pac. R. 628; Byrne v. Kan- dria, etc., R. Co., 83 Va. 707; Little- sas City, etc., R. Co., 61 Fed. R. 605; John v. Fitchburg, R. Co., 148 Mass. Smith V. St. Louis, etc., R. Co., 85 478; St. Louis, etc., R. Co. v. Curl, 28 Mo. 418; Webb v. Portland, etc., R. Kan. 622: Killian v. Augusta, etc., E. Co., 57 Me. 117. Co., 78 Ga. 749 ; Macon, etc., R. Co. v. *Ante, §§ 467^69; Central, etc., Co. Mayes, 49 Ga. 355 ; Chattanooga, etc., V. Phinazee, 93 Ga. 488, s. c. 21 S. E. R. Co. v. Liddell, 85 Ga. 482, s. c. 11 R. 66. S. E. R. 853 ; International, etc., K. 'Chase u. Jamestown, etc., R. Co., Co. o. Dunham, 68 Tex. 231; GuU, 38 N. Y. S. R. 954. etc., R. Co. v. Morris, 67 Tex. 692; f 1574 CAKKIERS OF PASSENGERS. 2451 § 1574. The duty to carry.— There is a general duty on the part of railroad companies to receive and carry passengers. A rail- road company does not occupy the same position as an individ- ual carrier insomuch as it assumes the duty of serving the public as a consideration for the rights and privileges granted it by the sovereign.' It is, therefore, erroneous to accept the statement of some of the old books upon this subject. Under the modern decisions the rule is clear, for they affirm that a railroad company is under an obligation to carry persons who properly present themselves and request transportation.^ It is to be understood, of course, that there are cases in which a railroad company may rightfully refuse to accept persons as passengers. It is not every person that the carrier is bound to accept as a passenger, nor is it bound under all circum- stances to receive passengers, for, as we shall hereafter show, the carrier may in many cases be excused for refusing to ac- cept persons as passengers.' § 1575. Refusal to carry — Extraordinary press of business. — The principle which is asserted in the cases holding that a common carrier of things is excused where its failure to carry is caused by an unusual press of business applies to passenger carriers. It seems quite clear that if the carrier is disabled by an unusual press of business from accepting all who offer themselves as passengers it can not be held guilty of a breach of duty.* We suppose that it is the duty of a railroad com- Ingersoll v. Stockbridge, etc., E. Co., Hutchinson on Carriers, §538; Wood 8 Allen 438 ; Pennsylvania R. Co. ■!;. on Railroads, 978. St. Louis, etc., R., 118 U. S. 290. 'Post, ^1577. ^Ante, §§ 1392, 1393. ♦Chicago, etc., R. Co. v. Carroll, 5 *Lake Erie, etc., R. Co. v. Acres, 111. App. 201; Evansville, etc., R. Co. 108 Ind. 548, s. c. 28 Am. & Eng. R. v. Duncan, 28 Ind. 441 ; Chicago, etc., Cas. 112; Bennett v. Dutton, 10 N. H. R. Co. v. Fisher, 31 111. App. 36. It 481 ; Jencks v. Coleman, 2 Sumn. 221 ; is held, however, that although a car- Pearson V. Duane, 4 Wall. 605; Indi- rier is not bound to receive "an un- anapolis, etc., R. Co. v. Rinard, 46 usual and unexpected number of pas- Ind. 293; Hannibal, etc., R. Co. v. sengers," yet, if it does receive them Swift, 12 Wall. 262; Mershon v. Ho- it is liable for a failure to exercise bensack, 22 N. J. Law 872 ; Galena, that degree of care which the law re- etc, R. Co. ». Yarwood, 15 111.468; quires. Evansville, etc., R. Co. v. 2452 CAKRIEKS. §1576 pany to exercise due care and diligence to meet demands that it has reason to expect will be made upon it/ but we think it is going too far to say, as some of the authorities do, that it is bound to do all that human foresight and care can do to ena- ble it to meet the extraordinary demand. § 1576. Excuses for a refusal to carry — Disregard of rules and regulations. — Railroad companies have a general power to make reasonable rules and regulations for the government of their business^ and to require persons who seek to become passengers, to conform to such rules and regulations. A per- son who refuses to comply with such rules and regulations can not maintain an action against a railroad company for refus- ing to accept him as a passenger. The authorities warrant the conclusion that passengers must know that rules and reg- ulations are necessary to the proper conduct and management of the business affairs of a railroad company and must take notice of general rules and regulations." It is always essential, Duncan, 28 Ind. 441, s.c. 3 Am. Negl. Cas. 91, 95. But see Chicago, etc., E. Co. «. Dumser, (111.) 43 N. E. E. 698. The case just cited may, per- haps, be discriminated from the other decisions in that the railroad com- pany having specially invited an un- usual number of persons was bound to make provision for them. ' Chicago, etc., E. Co. v. Fisher, 31 111. App. 36. See Purcell v. Rich- mond, etc., E. Co., 108 N. C. 414, s. c. 12 S. E. E. 954, 47 Am. & Eng. R. Cas. 457; Branch v. Wilmington, etc., E. Co., 77 N. Car. 347. ' Crawford v. Cincinnati, etc., E. Co., 26 Ohio St. 580 ; Drake ». Pennsylva- nia E Co., 137 Pa. St. .352, s. c. 20 Atl. E. 994; ante, §§199,200,202. See, also, Hurst ■«. Great Western E. Co., 19 C.B. (N.S.) 310; Gordon ii.Manchester, etc., E. Co., 52 N. H. 596 ; Denton v. Great Northern E. Co., 5 El. & Bl. 860 ; EogersB. Atlantic, etc.,R. Co., (N. J.) 34 Atl. E. 11 ; Boster v. Chesapeake, etc., E. Co., 36 W. Va. 318, s. c. 15 S. E. E. 158, 52 Am. & Eng. E. Cas. 357; McEae v. Wilmington, etc., R. Co., 88 N. C. 526, s. c. 43 Am. E. 745; Britton V. Atlanta, etc., R. Co., 88 N. Car. 536, s. c. 43 Am. R. 749; Chicago, etc., R. Co. V. Graham, 3 Ind. App. 28, s. c. 29 N. E. R. 170; Chicago, etc., R. Co. V. McLallen, 84 111. 109; State V. Chovin, 7 Iowa 204 ; Florida, etc., R. Co. V. Hirst, 30 Fla. 1, s. c. 11 So. R. 506; Gray v. Cincinnati, etc., B. Co., 11 Fed. R. 683; Johnson v. Con- cord, etc., E. Co., 46 N. H. 213; Northern, etc., E. Co. v. O'Conner, 76 Md. 207. 5 Gulf, etc., R. Co. V. Moody, (Tex. Civ. App.) 30 S. W. R. 574; South- ern, etc., R. Co. V. Hinsdale, 38 Kan. 507, s. c. 16 Pac. R. 937. Tele- graph companies are governed by substantially the same rules as rail- road carriers and it is held that they may make reasonable rules and regu- lations of which persons dealing with §1576 CARRIERS OF PASSENGERS. 2453 we may add, that such rules should be reasonable, should not violate the law and should not assume to relieve the carrier from the performance of duties which the law does not permit it to evade or refuse to perform.' Where the company estab- lishes reasonable rules and regulations a passenger has no right to require a conductor to deviate from them.^ Courts will not control the exercise of a discretionary power conferred upon a railroad company, and hence will not annul or disre- gard reasonable rules regarding the trains on which passengers shall be carried, the places and times where trains shall stop, the division of passengers into first and second class, the time and mode of purchasing tickets and of entering trains and the like, but courts will interfere in cases where there is a clear abuse of discretion or an illegal attempt to evade the perform- ance of duties enjoined by law, or to deprive the public of rights which the law awards them.' them must take notice. Behm v. Western Union Telegraphi Co., 8 Bias. 131 ; Birney v. New York Telegraph Co., 18 Md. 341; United States, etc., Co.i).Gildersleve, 29 Md. 232 ; Western Union Tel. Co. v. Neel, 86 Tex. 368, s. c. 25 S. W. R. 15. See, generally .Given V. Western Union Telegraph Co., 24 Fed. R. 119; Western Union, etc., Co. V. Harding,103 Ind. 505, s. c. 3 N. E. R. 172 ; Stevenson v. Montreal Telegraph Co., 16 U. C. Q. B. 530. As to the duty of passenger to ascertain when and where rules require trains to stop, see Atchison, etc., R. Co. v. Gants, 38 Kan. 608; Dietrich v. Pennsylvania R. Co., 71 Pa. St. 432. But, see, Lake Shore, etc., R. Co. v. Rosenzweig, 113 Pa. St. 519, s. c. 6 Atl. R. 545, 26 Am. & Eng. R.Cas. 145; Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 631, s. c. 31 N. W. R. 544; New York, etc., R. Co. V. Winter, 143 U. S. 60, s. c. 12 Sup. Ct. R. 356. It is held that a passenger is not bound to take notice Corp. 156 of secret rules but may rely on the statements of the conductor. Georgia, R. etc., Co. V. Murden, 86 Ga. 434, s. c. 12 S. E. R. 630. 1 Eddy V. Rider, 79 Tex. 53 ; Norfolk, etc., R. Co. V. Wysor, 82 Va. 250, s. c. 26 Am. & Eng. R. Cas. 234; Central, R. etc., Co. V. Strickland, 90 Ga. 562, s. c. 16 S. E. R. 352; Day v. Owen, 5 Mich. 520; Brown v. Memphis, etc., R. Co., 4 Fed. R. 37. See, generally, Mahoney v. Detroit, etc., R. Co., 93 Mich. 612; Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588, s. c. 43 Am. R. 185; South, etc., R. Co. v. Rhodes, 25 Fla. 40, s. c. 5 So. R. 633, 3 L. R. A. 733; Louisville, etc., R. Co. B.Fleming, 14 Lea (Tenn.) 128, s. c. 18 Am. & Eng. R. Cas. 347; Chilton v. St. Louis, etc., R. Co., 114 Mo. 88, s. c. 21 S. W. R. 457. 2 Lake Shore, etc., R. Co. v. Pierce, 47 Mich. 277, s. c. 11 N. W. R. 157, 3 Am. & Eng. R. Cas. 340. 'Cleveland, etc., R. Co. v. Bartram, 2454 CAKEIEHS. §1577 § 1577. Excuses for refusal to carry — Improper or unfit persons. — A railroad carrier may excuse its refusal to accept a person as a passenger by showing that because of his character, conduct, or condition he is not a fit person to enter its trains with other persons, but it is held that prima facie every citizen is entitled to be carried as a passenger.' A carrier can not rightfully refuse to carry a person who is ill,^ unless the disease from which he is suffering is contagious or so loathsome as to render him unfit to enter a car with other travelers.^ A car- rier, it has been held, is excused from transporting a person who goes upon its train for the purpose of committing a crime or one who is fleeing from justice.* It is held that a carrier is not bound to accept as a passenger one who desires to travel for the purpose of depriving it of business.' We think that 11 Ohio St. 457 ; Watkins v. Pennsyl- vania E. Co., 21 D. C, 1, 52 Am. & Eng. E. Caa. 159; International, etc., E. Co. V. Goldstein, 2 Tex. App. (Civil Cases) 206; Browne v. Ealeigh, etc., E. Co., 108 N. Car. 34, s. c. 12 S. E. E. 958, 47 Am. & Eng. E. Cas. 544; Houston, etc., E. Co. V. Moore, 49 Tex. 31; Sira V. "Wabash, etc., E. Co., 115 Mo. 127, s. c. 21 S. W. E.905; Caterham E. Co. W.London, etc., E. Co.,1 C. B. (N. S.) 410; Connell v. Mobile, etc., E. Co., (Miss.) 7 So. E. 344; Texas, etc., E. Co. u. Ludlam, .57 Fed. E. 481; Pennsylvania Co. i . Wentz, 37 Ohio St. 333; Chicago, etc., E. Co. .,. Eandolph, 53 111. 510; West Chester, etc., E. Co. V. Miles, 55 Pa. St. 209; Pennsylvania E. Co. r. Langdon, 02 Pa. St. 21 ; Macon, etc., E. Co. v. .John- son, 38 Ga. 409. For an example of an unreasonable rule, see Pittsburgh, etc., E. Co. V. Lyon, 123 Pa. St. 140, s. c. 16 Atl. E. 607. ' Norfolk, etc., E. Co. v. Galliher, 89 Va. 6.39; Chicago, etc., E. Co. Johnson u. Concord, etc., R. Co., 234, s. c. 41 Am. R. 23; Beebe v. 46 N. H. 213, s. c. 88 Am. Dec. 199. Ayres, 28 Barb. (N. Y.) 275; Breen See, also, Gulf, etc., R. Co. ■«. Moody, v. Texas, etc., R. Co., 50 Tex. 43; (Tex. Civ. App.) 80 S. W. R. 574. Wentz v. Erie, etc., R. Co., 3 Hun «See ante, ^200. In Maine, how- (N. Y.) 241; Denny v. New York ever, the statute prohibits railroad Cent. R. Co., 5 Daly (N. Y.) 50; companies from denying stop-over Johnson v. Philadelphia, etc., R. Co., privileges. Carpenter «>. Grand Trunk 63 Md. 106; Kellett v. Chicago, etc., R. Co., 72 Me. 388, 39 Am. R. 340, 3 R. Co., L'2 Mo. App. 356. Am. & Eng. R. Cas. 432: Dryden v. 'Burnham v. Grand Trunk R. Co., Grand Trunk R. Co., 60 Me. 512. See, 63 Me. 298, s. c. 18 Am. R. 220; Tar- also, Robinson v. Southern Pac. Co., bell v. Northern Cent. R. Co., 24 105 Cal. 541, a. c. 28 L. R. A. 773. Hun (N. Y.) 51 ; Palmer v. Railroad »Oil Creek, etc., R. Co. v. Clark, 72 Co., 3 S. Car. 580, s.c. 16 Am. R. 750; Pa. St. 231. See, also, Petrie ^>. Penn- New York, etc., R. Co. v. Winter's sylvania R. Co., 42 N. J. L. 449 ; Mc- Admr., 143 U. S. 60, s. c. 12 Sup. Ct. R. Clure V. Philadelphia, etc., R. Co., 34 356. Md. 532, s. c. 6 Am. R. 345; Yorton ' Dietrich v. Pennsylvania R. Co., V. Milwaukee, etc., E. Co., 54 Wis. 71 Pa. St. 432, s. c. 10 Am. R. 711. § 1596 TICKETS, FAEES AND PASSES. 2493 is good only for one continuous passage, and does not give a right to stop over and make the journey piecemeal.' § 1596. Through tickets — Coupons. — There is some conflict among the authorities upon the subject of through tickets over several different roads, but the rule which is supported both by the better reason and by the weight of authority is that even when the ticket does not expressly provide that the first com- pany is acting for the other companies merely as their agent in selling it, the rights of the passenger and the duties and responsi- bilities of the different companies are substantially the same as if the ticket had been purchased at the office of each com- pany separately, unless there is something in the contract making the first company responsible beyond its own line.^ A consequence of this rule is that the purchaser, after com- pleting his journey on one line, need not take the first con- necting train on the next line, but may stop over and use the ticket upon any one of the connecting lines at any time within the life of the ticket.' In other words, the contract is, in 'Terry v. Flushing, etc., E. Co.. 13 28 N. Y. 217, s. c. 84 Am. Dec. 333, Hun (N. Y.) 359; Dumphy v. Erie and note; Candee *>. Pennsylvania R. R. Co., 10 Jones & S. (N. Y.) 128; Co., 21 Wis. 582, a. c. 94 Am. Dec. 566; Craig v. Great "Western R. Co., 24 U. Illinois Cent. R.Co. v. Copeland, 24 111. C. Q. B. 504. 332, s. c. 76 Am. Dec. 749; Najac v. ^Hartan v. Eastern R. Co., 114 Boston, etc., R. Co., 7 Allen (Mass.) Mass. 44; Pennsylvania R. Co. v. 329; Watkins ». Pennsylvania R.Co., Connell,112;lll.295, s.c. 18Am. &Eng. 21 D.C.I; Wolff i>. Central R., etc., R. Cas. 339, 54 Am. R. 238; Penn- Co., 68 Ga. 653, s. u. 6 Am. & Eng. R. sylvania R. Co. v. Schwarzenberger, Cas. 441 ; Mytton v. Midland R. Co., 45 Pa. St. 208 ; Young v. Pennsylvania 4 H. & N. 615 ; Great Western R. Co. R. Co., 115 Pa. St. 112, s. c. 28 Am. & v. Blake, 7 H. & N. 987 ; Kent v. Mid- Eng. R. Cas. 114; Nashville, etc., R. land R. Co., L. R. 10 Q. B. 1. It may Co. V. Sprayberry, 9 Heisk. (Tenn.) be responsible where the contract is 852; Hood v. New York, etc., R. Co., joint or a partnership exists. See ante, 22 Conn. 1, 502 ; Lundy v. Central Pac. §§ 1444, 1445 ; Croft v. Baltimore, etc., R. Co., 66 Cal. 191, s. c. 56 Am. R. 100; R. Co., 1 McArthur (U. S. C. C.) 492; Mosber v. St. Louis, etc., R. Co., 127 Champion v. Bostwick, 18 Wend. (N. U. S. 390, s. c. 8 Sup. Ct. E. 1324; Y.) 175, s c. 31 Am. Dec. 376, and Gulf, etc., R. Co. V. Looney, 85 Tex. note. 158, s. c. 19 S. W. R. 1039; Sprague v. > Auerbach v. New York Cent. R. Smith, 29 Vt. 421, s. c. 70 Am. Dec. Co., 89 N. Y. 281, s. c. 42 Am. R. 290, 424. But see Wilhams w. Vanderbilt, 6 Am. & Eng. R. Cas. 334 ; Brooke v. 2494 cAERiEKS. § 15yG effect, an entire and separate contract with each company over whose road it is issued, and the traveler is not obliged to make a continuous journey, without stop, over all the different roads, but he is obliged to make a continuous trip, in the absence of any stop-over privileges, over any one of the particular roads after he has once begun his journey over that road. Another consequence of the rule is that the traveler, where his through ticket is limited as to time, must begin his journey over the last connecting line within the time limited in the ticket or coupon over that line, and if he does not do so it will not be good over such line even though he may have begun Lis jour- ney at the original place of departure on a connecting line in time to have completed it over all the lines but was prevented from so doing by delay on one of such prior connecting lines.' In several cases it has been suggested, but not decided, that the first company can only be presumed to act as agent of tlie connecting lines, so as not to become liable for their defaults, where the ticket issued is a coupon ticket and each coupon purports to be the ticket of the connecting line over which it is used;^ but, while most of the authorities wo have cited in support of the general rule were cases in which coupon tickets were issued, we see no good reason why the rule should not apply where through tickets are issued in other forms ho long as there is nothing to indicate that the first company intciulcil to guaranty through transportation or to assume liability for the acts of others and did not act merely as their agent.' It is Grand Trunk R. Co., 15 Mich. 332; runs no train on tljut day, he may, it Knight V. Portland, etc., R. Co., .56 seoms, take passage on the first train Me. 2.'54, 8. c. 96 Am. Dec. 449; Mil- the next day. Liltle Hock, eti'., R. nor V. New York, etc., R. Co., 4 Daly Co. -". Dean, 43 Ark. r,'».), s. c. .51 .\rn. (N. Y.) 3.55; Little Rock, etc., R. Co. R. r,si, 21 Am. & Eng. R. Cas. 279. t). Dean, 43 Ark. .529, s. c. 51 Am. R. '^t-.n Louisville, (itc, R. ('.>. v. 584, 586; Nichols v. Southern Pac. Wi'.avcr, 9 Lea fTcnn.) 38, s. c. 42 Co., 23 Ore. 123, s. c. 31 Pac. R. 296, Am. R. 654; fiulf, etc, R. Co. v. 18 L. R. A. 55, 58. Looney, 85 Tex. 1.58, s. c. 19 rs. ^\' , R. 'Pennsylvania Co. v. lline, 41 Ohio 1039, 52 Am. & Eng. ,U. Cas. 197. St. 276; Gulf, etc., R. Co. «. Looney, 'Sec Hood v. New York, etc., R. 85 Tex. 158, s. c. 19 S. W. R. 1039, .52 Co., 22 Conn. 1, 502; 3 Wood on Rail- Am. & Eng. R. Cas. 197. If the last roads, 1062, note 1, day is Sunday and the last company § 1597 TICKETS, FAKES AND PASSES. 2495 usually provided that coupons shall not be good if detached, but, as the contract is regarded as the distinct and separate contract of each road over whose line a coupon calls for trans- portation, it has been held that a ticket with part of the cou- pons attached is assignable or transferable, in the absence of any provision prohibiting its transfer, and good over the roads for which the attached coupons are issued, even in the hands of one who has bought it at a reduced rate.' Their assigna- bility may, however, be restricted by provisions in the con- tract.^ The sale of a ticket to a station on a connecting line creates no implied contract that any particular train will stop at that station or that it will be reached without change of cars or waiting at other stations for other trains.' § 1597. Round trip tickets. — A round trip excursion ticket is good until used, in the absence of any limitation or notice to the contrary at the time of its purchase.* Where it is used by the purchaser in going to the station named therein and is then sold and transferred by him, it is valid in the hands of the holder, in the absence of any restrictions as to transferring it, and entitles him to a return passage, subject to its limita- tions as to time and the like.' Where such a ticket contained a statement that it was "not good for passage if detached," the first four words being upon the "going part" and the words "if detached" being upon the "returning part," it was held that it was good for passage where both parts were presented to the conductor on the "going" trip in good faith, although they had become detached by accident. ° So, where the return 'Nichols V. Southern Pac. Co., 23 'Pennsylvania E. Co. v. Spicker, Ore. 123, s. u. 31 Pac. R. 296, 18 L. E. 105 Pa. St. 142, s. c. 23 Am. & Eng. A. 55. E. Cas. 672. ^Drummond v. Southern Pac. E. ^Carsten u. Northern Pac. E. Co, 44 Co., 7 Utah 118, 25 Pac. E. 733 ; Cody Minn. 454, s. c. 47 N. W. E. 49 ; Hoff- V. Central Pac. E. Co., 4 Saw. (U. S. C. man v. Northern Pac. E. Co., 45 Minn. C.) 114 ; Granier v. Louisiana, etc., E. 53, s. c. 47 N. ^Y. E. 312. Co., 42 La. Ann. 880. ^ Wightman v. Chicago, etc., E. Co., ^Atchison, etc., E. Co. ?). Cameron, 73 Wis. 169, s. c. 9 Am. St. E. 778. 66 Fed. E. 709. See, also, Duling ii. But it would be otherwise if the holder Philadelphia, etc., E. Co., 66 Md. 120, had violated the contract by pur- s. c. 6 Atl. R. 592. posely detaching them himself, and a 2496 CARRIERS. §1598 coupon of a round trip ticket was taken up by mistake on the going trip, and the going coupon was presented for return passage with an explanation of the facts, it was held that it was the duty of the conductor to accept it and that the passen- ger could not be rightfully ejected.' But where one of the conditions of a round trip ticket required it to be stamped and ;iigned at the destination before it would be good for the return trip, it was held that the holder who had neglected to have this done was not entitled to return passage thereon, and might be ejected, for refusing to pay fare, although he offered to prove his identity.' § 1598. Limited tickets. — The right of a railroad com- pany to limit the time within which a ticket over its road shall be good is well settled.' But the limitation must be reasona- ble.' Subject to this qualification a ticket may be limited conductor is not bound to accept a detached coupon in such a case, at least without seeing the entire ticket. Norfolk, etc., E. Co. v. Wysor, 82 Va. 250, 8. c. 26 Am. & Eng. R. Cas. 234 ; Boston, etc., R. Co. v. Chipman, 146 Mass. 107, s. c. 4 Am. St. R. 293, 34 Am. & Eng. R. Cas. 336; Louisville, etc., R. Co. V. Harris, 9 Lea (Tenn.) 180, s. c. 42 Am. R. 668, 16 Am. & Eng. E. Cas. 374; De Lucas v. New Orleans, etc., R. Co., 38 La. Ann. 9,30. 'Pennsylvania Co. v. Bray, 125 Ind. 229, s. c. 25 N. E. R. 439. But see ante, §§ 1593, 1594. ^Edwards v. Lake Shore, etc., R. Co., 81 Mich. 364, s. c. 3 Lewis' Am. R. & Corp. R. 166; Mosher v. St. Louis, etc., R. Co., 127 U. S. 390, s. c. 8 Sup. Ct. R. 1324; Boylan v. Hot Springs R. Co., 132 U. S. 146, s. c. 10 Sup. Ct. R. .50; Western Maryland R. Co. V. Stocksdale, (Md.) 34 Atl. R. 880. But see Gulf, etc., R. Co. v. St. John, (Tex. Civ. App.) 35 8. W. R. 601. ^Rowitzkyr. Louisville, etc., R. Co., 40 La. Ann. 47, s. c. 3 So. R. 387; Churchill v. Chicago, etc., R. Co., 67 111. 390; Hill v. Syracuse, etc., R. Co., 63 N. Y. 101; Pennsylvania Co. v. Hine, 41 Ohio St. 276; Farewell v. Grand Trunk R. Co., 15 U. C. C. P. 427 ; Craig v. Great Western R. Co., 24 V. C. Q. B. 504; Boston, etc., R. Co. c. Proctor, 1 Allen (Mass.) 267 ; Hutch- inson on Carriers, (2d ed.) §§ 575, 576 ; Schouler, Bailm., 610; 3 Wood on Railroads, 1636, et seq. *Thus, if the company runs no train on the day to which it is limited, or if it is a round trip ticket and there is not time to make the round trip within the period of limitation, or if it is a through ticket over connecting lines and the time is too short to reach the last line, where there is no delay within such period, we suppose the traveler could take the first train on the next day. See Texas, etc., R. Co. V. Dennis, 4 Tex. Civ. App. 90, s. c. 23 8. W. R. 400; Gulf, etc., R. Co. v. Wright, 2 Tex. C. App. 463, s. c. 21 8. W. R.' 399; Briggsu. Grand Trunk R. Co., 24 U. C. Q. B. 510. §1598 TICKETS, FAKES AND PASSES. 2497 even to a singie day or a particular train.' A limited ticket is not good for passage after the time to which it is limited has expired, and, as a general rule, one who presents such a ticket and refuses to pay his fare or produce a proper ticket may be expelled from the train.* Substantially the same rules apply in this respect to commutation or mileage tickets as to single tickets.' We have already considered the rule as to limited through tickets.* As the language of the ticket is that of the carrier and as forfeitures are "odious," in case of ambiguity and doubt, it will be construed most strongly against the car- rier. ° Under this rule it has been held that when a ticket is required to be used on or before a specified day it is sufficient if the trip is begun upon the particular line and the ticket pre- sented before midnight of such day, although the journey is not completed upon such line until after that time.* So, in one case, where the ticket provided that it should not be "good for 'McClure v. Philadelphia, etc., R. Co., 34 Md. 532, s. c. 6 Am. E. 345; State V. Campbell, 32 N. J. L. 309; Howard v. Chicago, etc., R. Co., 61 Miss. 194, s. c. 18 Am. & Eng. R. Cas. 313; Elmore w. Sands, 54 N. Y. 512; Gale V. Delaware, etc., R. Co., 7 Hun (N. Y.) 670; Shedd v. Troy, etc., R. Co., 40 Vt. 88; Briggs v. Grand Trunk R. Co., 24 U. C. Q. B. 510; Muckle v. Rochester, etc., R. Co., 79 Hun 32, s. c. 29 N. Y. Supp. 732; Missouri, etc., R. Co. V. Murphy, (Tex. Civ. App.) 35 S. W. R. R. 66. 2 State V. Campbell, 32 N. J. L. 309; Rawitzky v. Louisville, etc., R. Co., 40 La. Ann. 47, s. c. 3 So. R. 387; Gro- gan V. Chesapeake, etc., R. Co., 39 W. Va. 415, s. c. 19 S. E. R. 563; Lewis V. Western, etc., R. Co., 93 Ga. 225, s. c. 18 S. E. R. 650; Churchill v. Chi- cago, etc., R. Co., 67 111. 390; Pen- nington V. Philadelphia, etc., R. Co., 62 Md. 95, s. c. 18 Am. & Eng. R.Cas. 310, and note ; also, authorities cited in the first note to this section. 'Lillis V. St. Louis, etc., R. Co., 64 Mo. 464, s. c. 27 Am. R. 255 ; Sherman V. Chicago, etc., R. Co., 40 Iowa 45; Powell V. Pittsburg, etc., R. Co., 25 Ohio St. 70. See, also, as to return tickets, Rawitzky v. Louisville, etc., R. Co., 40 La. Ann. 47, s. e. 31 Am. & Eng. R. Cas. 129 ; Arnold v. Penn- sylvania R. Co., 115 Pa. St 135, s. c. 8 Atl. R. 213. ^Ante, § 1596. ^ Auerbach v. New York Cent. R. Co., 89 N. Y. 281, s. c. 42 Am. R. 290, 6 Am. & Eng. R. Cas. 334; Evans v. St. Louis, etc., R. Co., 11 Mo. App. 463; Lundy v. Central Pac. R. Co., 66 Cal. 191, s. c. 56 Am. R. 100; Little Rock, etc., R. Co. v. Dean, 43 Ark. 529, s. c. 51 Am. R. 584. ^ Evans v. St. Louis, etc., R. Co., 11 Mo. App. 463; Auerbach v. New York Cent. R. Co., 89 N. Y. 281; Georgia Southern R. Co. v. Bigelow, 68 Ga. 219. 2498 CARRIERS. § 1598 passage after nine days from date of sale," it was held suf- ficient tbat the journey was commenced, although not com- pleted within that time,' but this decision seems to us to be of doubtful soundness.^ It has also been held that a ticket marked "good this trip only," although dated, is good on any subsequent day until used, but this decision has also been criticised.' In some states it is provided by statute that tickets shall be good for a certain number of years from their date, notwithstanding any limitation therein, but such a statute has no extra territorial force and does not govern a ticket sold at a station in another state for transportation from such station to a place within the state which enacted the statute,* nor does it apply where a ticket is used in another state, although pur- chased in the state in which the statute exists for transporta- tion from a place therein to a place in such other state. ° It has been held, in accordance with what we believe to be the better rule, although the authorities are conflicting, that a traveler has no right to rely upon the verbal representations or statements of an agent having no authority in the premises that a ticket will be good contrary to the express limitations on its face.* This must certainly be the true rule where the ticket contains the real contract, or the representations were not made at the time the ticket was purchased, or the agent had no apparent authority to make them. The mere checking of baggage on such a ticket after the time has expired will not operate as a ^Lundy v. Central Pac. R. Co., 66 v. Delaware, etc., R. Co., 7 Hun (N. Cal. 191, s. c. 56 Am. R. 100, 18 Am. & Y.) 670. Eng. R. Caa. .309. «Lafarier v. Grand Trunk R. Co., 84 ' See Gulf, etc., R. Co. n. Wright, 2 Me. 286, s. c. 24 Atl. R. 848. Tex. Civ. App. 463. " Boston, etc., R. Co. v. Trafton, 1.51 ' Pier?;. Finch, 24 Barb. 514, doubted 3Iass. 229; Carpenter v. Grand Trank by .Judge Rodfleld in 1 Redf. on Rail- R. Co., 72 Me. 388, s. c. 39 Am. R. ways, (6th ed.) 93, n. 5. 8ee, also, 340. Texas, etc., Co. v. Powell, (Tex. Civ. ^ Boise v. Hudson River R. Co., 61 App.) .35 S. W. R. 841, which seems Barb. (X. Y.) 611; Pennington v. to us to go to the other extreme. A Philadelphia, etc., R. Co., 62 Md. 95; ticket "good for this day and train :\lcClure v. Philadelphia, etc., R. Co., only" has been held good for any 34 Md. 532, s. c. 6 Am. R. 345. But train during the day of its date. . Baltimore, etc., R. Co., 53 Md. 201. ^As to the validity and effect of ' Chicago, etc., R. Co. v. Banner- such statutes, see Burdick v. People, man, 15 111. App. 100. 149 111. 600, 10 Lewis' Am. R. & Corp. ^Post V. Chicago, etc., R. Co., 14 R. 451, and note; State v. Clarke, 109 Neb. 110, 8. c. 45 Am. R. 100. N. Car. 739, note, s. c. 14 S. E. R. 84; 'Drummond v. Southern Pac. R. State v. Ray, 109 N. Car. 736, s, c. 14 Co., 7 Utah 118, s. c. 25 Pac. R. 733. 8. E. R. 83; State v. Fry, 81 Ind. 7; It has been held that a stipulation for Fry v. State, O.'i Ind. 5-53 ; State v. Cor- a forfeiture if the ticket is found in the bett, 57 Minn. 345, s. c. 59 N. \V. R. hands of another may justify the con- 317 ; note in 24 L. R. A. 152. ductor in taking it up after it gets back « Sleeper v. Pennsylvania R. Co., into the hands of the original pur- 100 Pa. St. 259, s. c. 9 Am. & Eng. R. chaser. Friedenrich w. Baltimore, etc., Cas. 291, 45 Am. R. 380. The statuti; R. Co., 53 Md. 201. did not, however, make the purchase •Robostelli v. New York, etc., R. or use of a ticket obtained from an unauthorized person an offense. § 1600 TICKETS, FARES AND PASSES. 2501 mutation rates and keeps such tickets for sale to the public, the refusal to sell a ticket of that kind, or make such rates to a particular individual under the same circumstances and upon the same conditions as they are sold to the rest of the public is an unjust and illegal discrimination. ' In Massachusetts a statute was enacted providing that "every railroad corporation operating within this commonwealth shall provide and have on sale, for twenty dollars, mileage tickets representing one thousand miles, which shall be accepted and received for fare and passage upon all railroad lines in this commonwealth, as well and under like condition as upon the line or lines of the corporation issuing such ticket." This was held unconstitu- tional upon the grounds that it authorized one railroad com- pany to determine the conditions upon which another railroad company must carry passengers and that it compelled one com- pany to carry passengers on the credit of another, thus taking property for the public use without compensation or the own- er's consent." As we have elsewhere shown, a mileage ticket, limited to a certain time does not entitle the holder to passage after the expiration of the time specified, although the whole number of miles for which it is good has not been traveled.' The conductor may, in accordance with the provisions of the ticket or the rules and regulations of the company, refuse to accept detached coupons, and may expel the traveler, who re- fuses to pay his fare, if he does not produce a proper ticket or mileage book and permit the conductor to properly detach the coupons.' A passenger has no right to require the conductor 'States. Delaware, etc., E. Co., 48 59. Two members of the court, how- N. J. L. 55, s. c. 23 Am. & Eng. R. ever, dissented, and the decision has Cas. 543, s. c. 2 Atl. R. 803. See, also, met with some criticism. SeeZHarv. Indianapolis R. Co. v. Rinard, 46 Ind. Law Rev., 356. 293 ; Larrison v. Chicago, etc., R. Co., ' Ante. § 1598, p. 2497, note 3. As to 1 Interstate Com. Com. R. 147; Asso- redemption of the unused portion, ciated, etc., Grocers v. Missouri Pac. see Smith v. Philadelphia, etc., R. R. Co., 1 Interstate Com. Com. R. 156. Co., 11 Pa. Co. Ct. R. 555; Sidman ti. ^Attorney-General v. Boston, etc., Richmond, etc., R. Co., 3 Interstate R. Co., 160 Mass. 62, s. c. 35 N. E. R. Com. Com. R. 512. 252, 22 L. R. A. 112, 9 Lewis' Am. R. & ' Norfolk, etc., R. Co. v. Wysor, 82 Corp. E. 569, 56 Am. & Eng. R. Cas. Va. 250, s. c. 26 Am. & Eng. R. Cas. Corp. 159 2502 CARRIERS. § 1600 to take the coupons from the back part of a mileage book in- stead of the front part.' A regulation of the company that monthly commutation tickets shall be surrendered to the con- ductor on the last trip taken during the period for which it is issued is reasonable and the purchaser of such a ticket with the regulation indorsed upon it may be ejected, if he fails or refuses to surrender it on his last trip or pay the regular fare, even though he may have accidentally lost it.* It is not un- common for railroad companies to require the holder of a non- transferable mileage book or commutation ticket to sign his name when requested by the conductor for identification, and we have no doubt that such a regulation is reasonable. But a family commutation ticket, which, on its face purports to be for the use of a man and his family, authorizes his son, who resides with him as a member of the family, to travel thereon, in the absence of anything to the contrary, although he is over twenty-one years of age." Where a mileage ticket is issued by a road owning two lines or owning one and leasing another, purporting to be good for a certain number of miles on one and a certain number of miles on the other, the holder of the ticket, after having traveled on the one line for the specified number of miles for which it is good on that line, is not en- titled to use upon the same line the unused mileage good over the other line.* 235; Crawford w. Cincinnati, etc., R. ^ Rogers v. Atlantic City R. Co., (N. Co., 26 Ohio St. .580; Bennett v. Rail- J.) 34 Atl. R. 11. road Co., 7 Phila. (Pa.) 11; Ripley v. 'Chicago, etc., R. Co. v. Chisholm, New Jersey, etc., Co., 31 N. .1. L. 388; 79 111. 584. But it was also said in Rogers v. Atlantic City R. Co., (N. J.) this case that it would be otherwise if 34 Atl. R. 11; Downs v. New York, there was a regulation of the carrier, etc., R. Co., 36 Conn. 287, s. c. 4 Am. of which the purchaser was informed R. 77. See, also, Marshall v. Boston, at the time of the purchase, that a son etc., R. Co., 145 Mass. 164. over twenty-one years old could not > Eaton V. Mclntire, (Me.) 34 Atl. ride on the ticket. See, generally, as R.525. There are two reasons for this, to such tickets. Grimes v. Minneap- It is customary to take them from the olis, etc., R. Co., 37 Minn. 66 ; Knopf front rather than the back, and the v. Richmond, etc., R. Co., 85 Va. 769, right to determine from what part they s. c. 37 Am. & Eng. R. Cas. 140. shall be taken belongs, on principle, 'Terre Haute, etc., R. Co. v. Fitz- to the conductor, whose duty it is to gerald, 47 Ind. 79. In this case the detach them, rather than to the pas- ticket was a "thousand mile ticket" senger. good for seven hundred miles over '§ 1601 TICKETS, FAKES AND PASSES. 2503 § 1601. Excursion tickets. — It has been held that an excur- sion ticket constituting or containing a special contract is conclusive evidence of the terms of the contract, and that advertisements of the excursion are not admissible to vary its terms.' The rule that a railroad company may limit the use of a ticket to a certain day or train is pecu- liarly applicable in such cases, and, where the ticket con- tains such a stipulation it can not be used on any other day or train. ^ Nor can such a ticket, which is bought at a reduced rate and conditioned to be good only for a "continu- ous trip" to the destination specified, be used on a train which does not make, and is not scheduled to make, the through trip, but stops at an intermediate point.' But the time lim- ited for a round trip must not be so short that a passenger who uses due diligence can not commence his return trip on some train within the time, or it will be unreasonable.* It has also been held that, while a railroad company may run an excursion train at reduced rates, and may enforce a rule requiring passengers to purchase tickets, as a condition upon which they may obtain the benefit of such rates, against all who, by their own fault, fail to comply with it, yet, if one is unable to procure a ticket through the fault of the company, he may take passage upon such train, and, upon a tender of the ticket rate of fare, will be entitled to all the rights and privileges that a ticket would afford him.^, one line and three hundred over the 'Johnson v. Philadelphia, etc., E. other. Co., 63 Md. 106, s. c. 18 Am. & Eng. 'Howard v. Chicago, etc., R. Co., E. Gas. 304. 61 Miss. 194, s. c. 18 Am. & Eng. E. *Texas, etc., E. Co. v. Dennis, 4 Cas. 313. Tex. Civ. App. 90, s. c. 23 S. W. E. 400. ^McEae B.Wilmington, etc., E. Co., ^ Chicago, etc., E. Co. v. Graham, 3 88 N. Car. 526, s. c. 18 Am. & Eng. E. Ind. App. 28, s. c. 29 N. E. E. 170. In Cas. 316; Pennington v. Philadelphia, this case the company was held liable etc., R. Co., 62 Md. 95, s. c. 18 Am. & for his expulsion upon refusal to pay Eng. E. Cas. 310; Howards). Chicago, the full regular fare. See, also, Je£- etc, E. Co., 61 Miss. 194; Nolan v. fersonville E. Co. ■«. Eogers, 28 Ind. New York, etc., E. Co., 41 N. Y. Sup. 1 ; Cleveland, etc., E. Co. v. Beckett, Ct. 541 ; State v. Campbell, 32 N. J. 11 Ind. App. 547, s. e. 39 N. E. E. 429, L. 309 ; McElroy ■». Eailroad Co., 7 and authorities there cited. Phila. (Pa.) 206. 2504 CARRIKRS. § 1602 § 1602. Conductor's checks. — It is customary for conduc- tors to give checks, in many cases where tickets or coupons are taken up, as evidence of the payment of fare or the passenger's right to transportation or to stop over and resume his passage within a certain time.' But it has been held that a conduc- tor's check authorizing the passenger to stop over for a speci- fied time must be presented at or before the expiration of such time,^ and that a check in the ordinary form is a mere receipt or certificate of the payment of fare for a continuous trip or the surrender of the regular ticket, and will not authorize the passenger to stop over unless it contains a clause to that effect.' It has also been held in New Hampshire that a passenger may refuse to surrender his ticket while other stations have to be passed before reaching his destination, unless he is given a check or other evidence of his right to passage,* but this has been denied in Illinois.^ If a check has been given by one conductor to a passenger upon the surrender of his ticket, and this is the only evidence of his right to passage, and he fails to produce it upon the proper demand of another conductor and refuses to pay his fare, he may be ejected.* It has been held in some cases that, although the first conductor makes a mis- take and gives the wrong check, or none at all, the passenger can not recover for an expulsion by another conductor, as the check takes the place of the ticket and is the only evidence, as between such conductor and the passenger, of the latter's right to passage.' But if the passenger is, in fact, entitled to such ' Such a custom or regulation is Cheney v. Boston, etc., R. Co., 11 reasonable. Northern R. Co. v. Page, Met. (Mass.) 121, s. c. 4.5 Am. Dec. 22Barb. (N.Y.)130; Loringu.Aborn, 190; Breen r. Texas, etc., R. Co., 50 4 Cush. (Mass.) 608. Tex. 43; Thomp. Carr., 69, 70. "Churchill v. Chicago, etc., R. Co., * State v. Thompson, 20 N. H. 250. 67 111. 390. 6 Chicago, etc., R. Co. v. Griffin, 68 "Wyman u. Northern Pac. R. Co., 111.499. See, also, Illinois, etc., R. 34 Minn. 210, s. c. 22 Am. & Eng. R. Co. v. Whittemore, 43 111. 420; Ved- Cas. 402, 404; McClure v. Philadel- der u. Fellows, 20 N. Y. 126; Heap w. phia, etc., R. Co., 34 Md. 532, s. c. 6 Day, 34 W. R. 637, s. c. 51 J.' P. 213. Am. R. 345; State v. Overton, 24 N. « Jerome v. Smith, 48 Vt. 230. J. L. 435, s. c. 61 Am. Dec. 671, 673. 'Townsend v. New York Cent. R. See, also, Stone v. Chicago, etc., R. Co., 56 N. Y. 295, s. c. 15 Am. R. 419- Co., 47 Iowa 82, s. c. 29 Am. R. 458; Dunphy v. Erie, etc., R. Co., 42 'S.Y. § 1602 TICKETS, FAKES AND PASSES. 2505 passage, he can doubtless recover from the company in a proper action, and some of the courts permit a recovery upon the theory of a wrongful expulsion by the second conductor,' although it seems to us that the wrong consists in the act of the first conductor and the failure to transport the passenger/ Somewhat similar to conductors' checks on railroads are trans- fer tickets or checks given upon street cars. A regulation re- quiring a transfer check where the fare is paid upon one line and a transfer is permitted to another line for the one fare is reasonable and valid in the absence of any charter or statutory' provision to the contrary, and the company is not liable for the ejection of a traveler who has entered a car on the second line, at a point or a time different from the reasonable time and j^lace specified in his transfer check, and refuses to pay his fare.' So, as a general rule, it is the duty of a passenger who desires to avail himself of transfer privileges to obtain a proper transfer check, and the fact that the first conductor has given him the wrong check, or told him that he does not need any, will not necessarily entitle him to recover for an ejection by the conductor on the second line.' But it has been said that where a passenger makes a timely request for a transfer check and it is not given to him until just as he is leaving the car he is not bound by a condition therein making it his duty to ex- amine it and see that it is correct.' So, it has been held that Super. Ct. 128 ; Yorton v. Milwaukee, ' Percy v. Metropolitan St. R. Co., 58 etc., R. Co., 54 Wis. 234, s. c. 41 Am. Mo. App.75. See, also, Heffronii. De- R. 23 ; Bradshaw v. South Boston R. troit City R. Co., 92 Mich. 406, s. c. 52 Co., 135 Mass. 407; Booth on Street N. W. R. 802. Railways, § 237. * "Wakefield v. South Boston R. Co., 'Pittsburg, etc., R. Co. V. Hennigh, 117 Mass. 544; Bradshaw v. South 39Ind. 509; Palmer v. Railroad Co., Boston R. Co., 135 Mass. 407. See, 3 S. Car. 580, s. c. 16 Am. R. 750; also, De Lucas v. New Orleans, etc., Bumham v. Grand Trunk R. Co., 63 R. Co., 38 La. Ann. 930. But compare Me. 298; Toledo, etc., R. Co. v. Mc- Carpenter t;. Washington, etc., R. Co., Donough, 53 Ind. 289. 121 U. S. 474, s. c. 7 Sup. Ct. R. 1002. ''Yorton B. Milwaukee, etc., R. Co., ^ Laird v. Pittsburg, etc., R. Co., 54 Wis. 234, s. c. 41 Am. R. 23 ; Town- 166 Pa. St. 4, s. c. 31 Atl. R, 51. This send v. New York Cent. R. Co., 56 N. decision is probably correct, but the Y. 295, s. c. 15 Am. R. 419; Shelton soundness of the dictum referred to in V. Lake Shore, etc., R. Co., 29 Ohio the text is not beyond question. St. 214. 2506 CARRIERS. § 1603 notice must be given of a change in a well established method of transfer.' § 1603. Fare paid on train. — It is well settled, as we have elsewhere shown," that a railroad company may enact and en- force a rule or regulation requiring a reasonably higher rate of fare to be paid upon the train than the ticket rate, provided it affords the passenger a reasonable opportunity to purchase a ticket. But it can not be fixed at such a sum that the fare collected on the train will exceed the maximum rate allowed by law." So, in order to lawfully enforce such a rule or regu- lation, the railroad company must afford the passenger reason- able facilities for purchasing a ticket.' As a general rule, it should keep its ticket office open, with a competent person in attendance ready to sell tickets, a reasonable time before the 'Consolidated Traction Co. v. Ta- born, (N. J.) 32 Atl. R. 685. See, also, Sheets v. Ohio River R. Co., 39 W. Va. 475, s. c. 20 S. E. R. 566, 2 Am. & Eng. R. Cas. (N. S.) 129. 2 Ante, Vol. I, § 200. In addition to authorities there cited, see McGowen V. Morgan's, etc., R. Co., 41 La. Ann. 732, s. c. 5 L. R. A. 817, and note; note to Phettiplace v. Northern Pac. R. Co., 20 L. R. A. 483, 485 ; note to Root V. Long Island R. Co., 11 Am. St. R. 643, 650; note to Commonwealth v. Power, 41 Am. Dec. 465, 473, et. seq. An extra charge of as much as twenty- five cents has been held reasonable, and a regulation may even require passengers to procure tickets as a con- dition to their right to ride on any terms. McGowen v. Morgan's, etc., R. Co., 41 La. Ann. 732; Poole u. Northern Pac. R. Co., 16 Ore. 261; Finch V. Northern Pac. R. Co., 47 Minn. 36; Pittsburgh, etc., R. Co. v. Van Dyne, 57 Ind. 576, s. c. 26 Am. R. 68. 'Zagelmeyer v. Cincinnati, etc., R. Co., 102 Mich. 214, s. c. 60 N. W. R. 436 ; Railroad Co. v. Skillman, 39 Ohio St. 444, s. c. 13 Am. & Eng. R. Cas. 31 ; Chase v. New York, etc., R. Co., 26 N. Y. 523; Lane v. East Tenn., etc., R. Co., 5 Lea (Tenn.) 124, s. c. 2 Am. & Eng. R. Cas. 278 ; Louisville, etc., R. Co. V. Guinan, 11 Lea (Tenn.> 98, s. c. 47 Am. R. 279. But where a rebate check is given for the extra amount such extra sum is not part of the fare or charge for transportation within the meaning of a statute fixing the maximum rate. Reese v. Penn- sylvania R. Co., 131 Pa. St. 422, s. c. 6 L. R. A. 529, 17 Am. St. R. 818. * Chicago, etc., R. Co. v. Parks, 18 111. 460; Illinois Cent. R. Co. v. Sut- ton, 42 111. 438, s. c. 92 Am. Dec. 81; Wilsey v. Louisville, etc., R. Co., 83 Ky. 511, s. c. 26 Am. & Eng. R. Cas. 258; Jeffersonville R. Co. v. Rogers, 38 Ind. 116, s. c. 10 Am. R. 103; Cen- tral R., etc., Co. V. Strickland, 90 Ga. 562; Gulf, etc., R. Co. v. Fox, (Tex.) 6 S. W. R. 569, 33 Am. & Eng. R. Cas. 543 ; Nellis v. New York Cent. R, Co. ,30 N. Y. 505; Hall ... South Carolina R. Co., 28 S. Car. 261^ s. c. 5 S. E. R. 623 ; §1603 TICKETS, PARES AND PASSES. 2507 departure of each train according to the schedule/ but not nec- essarily up to the very instant the train moves," or the time of actual departure where it is late.' A traveler does not, how- ever, make a sufHcient effort to obtain a ticket if he merely goes to the window of the ticket ofhce in ample time, and, not seeing the agent there, immediately enters the car without making any effort to see if the agent was in the office or to at- tract his attention.* So, if he arrives too late to buy a ticket before the train starts, or if, for any reason, it is his own fault, and not the fault of the company, that he fails to get a ticket, he can not complain if he is expelled upon his refusal to pay the extra fare.' Nor does the mere fact that the con- ductor at first accepts a tender of the ticket rate, through mistake, but, within a reasonable time, demands the extra sum required of those who pay on the train, operate as a waiver of the rule or entitle the traveler to passage at the Cleveland, etc., R. Co. v. Beckett, 11 Ind. App. 547, s. c. 39 N. E. R. 429 ; In- dianapolis, etc., R. Co. V. Rinard, 46 Ind. 293; Chicago, etc., R. Co. v.. Gra- ham, 3 Ind. App. 28, s. c. 29 N. E. R. 170 (right to pay excursion rate on train where no opportunity to get a ticket). Forsee v. Alabama, etc., E. Co., 63 Miss. 66. Contra Crocker v. New London, etc., R. Co., 24 Conn. 249; Bordeaux v. Erie R. Co., 8 Hun (N. Y.) 579. 'Phettiplace v. Northern Pac. R. Co., 84 Wis. 412, s. c. 20 L. R. A. 483, and note; Illinois Cent. R. Co. v. Johnson, 67 111. 312; Poole v. North- ern Pac. R. Co., 16 Ore. 261, s. c. 8 Am. St. R. 289; Fordyce v. Manuel, 82 Tex. 527; St. Louis, etc., R. Co. v. Myrtle, 51 Ind. 566; State v. Hunger- ford, 39 Minn. 6. ''Everett v. Chicago, etc., R. Co., 69 la. 15, s. c. 27 Am. & Eng. R. Cas. 98 ; State V. Hungerford, 39 Minn. 6, s. c. 34 Am. & Eng. R. Cas. 265. »St. Louis, etc., E. Co. v. South, 43 111. 176, s. c. 92 Am. Dec. 103 ; Swan V. Manchester, etc., R. Co., 132 Mass. 116, s. c. 42 Am. R. 432, 6 Am. & Eng. R. Cas. 327. But a statutory pro- vision requiring the office to be kept open for a certain time prior to the departure of each train means the ac- tual departure. Porter v. New York Cent. R. Co., 34 Barb. (N. Y.) 353; Atchison, etc., R. Co. v. Dwelle, 44 Kan. 394, 34 Pac. R. 500, 44 Kan. 394, s. c. 44 Am. & Eng. R. Cas. 402; Missouri Pac. R. Co. v. McClan- ahan, 66 Tex. 530, s. c. 27 Am. & Eng. R. Cas. 82. * Indianapolis, etc., R. Co. v. Ken- nedy, 77 Ind. 507, s. c. 3 Am. & Eng. R. Cas. 467. *Lake Erie, etc., R. Co. v. Mays, 4 Ind. App. 413, s. c. 30 N. E. E. 1106. See, also. Union Pac. R. Co. u.Wolf, 54 Kan. 592, 38 Pac. E. 786 ; Hoffbauer v. Davenport, etc., R. Co., 52 Iowa 342; Chicago, etc., R. Co. v. Flagg, 43 111. 364 ; Swan v. Manchester, etc., R. Co., 132 Mass. 116, s. c. 42 Am. R. 432. ^!50S CARRIERS. § 1604 ticket rate.' In such a case, if the traveler refuses to pay the extra sum, the conductor may retain the fare for the distance already traveled but must give him back the residue before expelling him.^ AVhen travelers are afforded proper facilities for purchasing tickets, a rule that no fare shall be received upon the train unless the exact amount is tendered would doubtless be reasonable, and we suppose that, even in the absence of a specific regulation upon the subject, the tender of an unreason- ably large bill, which the conductor could not be expected to change, would be insufhcient in such a case.' A carrier has no lien on the person of a passenger for the fare. The price of ti-ansportation is a debt, and the carrier can not detain or imprison a passenger, after the transit is completed, for his failure to produce a ticket or pay his fare.' § 1604. When person riding on a pass is a passenger and when not. — The general rule is that a person riding on a rail- way train on a free pass, the possession of which was law- fully and rightfully obtained, is a passenger.* The possession of the pass must be lawful for if it was obtained by fraud or the wrong of the person attempting to use it he is not a pas- ' Lake Erie, etc., R. Co. v. Majs, 4 v. Wilmington, etc., E. Co., 91 X. Car. Ind. App. 413, s. c. .30 N. E. K. 1106; 506. If he pays in counterfeit money, Wardwell v. Cliicago, etc., R. Co., 46 and on discovery of the counterfeit Minn. 514, s. c. 24 Am. St. R. 246, 47 refuses to pay in good money, he may Am. & Eng. R. Cas. 482, modifying be expelled. Memphis, etc., R. Co. Du Laurans v. First Division St. Paul, v. Chastine, 54 Miss. 503. etc., R. Co., 15 Minn. 49, s. c. 2 Am. * Lynch p. Jletropolitan, etc., R. R. 102. See, also, McCarthy v. Chi- Co., 90 N. Y. 77. But, see, Standish cago, etc., R. Co., 41 Iowa 432. v. Xarragansett, etc., Co., Ill Mass. = Wardwell v. Chicago, etc., R. Co., 512. 46 Minn. 514. See, also, Bland v. ^Louisville, etc., R. Co. v. Faylor, Southern Pac. R. Co., 55 Cal. 570, s. 126 Ind. 126; Railroad Company v. .J. 36 Am. R. 50; note to Toledo, etc., Lockwood, 17 Wall. .357; Ohio, etc., R. Co. u. Wright, 34 Am. R. 277, 284. R. Co. v. Muhling, 30 111. 9, s. c. 81 2 Fulton B.Grand Trunk R. Co., 17 U. Am. Dec. 3.36 ; Missouri, etc., R. Co. C. Q. B. 428. But the conductor must v. Ivy, 71 Tex. 409, 1 L. R. A. 500; beprepared to furnish change to area- Doyle v. Fitchburg R. Co., 162 Mass. sonable amount. Barrett I'.IMarket St. 66, a. r. 44 Am. St. R. 335; Philadel- R. Co., 81 Cal. 296, B. c. 22 Pac. R. 859. phia, etc., R. Co. i . Derby, 14 How. And the passenj,'er must be given a rea- 468. sonable time in which to pay. Clark § 1604 TICKETS, FARES AND PASSES. 2509 senger and the carrier owes him no duty as such.' Where an employe of the carrier is riding on a pass, his rights depend very largely upon the capacity in which he is riding. If he is riding on the pass in the performance of his duties as the em- ploye of the company he is not a passenger and the care due to passengers is not due to him.' But where the employe is rightfully using a pass for his own personal convenience or for his own pleasure or business he is in most jurisdictions, regarded as a passenger and entitled to the care owing to passengers.' So, a drover accompanying his stock is a passen- ger notwithstanding a provision in his pass that he shall be regarded as an employe.' Postal clerks," sleeping car por- ' The rule is thus expressed in the case of Louisville, etc., R. Co. v. Thompson, 107 Ind. 442 : "We accept as good law the doctrine of the de- cided cases, that one who fraudulently attempts to ride on a non-transferable pass issued to another person, is not a passenger to whom the carrier owes a duty to carry safely. A person who enters a train on a pass to which he has no right, can not, therefore main- tain an action for injuries caused by the carrier's negligence. Chicago, etc., R. Co. V. Michie, 83 111. 427; Toledo, etc., R. Co. V. Brooks, 81 111. 245; Toledo, etc., R. Co. v. Beggs, 85 111. 80, 28 Am. R. 613; Browne. Missouri, etc., R. Co., 64 Mo. 536. This rule is founded on sound principle, since it is a fundamental doctrine of the law, that one who is guilty of a fraud can not enforce any rights arising out of his own wrong. It is also in close agreement with the rule that a carrier owes no duty to an intruder. Nave v. Flack, 90 Ind. 205, 46 Am. R. 205." 2 See ante, § 1578. Doyle v. Fitch- burg, R. Co., 162 Mass. 66, s. c. 44 Am. St. R. 335. The company may of course, owe him some duty, it is not, however, the duty which a car- rier owes to a passenger but is the duty which an employer owes to an employe. Texas, etc., R. Co. v. Smith, 67 Fed. R. 524, s. c. 31 L. R. A. 321, and note. = Doyle V. Fitchburg R. Co., 162 Mass. 66, s. c. 44 Am. St. R. 335. See, also, Ohio, etc., R. Co. «. Muhling, 31 111. 9, s. c. 81 Am. Dec. 336 ; Pembroke V. Hannibal, etc., R. Co., 32 Mo. App. 61; Washburn v. Nashville, etc., K. Co., 3 Head (Tenn.) 638, s. c. 75 Am. Dec. 184 ; Rosenbaum v. St. Paul, etc., R. Co., 38 Minn. 173. * Missouri, etc., R. Co. v. Ivy, 71 Tex. 409, 1 L. R. A. 500. = Mellor V. Missouri Pac. R. Co., 105 Mo. 455, s. c. 14 S. W. B. 758, 16 S. W. R. 849; Gulf, etc., R. Co. v. Wil- son, 79 Tex. 371, s. c. 15 S. W. R. 280; Cleveland, etc., R. Co. v. Ketcham, 133 Ind. 346, s. c. 33 N. E, R. 116. In Norfolk, etc., R. Co. v. Shott, (Va.) 22 S. E. R. 811, it was said: "It is established by the evidence that the plaintiff was an employe of the federal government, and was on the passen- ger train in the legitimate discharge of his duty as mail agent and postal clerk, under some contract between the government and the defendant company as to carrying the United States mail. The relation the plaint- 2510 CAKEIERS. § 1605 ters' and express messengers/ although riding on passes, have also been held to be passengers, so far as the duty to carry safely and the liability of the carrier for injuries to them is concerned. §1605. Drovers riding on passes. — It is the almost universal custom of railway companies to issue to persons accompanying shipments of live stock what are known as drovers' passes, en- titling them to ride to the point of shipment and return. The rule is that a person rightfully riding on a drover's pass is a passenger, and, while there is some slight conflict of authority, the weight of authority is to the effect that such a person is a passenger for hire.' Thos^ authorities which hold that he is a passenger for hire rest on the theory that the charge paid for the transportation of the live stock which the holder of the pass iff bore to the railroad company, as a common carrier, imposed upon the defendant company the same degree of care for the plaintiff that it was bound to exercise towards every pas- senger upon its train the plaintiff was in no sense an employe of the defend- ant company, and can only be treated as a passenger." 'Jones V. St. Louis, etc., R. Co., 125 Mo. 666, s. c. 46 Am. St. R. 514, 28 S. W. R. 88.3. But we very much doubt whether sleeping car company porters can be regarded as passengers. As elswhere shown, the railroad company is held liable for the assaults of such employes upon passengers on the ground that they are to be regarded as employes of such company and it seems inconsistent to hold that they are also passengers. It is probably true that where the sleeping car em- ployes travel for their own conven- ience or business they are passen- gers, but we doubt whether they can be so regarded when traveling in dis- charge of the duties of their service. ^Brewer v. New York, etc., R. Co., 124 N. Y. .59, 8. c. 26 N. E. R. 324; Kenney v. New Vork Cent., etc., R. Co., 125 N. Y. 422, s. c. 26 N. E. R. 626; Fordyce v. Jackson, 56 Ark. .594, s. c. 20 S. W. R. .528, 597. See, ante, § 1578, post, § 1608. 'New York, etc., R. Co. v. Blumen- thal, 160 111. 40, 4.3 N. E. R. 809 ; Mis- souri, Pac. R. Co. V. Ivy, 71 Tex. 409, 1 L. R. A. 500; Union, etc., R. Co. v. Shacklet, 119 111. 232; Carroll v. IMis- souri, etc., R. Co., 88 Ho. 239; Gris- wold V. New York, etc., R, Co., .53 Conn. 371; Railway Co. v. Stevens, 95 TJ. S. 655; Railroad Co. v. Lock- wood, 17 Wall. (U. S.) .357; Quim- by u. Boston, etc., R.Co., 150 Mass. 365, 40 Am. & Eng. R. Cas. 693 ; Little Rock,etc.,R.Co.i;.Miles,40 Ark. 298, 13 Am. & Eng. R. Cas. 10; ilaslin v. Baltimore, etc., R. Co., 14 W. Va. 180; Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1, s. c. 2 Am. Rep. .362; Vir- ginia, etc., R. Co. V. Sayers, (Va.) 26 Gratt. 328; Ohio, etc., R. Co. v. Nick- less, 71 Ind. 271; Ohio, etc., R. Co. v. Selby, 47 Ind. 471 ; Saunders v. South- ern Pac. R. Co., (Utah) 44 Pac. 932. § 1606 TICKETS, FARES AND PASSES. 2511 accompanies covers also the transportation of such person and that the pass therefore is not a mere gratuity but a thing for which a valuable consideration was paid. Some of the au- thorities hold that he is a mere gratuitous passenger,' but we are inclined to the opinion that the authorities which hold that he is a passenger for hire rest upon the better reason. The relation of passenger and carrier between a drover and a rail- way company can not be changed to that of employe and em- ployer by a provision in the pass to the effect that while accompanying his stock the drover shall be regarded as an employe of the road and the company shall be liable to him only in the capacity of employer.^ While a drover riding on a pass is regarded as a passenger he is not to be regarded as a passenger to the extent of being entitled to all the privileges and conveniences to which a passenger riding on a first-class ticket is entitled. His rights must necessarily be and are limited on account of the inconveniences attending the run- ning of the class of trains upon which live stock are carried, and for that reason it is held that he^is not entitled to all the rights and privileges of passengers for hire riding upon passenger trains.' § 1606. Duty to person riding on pass. — The measure of duty owing from the carrier to a person riding on a pass depends upon the relation existing between the carrier and the person using the pass. The relation is the test for determin- 'Poucher v. New York, etc., E. Co., dinary passengers for hire. While he 49 N. Y. 263 ; Bissell v. New York, was, for certain purposes, a passenger, etc., E. Co., 25 N. Y. 442; McCawley he was not such in the usual, unre- V. Furness E. Co., L. E. 8 Q. B. 57; stricted sense of that term. His con- Gallin v. London, etc., E. Co., L. E., tractual right was to proceed upon the lOQ. B. 212. See Smith c. New York, freight train upon which his cattle etc., E. Co., 24 N. Y. 222. were shipped, from Ord to South " Missouri Pac. E. Co. v. Ivy, 71 Tex. Omaha; his duty was to care for his 409, 1 L. E. A. 500. stock in transit, and his rights and ' Omaha, etc., E. Co. v. Crow, (Neb.) privileges as a passenger were limited 66 N. W. E. 21. In that case the by the necessity of traveling on the court said: "In our view it was not aforesaid freight train, and by the re- proper to confer upon Mr. Crow the quirement that he should care for his unlimited rights and privileges of or- stock." 2512 CARRIERS. § 1606 ing the measure of duty. Thus where a person is riding ou a pass as an employe of the carrier and in the performance of some service of the carrier only the duties due from a master to a servant are due to such person.' But where the person riding ou a pass is regarded as a passenger the carrier usually owes to him the same degree of care that it owes to a passen- ger paying full fare.* In some of the states, however, as we shall liereafter show, it is held that a person riding on a free pass in which there is a stipulation against liability of the carrier for negligence is bound by the stipulation.' Where the pos- session of the pass on which the person is riding has been ob- tained by fraud he is not a passenger but a trespasser or intruder and the carrier owes no duty to protect him from its mere negligence,* for as a rule the carrier is only liable in such cases for wanton or willful wrongs. Where a drover is riding on a pass in a freight train the carrier is not bound to the same absolute or extraordinary degree of care as to his safety as it is to a passenger for hire riding pursuant to a ticket on regular passenger trains, for it is impossible for the company to care as well for a person riding on an ordinary freight train ^Ante, § 1578; Doyle u. Fitchburg R. Co. v. Miles, 40 Ark. 298; Indianapo- Co., 162 Mass. 66, s. c. 44 Am. St. R. lis, etc., R. Co. v. Horst, 93 U. S. 291 ; 335. Chicago, etc., R. Co. v. Carpenter, 56 2 Gulf, etc., R. Co. V. McGowan, 65 Fed. R. 451; Sanders t). Southern Pac. Tex. 640, 26 Am. & Eng. R. Cas. 274 ; R. Co., (Utah) 44 Pac. R. 932. Rose V. Des Moines Valley R. Co., 39 ^Post, § 1608. There is much strength Iowa 246; Philadelphia, etc., R. Co. in the reasoning of the cases referred V. Derby, 14 How. (U. S.) 468; Ohio, to for it seems unjust to hold a rail- etc, R. Co. u. Nichless, 71 Ind. 271; road carrier to the same extraordi- Louisville, etc., R. Co. v. Faylor, 126 nary measure of duty in a case where Ind. 126; Railroad Company d. Lock- a pass is issued as a pure matter of wood, 17 Wall. 357; New York, etc., grace, benevolence or charity as that R. Co. V. Blumenthal, 160 111. 40, 43 to which it is held in a case where it N. E. R. 809; Doyle v. Fitchburg R. receives a consideration for the car- Co., 162 Mass. 66, s. c. 44 Am. St. R. riage. 335; Jacobus v. St. Paul, etc., R. Co., * Louisville, etc., R. Co. v. Thomp- 20 Minn. 125, s. c. 18 Am. R. 360; son, 107 Ind. 442; Toledo, etc., R. Co. Todd V. Old Colony, etc., R. Co., 3 v. Beggs, 85 111. 80, 28 Am. R. 613; Allen (Mass.) 18; Abell ^.Western, Brown v. Missouri, etc., E. Co., 64 etc., R. Co., 63 Md. 433, 21 Am. & Mo. 536. Eng. R. Cas. 503; Little Rock, etc., R. § 1607 TICKETS, FARES AND PASSES. 2513 as it is for one riding on a regular passenger train.' The same degree of care is due to a minor riding on a stock pass as to an adult. ^ § 1607. Conditions in passes. — Conditions are sometimes in- corporated in or annexed to passes which require the person to whom the pass is issued to do some specified thing before he is entitled to ride on the pass or to conduct himself in a partic- ular manner while being carried on the pass. These conditions, so long as they do not contravene any statute or principle of public policy, are held valid, and the holder of the pass is bound to comply with them. Thus, where there was a condi- tion in a pass that the holder should sign the same, it was held that the provision was valid and that a holder who refused to comply with the condition was rightfully ejected from the train.' A condition in a drover's pass to the effect that he should "re- main in the caboose car attached to the train while the same was in motion," is a valid and binding condition and does not contravene any law or a sound public policy.' A person who receives and uses a free pass is deemed to have consented to the conditions therein the same as if he had signed them,' and this has been held to be true whether he read the pass or not.' 1608. Validity of stipulation exempting carrier from liabil- ity for negligence. — Passes usually contain a stipulation which in terms exempts the carrier from liability for negligence. As to the validity of such stipulations the authorities are not " Omaha, etc., R. Co. v. Crow, (Neb.) ' Elliott v. Western, etc., E. Co., 58 66 N. W. E. 21. See Lake Shore, Ga. 454. etc., R. Co. V. Brown, 123 111. 162. 'Ft. Scott, etc., E. Co. v. Sparks, Perhaps it is not strictly correct to 55 Kan. 288, 39 Pac. E. 1032. say that the carrier is not bound to 'Gulf, etc., E. Co. v. McGowan, the same degree of care, but it is ob- 65 Tex. 640, 26 Am. & Eng. R. Cas. vious that the risks are greater in the 274; Quimby «. Boston, etc., E. Co., one case than the other, and that the 150 Mass. 365, 23 N. E. E. 205, 1 Lewis' same precaution, in the way of appli- Am. R. & Corp. E. 113. ances and the running of the trains, ^Eogersu.Kinnebec Steamboat Co., can not be taken. 86 Me. 261, 29 Atl. E.1069,b.c. 10 Lewis' "Texas, etc., E. Co. «. Garcia, 62 Am. E. & Corp. E. 332. Tex. 285. 2514 CARRIERS. § 1608 agreed, some holding that they are valid and binding upon the person using the pass, others that they are not. In the majority of the states the courts hold that such a stipulation is void and not binding upon the person using the pass,' and that the carrier is liable for injuries negligently inflicted upon a person using a pass containing such a stipulation. But in the state of New York/ Washington,^ and a number of other states,' such stipulations are held valid at least where the pass is gratui- tous and the carrier exempted from liability from acts of negli- gence resulting in injury to the person using the pass. The rule in England is also to the effect that the carrier may make a valid contract exempting itself from liability for injuries negli- gently inflicted upon a person riding on a free pass.' The authorities which hold that such stipulations are invalid rest upon the doctrine that it is against public policy for one to contract exempting himself from liability for his future negli- ' Railroad Co. v. Lockwood, 17 Wall. 357; Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1 ; Gulf, etc., R. Co. V. McGowan, 65 Tex. 640, s. c. 26 Am. & Eng. R. Cas. 274; Pennsylva- nia R. Co. V. Henderson, 51 Pa. St. 315; Jacobus v. St. Paul, etc., R. Co., 20 Minn. 125, s. c. 18 Am. R. 360; Railway Co. v. Stevens, 95 U. S. 655; Delaware, etc., R. Co. v. Ashley, 67 Fed. R. 209; Rose v. Des Moines, etc., R. Co., 39 Iowa 246; Doyle v. Fitchburg R. Co., 162 Mass. 66, s. c. 44 Am. St. R. 335; Carroll v. Missouri R. Co., 88 Mo. 239, s. c. 57 Am. R. 382; Bryan v. Missouri Pac. R. Co., 32 Mo. App. 228 ; Buffalo, etc., R. Co. v. 0'Hara,(Pa.) 9 Am. & Eng.R.Cas. 317. See Thompson v. Yazoo, etc., R. Co., 47 La. Ann. 1107, s. c. 17 So. R. .503. 'Wells V. New York, etc., R. Co., 24 N. Y. 181 ; Poucher v. New York, etc., R, Co., 49 N. Y. 263; Perkins v. New York, etc., R. Co., 24 N. Y. 196; TJlrich v. New York, etc., R. Co., 108 N. Y. 80, 8, c. 2 Am. St. R. 369. In the case last cited it was held that the fact that a person riding on a free pass purchases a seat in a drawing- room car in which he rides, does not make him a passenger for hire so as render the condition in his pass in- operative. ' Muldoon V. Seattle, etc., R. Co., 7 Wash. 528, 22 L. R. A. 794, s. c. 35 Pac. R. 422, 9 Lewis' Am. R. & Corp. R. 715, and note. * Western, etc., R. Co. v. Bishop, 50 Ga. 465 ; Kinney v. Central R, Co., 32 N. .1. L. 407 ; Griswold v. New York, etc., R. Co., o3 Conn. 371, s. c. 4 Atl. R. 261, 1 Lewis' Am. E. & Corp. R. 122 ; Quimby v. Boston, etc., R. Co., 150 Mass. 365, 23 N. E. R. 205 ; Hosmer v. Old Colony R. Co., 156 Mass. 506, s. c. 31 N. E. R. 652; Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. R. 1069; Illinois Central R. Co. v. Read, 37 111. 484, s. c. 87 Am. Dec. 260 ; Annas V. Milwaukee, etc., R. Co., 67 Wis. 46 ; post, § 1644. ' -McCawley B. Fumess R. Co.,L. R. 8 § 1608 TICKETS, FAKES AND PASSES. 2515 gence.' The authorities which hold the stipulations valid and binding upon the person using the pass rest upon the theory that the carrier when it issues a mere gratuitous pass, and does a thing which the law does not require it to do, has a right to stipulate against liability, and that by so doing no principle of public policy is contravened/ In such a case since the per- son who receives the pass gets something which he is not en- titled to demand it seems but just that the carrier may right- fully limit its liability, and that the person who receives the gratuity should assume the risk accompanying it. In some of the cases usually cited as opposed to this doctrine the pass was not in fact gratuitous, but for it some consideration, al- though indirect, was yielded, and it is evident that such cases are essentially different from cases in which a pass is issued as a mere gift, or donation. In most of the states it is held that if the pass is not a pure gratuity, but is one for which some consideration has been paid, then a stipulation against liabil- ity is void. Such is the rule, as we have seen, where passes have been issued to drovers or persons accompanying ship- ments to care for the same during transit. In such cases the Q. B. 57; Gallin v. London, etc., E. stipulation that the carrier shall not Co., L. R. 10 Q. B. 212; Alexander v. be bound to the exercise of care and Toronto, etc., R. Co., 33 U. C. Q. B. diligence is in effect an agreement to 474; Hall ■». Northeastern R. Co., L. absolve him from one of the essential R. 10 Q. B. 437 ; Duff v. Great North- duties of his employment, and it em R. Co., L. R. 4 Ir. 178. would be subversive of the very object ' Carroll v. Missouri R. Co., 88 Mo. of the law to permit the carrier to ex- 239, s. c. 57 Am. R. 382; Mobile, etc., empthimselffromliabilitybyastipula- R. Co. V. Hopkins, 41 Ala. 486; Flinn tion in his contract with the passenger, v. Philadelphia, etc., R. Co., 1 Houst. that the latter should take the risk of (Del.) 469; Gulf, etc., R. Co. ». Mc- the negligence of the carrier or his Gowan, 65 Tex. 640; Missouri, etc., R. servants. The law will not allow the Co. V. Ivy, 71 Tex. 409, 37 Am. & carrier thus to abandon his obligation Eng. R. Cas. 46; Ohio, etc., R. Co. v. to the public, and hence all stipula- Nickless, 71 Ind. 271; Graham v. Pa- tions which amount to a denial or re- ciflc R. Co., 66 Mo. 536; Saunders «. pudiation of duties which are of the Southern Pac. R. Co., (Utah) 44 Pac. very essence of his employment will R. 932 ; Pennsylvania R.Co.ij. Render- be regarded as unreasonable, contrary son, 51 Pa. St. 315. The rule is thus to public policy, and therefore void." stated in the case of Louisville, etc., ^Quimby v. Boston, etc., R. Co., 150 R. Co. V. Faylor, 126 Ind. 126: "A Mass. 365, 5 L. R. A. 846; Rogers®. 2516 CARRIEES. § 1609 pass is not a mere gratuity but one for which some considera- tion has been paid and hence the person using the pass may be justly regarded as a passenger for hire.' In some of the courts a distinction is made between the different degrees of negligence, the stipulation creating the exemption being held valid as to ordinary negligence but not as to gross negligence.^ § 1609. Injury to person riding on pass. — It is obvious that the right to recover in an action for injuries received by a per- son traveling on a pass is not the same in all jurisdictions for, as we have seen, in some jurisdictions the validity of stipula- Kennebec Steamboat Co., 86 Me. 261, 29 Atl. E. 1069, 2.5 L. R. A. 491. In the case of Muldoon v. Seattle, etc., E. Co., 7 Wash. 528, 22 L. E. A. 794, 38 Am. St. E. 901, it was said: "There can be no qaestion as to the propriety of that rule of law which prohibits a common carrier from forcing upon any person who deals with it in its public capacity a condition against liability arising from its own negli- gence. The very idea of a public or common carrier, with its features of monopoly and right of eminent do- main, bears with it to the modern mind, the duty of conveying pas- sengers with safety, so far as its own acts are concerned, upon the payment of reasonable compensation. The duty which the carriers owes to the public and to the individual is to per- form the service safely, without any limiting conditions; and, therefore, such conditions, when the imposition of them is attempted, violate an im- plied duty, and are justly held void. But when the intending passenger proposes to the carrier that it do some- thing for him which it is not, under any conceivable circumstances, re- quired by law or duty to do, viz : to carry him without any compensation whatever, and when the whole mat- ter is at the option of either party to agree or not, it is difficult to see why public policy should step in, and deny the right of the carrier to limit its chances of loss in the operation, even though a careless servant causes un- intentional injury to a passenger." 'Delaware, etc., E. Co. v. Ashley, 67 Fed. E. 209; Eailroad Co. v. Lock- wood, 17 Wall. 357; Cleveland, etc., R. Co. V. Curran, 19 Ohio St. 1, s. c. 2 Am. E. 362; Little Eock, etc., R. Co. I. Miles, 40 Ark. 298, s. c. 48 Am. E. 10; Maslin v. Baltimore, etc., E. Co., 14 W. Ya. 180, 8. c. 3-5 Am. E. 748; Lawson v. Chicago, etc., E. Co., 64 Wis. 447, s. c. 54 Am. R. 6.34 ; Water- bury V. 2sew York, etc., E. Co., 17 Fed. R. 671; Chicago, etc., E. Co. v. Carpenter, 56 Fed. E. 451 ; Saunders V. Southern Pac. E. Co., (Utah) 44 Pac.E. 932. In thestateof New Yorkit is held that astipulation in a drover's pass exempting the company from lia- bility is binding upon the holder and that the company is not liable for in- juries negligently inflicted upon a per- son riding on such a pass. Poucher ...New York, etc., E. Co., 49 N. Y. 263, s. c. 10 Am. E. 364. See Gard- ner V. New Haven, etc., R. Co., 51 Conn. 143, s. c. 50 Am. E. 12. 2 Illinois Cent. E. Co. v. Read, 37 111. 484 ; Pennsylvania E. Co. v. Mv- Closkey, 23 Pa. St. 526; Arnolds. 11 li- § 1609 TICKETS, FAKES AND PASSES. 2517 tions exempting the carrier from liability is affirmed and in others denied.' The relation which the person using the pass bears to the railroad company is also an important element in determining the liability. If he is regarded as a passenger, then the company is bound to use "the highest practical de- gree of care," and, for a failure to use such care, it will be liable for all injuries proximately caused thereby." But where the person using the pass is an employe, then the carrier will only be liable for such injuries as result from negligence in failing to perform the duties owing to employes.' Where the person using the pass has obtained possession thereof fraudu- lently he is a mere trespasser and the carrier will only be liable for wanton or willful wrongs.* A violation of the express pro- visions of the pass will often relieve the carrier from responsi- bility. Thus, where a drover's pass provides that the person using it shall ride in a particular part of the train such person will be guilty of contributory negligence if he violates his con- tract and occupies a position of greater danger and receives in- jury by reason of such violation." The general rule is that where the holder of the pass is to be regarded as a passenger any act of negligence may give a right of action. Thus, where nois Cent.R.Co., 83 111.273. See, also, ^ Ante, § 1608. Annas v. Milwaukee, etc., R. Co., 67 ^ Ohio, etc., E. Co. v. Muhling, 30 Wis. 46, 27 Am. & Eng. R. Cas. 102. 111. 9; Doyle v. Fitchburg R. Co., 162 This distinction mentioned in the text Mass. 66, 44 Am. St. R. 335 ; Louis- was made in Indiana, etc., R. Co. v. ville, etc., R. Co. v. Faylor, 126 Ind. Mundy, 21 Ind. 48, but in the later 126. Assuming, of course, that the case of Ohio, etc., R. Co. v. Selby, 47 person injured is not guilty of contrib- Ind. 471, the doctrine of the earlier utory negligence, case was denied and it was held that ' Ante, § 1578 ; Doyle v. Fitchburg R. there are no degrees of negligence, Co., 162 Mass. 66, s. c. 44 Am. St. R. citing Railroad Co. v. Lockwood, 17 335. "Wall. 357; Beal v. South Devon, etc., * Louisville, etc., R. Co. v. Thomp- R. Co., 3 H. & C. 337; Hinton v Dib- son, 107 Ind. 442. bin, 2 Q. B. 646. As to what law gov- 'Richmond, etc., R. Co. u. Picklesei- ems the construction and effect of mer, 85 Va. 798, s. c. 89 Va. 389; Chi- passes, see Burnett ij. Pennsylvania, cago, etc., R. Co.u. Hawk, 36 111. App. etc., (Pa. St.) 34 Atl. 972; Camden, 327; McCorkle v. Chicago, etc., R. etc., Co. V. Causch, (Pa. St.) 7 Alt. Co., 61 Iowa 555; Tuley t). Chicago, R. 371, 28 Am. & Eng. R. Cas. 142. etc., E. Co., 41 Mo. App. 432; Atchi- OORP. 160 2518 CARRIEKS. § 1610 a passenger riding on a pass was injured by a jerk of the bell cord the company was held liable.' So, too, the kind of train on which the pass entitles the holder to travel is sometimes a matter of importance, for, as we have shown, one who is en- titled to ride only on freight trains assumes some risks that passengers on regular passenger trains do not assume. § 1610. Person other than the one entitled to use a pass riding thereon — Fraud. — Passes are usually issued to a per- son named therein and entitle that person, and no other, to be carried thereon.^ It sometimes happens that passes are presented for transportation by persons other than the person to whom they are issued. Where a pass is presented by a person other than the person to whom it was issued the rule is that the person presenting it is not entitled to any rights under it and if he refuses to pay his fare he may be rightfully ejected from the train. Attempting to ride on a pass which has been issued to another person is a fraud upon the company and the company owes no further duty to such person than to refrain from willfully injuring him.' The fact that there is a slight error in the name contained in the pass is not conclu- sive evidence that there is fraud on the part of the person pre- son, etc., R. Co. v. Lindley, 42 Kan. son, 107 Ind. 442, and cases cited. In 714, s. c. 6 L. R. A. 646. Toledo, etc., E. Co. v. Beggs, 8-5 111. ' Thompson v. Yazoo, etc., R. Co., 47 80, s. c. 28 Am. Rep. 61.8, where a per- La. Ann. 1107, s. c. 17 So. R. 503. The son was injured while riding on a pass party using the pass in this case was issued to another person, it was said: held not to have been guilty of con- "But the most interesting and import- tributory negligence because he saw ant question remains. Was defend- the bell cord jerking some few min- ant in error a passenger on this train, utes before he was injured and did not in the true sense of the term? He move away from it. was traveling on a free pass issued to ^The grant of a "free pass" to a one James Short, and not transferable, person specifically designated therein and passed himself as the person is really the grant of a personal privi- named in the pass. By his fraud he lege, and a pass designating the per- was riding on the car. Tender such son to whom it is issued, can not, as circumstances the company could only we believe, be considered as assignable be held liable for gross negligence although there is no express stipula- which would amount to willful in- tion forbidding its transfer. jury." 'Louisville, etc., R. Co. ». Thomp- i 1611 TICKETS, FARES AND PASSES. 2519 senting the pass/ nor that he is not entitled to travel thereon. If a person haying no right to a pass presents it and refuses to pay- fare the company may eject him from the train. Thus, where a newspaper publisher represented to a railway company that a certain person was in his employ, when in fact he was not, and the company issued a thousand mile book to such person entitling him to be carried for that distance free of charge, it was held that such transportation was secured by fraud and that the person presenting the mileage book might rightfully be ejected.' It was also held that the ejection was rightful, notwithstanding the fact that the person expelled from the train had made several trips on the mileage book before any question of fraud was made by the company. § 1611. Contract to give passes. — Railway companies often make contracts to give some particular person or persons passes over their line for a specified time. In many instances railroad companies have agreed with land owners that, as con- sideration for the grant of the right of way, they will issue passes to them. It is obvious that such agreements have all the elements of a contract, and they have been upheld in a great number of cases.' Contracts are often made to issue passes over the line of road, the building of which is contem- 'Eice V. Illinois, etc., E. Co., 22111. etc. ,E.Co., 154 Mass. 299, s.c. 28N.E. App. 643. R. 243; Erie, etc., E. Co. v. Douthet, 2 Moore II. Ohio Eiver E. Co., (W. 88 Pa. St. 243, s. c. 32 Am. E. 451; Va.; 23 S. E. E. 539; Brown v. Weatherford, etc., E. Co. v. Wood, Missouri, etc., E. Co., 64 Mo. 536. 88 Tex. 191, 28 L. E. A. 526; Martin Where a person who was injured was v. New York, etc., E. Co., 36 N. J. Eq. a reporter on a newspaper, and was 109, s. c. 12 Am. & Eng. E. Cas. 448; riding on a non-transferable pass Euddick v. St. Louis, etc., E. Co., 116 issued to another employe of the same Mo. 25, 22 S. W. E. 499; Eddy v. Hin- paper, it was held proper to submit nant, 82Tex. 354, 18S. W. E. 562; Hel- evidence to the jury that the railroad ton v. St. Louis, etc., E. Co., 25 Mo. company was accustomed to carry App. 322; Grimes i). Minneapolis, etc., other reporters of the same paper on E. Co., 37 Minn. 66, 31 Am. & Eng. E. a pass issued to one reporter. Great Cas. 123; Cook v. Milwaukee, etc., E. Northern R. Co. u. Harrison, 10 Exch. Co., 36 Wis. 45; Dickey u. Kansas 376, 26 Eng. L. & Eq. 443. City, etc., R.'Co., 122 Mo. 223, s. c. 26 » Western Maryland E. Co. ». Lynch, S. W. E. 685; ante, § 946. (Md.) 34 Atl. E. 40; Dodge v. Boston, 2520 CARRIERS. § 1611 plated at the time, or over a line which has been previously built, and, as a rule, the contract will not be construed to ex- tend to roads which may thereafter be leased or otherwise acquired, and hence the person entitled to such a pass has no right to one over after acquired roads.' Where the pass is granted to a person and his family, it means the members of his immediate family, those living in his house and under his control; it does not extend to the person's grand-child, who does not live with him.^ A very important question in regard to contracts to give passes in consideration of the conveyance of a right of way or the like, is whether or not the obligation to give the pass is such a one as runs with the land so as to bind the successors of the railway company making the con- tract. Where the contract is a mere verbal contract, the rule is that the obligation to furnish a pass is not binding upon the contracting railway company's successor.' So, even where the contract is in writing and is made a part of the instru- ment by which the right of way which forms the consider- ation for the contract is conferred upon the company, it has been held that the obligation to furnish a pass does not run with the land and will not become binding upon a succeeding company unless there is some condition in the contract providing for forfeiture or the like.' A covenant in such a contract to give a pass is held not to be a covenant to do something in reference to the land and therefore is not binding upon subsequent grantees, ° but it has been held that 'Western Maryland E. Co. B.Ijynch, 322, in which it was held that where (Md.) 34 Atl. R. 40. a land owner conveyed a right of way ^ Dodge V. Boston, etc., E. Co., 154 in consideration of a free pass for life Mass. 299, s. c. 28 N. E. R. 243. and the road was sold under a mort- ' Martin v. New York, etc., R. Co., gage the lien for the pass still contin- 36 N. J. Eq. 109, s. c. 12 Am. & Eng. ued. R. Cas. 448; Dallas, etc., R. Co. v. ^In Dickey b. Kansas City, etc., R. Maddox, (Tex. Civ. App.) 31 S. W. Co., 122 Mo. 223, s. c. 26 S. W. R. 685, R. 702. it was said: "Moreover, the covenant * Eddy V. Hinnant, 82 Tex. 354, 18 S. to furnish plaintiff and his family per- W.R. 562 jRuddick v. St. Loui8,etc.,R. petual passes over the line of the rail- Co., 116 Mo. 25, 22 S.W. R. 499, 57 Am. road does not run with the land, be- & Eng. R. Cas. 290. But see Helton cause foreign to it, and in no manner V. St. Louis, etc., E. Co., 25 Mo. App. connected with the land." i 1612 TICKETS, FARES AND PASSES. 2521 such grantees take with notice of conditions which may be expressed in instruments on record and are therefore bound by them.' What we have said, would, of course, not be appli- cable where the grantee assumed to perform the contract made by its grantor. Where the obligation does not become bind- ing upon the grantee the ordinary remedy is an action for damages against the company with whom the contract was made." It has been held, however, that the plaintiff may in- voke specific performance of a contract to issue him a pass.' It has also been held that a contract to give a pass for a cer- tain number of years, or for life, is not such a contract as falls within the class of contracts not to be performed within a year, so as to bring it within the statute of frauds. The contract, being a personal one, may be terminated in less than a year by the death of the parties entitled to the pass.' Receivers can not, by verbal contract, agree to give a person a pass for life and make such contract binding beyond the term of the receivership.' § 1612. Interstate commerce law. — The interstate commerce law prohibits those carriers of passengers which fall within its provisions from issuing free passes except to particular per- sons. The law, of course, is not applicable to carriers which operate roads wholly within one state or issue passes to be used within the limits of a single state. This provision of the law in reference to passes has been strictly construed wherever it has been before the courts. Thus, it has been held that the provision which permits the issuing of passes to officers and employes does not apply to their families and that the issuing of passes to the families of employes or officers is a violation ' Ruddick v. St. Louis, etc., R. Co., 'Bettridge v. Great Western R. Co., 116 Mo. 25, 22 S. W. R. 499. 3 Grant Err. & App. (U. C.) 58. ^Eddy V. Hinnant, 82 Tex. 354, 18 « Weatherford, etc., R. Co. ».Wood, S. W. R. 562. As to the measure of 88 Tex. 191 28 L. R. A. 526. damages for breach of a contract to 'Martin v. New York, etc., R. Co., furnish a pass for life, see Erie, etc., 36 N. J. Eq. 109, s. c. 12 Am. & Eng. R. Co. 1?. Douthit, 88 Pa. St. 243, 8. c. R. Cas. 448. 32 Am. R. 451. 2522 CARBIEBS. §1612 of the law.' Before the passage of the interstate commerce law passes were frequently sought by and issued to persons who occupied some official position or had high social standing and influence. The issuing of passes to the class of persons named above is prohibited by the interstate commerce law.^ It is held to be a violation of the law to issue a free pass to a person who is not an employe but requests a pass as compensation "for throwing business to the carrier. ' " A railway official who issues a pass to any person not within the exceptions of that law is ' Ex parte Kohler, 31 Fed. R. 315, 1 Interstate Com. Com. R. 317, s. c. 29 Am. & Eng. R. Cas. 44. ' In re Boston, etc., R. Co., 5 Int. St. Com. Com. R. 69; Harvey v. Louis- ville, etc., R. Co., 5 Int. St. Com. Com. R. 153; In re Boston, etc., R. Co., 3 Int. St. Com. Rep. 717. See Tuttle V. Northern Pac. R. Co., lint. Com. Rep. 483, .588. The interstate commerce commission will not adju- dicate upon the question of issuing passes to a particular class of persons in the absence of an actual case. Be United States Commission of Fish and Fisheries, 1 Int. Com. Rep. 606. 3 Slater ». Northern Pac. R. Co., 2 Int. Com. R. 243. In this case it was said: "Carriers can reward persons not in their stated and regular em- ployment for occasional services, or for benefits indirectly received, in other and better ways than by furnish- ing them with free transportation. Some of the evils which resulted from former methods were referred to in the first annual report of this commis- sion (see 1 Int. St. Com. Rep. 6.54) and others might be named. It may be be said that a pass costs the carrier little or nothing, and that when the good will and occasional words of a person who is is able to influence the direction of traffic can be obtained so cheaply it is a hardship to prevent the carrier from making use of the oppor- tunity; but the evils in the unre- stricted employment of free passes by common carriers had grown so great and had become so apparent, both to the public and to the carriers them- selves, that it was deemed by congress to be absolutely necessary to eradicate the whole system from interstate com- merce in order to put an end to the abuses which had grown beyond the limits of any other regulation or con- trol. The law was framed accordingly, prohibiting the giving of free trans- portation to passengers carried under substantially similar circumstances and conditions, as an unjust discrimi- nation, under the general terms era- ployed, with only the exceptions made in section 22, that: ' Nothing in this act shall be construed to prevent rail- roads from giving free carriage to their own officers or employes or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employes.' If any person who is in a position to render a com- mon carrier a service or a favor by kind words or by useful paragraphs can be properly considered to be an 'employe' the exception may easily be- come broader than the rule ; that word is evidently here employed in its ordinary signification." § 1613 TICKETS, FARES AND PASSES. 2523 guilty of a violation thereof and may be punished.' But where passes were issued to a discharged employe who never used them and they expired by limitation while in his hands it was held that since no transportation of any one had ever taken place on the passes there was no unjust discrimination.* § 1613. Statutes prohibiting the granting of passes. — In addition to the interstate commerce law prohibiting the grant- ing of free passes to be used for transportation between differ- ent states some of the states have passed statutes or have con- stitutional provisions prohibiting the issuing of passes to cer- tain persons to be used within the limits of such states. Such a provision is found in the constitution of Washington. There the constitution prohibits carriers from, issuing passes to pub- lic officers. But where an officer voluntarily accepts and uses a free pass he will be estopped to question the validity of the conditions therein, for that would be to permit him to take ad- vantage of his own wrong.' In the state of New York there is a constitutional provision prohibiting the issuing of free passes to public officers. The provision just referred to applies to a notary public who is appointed by the governor of the state, but whose term of office and duties are fixed by law.* It has also been held that an officer who received a free pass before the constitutional provision went into effect is prohib- ited from thereafter using it, but as elsewhere shown, the cases are in conflict upon this point. ° An interesting case arose under the New York constitution as to whether or not a rail- road policeman was entitled to a free pass. The plaintiff had entered into a contract with the defendant railway company to act as a railroad policeman for it and the contract provided that he was to receive a free pass over the lines of the railway '/re re Charge to Grand Jury, 66 Wash. 311, 38 Pac. E. 995, 45 Am. St. Fed. Rep. 146 ; United States v. Oleve- E. 787. land, etc., E. Co., 3 Interst. Com. Com. * People v. Eathbone, 145 N. Y. 434, Eep. 290. s. c. 28 L. E. A. 384. 2 Griffee v. Burlington, etc., E. Co., ' People v. Eathbone, 145 N. Y. 434, 2 Int. Com. Eep. 194. s. c. 28 L. E. A. 384. ' Muldoon V. Seattle, etc., E. Co., 10 2524 CARKIEES. § 1614 company. The contract having been made before the provi- sion of the constitution prohibiting the granting of passes to public officers was adopted, on the adoption of the provision the railway company refused to give the plaintiff a free pass on the ground that he was a public officer. Suit was brought to compel the issuing of a pass and it was held that although the plaintiff was a public officer, he was entitled to a pass under his contract.' The court held that the pass issued to him was not a free pass and that lie was entitled to it as part of the con- sideration agreed to be paid him for his services. § 1614. Rights of persons holding passes to be carried in sleeping and parlor cars. — So far as we have been able to dis- cover there is no case or authority which precisely defines the right of a person holding a free railroad pass to be carried in sleeping and parlor cars. The right of a person to be carried in such cars may, perhaps, depend upon the terms of the con- tract contained in the pass, lo that it is difficult to state a gen- eral rule. If the pass provided that the holder should have no right to be carried in a sleeping or parlor car we believe that such a provision would be valid, for a railway company certainly has the right to give to a person, who paid full and regular compensation, the benefit of first choice of sleeping and parlor cars, to the exclusion of those to whom it grants a privilege.^ Where a pass is silent on the subject, and there is no rule or regulation to the contrary, there is more difficulty, but we are inclined to the opinion that a person travel- ing on a pass would have a right to be carried in parlor and sleeping cars on paying the compensation for carriage in those § 1615. Baggage of person riding on pass. — It has been held that unless there be some stipulation or condition in a 'Dempsey i;. NewYork, etc., R. Co., ' We suppose that a railroad com- 146 N. Y. 290, s. c. 40 N. E. R. 867. pany may make reasonable rules and "^See Muldoon v. Seattle, etc., R. regulations on the subject, and that a Co., 10 Wash. 311, s. c. 45 Am. St. R. person accepting a pass would be 787. bound to conform to them. § 1615 TICKETS, PARES AND PASSES. 2525 pass in reference to the baggage of a person riding thereon such person is a passenger and entitled to the rights of a passenger and has a right to have his baggage carried by the car- rier on the same terms upon which the baggage of passengers for hire is carried. But it is within the power of the carrier to make a contract governing the carriage of the baggage of persons riding on passes and where such stipulations are in- corporated in a pass they are valid and binding upon the per- son using the pass, and, as we believe, the right of a holder of a pass to have baggage carried may be limited by rules or reg- ulations.' It seems clear, it may be said generally, that a person who accepts a gratuitous pass must take it on the terms and conditions on which the donor chooses to bestow it, unless such terms or conditions violate some rule of law or public policy. •Muldoon ■». Seattle, etc., E. Co., 10 a gratuitous bailee. Eice v. Illinois Wash. 311, 45 Am. St. R. 787. The Cent. R. Co., 22 111. App. 643; Flint, liability of the company aa to baggage etc., E. Co. v. Weir, 37 Mich. 111. so cairied ia held to be merely that of CHAPTER LXVIII. SLEEPING CAK COMPANIES. § 1616. 1617. 1618. 1619. 1620. 1621. General nature of sleeping car companies. Duty to furnish accomoda- tions. Duties and liabilities of sleep- ing car and parlor car com- panies — Generally. Eefusal to furnish berth — Eight of railroad company to determine on what trains or tickets sleeping car berths shall be furnished. Tickets — Berths. Duties of sleeping car com- panies to passengers — Illus- trative instances. § 1622. Duty as to property of pas- sengers. 1623. Baggage of passengers— Loss of — Negligence. 1624. Contributory negligence — Loss of baggage or property. 1625. Relation of railroad compan- ies to passengers traveling in sleeping car or parlor car. 1626. Railroad companies may re- quire compensation for sleeping car accommoda- tions. 1627. Limiting liability— Contract — Notice. § 1616. General nature of sleeping car companies. — It is affirmed by the authorities that a sleeping car company is neither a common carrier nor an innkeeper/ but precisely ^Post, §§1618,1622. "Liability of Sleeping Car Companies for the Prop- erty of Passengers," 1 Am. & Eng. R. Cas. (N. S). XXXVIII ; Legal Status of Sleeping Car Companies,19 Am.L.Rev. 204. "The Liability of Sleeping Car and Palace Car Companies for Injuries to Passengers, 3 Columbia L. T. 93. "Sleeping Cars," 22 Cent. L.J. 52; Notes to Mann, etc., Co. v. Dupre, 21 L. R. A. 289; Whitney c. Pullman Palace Car Co., 26 Am. L. Reg. 366; Lewis V. New York Central, etc., Co., 26 Am. L. Reg. 359; Pullman, etc., Co. V. Gaylord, 26 Am. L. Reg. 512 ; Notes to Pullman, etc., Co. v. Lowe, 29 Am. L. R. 251; Notes to Pullman, etc., Co. V. Lowe, 30 Central L. J. 245 ; Ray Negligence of ImpoHfnl Duties, Passenger Carriers, 3; Hutchinson on Carriers, §§677-719; Schouler on Car- riers, 421-429; Thompson on Carriei-H of Passengers, 489-539; 3 W.xid on Railways, (Minor's, ed.) 1697, 22 Am. & Eng^. Ency. of Law, 3. Where a sleeping car company without author- ity leases its property it may recover it bank as there is no moral wrong in the transaction. Pullman, etc., Co. V. Central, etc., Co., 65 Fed. R. 158. (2526) § 1617 SLEEPING CAR COMPANIES. 2527 what its character is has not been very satisfactorily explained or described. The rules as to the rights, duties and liabilities of such companies have not as yet been very fully declared by the courts nor the doctrines which govern such organizations very fully developed.' Sleeping car companies do not under- take to carry passengers but they do assume a duty of a special nature to the persons to whom they agree to furnish "addi- tional accommodations." Public carriers are not bound to furnish places to sleep nor luxurious seats or the like, for their duty as carriers is to furnish, on trains provided for the car- riage of passengers, reasonable accommodations for the com- fort and convenience of those they undertake to carry. The additional accommodations are furnished by sleeping car com- panies or parlor car companies, and for those accommodations compensation is paid such companies. Such companies do not undertake to furnish tracks, locomotives or the like, nor do they undertake to govern or control the movement of trains or any matters connected with the operation of the road, so that it can not be justly said that as to any of such matters they owe a duty to their patrons. But while the duty of such companies to their patrons is neither that of an innkeeper nor that of a public carrier there is, nevertheless, some special duty, (not as yet very clearly defined by the decisions) inso- much as they exact and receive a compensation for furnishing travelers with what are commonly called "additional accom- modations," and correspondent to this duty there must, upon well settled principles, be some liability for a breach of duty to the persons to whom that duty is owing, and who are injured in person or property by a wrongful violation of such duty. § 1617. Duty to furnish accommodations. — The courts must, as we suppose, take judicial notice that sleeping car companies do not undertake to furnish accommodations to all persons who desire them in the broad sense that public carriers under- take to carry all persons who properly offer themselves for transportation.* Sleeping car companies have not the same * See post, § 1618. gratuitous pass to demand a berth in * As to the rigW of the holder of a in a sleeping car, see ante, § 1614. 2528 CAERIBKS. § 1618 control of facilities for transportation as railroad companies have and they do not hold themselves out as undertaking to accommodate all who desire accommodations such as they as- sume to furnish, and it can not be justly held that their duty is as broad as that of railroad carriers. It is difficult to say what is the scope and extent of their duty to furnish accom- modations to those who demand them, but we think it safe to say that as they are, to some extent, at least, "affected with a public interest," they are under a duty to serve the public impartially and to exercise reasonable care to furnish the re- quired service. There must be some public duty otherwise such public carriers as railroad companies would have no right to haul the cars of sleeping car companies as parts of regular railway passenger trains. But while there seems to be a duty on the part of a sleeping car company to treat all persons im- partially who desire accommodations and to exercise reasonable care to provide such accommodations we do not think that the duty is so broad or so closely analogous to that of a railroad com- pany as the expressions of some of the courts seem to indicate.' A sleeping car company can not, however, arbitrarily and with- out cause refuse to receive a passenger who properly offers him- self and requests accommodations," but it may, of course, refuse to receive an unfit person or may for other sufficient reasons decline to receive a passenger into its coaches. § 1618. Dnties and liabilities of sleeping car and parlor car companies — Generally. — The acceptance of compensation for accommodations in a sleeping car or parlor car, as we have said, creates contractual relations between the company and its patron, and out of this relation a duty arises. The nature of the service rendered by sleeping car companies is public, and they are in some measure instrumentalities of interstate commerce,' and hence considerations of public policy have 'Nevin v. Pullman, etc., Co., 106 ' They are regarded for the purposes 111. 222, s. c. 46 Am. R. 688, 11 Am. & oftaxatlon as instrumentalities of com- Eng. R. Cas. 92. merce. Pullman, etc., Co. v. Board, ^SearlesB. Mann, etc., Co., 4-5 Fed. 65 Fed. R. 206; Board u. Pullman, R. 330. etc., Co., 60 Fed. R. 37. § 1618 SLEEPING CAR COMPANIES. 2529 weight in determining what their obligations are and the gen- eral character of their duties. We think that principle requires the conclusion that in all matters peculiar to sleeping cars and their appurtenances, a sleeping car company owes to those with whom it contracts a special and distinct duty. If, for ex- ample, the sleeping car company should negligently place a trav- eler in a berth previously occupied by one suffering from a con- tagious disease the sleeping car company and not the railroad company, unless guilty of concurrent negligence, is responsible to the traveler injured by such negligence, for it can not be justly said that as to things peculiarly and exclusively pertaining to sleeping car accommodations the railroad company owes the traveler a duty. It is probably true that the decisions, or, more accurately speaking, the dicta contained in many of them, oppose our conclusion, but, for all that, we believe that as to exclusively "additional accommodations," that is, ac- commodations especially furnished by the sleeping car com- pany and in no way connected with the carriage of the pas- senger, the special duty is owing to the traveler by the sleeping car company. We do not doubt that the weight of authority is that a railroad company, as well as the sleeping car com- pany, is liable for assaults committed by sleeping car con- ductors and porters upon passengers,' nor do we say that the decisions so declaring are not well founded, but we do venture to say that they can only be sustained upon the ground that the duty of furnishing fit and competent servants and of re- quiring of them a proper service is a matter connected with the carriage of passengers and not a matter exclusively per- taining to the undertaking to furnish "additional accommo- dations" in the form of places for sleeping or the like. Nor do we controvert the soundness of the doctrine declared by the cases which hold that a railroad company is liable for in- 'Dwinelle v. New York, etc., E. R. Cas. 414; Heenrich v. Pullman, Co., 120 N. Y. 117, s. c. 24 N. E. R. etc., Co., 20 Fed. R. 100; Thorpe v. 319, 2 Am. R. & Corp. R. (Lewis) 492; New York, etc., Co., 76 N. Y. 402, 8. Pennsylvania Co. v. Roy, 102 XJ. S. c. 32 Am. R. 325. See, generally, 451; Williams u. Pullman, etc., Co., Pullman, etc., Co. v. Bales, 80 Tex. 40 La. Ann. 417, s. c. 33 Am. & Eng. 211, s. c. 14 S. W. R. 855. 2530 CAEEIERS. § 1619 juries caused by defects in sleeping cars,' for it is the duty of the railroad company as a public carrier to exercise the highest practicable degree of care to procure safe cars and equipments and to keep them in a safe condition for use. While we readily agree to the doctrine of the cases referred to, we, nevertheless, think that a sleeping car company may also be liable for negligently using an unsafe or defective car,^ for we can see no reason for exonerating a natural person or a corporation who undertakes for a consideration to furnish a traveler with sleeping accommodations from responsibility for negligence, although it may be true that the negligence of some one else concurs in causing the injury. Although a railroad company may be liable for assaults committed upon passengers by the employes of a sleeping car company the in- jured person has a right of action against the sleeping car company.' § 1619. Eefusal to furnish berth — Eight of railroad com- pany to determine on what trains or tickets sleeping car berths shall be furnished. — The general principle discussed in a former chapter that railroad companies may determine on what trains passengers shall be carried authorizes the conclu- sion that a railroad company may classify its trains and deter- mine on what trains sleeping car accommodations shall be furnished.* There is no duty to furnish such accommodations on all trains, so that it must ordinarily be within the power of the railroad company to determine on what trains sleeping cars shall be handled. A passenger can not maintain an ac- tion for a refusal to furnish a sleeping car berth on trains on 'Pennsylvania Co. v. Roy, 102 U. ^ Campbell w. Pullman, etc., Co., 42 S. 451; Dwinelle v. New York, etc.. Fed. B. 484. Co., 120 N. Y. 117, 8. c. 8 L. R. A. « In State v. Missouri, etc., R. Co., 224; Thorpe v. New York, etc., Co., .5.5 Kan. 708, s. c. 49 Am. St. 278, will 76 N. Y. 406; Kinsley «. Lake Shore, be found an instructive discussion of etc., R. Co., 125 Mass. 54, s. c. 28 Am. the general discretionary power of R. 200. railroad companies. See, also, State 2 Williams ». Pullman, etc., Co., 40 v. Kansas, etc.,R. Co., 47 Kan. 497. La. Ann. 417, s. c. 33 Am. & Eng. R. Caa. 414. § 1620 SLEEPING CAR COMPANIES. 2531 which such accommodations are not furnished, nor can a pas- senger not entitled to such accommodations because not hold- ing such a ticket as entitles him to such accommodations main ; tain an action for a refusal to furnish him a berth.' It is held that the agent of a railroad company who is also em- ployed to sell tickets for a sleeping car company acts as the agent of the railroad company in selling such tickets in cases where the railroad company determines what persons shall oc- cupy the sleeping car and that no recovery can be had against the sleeping car company for the wrongful refusal of such agent to sell an intending passenger a berth.' § 1620. Tickets — Berths. — The rule that a ticket does not fully express the contract, and is in the nature of "a voucher" or "token," is applied to "berth tickets" issued by sleeping car companies.' In one of the reported cases it was held com- petent for the sleeping car company to contradict by parol the terms of a ticket as to the berth bought by the passenger,' but this seems to us an erroneous ruling for we believe that the statements of the ticket as to the particular berth purchased can not be contradicted for the reason that as to that fact the ticket expresses the agreement of the parties even though it may not express the entire contract. If the rule asserted in the case referred to is the correct one then a traveler who under- takes a night ride upon a ticket sold him by the agent of the company may be induced to enter upon a journey that may result in injury to him although his ticket by its terms assures him that he will receive such accommodations and that he has a right to a particular berth. In another case it was held that a person who buys a ticket entitling him to a designated berth has a right to that berth or to a similar berth in another car 'Lawrence V. Pullman, etc., Co., 144 etc., Co., 143 Mass. 267, 9 N. E. R. Mass. 1, s. c. 28 Am. & Eng. R. 151 ; 615. Pullman, etc., Co. v. Lee, 49 111. App. *Mann, etc., Co. v. Dupre, 54 Fed. 75. R. 646, citing New York, etc., R. Co. « Lemon v. Pullman, etc., R, Co., 52 v. Winter's Admr., 143 U. S. 60, s. c. Fed. R. 262. 12 Sup. Ct. R. 356. ^Ante, §1593; Lewis v. New York, 2532 CARRIERS. § 1620 and that for a failure to furnish such a berth an action will lie." So it is held by other courts that a demand for a berth and a promise to furnish it constitute a contract between the sleeping car company and the passenger by whom the berth is engaged for a breach of which the sleeping car company is liable in damages.^ A sleeping car company has a right to sell an entire section to one passenger and no action will lie against it because of the refusal of its employes to permit another trav- eler to take an unoccupied berth therein.' A passenger who pur- chases a ticket for a berth really buys a right to a designated place in the car and can not justly claim a right to any other, hence it is correctly held that he has no right to occupy any other berth except the one he purchases.^ Where a passenger ac- cepts a free pass from the railroad company, the purchase by him of a ticket for a seat in a drawing-room car does not make him a passenger of the railroad company for hire.° It has been held that a passenger who buys a ticket from the agent of a sleeping car company which is subsequently lost, and, after its loss, receives from the agent of the company a written state- ment reciting that he holds a seat in a designated train and car, and indicating that the ticket has been lost is entitled to damages for being compelled to travel in an ordinary car attached to the same train. ° In another case the question as ' Pullman, etc., Co. v. Taylor, 65 for, as it seems to us, a passenger Ind. 153. must know that the ticket which the 'Pullman, etc., Co. v. Booth, (Tex. company authorizes its agent to sell is Civ. App.) 28 S. W. R. 719, citing the evidence to the conductor of the Nevin v. Pullman Car Co., 106 111. sleeping or parlor car of the right of 222; Missouri, etc., R. Co. v. Evans, the passenger to a particular seat or 71 Tex. 361, s. c. 9 S. W. R. 325. berth. If the agent should give such ^Searlesc. Mann, etc., Co., 45 Fed. a statement to a person not entitled R- 330. to the berth or seat, although he 'Pullman, etc., Co. v. Bales, 80 should act in entire good faith and Tex. 211, 8. c. 14 S. W. R. 855 ; Searles with all possible care, it would cer- x;. Mann, etc., Co., 45 Fed. R. 330. tainly not avail the company in an sUlrich V. New York, etc., R. Co., action by the holder of the ticket in 108 N. Y. 80. the event that it should turn out that 8 Buck V. Webb, 58 Hun 185. We the agent was mistaken and the per- are inclined to think that the decision son to whom the statement was given in the case referred to is erroneous had not bought a ticket. § 1621 SLEEPING CAR COMPANIES. 2533 to the rights of a passenger who had lost his ticket for a berth came under consideration and it was held that the company was liable for the expulsion of a passenger who had lost his ticket but had received a written statement from the agent of the company showing that he had bought a ticket for a desig- nated berth.' § 1621. Duties of sleeping: car companies to passengers — Illustrative instances. — A sleeping car company owes a duty to its patrons to make reasonable provision for their con- venience and comfort, but a patron can not successfully insist that his comfort or convenience shall be paramount to the reasonable rules of the company nor to the rights of other pas-' sengers.^ It is held that a railroad conductor is not bound to arouse from sleep a passenger whom he knows is to leave the train at a designated station,' but that it is the duty of the em- ployes of a sleeping car company to awaken a passenger in time to get off the train at the place where it is known he desires to stop.' There is good reason for making a distinction between the classes of cases referred to, for the particular duty to awaken a sleeping passenger is clearly implied in the general duty to provide him with sleeping accommodations to a designated station. We think that a sleeping car company would be liable to a passenger injured through the negligence of its employes in the management of the heating apparatus of its car.* In a case where a passenger was wrongfully expelled from a sleep- ing car because of a fear that he was suffering from small pox, 'Pullman, ete., Co. v. Reed, 75 111. 15 Am. St. R. 873. The case first cited 125, s. c. 20 Am. R. 232. recognizes the difference between the ^Pullman, etc., Co. v. Ehrman, 65 duty of a railroad company and the Miss. 383, s. c. 4 So. R. 113. duty of a sleeping car company. ' Sevier «. Vicksburg, etc., R. Co. ,61 'Pullman, etc., Co. v. Barker, Miss. 8; Nunn v. Georgia R. Co., 71 Colo. 344. The decisonin the casere- Ga. 710. ferred to is erroneous so far as regards * Pullman, etc., Co. v. Smith, 79 the measure of damages, and some of Tex. 468, s. c. 23 Am. St. R.356, citing the statements as to the general lia- Pullman, etc., Co. ». Pollock, 69 Tex. bility of a sleeping company are prob- 120, s. c. 5 Am. St. R. 31; Pullman, ably too strong, etc., Co. V. Matthews, 74 Tex. 654, s. c. Corp. 161 2534 CARRIERS. § 1621 the court held that if the removal was by the employes of the railroad company that company was liable, but that if the ejec- tion was by the employes of the sleeping car company then that company was liable," but, while there is good reason for the conclusion asserted in the case referred to, it seems to be opposed to the weight of authority, for the weight of authority asserts a rule that would hold the railroad company liable, al- though the passenger was ejected by the employes of the sleep- ing car company. The theory of the cases which hold that the railroad company is liable for assaults committed by the em- ployes of sleeping car companies seems to be that the passenger has a right to assume that the train is all under one manage- ment and that it is the duty of the railroad company to procure fit and competent servants and to see that they do no injury to passengers no matter whether the passengers travel in sleeping coaches or in other cars attached to the train. We suppose it clear, however, that a railroad company would not be liable for an assault committed by an employe of a sleeping car com- pany if such employe was at the time acting in some matter wholly outside of any duty connected with the management of the train. As a sleeping car company does not undertake to carry passengers it is not liable where the failure to transport the car in which a passenger secured a berth to its destination is caused by the act of the railway company.^ Where a person admitted to a sleeping car is known to the employes of the sleeping car company to be violently insane it is culpable neg- ligence on the part of the employes to permit him to remain and thus endanger the safety of others, and the company is liable for injuries to a passenger inflicted by such an insane person.' In the case referred to it was held that the duty to remove the insane person rested upon the sleeping car com- pany and that the trial court erred in not instructing the jury 'Paddock o. Atchinson, etc., R. "Meyer v. St. Louis, etc., Co., 54 Co., 37 Fed. R. 841. Fed. R. 116, citing Putnam v. Broad- ^ Duval V. Pullman, etc., R. Co., 62 way, etc., R. Co., 55 N. Y. 108; Pear- Fed. R. 265. son v. Duane, 4 Wall. 605. §1622 SLEEPING CAR COMPANIES. 2535 that the company had "the right, if need arose, "to restrain or eject from the car the insane person.' § 1622. Duty as to property of passengers. — There is a slight conflict of authority as to the duty of a sleeping car company to protect the property of passengers who occupy berths in one of its cars. Some of the courts hold that the duty is substantially that of an innkeeper and therefore absolute,'' but the very decided weight of authority is that such com- panies are liable only where the loss is attributable to the neg- ligence of their employes." The failure of the employes of a sleeping car company to exercise ordinary and reasonable care constitutes negligence and fastens a liability upon the com- pany, unless the negligence of the passenger contributed to the loss.' The sleeping car company must, as we have said, exer- ' It has often been held that a rail- Toad carrier is not bound to receive an insane person as a passenger. Wood on Railroads, 1035 ; Hutchinson on Carriers, § 540. ^Pullman, etc., Co.i). Lowe, 28 Neb. 239, s. c. 40 Am. & Eng. E. Cas. 637; Louisville, etc., R. Co. v. Katzen- berger, 16 Lea 380. 'Mann, etc., Co. ». Dupre, 54 Fed. R. 646, s. c. 21 L. R. A. 289, notes; Lemon v. Pullman, etc., Co., 52 Fed. R. 262; Barrott t). Pullman, etc., Co., 51 Fed. R. 796; Stearn v. Pullman, etc., Co., 8 Ontario 171, s. c. 21 Am. & Eng. R. Cas. 443 ; Welch v. Pullman, etc., Co., 16 Alb. Pr. R. N. S. 352; Carpenter v. New York, etc., Co., 124 N. Y. 53; Tracy v. Pullman, etc., 67 How. Pr. 154 ; Palmeter v. Wagner, etc., Co., 11 Alb, L. J. 149 note; Pull- man, etc., Co. w. Freudenstein, 3 Colo. App. 540, s. c. 34 Pac. R. 578, 58 Am. & Eng. R. Cas. 589; Kates v. Pull- man, etc., Co., (Ga.) 23 S. E. R. 186; Pullman, etc., Co. v. Smith, 73 HI. 360; Pullman, etc., Co. v. Bluhm, 109 111. 20; Woodruff, etc., Co. v. Diehl, 84 Ind. 474, s. c. 9 Am. & Eng. R. Cas. 294; Hillis v. Chicago, etc., Co., 72 Iowa 228, s. c. 31 Am. & Eng. R. Cas. 108; Pullman, etc., Co. v. Gaylord, 23 Am. L. Reg. (N. S.) 788; Whitney v. Pullman, etc., Co., 143 Mass. 243 ; Illinois, etc., Co. v. Handy, 63 Miss. 609 ; Scaling v. Pullman, etc., Co., 24 Mo. App. 29; Root v. New York, etc., Co., 28 Mo. App. 199; Bevis V. Baltimore, etc., Co., 26 Mo. App. 19; Pfaelzer v. Pullman, etc., Co., 4 Weekly N. C. 240; Keith v. Pullman's Palace Car Co., 17 Chicago Legal News 196; Pullman, etc., Co. V. Gavin, 93 Tenn. 53, s. c. 21 L.R. A. 298; Blum v. Southern Pullman, etc., R. Co., 1 Flip. (U. S. C. C.) 500, 13 Alb. L. J. 221, note, 3 Central L. J. 591 ; Pullman, etc., Co. v. Matthews, 74 Tex. 654; Pullman, etc., Co. ■!). Pol- lock, 69 Tex. 120 ; Dugan ■«. Pullman, etc., Co., 2 Tex. App. (Civil Cases) 607, s. c. 26 Am. & Eng. R. Cas. 149. * Stevenson v. Pullman, etc., Co., (Tex. Civ. App.) 26 S. W. R. 112, 32 S. W. R. 335; Lewis ». New York, etc , R. Co., 143 Mass. 267, s. c. 28 Am. 2536 CARRIERS. § 1622 cise reasonable care to protect the property of its patrons, and reasonable care requires that it should exercise care and dili- gence to employ a reasonable number of trustworthy servants to give reasonable care to the protection of the property, and also to see to it that such servants exercise ordinary care and dili- gence in the performance of their duties.' As it is the duty of a sleeping car company to employ competent and trustworthy servants it necessarily follows that the company is liable to a passenger for the loss of money or property stolen by one of its employes.* The decisions go so far, indeed, as to hold the company liable where the theft is by a fellow passenger or by an intruder,' but we suppose that where the theft is by a fel- & Eng. R. Cas. 148 ; Woodruff, etc., Co. V. Diehl, 84 Ind. 474, s. c. 9 Am. & Eng. E. Cas. 294; Pullman, etc., R. Co. v. Gardner, 3 Pennypacker 78, s. c. 16 Am. & Eng. R. Cas. 324, 18 Cent. L. J. 14; Pullman, etc., Co. M. Gaylord, 23 Am. L. Reg. (N. S.) 788. In Kates ■V. Pullman, etc., Co., (Ga.) 23 S.E. R. 186, it is held to be the duty of a sleeping car company to exercise ordi- nary care to discover and restore to the passenger property left by him in the car. In the case referred to the ■wrong of the company prevented the passenger from giving due care and attention to his property so that it can not be said that the decision de- nies the applicability or effect of the doctrine of contributory negligence. 'Lewis V. New York, etc., Co., 143 Mass. 267; Blumv. Southern, etc., Co., I Flippin (U. S.) 500; Woodrag, etc., Co. ». Diehl, 84 Ind. 474; Pullman, etc., Co. V. Martin, 92 Ga. 161, s. c. 58 Am. & Eng. R. Cas. 583; Carpenter V. New York, etc., Co., 124 N. Y. 53, 47 Am. & Eng. R. Cas. 421, 11 L. R. A. 759 ; Palmeter v. Wagner, etc. , Co. , II Alb. J. 149, note; Root ». New York, etc., Co., 28 Mo. App. 199; Wilson v. Baltimore, etc., Co., 32 Mo. App. 682; Scaling v. Pullman, etc., Co., 24 Mo. App. 29; Pullman, etc., Co. v. Bluhm, 109 111. 20. See, generally, Barrett v. Pullman, etc., Co., 51 Fed. R. 796, s. c. 52 Am. & Eng. R. Cas. 498; Pull- man, etc., Co. V. Pollock, 69 Tex. 120; Welch V. Pullman, etc., Co., 16 Alb. Pr. (N. S.) 352, 13 Alb. L. J. 221 ; Pullman, etc., Co. v. Matthews, 74 Tex. 654; Illinois, etc., Co. v. Handy, 63 Miss. 609; Root v. New York, etc., Co., 28 Mo. App. 199; Crozier D.Boston, etc., Co., 43 How. Pr. 466; Pullman, etc., Co. V. Gaylord, (Ky.) 23 Am. L. Reg. (N. S.) 788. ^Pullman, etc., Co. «. Martin, 95 Ga. 314..22S. E. R. 700; Pullman, etc., Co. t3. Gavin, 93 Tenn. 53, s. c. 23 S. W. R. 70, 21 L, R. A. 298; Carpenter v. New York, etc., Co., 124 N. Y. 58, s. c. 11 L. R. A. 759; Root v. New York, etc., Co., 28 Mo. App. 199. See, also, au- thorities cited in preceding notes. 'Pullman, etc., Co. v. Gavin, 93 Tenn. 53, s. c. 23 S. W. R. 70, 11 L. R. A. 298; Carpenter v. New York, etc., Co., 124 N. Y. 68, s. c. 11 L. R. A. 759; Mann, etc., Co. v. Dupre, 54 Fed. R. 646, s. c. 21 L. R. A. 289; Pullman, etc., Co. v. Matthews, 74 Tex. 654. § 1623 SLEEPING CAK COMPANIES. 2537 low passenger or an intruder there is no liability unless the employes of the company were guilty of negligence. The modern doctrine that a principal is liable for the willful acts of the agent or employe requires the conclusion that a sleep- ing car company is liable for the torts of its employes although committed in disobedience of instructions. A sleeping car company is responsible for baggage or property lost through its negligence or by the theft of one of its employes where the property or baggage is carried by, or is directly in charge of one of the members of a family in cases where the family is traveling together.' It can not be justly affirmed that a sleep- ing car company is liable for all money or property which a passenger may choose to take into the car with him, for there must be, as there is even in the case of a public carrier of pas- sengers, a limit to the liability of such a company. We think that a sleeping car company may be liable for such an amount of money as a passenger may take into the car with him for the purpose of defraying all the expenses incident to his jour- ney, but not for money carried for purposes wholly discon- nected with his journey or its incidents.^ Generally, the right of action for the loss of property through the torts of the employes of a sleeping car company is in the person to whom a berth is sold, and it has even been held that such a per- son may maintain an action for money stolen from him by an employe of the sleeping car company although the money belonged to another and was entrusted to the passenger by the owner.^ § 1623. Baggage of passengers — Loss of — Negligence. — The settled rule is that where a passenger actually entrusts his bag- ' Pullman, etc., Co. v. Gavin, 93 Tenn. 53, s. c. 21 L. E. A. 298. We Tenn. 53, s. c. 23 S. W. R. 70, 21 L. venture to suggest that it seems doubt- E. A. 298; Dexter v. Syracuse, etc., ful whether a sleeping car company E. Co., 42 N. Y. 326, s. c. 1 Am. R. owes a duty to any person except the 627; Curtis v. Delaware, etc., Co., 74 one with whom it contracts, and that N. Y. 116. it can hardly be said to be responsible ' Blum V. Southern, etc., Co., 3 Cent, for the property of a stranger although L. J. 591. in the custody of the person with 'Pullman, etc., Co. v. Gavin, 93 whom it has contracted. 2538 CABRiEKS. § 1623 gage to the custody of the railroad company and does not him- self retain the possession or care of it, the railroad company receives it as a common carrier and is liable for its loss irre- spective of the question of negligence, but where the passen- ger himself retains possession of his baggage the railroad com- pany is not liable unless it was guilty of negligence. This general rule it is evident can not fully apply to a sleeping car company for the reason that it is neither a common carrier nor an innkeeper, but we think that the rule in so far as it relates to the possession of the baggage by the passenger himself does exert an important influence upon the question of the liability of a sleeping or parlor car company.' Our conclusion is that where the passenger takes his baggage into the coach with him and does not place it in charge of the railroad company or of the sleeping car company that neither company is liable unless the loss of the baggage was caused by the negligence of one of the companies.^ We concur in the opinion of a writer who says: "A sleeping car company invites passengers to bring with them such baggage as is necessary for their personal com- fort and impliedly contracts to use reasonable care in the pro- tection of such baggage as in the protection of passengers but not further.'" There is some diversity of opinion as to where the burden of proof rests in cases where the loss of the bag- gage is proved, some of the cases holding that the burden is on the sleeping car company' and others that it is on the pas- 1 Welch V. Pullman, etc., Co., 1 500, 3 Cent. L. J. 591; Woodruff, Sheld. (N. Y.) 457, s. c. 16 Abbott Pr. etc., Co. v. Diehl, 84 Ind. 474; Lewis (N. 8.) .352. V. New York, etc., R. Co., 143 Mass. ^Blum 0. Southern, etc., R. Co., 1 267; Root v. New York, etc., R. Co., Flipp. (U. S.) oOO, s. c. 3 Cent. L. J. 28 Mo. App. 199; Wilson b. Baltimore, .591; Pullman, etc., R. Co. v. Smith, etc., R. Co., 32 Mo. App. 682; Barrott 73 111. .360; Pallman etc., R. Co. v. v. Pullman, etc., R. Co., 51 Fed. R. Freudenstein, 3 Colo. App. 540, s. c. 796, s. c. 52 Am. & Eng. R. Cas. 498. .=>8 Am. & Eng. R. Cas. 589; Hillis »j. 'Voss ». Cleveland, etc., R. Co., Chicago, etc., R. Co., 72 Iowa 228, 31 (Ind. App.) 43 N. E. R. 20; Kates Am. & Eng. R. Cas. 108. v. Pullman, etc., Co., (Ga.) 23 S. E. 'Liability of Sleeping Car Compan- R. 186; See Lewis v. New York, etc., ies for Property of Passengers, Em- R. Co.. 143 Mass. 267; Pullman, etc., lin McClain, 1 Am. & Eng. R. Cas. R. Co. v. Freudenstein, 3 Colo. App. (N. S.) XXXVIII, citing Blum v. South- 540, e. c. 58 Am. & Eng. R. Cas. 589. ern, etc., R. Co., 1 Flippen, (U. S.) § 1624 SLEEPING CAR COMPANIES. 2539 senger.' It seems to us that the true rule is that where the passenger, although he takes his luggage into the car with him, actually places it in charge of the employes of the sleep- ing car company, the burden is on the company to exonerate itself from the imputation of negligence and that proof of loss, after such delivery, makes a prima facie case but that where the passenger retains charge or custody of the luggage the bur- den is on him and he can not recover unless he proves that there was negligence on the part of the employes of the sleep- ing car company. Where the passenger retains custody of his baggage he has peculiar knowledge of the facts, and, according to decisions in analogous cases, ought to make proof of negli- gence. The principle which places the burden of proof upon a shipper where he has charge of live stock is closely analogous to that which governs the subject under immediate discussion, and requires the conclusion we have affirmed. § 1624. Contributory negligence — Loss of baggage or prop- erty. — A passenger who takes baggage or property into a sleep- ing or parlor coach with him is bound to exercise reasonable diligence and care to prevent its loss. If the loss is caused by the negligence of the passenger an action will not lie against the company.'' Where, however, the passenger right- fully places his property or baggage in the charge and custody of the employes of the sleeping car company the passenger is not, as we believe, bound to exercise active diligence to protect his property, but in order to relieve himself of the duty to use care and diligence he must actually place his property in the charge and custody of the employes of the company. 'Carpenter v. New York, etc., R. 609; Henderson «. Louisville, etc., E. Co., 124N. Y. 53, B. c. 47 Am & Eng. Co., 20 Fed. E. 430; Henderson v. R. Cas. 421; Stearns v. Pullman Car Louisville, etc., R. Co., 123 U. S.61,s. Co., 8 Ont. 171; Dargan v. Pullman, c. 8 Sup. Ct. E. 60; Pullman, etc., Co. etc., Co., 2 Tex. App. (Civil Cases) v. Pollock, 69 Tex. 120; Talley v. 607. Great Western E. Co.,L. E. 6 C. P. ^ Chamberlain v. Pullman, etc., Co., 44 ; Eoot v. New York, etc., E. Co., 28 55 Mo. App. 474; Efron v. Wagner, Mo. App. 199; Watkins v. Eymill, L. etc., Co., 59 Mo. App. 641; Whitney E. 10 Q. B. D. 178. See, generally, 1). Pullman, etc., Co., 143 Mass. 243; Burke n. Southeastern, etc., Co., L. Illinois, etc., Co. v. Handy, 63 Miss. R. 5 C. P. Div. 1. 2540 CARKIKRS. § 1625 § 1625. Eelation of railroad companies to passengers travel- ing in sleeping car or parlor car company coaches. — In gen- eral sleeping car or parlor car companies are distinct organiza- tions from railroad companies and the coaches of the latter are ^:^imply hauled as part of a train by the former/ and the former ordinarily furnishes the coaches, equipments and servants, liaving direct and full control of the employment and discharge i>i employes as well as of their conduct and duty. It would seem, therefore, that there is reason for affirming that a rail- road company is not always liable for the misconduct or negli- gence of a sleeping car company or its employes, insomuch as it is an elementary principle of the law of agency that the rule of respondeat superior does not apply where the person sought to be held responsible does not control those who are alleged to be agents or servants. But the relation between a railroad company and a sleeping car company is a peculiar one for the reason that the one company undertakes to carry the passen- ger and receives the compensation for carriage while the other company simply undertakes to furnish additional accommoda- tions and only receives compensation for such additional ac- commodations. There is, therefore, reason for holding that so far as concerns the duty of carriage the railroad company alone undertakes it and is responsible for a breach of that duty. But to go further and hold that the railroad company is responsible for any and all wrongs, misconduct or negli- gence of the sleeping car company or its servants is to carry the doctrine beyond the line marked out by fundamental princi- ples.^ While we think it clear that so far as the obligations aris- ing out of the duty of carriage are concerned the railroad com- pany is responsible for injuries caused by the negligence of its own employes as well as those of the sleeping car company we think, nevertheless, that there maybe negligence of the sleeping ' A railroad company may, however, decisions violate the rules in reference itself furnish "additional accommoda- to independent contractors and also tions." Post, § 1626. trench upon the principle outlined in " It seems to us notwithstanding the the maxim respondeat superior. trend of authority that some of the § 1626 SLEEPING CAR COMPANIES. 2541 car company for which the railroad company can not be justly held responsible.' So far as concerns the duty of carriage a rail- road company can not relieve itself from responsibility by em- ploying or contracting with other companies, but, on the con- trary, as that duty is imposed upon it by law it is answerable to a passenger who sustains an injury as a proximate consequence of its breach.^ The principle, discussed in another connection, that common carriers can not escape liability by contracting with fast freight lines, despatch companies or the like,' applies to contracts with sleeping or parlor car companies and on that principle it is rightly adjudged that although a person takes passage in a sleeping or parlor car or coach the relation of car- rier and passenger exists between him and the railroad com- pany. The general rule that for injuries to passengers resulting from negligence in the operation of the train or from defects in the roadbed or the like the railroad company is lia- ble is, therefore, entrenched by sound principle.* § 1626. Eailroad companies may require compensation for sleeping car accommodations. — While it is at present true that, as a general rule, sleeping car,' parlor car or drawing- ^Ante, §§ 1618, 1621. Voss v. Cleve- R. Cas. 448; Pennsylvania, etc., Co. v. land, etc., R. Co., (Ind. App.) 43 N. Roy, 102 U. S. 451; Kinsley v. Lake E. R. 20. Shore, etc., R.Co.,125 Mass. 54; Louis- ^ Pennsylvania Co. v. Roy, 102 U. S. ville, etc., R. Co. v. Katzenberger, 16 451; Kinsley?). Lake Shore, etc., R. Lea380, g.c.57 Am.R.232. In Norfolk, Co., 125 Mass. 54, s. c. 28 Am. R. 200 ; etc., R. Co. v. Lipscomb, 90 Va. 137, s. Bevis V. Baltimore, etc., Co., 26 Mo. c. 17 S. E. R. 809, 20 L. R. A. 817, it was App. 19; Hillis v. Chicago, etc., R. held that the railroad company was Co., 72 Iowa 228, s. c. 31 Am. & Eng. liable for cutting oft the sleeper from R. Cas. 108 ; Thorpe v. New York, etc., the train and leaving it on a side-track E. Co., 76 N. Y. 402, s. c. 32 Am. R. late at night without notice to the 325; Dwinelle v. New York, etc., R. passengers carrying off the baggage of Co., 120N. Y. 117, s. c. 44 Am. &Eng. a passenger, the train thus taking E. Cas. 384. medicine and other articles needed 'Ante, § 1453. for a sick child. * Cleveland, etc., R. Co. ■K.Walrath, ^We have for the sake of brevity 38 Ohio St. 461, s. e. 8 Am. &Eng. R. and convenience employed the term Cas. 371; Williams «. Pullman, etc., "Sleeping Car Companies," asinclud- Co., 40 La. Ann. 417, s. c. 33 Am. & ing "palace car companies," "boudour Eng. R. Cas. 414; Texas, etc., Co. v. companies," and "parlor car compa- Curry, 64 Tex. 85, s. c. 21 Am. & Eng. nies." There is really very little, if 2542 CAKKIKES. §1627 room car accommodations are furnished by independent com- panies it does not follow by any means that a railroad com- pany may not itself furnish such accommodations and make an additional charge therefor. As elsewhere said, a railroad carrier is bound to furnish those whom it accepts as passengers on its passenger trains with reasonable facilities for their com- fort and convenience but is not bound to furnish such addi- tional accommodations as are usually supplied by sleeping car companies. It results from this principle that, although a railroad company may own and operate chair cars, parlor cars, or the like it is bound to admit only passengers who pay the charges for accommodations in such cars.' Thisis certainly true where the railroad company furnishes sufficient ordinary cars for the carriage of passengers, but it is held that where such cars are not furnished a passenger may ride in a parlor car without the payment of additional compensation.^ The purchase of a ticket entitling a passenger to carriage does not, at least where the railroad company has provided ordinary and reasonable facilities for its passengers, entitle the passenger to travel in a sleeping car without paying additional compensation, al- though such passenger may not have notice of the rules of the company.' § 1627. Limiting liability — Contract — Notice. — Very much the same principles must govern the right of sleeping car companies to limit their liability as those which govern the right of public carriers of passengers to limit their liability, for, as we have shown, sleeping car companies are so far en- trusted with duties of a public nature as to bring them within the general rules which apply to carriers, telegraph companies, telephone companies and the like. A public carrier of passen- gers may contract for exemption from liability, provided always that the stipulations of the contract do not contravene any, difference in the legal principles ^Thorpe v. New York, etc., R. Co., governing such companies. 76 N. Y. 402, s. c. 32 Am. R. 325. ■ Railway Co. v. Hardy, 65 Ark. 134, ' Maroney v. Old Colony R. Co., 106 a. c. 17 S. W. R. 711. Mass. 153. § 1627 SLEEPING CAR COMPANIES. 2543 some rule of law or public policy. It is well settled that a railroad carrier of passengers can not effectively contract for exemption from liability from its own negligence.' This gen- eral rule applies to sleeping car companies, but it does not pre- clude them from providing by contract or by reasonable rules and regulations brought to the notice of the passenger for the disposition of property and baggage brought into the car. If the stipulations of the contract or the rules and regulations made known to the passenger require passengers to put their baggage or property in designated places and such places are provided, it is incumbent on the passengers to put their prop- erty in the places designated, and a contract exempting the company from liability unless the property is so disposed of by the passenger would, as we believe, be valid. It is held, however, that a sleeping car company can not exonerate itself from liability by a notice posted in the car unless such notice is brought to the passenger's knowledge," but if the passenger has actual knowledge of such notice he will be bound by it.' A sleeping car company can not, however, by contract or by rules and regulations, require passengers to discharge duties devolved by law upon the company, nor to perform unreason- able acts. 'The Brantford City, 29 Fed. 373. Q. B.437; Glenisteru.' Great Western, Davis D. Chicago, etc., E. Co., (Wis.) etc., E. Co., 29 L. T, N. S. 423; 67 N. W. E. 16; Annas v. Mil- Maoawley «. Furness E. Co., L. E. 8 waukee E. Co., 67 Wis. 46, s. c. 30 N. Q. B. 57 ; Slim v. Great Northern, etc., W. E. 282 ; Eailroad Co. v. Lockwood, Co., 14 C. B. 647 ; Carr v. Lancashire, 17 Wall. 357; Eailroad Co. v. Stevens, etc., E. Co., 7 Exch. 707; York, etc., 95 U. S. 655; Hart i>. Chicago, etc., E. E. Co. ■!). Crisp, 140. B. 527; Taubman Co., 69 Iowa 485, s. c. 29 N. W. E. 597 ; v. Pacific, etc., Co., 26 L. T. N. S. 704 ; Coppock V. Long Island E. Co., 34 Austin v. Manchester, etc., E. Co., 10 N. Y. S. 1039; Phcenix, etc., Co. v. C. B. 454. Brie, etc., Co., 117 U. S. 312; In- " Lewis ». New York, etc., Co., 143 man v. South Carolina E. Co., 129 Mass. 267, s. c. 58 Am. E. 135 ; Wood- V. S. 128. In New York a contract ruff, etc., Co. v. Diehl, 84 Ind. 474, s. exempting from liability for negli- c. 43 Am. E. 102. gence of employes is held effective. ' Watkins v. Eymill, L. E. 10 Q. B. Nicholas D. New York, etc., Co.,89N. D. 178; Burke v. Southeastern, etc., Y. 370. The English rule is different E. Co., L. E. 5 C. P. Div. 1 ; Pullman, from the American. McCance ». Lon- etc., Co. ij. Smith, 73 111. 360; Blum don.etc, E. Co.,7Hurl.&N.477;Hall «. Southern, etc., Co., 3 Cent. L. J. V. Northeastern, etc., Co., L. E. 10 591. CHAPTER LXIX. INJURIES TO PASSENGERS. 1628. Boarding and alighting from § 1636. trains. 1637. 1629. Injuries received on freight trains. 1638. 1630. Injuries to passengers on plat- forms and steps. 1639. 1631. Injuries to passengers riding in baggage car. 1640. 1632. Injuries to passengers riding 1641. in other dangerous and im- 1642. proper places. 1643. 1633. Injuries received by passen- gers occupying an improper position in car. 1644. 1634. Injuries caused by derailment. 1645. 1635. Collisions. Injuries from obstructionfi. Ejection of passengers. Assault and injuries by em- ployes. Injuries caused by other pas- sengers and third persons. Injuries received in sleeping cars. Injuries received at stations. Contributory negligence. Effect of direction by train- men to occupy dangerous position. Burden of proof. Contracts limiting liability. § 1628. Boarding and alighting from trains. — We have elsewhere considered the general duties and liabilities of rail- road companies to passengers/ and we shall in this chapter consider the liabilities of such companies for injuries received by passengers under various particular circumstances. Rail- road companies are bound, when they stop their trains at stations for the purpose of receiving and discharging passen- gers, to give them a reasonable opportunity to get on and off,' '■Ante, chapter Lxvi. 2 Wabash, etc., R. Co.u. Bector, 104 111. 296, s. c. 9 Am. & Eng. R. Cas. 264, 2 Am. Neg. Cas. 648 ; Chicago, etc., R. Co. v. Byrum, 1-53 111. 131, 2 Am. Neg. Cas. 719 ; Chicago, etc., R. Co. v. Drake, 33 111. App. 114, 2 Am. Neg. Cas. 509; Carr. v. Eel River, etc., R. Co., 98 Cal. 366,2 Am. Neg.Cas. 207 ; Jeffersonville, etc., R. Co. V. Parmalee, 51 Ind. 42; Keller v. Sioux City, etc., R. Co., 27 Minn. 178; Hickman v. Missouri Pac. R. Co., 91 Mo. 433; Central R. Co. v. Whitehead, 74 Ga. 441 ; White Water Valley R. Co. v. Butler, 112 Ind. 598. It has been held that the court will (2544) § 1628 INJURIES TO PASSENGERS. 2545 and it has been held that the fact that the conductor is induced by the conduct and conversation of a person on the station platform to believe that he does not intend to take passage will not relieve the company from liability for injuries received by him without his fault, in consequence of the train being started without giving him a reasonable time to get on, if the conductor actually sees him attempting to get on when he gives the order to start, and that, even if the conductor does not see a passenger attempting to board the train, he is guilty of neg- ligence for which the company is liable if he starts it without warning and without allowing a reasonable length of time for passengers to get on.' But a plaintiff can recover only accord- ing to the theory of his complaint, or, as it is sometimes said, secundum allegata et probata, and, where the complaint seeks to recover for negligence in failing to stop long enough to enable the plaintiff to alight, there can be no recovery on proof that the plaintiff's injuries were caused by reason of the company's failure to keep the station platform lighted.^ It is take judicial notice that three minutes Iowa 579 ; Texas, etc., E. Co. v. Mil- is a reasonable time. Louisville, etc., ler, 79 Tex. 78, s. c. 11 L. E. A. 395, E. Co. V. Costello, 9 Ind. App. 462, s. and note; Louisville, etc., E. Co. ■». c. 3 Am. Neg. Cas. 44. As to the duty Wood, 113 Ind. 544; Chicago, etc., K. to assist passengers in getting on and Co. v. Drake, 33 111. App. 114, 2 Am. oft and the liability of the company to Neg. Cas. 509. It is also held that those who assist them where its em- due notice of the approach of the train ployes fail to do so and it does not to stations should he given in order give such assistants a reasonable op- that passengers may prepare to alight, portunity to get off, see Louisville, Dawson v. Louisville, etc., E. Co., etc., E. Co. V. Crunk, 119 Ind. 542; (Ky.) 11 Am. & Eng. E. Cas. 134; Doss V. Missouri, etc., E. Co., 59 Mo. Louisville, etc., E. Co. v. Mask, 64 38, s. c. 21 Am. E. 371; Lucas u. New Miss. 738; New York, etc., E. Co. v. Bedford, etc., E. Co., 6 Gray (Mass.) Coulbourn, 69 Md. 360, s. c. 1 L. E. A. 64, s. c. 66 Am. Dec. 406; Stiles v. 541; Patterson's Eailway Ace. Law, Atlanta, etc., E. Co., 65 Ga. 370; 261. And reasonable notice of the Griswold v. Chicago, etc., E. Co., 64 starting of trains should likewise be Wis. 652; Coleman v. Georgia, etc., given. Perry v. Central E. Co., 66 E. Co., 84 Ga. 1 ; Little Eock, etc., E. Ga. 746; Central E., etc., Co. v. Perry, Co. V. Lawton, 55 Ark. 428, 15 L. E. 58 Ga. 461 ; Milliman v. New Yofk, A. 434, and note. etc., E. Co., 66 N. Y. 642. But warn- 'Swigert ■». Hannibal, etc., E. Co., ing is not always necessary. Atlanta, 75 Mo. 475, s. c. 9 Am. & Eng. E. Cas. etc., E. Co. v. Dickerson, 89 Ga. 455. 322; Raben v. Central, etc., E. Co., 73 «Price v. St. Louis, etc., E. Co., 72 2546 CARRIERS. §1628 also the duty of railroad companies to provide and maintain a safe way of reaching and departing from their cars at passen- ger stations,' and, if the train stops short of the station or carries the passengers beyond it and the company obliges them to leave the cars at a distance from the platform, it must take proper precautions to protect them, especially where they have to cross other tracks, or it will be guilty of negligence.^ After the conductor has waited a reasonable length of time at a reg- ular station for passengers to get on and off the train he may then give the proper signal and start it, unless he sees some one in the act of getting on or off, or otherwise in a perilous Mo. 414, s. c. 3 Am. & Eng. R. Oas. 365. See, also, Waldhier v. Hannibal, etc., R. Co., 71 Mo. 514; 1 Elliott's Gen. Pr., §87; Cincinnati, etc., R. Co. V. McClain, (Ind.) 44 N. E. R. 306; Cleveland, etc., R. Co. v. Wy- nant, 100 Ind. 160; Birmingham R., etc, Co. V. Clay, (Ala.)19So. R. 309. ' Missouri Pac. R. Co. u. Wortham, 73 Tex. 25, s. c. 3 L. R. A. 368; Rey- nolds V. Texas, etc., R. Co., 37 La. Ann. 694; Peniston v. Chicago, etc., R. Co., 34 La. Ann. 777; Kentucky, etc., Co. V. McKinney, 9 Ind. App. 213; Louisville, etc., R. Co. v. Holsap- ple, 12 Ind. App. 301, 38 N.E.R. 1107; Bethmann v. Old Colony E. Co., 155 Mass. 352; Philadelphia, etc., R. Co. V. Anderson, 72 Md. 519; Cockle v, London, etc, R. Co., 7 L. R. C. P. 321; Nicholsons. Lancashire, etc., R. Co., 3 H. & C. 534; Gill v. Great East- ern R. Co., 26 L. T. N. S. 945; Louis- ville, etc., R. Co. V. Lucas, 119 Ind. 583 ; Longmore v. Great Western R. Co., 19 C. B. (N. S.) 183; Clussman « Long Island R. Co., 73 N. Y. 606; Mc- Kone u. Michigan, etc., R. Co., 51 Mich. 601, 47 Am. R. 596; McDon- ald V. Chicago, etc., R. Co., 26 Iowa 124; Stewart 1). International, etc., R. Co., 53 Tex. 289, 2 Am. & Eng. R. Cas. 497; Forsyth v. Boston, etc., R. Co., 103 Mass. 510; Buenemann v. St. Paul, etc., R. Co., 32 Minn. 390, 18 Am. & Eng. R. Cas. 153; Wharton on Negligence, §§652, 654. ^Brassellt). New York Cent., etc., R. Co., 84 N. Y. 241, s. c. 3 Am. & Eng. E. Cas. 380, and note ; Delaware, etc., R. Co. V. Trautwein, 52 N. J. L. 169, 8. c. 7 L. R. A. 435; Gaynor e. Old Colony, etc., R. Co., 100 Mass. 208, s. c. 97Am. Dec. 96; Mayo v. Bos- ton, etc., R. Co., 104 Mass. 137; Mc- Gee V. Missouri, etc,, R. Co., 92 Mo. 208; Cincinnati, etc., R. Co. v. Carper, 112 Ind. 26; Columbus, etc., R. Co. v. Farrell, 31 Ind. 408; Terre Haute, etc., R. Co. V. Buck, 96 Ind. 346; Pennsylvania R. Co. v. White, 88 Pa. St. 327; Brown v. Chicago, etc., R. Co., 54 Wis. 342, 41 Am. R. 41 ; Dela- matyr v. Milwaukee, etc., R. Co., 24 Wis. 578; Terry u. Jewett, 78 N. Y. 338 ; Lewis v. President, etc., 145 N. Y. 508; Peniston v. Chicago, etc., R. Co., 34 La. Ann. 777; Philadelphia, etc., R. Co. V. Anderson, 72 Md. 519, s. c. 20 Atl. R. 2, 3 Lewis' Am. R. & Corp. R. 217 ; Nicholson v. Lancashire, etc., R. Co., 3 H. & C. 534; Foyi). London, etc., R. Co., 18 C. B. N. S. 225 ; Robson v. Northeast- ern R. Co., L. R. 10 Q. B. 271. §1628 INJURIES TO PASSENGERS. 2547 position,' but it has been held that in the case of a street rail- way, where there is no regular stopping place, he must not only stop a reasonable time but should also see that no passen- ger is in the act of alighting before giving the signal to start.* Although the railroad company may be guilty of negligence a passenger can not recover if he is guilty of contributory negli- gence proximately causing his own injury. It is the duty of a passenger to exercise reasonable and ordinary care for his own safety in boarding or alighting from a train. As a general rule it is negligence per se to get on or off a rapidly moving train.' But if the train is moving very slowly it has been held ' Chicago, etc., E. Co. v. Scates, 90 111. 586, 2 Am. Neg. Oas. 623 ; Span- nagle v. Chicago, etc., E. Co., 31 111. App. 460, 2 Am. Neg. Cas. 506; Mis- souri Pac. E. Co. V. Foreman, 73 Tex. 311. Or unless he has reason to be- lieve that a passenger is in the act of alighting. Strauss v. Kansas City, etc., E. Co., 86 Mo. 421. And if after ample time to board the train or alight from it and after warning being given, a passenger attempts to board the train or alight from it when moving he is guilty of contributory negligence. Mc- Laren V. Alabama, etc., R. Co., 100 Ala. 506, 2 Am. Neg. Cas. 107. And warning is not always necessary. At- lanta, etc., R. Co. V. Dickerson, 89 Ga. 455. ^ Highland Avenue, etc., E. Co. v. Burt, 92 Ala. 291, s. c. 2 Am. Neg. Cas. 73; Anderson u. Citizens' St. E. Co., 12 Ind. App. 194, 38 N. E. R. 1109. See, also, Washington, etc., R. Co. v. Harmon's Admr., 147 U. S. 571, s. c. 13 Sup. Ct. E. 557; Dudley v. Front Street, etc., E. Co., 73 Fed. E. 128. 'O'Toole V. Pittsburgh, etc., E. Co., 158 Pa. St. 99, s. c. 27 Atl. E. 737; New York, etc., E. Co. v. Enches, 127 Pa. St. 316, s. c. 17 Atl. E. 991 ; Toledo, etc., E. Co. V. Wingate, 143 Ind. 125, 42 N. E. R. 447, 37 N. E. R. 274; Jeffer- sonville R. Co. v. Hendricks, 26 Ind. 228; Harvey v. Eastern, etc., R. Co., 116 Mass. 269; Solomon v. Manhattan E. Co., 103 N. Y. 437; Phillips v. Rensselaer, etc., R. Co., 49 N. Y. 177; Gavett V. Manchester, etc., R. Co., 16 Gray, (Mass.) 501, s. c. 77 Am. Dec. 422; Commonwealth v. Boston, etc., R. Co., 129 Mass. 500; Jewell v. Chi- cago, etc., R. Co., 54 Wis. 610; Rich- mond, etc., E. Co. v. Pickleseimer, 85 Va. 798, s. c. 10 S. E. E. 44; Hunter u. Cooperstown, etc., E. Co., 112N. Y. 371, 2 L. E. A. 832; Secor w. Toledo, etc., E. Co., 10 Fed. E. 15 ; Hickey v. Boston, etc., R. Co., 14 Allen 429; Missouri Pac. R. Co. v. Texas, etc., R. Co., 36 Fed. R. 879; Paterson v. Cen- tral, etc., R. Co., 85 Ga. 653 ; Alabama, etc., R. Co. V. Hawk, 72 Ala. 112; Worthington v. Central, etc., R. Co., 64 Vt. 107, 15 L. R. A. 326, and note; Knigiit V. Pontchartrain E. Co., 23 La. Ann. 462; Walker ». Vicksburg, etc., E. Co., 41 La. Ann. 795, s. c. 6 So. B. 916; Jacob v. Flint, etc., E. Co., (Mich.) 63 N. W. R. 502; McDonald V. Montgomery, etc., R. Co., (Ala.) 20 So. R. 317; Illinois, etc., R. Co. v. Able, 59 111. 131, 2 Am. Neg. Cas. 591 ; Ohio, etc., R. Co. v. Stratton, 78 111. 88; Masterson v. Macon City, etc., St. R. Co., 88 Ga. 436; Barnett v. East 2548 CABKIERS. §1628 by some courts to be a question of fact for the jury/ and it certainly becomes a question of fact where a passenger is put to his election to get off a slowly moving train or probably re- ceive an injury if he remains there, by the wrongful act of the company, or obeys the directions of the conductor under such circumstances that a reasonably prudent man might do so in the exercise of ordinary care.^ So, he may be misled and jus- Tennessee, etc., E. Co., 87 Ga. 766. But see Beach on Contrib. Neg., §§ 146, 147; Baltimore, etc., E. Co. v. Kane, 69 Md. 11, s. c. 13 Atl. E. 387; John- son V. West Chester, etc., E. Co., 70 Pa. St. 357; Jamison v. San Jose, etc., E. Co., 55 Cal. 593; Eaben v. Central Iowa E. Co., 74 Iowa 732, s. c. 34 N. W. E. 621. Itisheldnegligencepec«e to attempt to board a moving elevated train after the gate is closed, where the train is accustomed to stop and start quickly. Card v. Manhattan E. Co., 103 N. Y. 670. It is negligence to board a moving freight train not intended for the carriage of passen- gers, even though so directed by the ticket agent. Chicago, etc., E. Co. v. Koehler, 47 111. App. 147, 2 Am. Neg. Cas. 523. Or to get on a moving train at a place not intended for a stopping place. Denver, etc., E. Co. v. Pick- ard, 8 Colo. 163. ' Filer v. New York, etc., E. Co., 49 N. Y. 47; Lewis b. President, etc., 145 N. Y. 508, 1 Am. Neg. Cas. 963; Swigert v. Hannibal, etc., E. Co., 75 Mo. 475, s. c. 9 Am. & Eng. E. Cas. 322; Doss v. Missouri, etc., E. Co., 59 Mo. 27, s. c. 21 Am. E. 371; Central E., etc., Co. V. Miles, 88 Ala. 256, s. c. 6 So. E. 696; Louisville, etc., E. Co. v. Stacker, 86 Tenn. 343, s. c. 6 S. W. E. 737; New York, etc., E. Co. v. Coul- bourn, 69 Md. 360, s. c. 1 L. E. A. 541 ; Strand v. Chicago, etc., E. Co. ,64 Mich. 2ir,, s. c. 31 N. W. E. 184 ; Carr v. Eel Eiver, etc., E. Co., 98 Cal. 366, 2 Am. Neg. Cas. 207; Fulks v. St. Louis, etc., E. Co., Ill Mo. 335 ; Lent v. New York, etc., E. Co., 120 N. Y. 467; Johnsons. West Chester, etc., E. Co., 70 Pa. St. 357 ; Montgomery, etc., E. Co. v. Stew- art, 91 Ala. 421; Baltimore, etc., E. Co. V. Kane, 69 Md. 11; Kansas, etc., E. Co. V. Dorough, 72 Tex. 108. In Montgomery, etc., E. Co. v. Stewart, 91 Ala. 421, it was held not contrib- utory negligence when a passenger boarded a train which should have come to a full stop but only slacked its speed, the conductor calling out "all aboard." '^ Georgia, etc., E. Co. v. McCurdy, 45 Ga. 288; Filer v. New York, etc., E. Co., 49 N. Y. 47; Loyd «. Hannibal, etc., E. Co., 53 Mo. 509; Price i». St. Louis, etc., E. Co., 72 Mo. 414; Bar- tholomew V. New York, etc., E. Co., 102 N. Y. 716; Cincinnati, etc., E. Co. V. Carper, 112 Ind. 26, 39; St. Louis, etc., E. Co. V. Person, 49 Ark. 182, s. c. 4 S. W. E. 755 ; Pennsylvania E. Co. V. Lyons, 129 Pa. St. 113, 25 W. N. C. 6; Baltimore, etc., E. Co. v. Leapley, 65 Md. 571; South Covington, etc., E. Co. V. Ware, 84 Ky. 267, 1 S. W. E. 493; Delaware, etc.. Canal Co. v. Webster, (Pa. St.) 6 Atl. E. 841; Lambeth v. North Carolina E. Co., 66 N. Car. 494; HinshawB. Ealeigh, etc., E. Co., (N. Car.) 24 S. E. E. 426; Bodie V. Carolina Midland E. Co., (S. Car.) 24 S.E. E. 180; Thomas v. Char- lotte, etc., E. Co., 38 S. Car. 485, 17 S. E. E. 226; McGee v. Missouri, etc.,E. § 1628 INJURIES TO PASSENGERS. 2549 tified in alighting from the train at some place other than the regular station or platform by the invitation of the company.' The mere announcement of the station is not an invitation to alight while the train is moving,' but if he is told that the next stop will be at his station, or if the train stops shortly after the announcement of the station he may assume, in the absence of anything to the contrary, that it is the proper place to alight, and will not necessarily be guilty of contributory negligence in so doing." But if he knows that the train is not Co., 92 Mo. 208, 4 S. W. R. 739; Iron R. Co. V. Mowery, 36 Ohio St. 418, s. c. 3 Am. & Eng. R. Cas. 361, and note. Where a brakeman stationed where he could see uj) and down the track suddenly and excitedly called "Jump ! Jump for your lives !" it was held that a passenger was not negligent in so doing although there was no real danger. McPeak v. Missouri Pac. R. Co., 128 Mo. 617, 30 S. W. R. 170; Ephland v. Missouri Pac. R. Co., 57 Mo. App. 147. 'Cockle V. London, etc., R. Co., L. R. 7 C. P. 321, 326; Whittaker v. Man- chester, etc., R. Co., L. R.5C. P. 464, note ; Praegerw. Bristol, etc., R. Co., 24 L.T. R.N. S. 105; Gadsden.etc.R.Co. V. Causler, 97 Ala. 235, s. c. 2 Am. Neg. Cas. 85; Illinois Cent. R. Co. v. Able, 59 111. 131 ; Cartwright v. Chi- cago, etc., R. Co., 52 Mich. 606; Curtis V. D., etc., R. Co., 27 Wis. 158; Keat- ing V. New York, etc., R. Co., 49 N. Y. 673; Mitchell «. Western, etc., R. Co., 30 Ga. 22; Louisville, etc., R. Co. V. Holsapple, 12 Ind. App. 301, s. c. 38N. E. R. 1107; Columbus, etc., R. Co. V. Farrell, 31 Ind. 408; Bucher V. New York Cent. R. Co., 98 N. Y. 128. 'Adams v. Louisville, etc., R. Co., 82 Ky. 603; Railroad Co. v. Aspell, 23 Pa. St. 147; Jetfersonville, etc., E. Co. V. Hendricks, 26 Ind. 228; Corp. 162 Frost ti. Grand Trunk R. Co., 10 Allen (Mass.) 387 ; England v. Boston, etc., R. Co., 153 Mass. 490; Lewis v. Lon- don, etc., R. Co., L. R. 9 Q. B. 66; Bridges v. North London, etc., E. Co., L. R. 6 Q. B. 377. ' Pennsylvania Co. v. Hoagland, 78 Ind. 203, s. c. 3 Am. & Eng. R.Cas. 436 ; Columbia, etc. ,R. Co. v. Farrell, 31 Ind. 408 ; Terre Haute, etc., R. Co. v. Buck, 96 Ind. 346; Central E. Co. v. Van Horn, 38 N. J. L. 133; Central E. Co.?.. Thompson, 76 Ga. 770; Milliman v. New York, etc., R. Co., 66 N. Y. 642; Hooks v. Alabama, etc., R. Co., (Miss.) 18 So. R. 925; Southern, etc., R.Co.. e. Pavey, 48 Kan. 452, 29 Pac. R. 593; McNulta v. Ensch, 31 111. App. 100, s. c. 134 111. 46; Chicago, etc., R. Co. 11. Arnol, 144 111. 261; Philadelphia, etc., R. Co. v. Ander- son, 72Md. 519; Miller v. East Ten- nessee, etc., R. Co., 93 Ga. 630. But where the train stopped at a crossing, a,3 required by law, near the station, after it had been announced, and a passenger attempted to alight and was injured in so doing it was held that the company was not liable. Mitchell V. Chicago, etc., R. Co., 51 Mich. 236, s. c. 47 Am. R. 566. See, also, Sevier V. Vicksburg, etc., E. Co., 61 Miss. 8, s. c. 48 Am. E. 74; Minock v. Detroit, etc., E. Co., 97 Mich. 425, s. c. 56 N. W. E. 780. 2550 CARRIERS. §1628 at the station and that it is a dangerous and improper place to get off he is not, ordinarily at least, justified in so doing,' and in crossing other tracks or the like, even at a regular station, he can not do so blindly without exercising any care,^ although he may assume, to a certain extent, that the company has per- formed its duty to provide a safe passage to and from the train and will not expose him to unnecessary danger.' The fact 'Ohio, etc., R. Co. v. Stratton, 78 111. 88; Illinois, etc., R. Co. v. Green, 81 111. 19,s.c. 25 Am. R. 255 ; England v. Boston, etc., R. Co., 153 Mass. 490, s. c. 27 N. E. R. 1 ; Eckerd v. Chicago, etc., R. Co., 70 Iowa 353; New York, etc., R. Co. V. Doane, 115 Ind. 435 ; Chicago, etc., R. Co. V. Hague, (Neb.) 66 N. W. R. 1000; Terre Haute, etc., R. Co. V. Buck, 96 Ind. 346, s. c. 49 Am. R. 168;Dewald v. Kansas City, etc, R. Co., 44 Kan. 586; East Tennessee, etc., R. Co. V. Holmes, 97 Ala. 332, s. c. 12 So. R. 286 ; Louisvlle, etc., Co. v. Ricketts, 96 Ky. 44, 27 S. W. R. 860 (getting off on wrong side) ; Sturgis v. Detroit, etc., R. Co., 72 Mich. 619, s. c. 40N.W. R. 914; Morgans. Camden, etc., R. Co., (Pa. St.) 16 Atl. R. .'353, (getting off on wrong side). See Blodgett V. Bartlett, 50 Ga. 353, 2 Am. Neg. Cas. 350; Hemmingway r. Chi- cago, etc., R. Co., 67 Wis. 668; also, Cincinnati, etc., R. Co. v. Peters, 80 Ind. 168; Frost v. Grand Trunk, etc., R. Co., 10 Allen (Mass.) 387, s. c. 87 Am. Dec. 668. Nor in getting on at an unusual and dangerous place. Haase ". Oregon R. Co., 19 Ore. 354, s. c. 24 Pac. R. 238 ; Comly v. Pennsylvania R. Co., (Pa. St.) 12 Atl. R. 496. ' Weeks v. New Orleans, etc., R. Co., 40 La. Ann. 800, s. c. 5 So. R. 72 ; Morrison v. Erie R. Co., 56 N. Y.302; Bancroft v. Boston, etc., R. Co., 97 Mass. 275; Mayo v. Boston, etc., R. Co., 104 Mass. 137; Forsyth ij. Bos- ton, etc., R. Co., 103 Mass. 510; Com- monwealth i>. Boston, etc., R. Co., 129 Mass. 500; Railway Co. v. Cox, 60 Ark. 106, s. c. 20 S. W. R. 38; Illinois Cent. R. Co. v. Davidson, 64 Fed. R. 301 ; East Tennessee, etc., R. Co. V. Kornegay, 92 Ala. 228, s. c. 9 So. R. 557; Baltimore, etc., R. Co. v. State, 63 Md. 135; Pennsylvania R. Co. V. Bell, (Pa. St.) 15 Atl. R. 561 ; De Kay v. Chicago, etc., R. Co., 41 Minn. 178, s. c. 43 N. W. R. 182; MacLeod t. Graven, 73 Fed. R. 627; Bradley v. Grand Trunk R. Co., (Mich.) 65 N. W. R. 102. ^ Brassell v. New York Cent. R. Co., 84 N. Y. 241, s. c. 3 Am. & Eng. R. Cas. 380; Rogers v. Rhymney R. Co., 26 L. T. R. N. S. 879 ; Warren v. Fitch- burg R. Co., 8 Allen (Mass.) 227; Pennsylvania R. Co. v. White, 88 Pa. St. 327; Baltimore, etc., R. Co. v. State, 60 :\Id. 449, s. e. 12 Am. & Eng. R. Cas. 149; AVeeks v. New Orleans, etc., R. Co., 40 La. .\nn. 800, s. c. 5 So. R. 72; Klein r. .lew.ett, 26 N. J. Eq. 474; Philadelphia, etc., R. Co. v. Anderson, 72 Aid. 519, 3 Am. Neg. Cas. 706; Cartwright v. Chicago, etc., R. Co., 52 Mich. 606, s. c. 16 Am. & Eng. R. Cas. 321; Atchison, etc., R. Co. V. Phean, 18 Colo. 368, s. c. 33 Pac. R. 108, 8 Lewis' Am. R. & Corp. R. 316, and note. See, also, Rich- mond, etc., R. Co. 11. Powers, 149 U. 8. 43, s. c. 13 Sup. Ct, R. 748; Kohler V. Pennsylvania R. Co., 135 Pa. St. 346, s. c. 19 Atl. R. 1049; Franklin v.' Southern California, etc., R. Co., 85 § 1629 INJURIES TO PASSENGERS. 2551 that the conductor tells a passenger who desires to get oft at a crossing where the train is accustomed to stop, but which is not a station or regular place for taking on or letting off pas- sengers, that he can go upon the platform when the train begins to slow up and get off when it stops will not justify him in standing upon the lowest step of the car while the train is moving at from twelve to fourteen miles an hour, and even if he is directed by the conductor to stand upon the step and be ready to get off, this will not relieve him from contributory negligence in taking a position known to him to be one of great danger.' § 1629. Injuries received on freight trains. — In a general sense it may be said that where a railroad company carries passengers on freight or mixed trains it must exercise the same high degree of care for the safety of its passengers as in other Cal. 63, s. c. 24 Pac. E. 723; Chicago, etc., R. Co. V. Lowell, 151 U. g. 209, s. c. 14 Sup. Ct. R. 281. ' Cincinnati, etc., R. Co. v. McClain, (Ind.) 44 N. E. R. 306; Reibel v. Cin- cinnati, etc., R. Co., 114 Ind. 476, s. c. 17 N. E. R. 107; Cincinnati, etc., R. Co. V. Carper, 112 Ind. 26, s. c. 13 N. E. R. 122, 123. See, also. Hunter v. Cooperstown, etc., R. Co., 126 N. Y. 18 ; Chicago, etc., R. Co. v. Hazzard, 26 111. 373; Aufdenberg v. St. Louis, etc., R. Co., (Mo.) 34 S. W. R. 485; Vi- mont V. Chicago, etc., R. Co., 71 Iowa 58; Bardwellc. Mobile, etc., R. Co., 63 Miss. 574. But see Galloway v. Chicago, etc., R. Co., 87 Iowa 458, s. c. 54 N. W. R. 447; post, § 1643. In the first case just cited the complaint alleged that plaintiff desiring to get off at a crossing where the train was accustomed to stop, was informed by the conductor that he could do so, and was directed to go out on the platform when the train reached a certain point, ready to get off as soon as the train stopped at the crossing, as it stopped but a moment ; that he went on the platform as directed, and stood on the lower step of the car ; that the train slowed down, but suddenly started with a jerk, throwing plaintiff under the car, by which he was in- jured ; that the place at which he was directed to get off was not a safe and proper place, and that the injury oc- curred by reason of the negligence of the defendant and without any fault on his part. The jury returned an- swers to interrogatories finding the facts as alleged, except that the acci- dent occurred at a switch about 1,600 feet from the crossing, where the en- gineer slowed down to pass the switches ; that the stopping place was about 250 feet from the crossing ; and that plaintiff's position on the lower step was dangerous, and was known by him to be dangerous. It was held that the plaintiff was not shown to be free from contributory negligence and that the special findings did not support a verdict for plaintiff. 2552 CARRIERS. § 1629' cases.' But we do not mean that its duties and the precautions it must take are absolutely the same with respect to the opera- tion of such trains as with respect to regular passenger trains. As to its roadbed, bridges and the like, it would seem that the duty is absolutely the same," but it is obvious that the risk is greater in riding upon freight trains, that the same appliances can not be used and that the same speed and comparative free- dom from sudden jerks and the like can not be attained. The duty of the company is therefore modified by the necessary difference between freight and passenger trains and the man- ner in which they must be operated, and while the general rule that the highest practicable degree of care must be exercised holds good, the nature of the train and the necessary difference in its mode of operation must be considered, and the company is bound to exercise only the highest degree of care that is usually and practically exercised and consistent with the oper- ation of trains of that nature.^ Thus, it is not bound to equip every car with an air brake nor to run a bell rope through the cars to the engine.' Nor is the company necessarily negligent, 'Delaware, etc., R. Co. v. Ashley, 517, s. c. 13 S. W. R. 280. See, also, 67 Fed. E. 209; Secord v. St. Paul, as to the duty to furnish a caboose etc., R. Co., 18 Fed. R. 221; Indian- and the liability of the company where apolis, etc., E. Co. v. Beaver, 41 Ind. a common box-car with temporary 493; Ohio, etc., R. Co. v. Dickerson, seats was substituted while the caboose 59 Ind. 317 ; Illinois Cent. R. Co. v. was in the repair shop. Missouri Axley, 47 111. App. 307; Mexican Pac. R. Co. «. Holcomb, 44 Kan. 332, Cent. R. Co. v. Lauricella, (Tex. Civ. s. c. 44 Am. & Eng. R. Cas. 303, and App.) 26 S. W. R. 301 ; Dunn ti. Grand compare Pittsburgh, etc., R. Co. v. Trunk R. Co., 58 Me. 187, s. c. 4 Am. Williams, 74 Ind. 462. R. 267; Edgerton v. New York, etc., ' Woolery v. Louisville, etc., R. Co., R. Co., 39N. Y. 227; St. Joseph, etc., 107 Ind. 381; Crineu. EastTenn., etc., R. Co. V. Wheeler, 35 Kan. 185; Inter- R. Co., 84Ga. 651, s.c. 11 S. E. R. 555; national, etc., R. Co. v. Irvine, 64 Tex. Galena, etc., R. Co. v. Fay, 16 111. 558, 529; Pennsylvania Co. v. Newmeyer, s.c. 63 Am. Dec. 323; Chicago, etc., 129 Ind. 401 ; Whitehead v. St. Louis, R. Co. v. Hazzard, 26 111. 373 ; Wal- etc, R. Co., 99 Mo. 263, s.c. 39 Am. & lace ?j. Western, etc., R. Co., 101 N. Eng. R. Cas. 410. Car. 454, s. c. 37 Am. & Eng. R. Cas. 2 Ohio Valley R. Co. v. Watson, 93 159 ; Chicago, etc., R. Co. v. Arnol, 144 Ky. 654, s. c. 21 S. W. R. 244, 19 L. R. 111. 261, s. c. 33 N. E. R. 204, 19 L. R. A. 310; Indianapolis, etc., R. Co. v. A. 313, 315, 316. Horst, 93 U. S. 291. Compare Arkan- « Oviatt v. Dakota Cent. R. Co., 43 sas, etc., R. Co. v. Canman, 52 Ark. Minn. 300, s. c. 45 N. W. R. 436; Ar- i 1629 INJURIES TO PASSENGERS. 2553 because in starting or in taking up and letting out slack there is more or less of a jerk or sudden motion of the cars.' Nor is it obliged to have a brakeman on every car.^ So, a passenger riding on a freight train or a mixed train must be deemed to assume all the inconveniences and risks usually and reasona- bly incident to transportation or travel upon such trains and is not entitled to insist upon having the same care and atten- tion that he might justly demand upon a regular passenger train.' The nature of the train may also have an important bearing upon the question of contributory negligence. As the passenger upon a freight train assumes the risks incident to that means of conveyance and must take notice thereof, he must exercise ordinary and reasonable care to guard against injury from such risks and must not voluntarily take a position where he is likely to be injured by a sudden jerk of the car re- sulting from the taking up of slack in the ordinary way or the like.' But if the train is suddenly started immediately after it kansas, etc., R. v. Canman, 52 Ark. 617, s. c. 13 S. W. R. 280. 'Rockford, etc., R. Co. v. Ooultas, •67 111. 398; Crine v. East Tenn., etc., R. Co., 84 Ga. 651, s. c. 11 S. E. R. 555. 'See Delaware, etc., R. Co. v. Ash- ley, 67 Fed. R. 209; Indianapolis, etc., R. Co. V. Horst, 93 U. 8. 291. in a stock or box-car. Gardner v. New Haven, etc., R. Co., 51 Conn. 143, s. c. 50 Am. R. 12; Jenkins v. Chicago, etc., R. Co., 41 Wis. 112; Omaha, etc., R. Co. v. Crow, (Neb.) 66 N. W. R. 21. But see Florida, etc., Co. V. Webster, 25 Fla. 394. Or a con- struction train. Rosenbaum v. St. Paul, etc., R. Co., 38 Minn. 173, s. c. 'Louisville, etc., R. Co. v. Bisch, 120 36 N. W. R. 447. Ind. 549, s. c. 22 N. E. R. 662; Penn- sylvania Co. V. Newmeyer, 129 Ind. 401, 8. c. 28 N. E. R. 860; Murch v. Concord, etc., R. Co., 29 N. H. 9, s. c. 61 Am. Dec. 631 ; Crine ». East Tenn., etc., R. Co., 84 Ga. 651, a. c. 11 S. E. R. 555 ; Fisher v. Southern Pac. R. Co., * Louisville, etc., R. Co. v. Bisch, 120 Ind. 549, s. c. 22 N. E. R. 662; Wal. lace I). Western, etc., R. Co., 98 N. Car. 494, s. c. 2 Am. St. R. 346, (pas- sengers standing in caboose and thrown down and injured by sudden jerk of the train) ; Harris v. Hannibal, 89 Cal. 399, s. c. 26 Pac. R. 894; etc., R. Co., 89 Mo. 233, s. c. 58 Am. R. Browne v. Raleigh, etc., R. Co., 108 111; Norfolk, etc., R. Co. ». Ferguson, N. Car. 34, s. c. 12 S. E. R. 958 ; Powers 79 Va. 241 ; Smith v. Richmond, etc., V. Boston, etc., R. Co., 153 Mass. 188, R. Co., 99 N. Car. 241, (passenger sit- s. c. 26 N. E. R. 446; Harris v. Han- ting on arm of seat) ; Reber v. Bond, nibal, etc., R. Co., 89 Mo. 233; Mc- 38 Fed. R. 822. But compare Lusby Kinney v. Neil, 1 McLean 540; Haz- ard V. Chicago, etc., R. Co., 1 Biss. 503 ; ante, § 1582. So where he rides V. Atchison, etc., R. Co., 41 Fed. R. 181 ; Chicago, etc., R. Co. v. Carpen- ter, 56 Fed. R.451. 2554 CARRIERS. § 1629' has stopped for passengers to alight and a passenger who has arisen from his seat for the purpose of alighting is thrown down and injured by the violent jerk he is entitled to recover the same as if the train were a regular passenger train.' Rail- road companies which run both passenger and freight trains reasonably sufficient for the accommodation of both kinds of trafi&c may lawfully refuse to carry passengers on freight trains or prescribe reasonable conditions on which they may ride on such trains.^ It has been held that one who offers himself as a passenger upon a freight train, having no knowledge of the rules of the company prohibiting the transportation of passen- gers upon such trains, is, when accepted as such by the con- ductor, entitled to be treated and protected as a passenger, even though he pays no fare.' But he has no right to rely upon the invitation of the brakeman or other subordinate em- ploye when a conductor is in charge,* nor upon that of the conductor himself when he knows of the rule forbidding pas- sengers to ride on freight trains.' Indeed, we are inclined to ' Chicago, etc., E. Co. v. Arnol, 144 111. 261, s. c. 33 N. E. E. 204, 19 L. E. A. 313. See, also, Lusbyu. Atchison, etc., E. Co., 41 Fed. E. 181. 2 Thomas v. Chicago, etc., E. Co., 72 Mich. 355, s. c. 37 Am. & Eng. E. Cas. 108; Burlington, etc., E. Co. v. Eose, 11 Neb. 177, s. c. 8 N. W. E. 433; Southern Kan. E. Co. v. Hinsdale, 38 Kan. 507, s. c. 34 Am. & Eng. E. Co. 256; Hobbs v. Texas, etc., E. Co., 49 Ark. 357; Arnold b. Illinois, etc., E. Co., 83 111. 273 ; Elkins v. Boston, etc., E. Co., 23N. H.275; Pfister i!. Central Pac. E. Co., 70 Cal. 169, s. c. 27 Am. & Eng. E. Cas. 246; Dunn v. Grand Trunk E. Co., 58 Mo. 187, s. c. 4 Am. E. 267; Falkner v. Ohio, etc., E. Co., 55 Ind. 369. So, they may run a "pay train" and exclude passengers there- from. Southwestern, etc., E. Co. v. Singleton, 66 Ga. 252. 'See Whitehead v. St. Louis, etc., E. Co., 99 Mo. 263, s. c. 39 Am. & Eng. E. Cas. 410, 11 S. W. E. 751; McGee v. Missouri, etc., R. Co., 92 Mo. 208, s. c. 4 S. W. R.739; Lucas?;. Milwaukee, etc., E. Co., 33 Wis. 41; Keith V. Pinkham, 43 Me. 501, s. c. 69 Am. Dec. 80 ; Dunn v. Grand Trunk R. Co., 58 Me. 187, s. c. 4 Am. E. 267; Everett v. Oregon, etc., E. Co., 9 Utah 340, s. c. 34 Pac. E. 289 ; Jacobus v, St. Paul, etc., E. Co., 20 Minn. 125; Gradin v. St. Paul, etc., E. Co., 30 Minn. 217. ^ *Candiff «. Louisville, etc., E. Co., 42 La. Ann. 477 ; Reary v. Louisville, etc., E. Co., 40 La. Ann. 32; McNamara v. Great Northern E. Co., (Minn.) 63 N. W. E. 726 ; Chicago, etc., E.Co.p. Field, 7 Ind. App. 172, s. c. 34 N. E. R. 406; Woolsey v. Chicago, etc., R. Co., 39 Neb. 798, s. c. 58 N. W. R. 444. 5 St. Louis, etc., R. Co. y. White, (Tex. Civ. App.) 34 S. W. E. 1042; Gulf, etc., E. Co.i;. Campbell, 76 Tex. 174; Toledo, etc., E. Co.c. Brooks, 81 §1630 INJURIES TO PASSENGERS. 2555 think that the better rule is that he must take notice that pas- sengers are not usually carried upon freight trains where no provision is made for them and that the conductor has no im- plied authority to invite persons to ride on such a train or to receive them as passengers thereon.' § 1630. Injuries to passengers riding on platforms and steps. — In the first case cited in support of the last proposition stated in the preceding section it is held that standing on the lower step of a rapidly moving car is negligence per se. We think there can be no doubt that this is the law," however it may be as to standing on the platform when the car is crowded, or as to standing on the steps of a street car. It is also negli- gence, under ordinary circumstances, to stand upon the platform of a rapidly moving commercial railroad car.' But there may 111. 245; Louisville, etc., R. Co. v. Hailey, 94 Tenn. 383, s. c. 29 S. W. R. 367; McVeety ». St. Paul, etc., R. Co., 45 Minn. 268, s. c. 47 N. W. R..809. 'See ante, §§ 1578, 1580; Powers r. Boston, etc., R. Co., 158 Mass. 188, s. c. 26 N. E. R. 446 ; Eaton v. Delaware, etc., R. Co., 57 N. Y. 382; San An- tonio, etc., R. Co. V. Lynch, 8 Tex. Civ. App. 513, 28 S. W. R. 2ri2 ; Texas, etc., R. Co. V. Black, 87 Tex. 160, s. c. 27 S. W. R. 118. See, also, Houston, etc., R. Co. V. Boiling, 59 Ark. 395, s. c. 43 Am. St. R. 38; Murch v. Con- cord, etc., R. Co., 29 N. H. 9, s. c. 61 Am. Dec. 631; Hoar v. Maine Cent. R. Co., 70 Me. 65; Atchison, etc., R. Co. V. Headland, 18 Colo. 477, s. c. 33 Pac. 185, 8 Lewis' Am. R. & Corp. R. 105 ; Kansas City, etc., R. Co. v. Berry, 53 Kan. 112, s. c. 36 Pac. R. 53; Powell V. East Tenn., etc., R. Co., (Miss.) 8 So. R. 738. ^ "The steps must be regarded as a more dangerous place for a passenger to occupy while the car is in motion than the platform." Fisher v. West Virginia, etc., R. Co., 39 W.Va. 366, 19 S. E. R. 578. See, also, Scheiber v. Chi- cago, etc., R. Co., (Minn.) 63 N. W. R. 1034; Paterson v. Central R., etc., Co., 85 Ga. 653; Clark v. Eighth Ave. R. Co., 36 N. Y. 135; Cleveland, etc., R. Co. V. Moneyhun, (Ind.) 44 N. E. R. 1106; Hoehn v. Chi- cago, etc., R. Co., 152 111. 223, s. c. 38 N. E. E. 549; Cincinnati, etc., R. Co. V. McClain, (Ind.) 44 N. E. R. 306; Ashbrook v. Frederick Ave. R. Co., 18 Mo. App. 290; Francisco B.Troy, etc., R. Co., 78 Hun 13, s. c. 29 N. Y. Supp. 247; Booth on Street Railways, § 341. ' Alabama, etc., R. Co. v. Hawk, 72 Ala. 112 ; Paterson v. Central, etc., R. Co. 85 Ga. 653 ; Blodgett v. Bartlett, 50 Ga. 353; Bemiss v. New Orleans, etc., R. Co., 47 La. 1671, 18 So. R. 711 ; Quinn v. Illinois Cent. R. Co., 51 111. 495; Smotherman v. St. Louis, etc., R. Co., 29 Mo. App. 265; Rockford, etc., Co. V. Coultas, 67 111. 398; Illi- nois Cent. R. Co. v. Green, 81 111. 19; Malcom v. Richmond, etc., R. Co., 106 N. Car. 63, s. c. 11 S. E. R. 187; President, etc., v. Cason, 72 Md. 377, s. c. 20 Atl. R. 113; Hickeyu. Boston, 2556 CARRIERS. §1630 be exceptional cases in which this is not true, and two or three of the courts have held that standing upon the platform is not contributory negligence where the car is so crowded that the passenger is unable to get a seat therein, although there is room for him to stand inside the car.' This seems to us, how- ever, to be contrary both to principle and to the weight of authority.^ The failure to furnish him with a seat may be of etc., R. Co., 14 Allen (Mass) 429; Memphis, etc., E. Co. v. Salinger, 46 Ark. 528; Secor». Toledo, etc., E. Co., 10 Fed. R. 1-5. "The danger of stand- ing on the narrow platform of a pas- senger car, while the car is moving with the usual speed of railroad trains, is most conspicuous. * * * The knowingly incurring such an immi- nent, visible peril; the choosing to ride in such a conspicuously danger- ous place, must be held by all reason- able people to be reckless in a high degree. The danger, the chance of injury, is visibly imminent and great. No man of reason can fail to api^re- hend it. No prudent man would fail to avoid it. There seems to us no room for debate or question upon this proposition." Goodwinc. Boston, etc., E. Co., 84 Me. 203, s. c. 24 Atl. R. 816. 1 Willis V. Long Island E. Co., 34 N. Y. 670; Werle v. Long Island E. Co., 98 N. Y. 650; Lynn v. Southern Pac. Co., 103 Cal. 7, s. c. 36 Pac. E. 1018, 24 L. E. A. 710. See, also, Interna- tional, etc., E. Co. V. Welsh, (Tex. Civ. App.) 24 S. W. E. 854. But it seems that in the California case there was not even standing room inside and the New York cases have been criticised by text writers. 2 Wood on Railroads, ].'i27; Patterson's Ry. Ace. Law, 284. See, also, Cleveland, etc.,R. Co.c .Moneyhun,(Ind.)44N.E.R.1106. Some of the cases, however, make the same distinction in regard to riding on the platforms of street cars and hold that it is not negligence per se where there is room inside. In Chicago, etc., E. Co. V. Dumser, 161 111. 190, 43 N. E. E. 698, it was held that one who had an excursion ticket, good only on a certain train, was not necessarily guilty of contributory negligence, as a mutter of law, in standingon the plat- form of that train, when he did not know at tlje time he cauie to take the train that it was so crowded that he could not get inside. In Baltimore, etc., E. Co. V. Meyers, 62 Fed. R. 367, it was held that the Indiana statute relieving railroad companies from lia- Vjility to passengers on the platform when notices prohibiting them from riding there Ijave been properly posted does not apply to passengers who go upon the platform at the invi- tation of the brakeman for the pur- pose of alighting. ' Worthington v. Central Vt., etc., E. Co., 64 Vt. 107, 8. c. 23 Atl. R. 590, 15 L. R. A. .326; Camden, etc., E. Co. V. Iloosey, 99 Pa. St. 492, s. c. 44 Am. R. 120; Chicago, etc., R. Co. v. Car- roll, 5 Bradw. (111.) 201; Quinn v. lUinois Cent. R. Co., 51 111. 495; Goodwin v. Boston, etc., R. Co., 84 Me. 203, s. c. 24 Atl. R. 816. It ap- peared in the last case just cited that there was standing-room inside the car, but that the seats were all occu- pied ; that the crowd and heat made it very uncomfortable inside the car, and that the conductor took the plaintiff's ticket while the latter was stand- ^630 INJURIES TO PASSENGERS. 2557 importance in determining the question of negligence or breach of duty on the part of the carrier, but we are unable to see its bearing upon the question of contributory negligence, especially where there is plenty of room to stand inside the car. In such a case the failure to furnish a seat does not make it any safer or any the less negligent to stand on the platform, and is not the proximate cause of the injury. In the case of ordinary street cars the danger is obviously much less, and it is gener- ally held that it is not necessarily negligence per se to stand on the platform of a street car.' So, perhaps, in view of this fact and the general custom it is not necessarily negligence to stand ing on the platform and made no ob- jection to hia standing there. "All these circumstances," said the court, "may have made it more agreeable to ride on the platform in the open air than to stand inside the hot, crowded car, but they did not in the least lessen the danger nor the appearance of danger in so doing. That Goodwin was not ordered off the platform could not have led him to believe it was safe to ride there. He needed no warning of such danger. He knew the place for passengers was inside the car. The discomfort of the hot and crowded car did not make it any more prudent for him to ride outside on the plat- form. Within the car, with all its dis- comforts, was safest. Without the car was obvious peril. The safe path is often more narrow and difficult than the way which leads to destruc- tion, but no man is excused for that reason for seeking the one and avoid- ing the other." ' Nolan V. Brooklyn City, etc., R. Co., 87 N. Y. 63, s. c. 41 Am. R. 345 ; Upham V. Detroit City R. Co., 85 Mich. 12, 8. c. 48 N. W. R. 199; Ger- raantown, etc., R. Co. v. Walling, 97 Pa. St. 55, s. c. 39 Am. R. 796; Burns D. Bellefontaine R. Co., 60 Mo. 189; Brusch I'. St. Paul City R. Co., 52 Minn. 512, s. c. 55 N. W. R. 57; Au- gusta, etc., R. Co. V. Renz, 55 Ga. 126; Marion St. R. Co. v. Shaffer, 9 Ind. App. 486, s. c. 36 N. E. R. 861 ; Ma- guire V. Middlesex, etc., R. Co., 115 Mass. 239; Thirteenth St. R. Co. ■!». Boudrou, 92 Pa. St. 475, s. c. 37 Am. R. 707; Muldoon v. Seattle, etc., R. Co., 7 Wash. 528, s. c. 35 Pac. R. 422; Highland Ave., etc., R. Co. v. Dono- van, 94 Ala. 299. No distinction seems to be made on account of the mo- tive power, but in most of these cases stress is laid upon the fact that the cars were crowded, and, in the ab- sence of such a showing, some of the courts and text writers think the bet- ter rule is that standing on the plat- form is negligence per se. This is cer- tainly true if the passenger is know- ingly violating a rule of the company. Booth on Street Railways, §§ 338, 339 ; Beach on Contrib. Neg., §§293, 295; Andrews v. Capitol, etc., R. Co., 2 Mackey 137, s. c. 47 Am. R. 266; Graville v. Manhattan R. Co., 105 N. Y. 525 ; Connolly v. Knickerbocker Ice Co., 114N. Y. 104; Aikin v. Frank- ford, etc., R. Co., 142 Pa. St. 47 ; Will- mott'W. Corrigan, etc., Co., 106 Mo. 535, s. c. 17 S. W. R. 490. See, also. Rights of Street Car Platform Pas- sengers, 20 Cent. L. Jour. 104. 2558 CARRIEB8. § 1630 upon the steps or footboards of crowded street cars.' But to stand on a coupling pin or bumper/ or to sit on the driver's high stool with feet elevated, or the like, so as to easily be thrown over backward by a jerk or rough motion of the street car,' is negligence per se. A passenger in going from one car to another in search of a seat, under the direction of the con- ductor, is not necessarily negligent,' and we presume that where the train is vestibuled standing on the platform within the vestibule, when no seat can be obtained, is not necessarily negligence per se. In such a case we suppose the question of contributory negligence is, ordinarily, for the jury to deter- mine as a question of fact. But even if a passenger is right- fully upon the platform, under such circumstances that he is 'Cogswell V. West St., etc., E. Co., 5 Wash. 46, s. c. 31 Pac. R. 411; Clark V. Eighth Ave. E. Co., 36 N. Y. 135; Wood V. Brooklyn City E. Co., 38 N. Y. Supp. 1077 ; McGrath v. Brooklyn, etc., R. Co., 34 N. Y. Supp. 365, s. c. 87 Hun 310; Elliott v. Newport St. E. Co., 18 E. I. 707, 31 Atl. E. 694; Pray V. Omaha St. E. Co., 44 Neb. 167, 62 N. W. E. 447; Topeka City E. Co. v. Higgs, 38 Kan. 375, s. c. 15 Pac. E. 667. See, also, Lapointe v. Middlesex E. Co., 144 Mass. 18, s. c. 10 N. E. E. 497; Willmott v. Corrigan, etc., E. Co., (Mo.) 16 S. W. E. 500; Meesel v. Lynn, etc., E. Co., 8 Allen (Mass.) 234; Wilde v. Lynn, etc., E. Co., 163 Mass. 533, 40 N. E. E. 851. But com- pare Francisco v. Troy, etc., E. Co., 78 Hun 1.3, s. c. 29 N. Y. Supp. 247; Craighead v. Brooklyn City E. Co., 123 N. Y. 391, s. e. 25 N. E. E. 387; Schoenfeld tj. Milwaukee City E. Co., 74 Wis. 433, s. c. 43 N. W. E. 162; Beach on Contrib. Neg., §294; Booth on Street Eailways, § 341. " Bard v. Pennsylvania, etc., Co., (Pa. St.) 34 Atl. R. 9.53. Or to sit on the driving bar. Downey «. Hendrie, 46 Mich, 498. ^Mann v. Philadelphia, etc., Co., (Pa. St.) 34 Atl. E. 572. See, also, Wills V. Lynn, etc., R. Co., 129 Mass. 351; Eandall v. Frankford, etc., R. Co., 139 Pa. St. 464; Hill v. Birming- ham Union R. Co., 100 Ala. 447, s. c. 14 So. R. 201; Butler v. Pittsburgh, etc., R. Co., 139 Pa. St. 195, s. c. 21 Atl. R. 500. *Dewire v. Boston, etc., R. Co., 148 Mass. 343, s. c. 2 L. R. A. 166; Louis- ville, etc., R. Co. V. Kelly, 92 Ind. 371, s. c. 47 Am. R. 149; Cotchett v. Savan- nah, etc., R. Co., 84 Ga. 687, s. c. 11 S. E. R. 5.53; Hannibal, etc., R. Co. v. Martin, 111 111. 219 ; Lentw. New York, etc., R. Co., 120 N. Y. 467; Atchison, etc., U.Oi.v. McCandliss, .3.3 Kan. 366 ; Cleveland, etc., R. Co. u. Manson, 30 Ohio St. 451. But it is otherwise if the passenger is going from one car to an- other merely for his own convenience or pleasure. Stewart ■!). Boston, etc., R. Co., 146 ]\IaKB. 605; Snowden r. Boston, etc., R. Co., 151 Mass. 220, s. c. 24 N E. R. 40; State v. .'\Iaine Cent. R. Co., 81 Me. 84, s. c. 16 Atl. R. 368; McDaniel v. Hiland, etc., E. Co., 90 Ala. 64, s. c. 8 So. E. 41. But see Burt v. Douglas, etc., E. Co., 83 Wis. 229, s. c. 53 N. W. R. 447 ; Davis V. Louisville, etc., R. Co., 69 Miss. 136. § 1631 INJURIES TO PASSENGERS. 2559 not necessarily guilty of contributory negligence as matter of law, it does not necessarily follow, although it may do so, that the company is negligent or that he is entitled to recover be- cause he is injured by the jerking or oscillation of the train. It is matter of common knowledge, of which we think the courts ought to take judicial notice, that more or less of an oscillating or jerking motion is necessarily incident to the run- ning of trains.' Ordinarily, however, an injury caused by a sudden and unnecessary jerk of the car will make aprima facie case, so far as the question of negligence on the part of the company is concerned. So the company is liable for injuries willfully caused by it to a passenger upon the platform, not- withstanding he is negligent in standing there, and there are also cases in which it may be liable because the act of the pas- senger in standing on the platform does not in fact proximately contribute to his injury.* This phase of the subject however, will be discussed in a subsequent section. §1631. Injuries to passengers riding in baggage car. — A baggage car is "a known place of danger. In this respect it differs from the cow-catcher and platform only in degree. It is placed ahead of the passenger cars and next to or near the locomotive. In cases of collision it is the first car to give way to the shock, and frequently is the only one seriously in- jured.'" The danger from falling baggage incase of collision, derailment or a sudden jerk is also obvious. Railroad com- ' President, etc., v. Cason, 72 Md. Ferry Co., 114 U. S. 474, s. c. 5 Sup. 377, s. c. 20 Atl. R. 113; Chicago, etc., Ct. R. 960. But see Pray v. Omaha R. Co. V. Hazzard, 26 111. 373; Rock- St. R. Co., 44 Neb. 167. ford, etc., R. Co. v. Coultas, 67 111. ^Zemp t». Wilmington, etc., R. Co., 398; Illinois Cent. R. Co. v. Green, 81 9 Rich. L. 84; Kansas, etc., R. Co. u. 111. 19 ; Siner v. Great Western R. Co., White, 67 Fed. R. 481. L. R. 4 Exch. 117; Dublin, etc., R. Co. 'Paxson, J., in Pennsylvania R. V. Slattery, L. R. 3 App. Cas. 1155; Co. v. Langdon, 92 Pa. St. 21, 27, s. c. Bemissu. New Orleans, etc., R. Co., 47 1 Am. & Eng. R. Cas. 87, 37 Am. R. La. 1671, 18 So. R. 711, 713; Hite v. 651. The carrier should not use a bag- Metropolitan, etc., R. Co., 130 Mo. 132, gage car for the transportation of pas- Si S. W. R. 262. So, the mere failure sengers. Baltimore, etc., R. Co. v. to provide a seat is not of itself, proof Swann, 81 Md. 400, 32 Atl. R. 175. of negligence. Burton v. West Jersey 2560 CARRIERS. §1631 panies generally, if not universally, provide in their rules and regulations that passengers shall not ride in the baggage car, and such a rule is not only reasonable, but is also one, we think, which a conductor or other employe has no authority to waive so as to bind the company under ordinary circum- stances.' Even in the absence of proof of any such regulation the fact is well known that the proper place for passengers is in the cars fitted up for that purpose and that a baggage car is a more dangerous place. A railroad company is not liable, therefore, for an injury to a passenger who voluntarily rides in a baggage car for his own pleasure or convenience, if riding therein was the proximate cause of his injury.* But if he would have been injured just the same had he been riding where he belonged, in the passenger car, so that riding in the baggage car was not a proximate cause of his injury, it will not be considered such contributory negligence as to defeat his right, if any he has, to recover damages from the railroad company.^ 'Pennsylvania E. Co. «. Langdon, 92 Pa. St. 21; Reary v. Louisville, etc., R. Co., 40 La. Ann. 32, s. c. 34 Am. & Eng. R. Cas. 277; Hickey v. Boston, etc., E. Co., 14 Allen (Mass.) 429; Beach on Contrib. Neg., §1.52; 2 Woods on Railroads, (Minor's ed.) 1277 ; post, § 1643. But see Jacobus v. St. Paul, etc., R. Co., 20 Minn. 125: Carroll v. New York, etc., R. Co., 1 Duer (N. Y.) .571; Florida, etc., R. Co. V. Hirst, 30 Fla. 1, s. c. 11 So. R. 506; Watson v. Northern, etc., R. Co., 24 U. C. Q. B. 98; Washburn v. Nash- ville, etc.,R. Co., 3 Head (Tenn.)638; Dunn V. Grand Trunk R. Co., 58 Me. 187, s. c. 10 Am. L. Reg. (N. S.) 615; Cody V. New York, etc., R. Co., 151 Masa.462. Postal clerk riding in postal car may recover although it may be more dangerous. Baltimore, etc. ,R. Co. V. State, 72 Md. 36 ; Gulf, etc., R. Co. v. WiIson,79Tex. 371, 15 S. W. R. 280. ' Houston, etc., R. Co. v. Clem- mons, 55 Tex. 88, s. c. 40 Am. R. 799; Peoria, etc., R. Co. v. Lane, 83 111. 448, and authorities cited in following note. So where a passenger rides in a "show car." Blake v. Burlington, etc., R. Co., 78 Iowa 57, s. c. 89 Am. & Eng. R. Cas. 405. ^Kentucky Cent. R. Co. v. Thomas, 79 Ky. 160, s. c. 42 Am. R. 208; Jones V. Chicago, etc., R. Co., 43 Minn. 279, s. c. 45 N. W. R. 444; Webster v. Rome, etc., R. Co., 115 N. Y. 112, s. c. 21 N. E. R. 725; O'Donnell v. Alle- gheny, etc., R. Co., 59 Pa. St. 239; New York, etc., R. Co. v. Ball, 53 N. J, L. 283, s. c. 21 Atl. R. 1052. But see Higley v. Gilmer, 3 Mont. 90; Atchison, etc., R. Co. v. Plinn, 24 Kan. 627; Beach on Contrib. Neg., §§ 150, 152. Mr. Beach inclines to- ward the opinion that one who rides in a baggage car, contrary to the rules of the company, is a quasi trespasser and can not recover as a passenger no § 1632 INJURIES TO PASSENGEES. 2561 § 1632. Injuries received by passengers riding- in other dan- gerous and improper places. — It seems clear that travelers Ofught to know that they can not expect to be carried as pas- sengers upon an engine,' nor upon a hand-car/ and that an employe has no implied authority, under ordinary circum- stances, to receive them as passengers in such a place. So, it would seem that to ride upon the cow-catcher or pilot of an engine is clearly contributory negligence as matter of law.' These rules apply also to riding on the top of a car.* But there are cases in which it has been held that a passenger is justified in riding on top of a car under the direction of the conductor.^ It seems to us, however, that such an act is so obviously dangerous that, except, perhaps, in case of an emer- matter whether the injury would have been sustained or not if he had re- mained in his proper place. ' Robertson o. New York, etc., E. Co., 22 Barb. (N. Y.) 91; Files u. Bos- ton E. Co., 149 Mass. 204, s. c. 21 N. E. E. 311 ; Waterbury v. New York, etc., E. Co., 17 Fed.R. 671, and note; Stringer v. Missouri Pac.E.Co., 96 Mo. 299; Chicago, etc., E. Co. ■«. Michie, 83 111. 427 ; Woolsey i>. Chicago, etc., E. Co., 39 Neb. 798, s. c. 58 N. W. E. 444 ; Virginia, etc., R. Co. v. Eoach, 83 Va. 375, s. c. 5 S. E. E. 175 ; Texas, etc., E. Co. V. Boyd, 6 Tex. Civ. App. 205, s. c. 24 S. W. E. 1086; ante, § 1581, p. 2463, note 4. But see Nashville, etc., E.Co.'B. Erwin, (Tenn.) 3 Am. & Eng. E. Cas. 465. 'See ante, § 1582; Gulf, etc., E*. Co. V. Dawkins, 77 Tex. 228, 13 S. W. R. 982; International, etc., E. Co. v. Cock, 68 Tex. 713, 5 S. W. E. 635; Hoar V. Maine Central E. Co., 70 Me. 65; Graham v. Toronto, etc., E. Co., 23 U. C. C. P. 541. But compare In- ternational, etc., E. Co. V. Prince, 77 Tex. 560, 14 S. W. E. 171 ; Pool v. Chicago, etc., R. Co., 56 Wis. 227, 8 Am. & Eng. E. Cas. 360, 14 N. W. E. 46. 'Thompson on Carriers, 265; Eail- road Co. v. Jones, 95 U. S. 439; Doggett V. Illinois Cent. E. Co., 34 Iowa 284; Rucker v. Missouri Pac. R. Co., 61 Tex. 499, s. c. 21 Am. & Eng. R. Cas. 245 ; McGucken v. West- ern, etc., R. Co., 77 Hun 69, s. c. 28 N. Y. Supp. 298; Brown u. Scarboro, 97 Ala. 316, s. c. 12 So. R. "289; Downey v. Chesapeake,..etc., E. Co., 28 W. Va. 732; Virginia, etc., R. Co. V. Roach, 83 Va. 375. But see Wa- bash, etc., R. Co. V. Shacklet, 105 111. 364, s. c. 12 Am. & Eng. R. Cas. 166; Hanson v. Mansfield R. Co., 38 La. Ann. 111. * Atchison, etc., R. Co. v. Lindley, 42 Kan. 714, s. c. 22 Pac. R. 708; Tuley V. Chicago, etc., R. Co., 41 Mo. App. 432; Little Eock, etc., E. Co. v. Miles, 40 Ark. 298, s. c. 48 Am. E. 10. ^ Indianapolis, etc., E. Co. v. Horst, 93 U. S. 291 ; Tibby v. Missouri Pac. E. Co., 82 Mo. 292; Chicago, etc., E. Co. V. Carpenter, 56 Fed. E. 451; Saunders v. Southern Pac. E. Co., (Utah) 44 Pac. E. 932. (Company held liable to drover struck by low bridge when compelled to -walk on top of car in order to reach his stock and return to eaboose.) 2562 CARRIERS. § 1633 gency, a passenger can not do so, even with the consent of the conductor, and still hold the company liable to him the same as if he had remained in the place provided for passengers.' This, we think, is true, not only because such conduct would, ordinarily at least, be negligent, and because the traveler should be deemed to have assumed the increased risks of his hazardous position, but also because he must know that a con- ductor, under ordinary circumstances, can have no power to authorize passengers to ride on top of cars.^ The company may, of course, be liable to one who is invited or directed to take such a position, or even to one who is clearly a trespasser, for willfully injuring him, and there may be cases in which it will also be liable for negligently injuring him after discover- ing his danger, but it is not, we think, liable to him as a pas- senger; that is, he can not insist upon that high degree of care and comparative immunity from injury to which a passenger in his proper place inside the car is entitled. The duties and liabilities of the carrier in such cases have been elsewhere con- sidered.' One who rides in a stock car, in pursuance of a contract with the company, to take care of the stock, assumes the increased danger and discomforts necessarily incident thereto, but is not guilty of contributory negligence in so do- ing.* § 1633. Injuries received by passenger occupying an im- proper position in car. — A passenger may be guilty of contrib- ' See St. Louis, etc., R. Co. v. Rice, cited in note; Pool «. Chicago, etc., (Tex. Civ. App.) 29 S. W. R. .525 ; Ft. R. Co., 56 Wis. 227 ; post, § 1642. Scott, etc., R. Co. V. Sparks, 55 Kan. ^ Ante, §§ 1255, 1581, 1582. 288, 39Pac. R. 1032; Texas, etc., R. *Lawson «. Chicago, etc, R. Co., 64 Co. D. Boyd, 6 Tex. Civ. App. 205, s. Wis. 447; Florida, etc., R. Co. v. c. 24 S. W. R. 1086; Downey ». Chesa- Webster, 25 Fla. 394; ante, §1629, p. peake, etc., R. Co., 28 W. Va. 732. 2553, note 9. A passenger on a freight ^ As to general doctrine that a pas- train who voluntarily rides in the senger is negligent in obeying the di- stock car instead of in the caboose as- rections of the servant when he is sumes the risk and can not recover thereby placed in obvious and known for injuries which he would not other- danger, see Pennsylvania R. Co. v. wise have sustained. Atchison, etc., Hoagland, 78 Ind. 203; Louisville, R. Co. •». Johnson, 3 Okl. 41, 41 Pac. etc., R. Co. V. Kelly, 92 Ind. 371, 13 R. 641. Am. & Eng. R. Cas. 1, and authorities §1633 INJURIES TO PASSENGERS. 2563 utory negligence not only in going into a dangerous place not intended for passengers but also in assuming a dangerous position in or upon a passenger car. Thus, where a passenger rides with his arm or head outside of the window he is, accord- ing to the weight of authority, guilty of negligence as matter of law, and can not recover for injuries received by reason of his arm or head coming in contact with some external object while in such position.' But it has been held that it is not negligence per se for a passenger having a severe headache to rest his elbow on the window-sill and that he may recover in such a case for injuries received where his elbow is forced out- side the window by a sudden jolt and injured by coming in contact with a freight car which the railroad company had left upon the siding too near the main track. ^ As we have else- where shown, even where it is held that riding upon the plat- form of a street car is not negligence per se, a passenger is 'Todd V. Old Colony, etc., R. Co., 3 Allen (Mass.) 18, s. c. 7 Allen 207, 80 Am. Dec. 49; Favre». Louisville, etc., E. Co., 91 Ky. 541, s. c. 16 S. W. R. 370; Louisville, etc., R. Co. v. Sick- ings, 5 Bush (Ky.) 1 ; Indianapolis, etc., R. Co. V. Rutherford, 29 Ind. 82; Pittsburgh, etc., R. Co. v. Andrews, 39 Md. 329, s. c. 17 Am. E. 568 ; Pitts- burg, etc., R. Co. u. McClurg, 56 Pa. St. 294; Holbrook v. Utica, etc., R. Co., 12 N. Y. 236; Morel v. Missis- sippi, etc., Co., 4 Bush (Ky.) 535; Dale V. Delaware, etc., R. Co., 73 N. Y. 468; Dun v. Seaboard, etc., R. Co., 78 Va. 645, s. c. 16 Am. & Eng. R. Cas. 363; Georgia, etc., R. Co. v. Un- derwood, 90 Ala. 49, s. c. 8 So. R. 116. See, also, Richmond, etc., R. Co. v. Scott, 88 Va. 958, s. c. 14 S. E. R.763; Coleman v. Second Ave. R. Co., 114 N. Y. 609; Moore v. Edison, etc., Co., 43 La. Ann. 792, s. c. 9 So. R. 433. 2 Farlow o. Kelly, 108 U. S. 288, s. c. 2 Sup. Ct. R. 555. See, also, Spencer v. Milwaukee, etc., R. Co., 17 Wis. 487 ; Chicago, etc., R. Co. v. Pon- drom, 51 111. 333 ; Summers u. Crescent, etc., R. Co.. 34 La. Ann. 139; Ger- mantown, etc., R. Co. v. Brophy, 105 Pa. St. 38, s. c. 16 Am. & Eng. R. Cas. 361 ; Dahlberg v. Minneapolis, etc., R. Co., 32 Minn. 404, s. c. 18 Am. & Eng. R. Cas. 202; Quinn v. South Carolina R. Co., 29 S. Car. 381, s. c. 7 S. B. R. 614; Gulf, etc., R. Co. v. Danshank, 6 Tex. Civ. App. 385, s. c. 25 S. W. R. 295; North Baltimore, etc., R. Co. V. Kaskell, 78 Md. 517, s. c. 28 Atl. E, 410; Gulf, etc., R. Co. v. Killebrew, (Tex.) 20 S, W. R. 182; Winters v. Hannibal, etc., R. Co., 39 Mo. 468; MoaklerB. Willamette, etc., R. Co., 18 Ore. 189, s. c. 41 Am. & Eng. R. Cas. 135; Breen v. New York, etc., R. Co., 109 N. Y. 297 ; Carrico v. West Vir- ginia R. Co., 35 W. Va. 389, s. c. 14 S. E. E. 12; New Orleans, etc., E. Co. t). Schneider, 60 Fed. E. 210; Louis- ville, etc., E. Co. V. Snyder, 117 Ind. 435, s. c. 20 N. E. E. 284. 2564 CARRIERS. § 1633 guilty of negligence if he assumes a position of obvious danger upon the platform.' So, in a recent case a passenger upon an excursion train who seated himself on a railing at the rear end of an open car in which passengers were carried with his feet elevatsd by being placed on a seat in front of him, so that there was no possible way of protecting himself in case of a sudden jolt, was held guilty of contributory negligence as matter of law.^ It is generally a question of fact for the jury to deter- mine whether a passenger is guilty of contributory negligence in standing up in a passenger car,' but to voluntarily and un- necessarily stand up in a freight car, which is more liable to sudden jerks, has been held to be negligence as matter of law.* It is not contributory negligence for a passenger to walk from his seat to the water closet while the car is in motion,' nor for him to go to the wash-room in a Pullman car in which he is riding for the purpose of washing his hands.' It has also been held that it is not necessarily contributory negligence for a passenger to take hold of the brake wheel in boarding a pas- ^Ante, § 16.30. See, also, Carroll v. Co. v. Green, 95 Ga. 376, s. c. 22 8. E. Interstate, etc., Co., 107 Mo. 653, 17 S. E. 658. W. R. 889. ^Lavis^). Wisconsin Cent. R. Co., ^ Jackson v. Crilly, 16 Colo. 103, s. c. 54 III. App. 636. Nor to sit near a car 26Pac. R. 331. stove. Texas, etc., R. Co. v. Stuart, 'V^T^yldei). Northern R. Co., 53 N. 1 Tex. Civ. App. 642, s. c. 20 S. W. Y. 156; Bardenti. Boston, etc., R. Co., R. 962. For a peculiar case in which 121 Mass. 426 ; Lapointe v. Middlesex a railroad company was held not to be R. Co., 144 Mass. 18, s. c, 10 N. E. R. liable to a female passenger locked in 497; Whipple i>. West Phila. E. Co., 11 water-closet by reason of a defective Phila. (Pa.) 345; Gee v. Metropolitan lock, see Gulf, etc., R. Co. v. Smith, R. Co., L. E. 8 Q. B. 161 ; Colwell v. (Tex. Civ. App.) 30 S. W. R. ?,r,]. Manhattan R. Co., 57 Hun (N. Y.) «Sturdivant v. Ft. Worth, etc., R. 452; Griffith ». tJtica, etc., R. Co., 17 Co., (Tex. Civ. App.) 27 S. W. R. N. Y. Supp. 692. But see De Soucey 170. See, also. Piper v. New York V. Manhattan R. Co., 15 N. Y. Supp. Cent. R. Co., 76 Hun 44, s. c. 27 N. Y. 108; Beach on Contrib. Neg., §295. Supp. 593. But in going to the en- ^ Wallace v. Western, etc., R. Co., gine to get water because there was 98 N. Car. 494, s. c. 2 Am. St. R. 346; none in the passenger coach, a pas- Harris V. Hannibal, etc., E. Co., 89 senger was correctly held negligent Mo. 2.33, s., c. .58 Am. E. Ill; ante, as matter of law in McDaniel u. High- §1629. So where a passenger in a pas- land Ave., etc., R. Co., 90 Ala. 64, s. senger coach stood up on a seat to get c. 8 So. E. 41. a bundle. East Tennessee, etc., R. § 1634 INJURIES TO PASSENGERS. 2565 senger car' nor for him to place his hand, in preparing to alight, where it will be caught by the closing of the door, due to a sudden starting or stopping of the train after passengers have been invited to alight,' but it does not necessarily follow that the railroad company is always liable to one who gets his fingers caught in this way. In one case it appeared that the injury was the result of pure accident, without fault on either side, and it was held that the railroad company was not liable.' § 1634. Injuries caused by derailment. — We have already considered, in a general way, the duties of railroad companies respecting their road-beds, tracks and equipments and the care required in the operation of their trains.* One of the most common accidents or causes of injury to passengers upon rail- roads is derailment of the cars. This may be caused by the negligence of the company in failing to perform its duties re- specting any of the matters above specified, or it may be caused by something over which the company has no control. In the former case the company is liable to a passenger who is free 'Cleveland, etc., R. Co. v. Mc- Adams u. Lancashire, etc., R. Co., L. Henry, 47 111. App. 301. It seems to R. 4 O. P. 739, s. c. 17 W. R. 884. But us, however, that under ordinary cir- compare Western Md. R. Co. v. Stan- cumstances, a passenger should not ley, 61 Md. 266, s. c. 48 Am. R. 96; touch the brake wheel in getting on Kentucky, etc., R. Co. ii. Quinkert, 2 the oar, and it is certainly not in- Ind. App. 244, s. c. 28 N. E. R. 338. tended to be so used. ' Murphy v. Atlanta, etc., R. Co., 89 2 Madden v. Missouri Pac. R. Co., Ga. 832, s. c. 15 S. E. R. 774. The 50 Mo. App. 666. But in a somewhat company is not negligent merely be- similar recent case it was said that cause the upper part of the door is "placing his hand in such a position not all glass so tliat persons on each upon the jamb of the door that it side can see each other when about to would certainly be injured by any one open it, nor is it negligent to have a closing the door was an act of negli- small projecting screw in the door for gence." Texas, etc., R. Co. u. Overall, the purpose of holding it back. Graeff 82 Tex. 247, s. c. 18 S. W. R. 142. v. Philadelphia, etc., R. Co., 161 Pa. See, also, Atchison, etc., R. Co. v. St. 230, s. c. 28 Atl. R. 1107. Compare Johnson, 3 Okla. 41, 41 Pac. R. 641 ; also Sturdivant v. Ft. Worth, etc., R. Warburton v. Midland R. Co., 21 L. Co., (Tex. Civ. App.) 27 S. W. R. T. 835; Gee v. Metropolitan, etc., R. 170; Hayman v. Pennsylvania R. Co., Co., L. R. 8 Q. B. 161, 21 W. R. 584; 118 Pa. St. 508, s. c. llAtl. R. 815. Thompson v. Duncan, 76 Ala. 334; * ^nfe, §§ 1686, 1587, 1589. Corp. 163 2566 CAKKIERS. § 1634 from contributory negligence and in the latter case it is not. In other words, if it is caused by the failure of the company to exercise the highest degree of care which is practicable and usual in the maintenance, management and operation of a rail- road and a passenger is injured thereby as a proximate cause of the company's breach of duty, without contributory negli- gence on his part, it is liable; but if his own negligence prox- imately contributed thereto, or if there is no failure to exercise such care on the part of the company, it is not liable. As such so-called accidents do not ordinarily happen, however, unless the company fails to exercise such care, and as it is better able to explain how they happened, proof of the derailment of the car and injury thereby caused to the passenger generally raises a presumption that the company was negligent.' But this presumption is not conclusive,^ for it may be rebutted by show- ing that the injury arose from an unavoidable accident or an occurrence which could not have been prevented by the highest practicable degree of care and foresight.'' Thus, it may be re- ' Louisville, etc., R. Co. v. Jones, 108 Ind. 551, s. c. 9 N. E. R. 476, 28 Am. & Eng. R. Gas. 170; Denver, etc., R. Co. V. Woodward, 4 Colo. 1 ; Nor- ton V. St. Louis, etc., R. Co., 40 Mo. App. 642 ; Furnish v. Missouri Pac. R. Co., 102 Mo. 438, s. c. 13 S. W. R. 1044; Montgomery, etc., R. Co. v. Mallette, 92 Ala. 209, s. c. 9 So. R. 363 ; Stevens v. European, etc., R. Co., 66 Me. 74; St. Louis, etc., R. Co. v. Mitchell, 57 Ark. il8, a. c. 21 S. W. R. 883; Spellman v. Lincoln, etc., Co., 36 Neb. 890, a. c. 55 N. W. R. 270 (street car case). See, also, Louisville, etc., R. Co. V. Miller, 140 Ind. 685, s. c. 37 N. E. R. 343, 40 N. E. R. 116; Peoria, etc.,R. Co. B.Reynolds, 88 111.418; Baltimore, etc., R. Co. v. Worthing- ton, 21 Md. 275; Dawson v. Man- chester, etc., R. Co., 5 L. T. R. (N. S.) 682. But in a number of cases it is held that this presumption does not arise as a matter of law without proof of other circumstances. Texas, etc., R. Co. V. Buokelew, 3 Tex. Civ. App. 272, s. c. 22 S. W. R. 994; San Antonio, etc., R. Co. v. Robinson, 73 Tex. 277, s. c. 11 S. W. R. 327; Transportation Co.». Downer, 11 Wall. (U. S.) 129. ^Pattee I). Chicago, etc., R. Co., 5 Dak. 267, s. c. 38 N. W. R. 435, 34 Am. & Eng. R. Cas. 399, and authori- ties cited in following notes. 'Eldridge v. Minneapolis, etc., R. Co., 32 Minn. 253, s. c. 20 N. W. R. 151, 21 Am. & Eng. R. Cas. 494; Mc- Clary )'. Sioux City, etc., R. Co., 3 Neb. 44 ; Wabash, etc., R. Co. v. Fried- man, 41 111. App. 270; Eureka, etc., R. Co. ).. Timmons, 51 Ark. 459, s. c. n S. W. R. 690, 40 Am. & Eng. R. Cas. 698 1 Hipsley v. Kansas City, etc., R. Co., 88 Mo. 348, s. c. 27 Am. & Eng. R. Cas. 287; Pittsburgh, etc., R. Co. «. Williams, 74 Ind. 462; South- ern Kan., etc., R. Co. v. Walsh, 45 •§ 1634 INJURIES TO PASSENGEES. 2567 tutted by showing that the derailment and injury were caused by the act of a stranger which the company could not have foreseen and anticipated.' So, where the derailment is caused by a broken rail, the presumption against the company may be overcome by showing that the rails were properly inspected, tested and laid and that the accident was caused by the cold or the like, notwithstanding the exercise of the highest practica- ble degree of care on the part of the company.'' In a recent oase it appeared that the train was derailed by reason of the breaking of a wheel which had been carefully inspected and showed no defects ; that there was nothing in the track, road-bed or other equipments nor in the speed of the train to cause the accident; that a passenger told the conductor that he felt a jolt and heard an unusual noise before the accident, and the conductor thereupon listened and looked inside and outside the car without discovering anything wrong, but did not stop it, and that soon afterwards the car was derailed and the plaint- iff injured. It was held that as there had been a proper in- spection the company was not liable for the injury caused by the hidden defect,' and that it was not liable because the con- ductor failed to stop the car.' In another recent case the Kan. 653, s. c. 26 Pac. E. 45; Ward v. Co. v. Newell, 75 Ind. 542; Michigan, Bonner, 80 Tex. 168, s. c. 15 S. W. E. etc., E. Co. v. Lantz, 29 Ind. 528; Mc- 805; Andrews v. Chicago, etc., E. Co., Padden v. New York, etc., E. Co., 44 86 Iowa 677, s. c. 53 N. W. E. 399. N. Y. 478; Canadian Pac. E. Co. v. The circumstances as detailed by the Chalifoux, 22 Can. S. Ct. E. 721. Bat plaintiff himself may be such as to re- compare Pittsburgh, etc., E. Co. v. but or prevent the presumption from Williams, 74 Ind. 462; Eeed v. New arising. See Smith v. St. Paul, etc., York Central, etc., E. Co., 56 Barb. E. Co., 32 Minn. 1, s. c. 18 N. W. E. (N. Y.) 493. 827, 50 Am. E. 550; Gillespie v. St. » Citing Hutch. Carr., §§ 497, 508; Louis, etc., E. Co., 6 Mo. App. 554. Toledo, etc., E. Co. ■». Beggs, 85111.80; ' Dimmitt v. Hannibal, etc., E. Co., Grand Eapids, etc., E. Co. v. Huntley, 40 Mo. App. 654; Houston, etc., E. 38 Mich. 537,548; McPadden B.New Co. V. Lee, 69 Tex. 556, 7 S. W. E. York, etc., E. Co., 44 N. Y. 478, 481. 324, s. c. 84 Am. & Eng. E. Cas. See, also, Texas, etc., E. Co. v. Buck- 452. See, also, Fredericks v. Northern alew, (Tex. Civ. App.) 34 S. W. E. 165. Cent. E. Co., 157 Pa. St. 103, s. c. 27 ^Frelson v. Southern Pac. E. Co., 42 Atl. E. 689. La. Ann. 673, s. c. 7 So. E. 800, 44 ^Heazle v. Indianapolis, etc., E. Am. & Eng. E. Cas. 319. Co., 76 111. 501; Cleveland, etc., E. 2568 CARRIERS. § 1635 accident occurred on a dark and rainy night by reason of an embankment being washed out by a water-spout or water which backed up from a culvert that failed to carry off the extraor- dinary rainfall, and it was held that the railroad company was not liable.' § 1635. Collisions. — Where a passenger is injured in a col- lision between two trains of the same railroad company the only questions that can well arise are as to whether it was caused by the failure of the company to exercise that high de- gree of care which it owes to its passengers and as to whether the passenger was guilty of contributory negligence. As we have elsewhere seen, if the passenger was wrongfully or negli- gently riding in an improper car or place, and would not have been injured if riding in a proper place, he can not recover;^ but, according to what we regard as the better rule, the mere fact that he was riding in what might be regarded as a more dangerous place than his seat in the passenger coach will not defeat a recovery if he would have been injured just the same. As we shall hereafter show,' proof of the collision and injury caused thereby to a passenger usually makes a prima facie case of negligence against the company, for the general rule is that in such a case the collision itself gives rise to the pre- sumption of negligence on its part.' So, we suppose that the ^Norfolk, etc., R. Co. v. Marshall's from the car in an attempt to avoid a Admr., 90 Va. 836, s. c. 20 S. E. R. collision if a person of ordinary pru- 823. Where, however, a train was de- dence would have done so. Towmley railed and a passenger injured by an v. Central Park, etc., R. Co., 69 N. Y. animal wounded by a preceding train 158; Buel v. New York, etc., R. Co., and left on or near the track, the rail- 31 N. Y. 314. See, also Tillett v. Nor- road company was held liable. Mex- folk, etc., R. Co., (N. Car.) 24 S. E. ican Cent. R. Co. v. Lauricella, 87 R. 111. Tex. 277, s. c. 28 S. W. R. 277. ^Post, § 1644. ^ But a passenger who sees a train ' Rouse ». Hornsby, 67Fed. R. 219; on an intersecting road approaching New Orleans, etc., R. Co. i'. Allbritton, the crossing is not guilty of contribu- 38 ^liss. 242; Skinner v. London, tory negligence in failing to pull the etc., R. Co., 5 Ex.787; Iron R. Co. bell rope or warn the engineer. Grand v. Mowery, 36 Ohio St. 418, s. c. 3 Rapids, etc., R. Co. v. Ellison, 117 Am. & Eng. R. Cas. 361. See, also, Ind. 234, B. c. 20 N. E. R. 135, 39 Am. Louisville, etc., R. Co. v. Faylo'r, 126 & Eng. R. Cas. 480. Nor in leaping Ind. 126, s. c. 25 N. E. R 869; Louis- § 1635 INJURIES TO PASSENGERS. 2569 same presumption ordinarily arises where a passenger train breaks apart and one section collides with the other, but it is well known that it is almost impossible to always prevent this in the case of freight trains, and, in such a case, the presump- tion might not so readily aris6 and the passenger might, perhaps, be deemed to have assumed the risk.' Where, how- ever, it appears that the brakemen had left their posts and were riding in the engine and caboose at the time of the part- ing and collision, in violation of the rules of the company, there is sufficient evidence of negligence to go to the jury, al- though the cars had been inspected shortly before the break occurred.^ A railroad company can not escape liability for in- jury to a passenger upon its train caused by its own negligence in coming into collision at a crossing with a train on another road, although the other railroad company was also negligent, and it was held in a recent case that this is true although the other company was more negligent than it was, provided that by the exercise of the care and diligence which a railroad company owes a passenger it could have avoided the injury.' So, on the other hand, in another recent case it was held that Tille, etc., E. Co. v. Long, 94 Ky. 410, 24 S. E. E. Ill ; Louisville, etc., E. 22S.W.E. 747 ;West Chicago St.E.Co., Co. v. Faylor, 126 Ind. 126, s. c. 25 N. V. Martin, 47 III. App. 610. But com- E. E. 869. pare Mars v. President of Delaware, 'Chicago, etc., R. Co. v. Eansom, etc.. E. Co., 54 Hun 625, s. c. 8 N. Y. (Kan.) 44 Pac. E. 6; Eaton ». Boston, Supp. 107. As to what is sufficient to etc., E. Co., 11 Allen (Mass.) 500, s. c. rebut the presumption, see Fredericks 87 Am. Dec. 730; Clark ». Chicago, V. Northern, etc., E. Co., 157 Pa. St. etc., E. Co., 127 Mo. 197, 29 S. W. E. 103, s. e. 27 Atl. R. 689 ; Pennsylvania 1013 ; Union Pac. E. Co. v. Harris, 158 E. Co. V. McKinney, 124 Pa. St. 462; U. S. 326, s. c. 15 Sup. Ct. E. 843; Deyo V. New York, etc., E. Co., 34 Graham v. Great Western E. Co., 41 N. Y. 9. U. C. Q. B. 324. It was also held ' But see Georgia Pac. E. Co. v. in the Kansas case that the rules of Love, 91 Ala. 432, s. c. 8 So. E. 714, railroad commissioners governing the and authorities cited in following management of trains at grade cross- note, ings of railroads are not admissible in ^Delaware, etc., E. Co. o. Ashley, evidence without showing that they 67 Fed. E. 209. The inspection, how- have been served upon or brought to ever, was also claimed to be negli- the knowledge of the company against gent and insufficient. See, also, Til- which they are offered, lett V. Norfolk, etc., E. Co., (N. Car.) 2570 CAKRIERS. § 1635 a railroad company which operates a train in charge of its own servants on the track of another company under an arrange- ment that the train dispatcher and operators employed by such other company may stop the train at pleasure at any telegraph station, is liable in damages for injuries resulting in the death of a passenger on the train of such other company by reason of the negligence of the engineer in running into it, although the negligence of the train dispatcher and operators and crew of the train of such other company may have been greater than that of such engineer.' But the company owning the track and carrying the passenger was not a party in the case to which we have just referred, and nothing was decided as to whether or not it might have been held liable. The general rule is that where a person is injured by the concurrent negligence of two companies in causing a collision he may recover of both jointly, or of either of them.^ His relation to one of them as ^Chicago, etc., R. Co. v. Groves, Kan.) 44 Pac. R. 628. The court did not decide the case upon the ground that the train dispatcher and opera- tives were joint employes of the two companies, or, in the particular mat- ter, employes of the company whose business they were attending to for the time-being, although it was said that, perhaps, they might be so con- sidered under the evidence, and the following cases were cited as tending to support that contention : Hannibal, etc., R. Co. V. Martin, 11 111. App. 386- 390 ; Wabash, etc.,R. Co. v. Peyton, 106 111. 534-540; Nashville, etc., R. Co. v. Carroll, 6 Heisk. 347, .352, 354; Vary v. Burlington, etc., R. Co., 42 Iowa 246. Many other cases hold that a passen- ger who is without fault, may recover for injuries inflicted by the negligence of another company in running its train into that of the company which is carrying him, even though the latter company may also be guilty of negli- gence. Pittsburgh, etc., R. Co. v. Spencer, 98 Ind. 186; Robinson v. New York Cent., etc., R. Co., 66 N. Y. 11, s. c. 23 Am. R. 1 ; Chapman v. New Haven, etc., R. Co., 19 N. Y. 341 ; Wylde v. Northern R. Co., 53 N. Y. 156; Danville, etc., R. Co. v. Stew- art, 2 Met. (Ky.) 119 ; Bennett v. New Jersey, etc., R. Co., 36 N. J. L. 225, s. c. 13 Am. R. 435; Wabash, etc., R. Co. V. Shacklet, 105 111. 364, s. c. 44 Am. R. 791; Kansas City, etc., R. Co. v. Stoner, 51 Fed. R. 649. But see Peo- ple's, etc., R. Co. ■». Lauderbach, (Pa. St.) 3 Atl. R. 672, s. c. 26 Am. & Eng. R. Cas. 166. 2 Cuddy V. Horn, 46 Mich. 596, s. c. 41 Am. R. 178; Wabash, etc., R. Co. V. Shacklet, 105 111. 364, s. c. 44 Am. R. 791, 12 Am. & Eng. R. Cas. 166; Transfer Co. v. Kelly, 36 Ohio St. 86, s. c. 38 Am. R. 558; Flaherty v. Minne- apolis, etc., R. Co., 39 Minn. 328, s. c. 40 N. W. R. 160; Colegrove v. New York, etc., R. Co., 20 N. Y. 492, s. c. 75 Am. Dec. 418; Kansas City, etc., R. Co. V. Stoner, 51 Fed. R. 649; Cen- tral Pass. R. Co. V. Kuhn, 86 Ky. 578. But see Richmond, etc., R. Co. ». § 1636 INJURIES TO PASSENGERS. 2571 a passenger, however, may sometimes render it easier for him to recover against that one.' § 1636. Injuries from obstructions. — A railroad company is liable to a passenger who, without fault on his part, is injured by reason of its tracks being so close together that its trains strike each other, by leaving a car on a switch so that the train on which he is riding collides with it,^ or by reason of its placing or negligently permitting obstructions to be placed and remain on or dangerously near the track.' But it is not liable for injuries caused solely by the act of strangers in putting obstructions on the track, where it is guilty of no negligence.* We have treated one phase of this subject in con- sidering the duties and liabilities of railroad companies to their employes,^ but obstructions which might be dangerous to em- ployes may be perfectly safe for passengers when they are in their proper place. Thus, a post, a fence, a low bridge, or the like might be dangerous to employes whose duty calls them on Greenwood, 99 Ala. 501, 14 So. R. 495. Where both are sued and one is wholly at fault a charge that the ver- dict should be against that one and in favor of the other has been held proper. Houston, etc., R. Co. v. Ross, (Tex. Civ. App.) 28S. W. R. 254. As to the liability of one company to the other, see Louisville, etc., R. Co. v. East Tennessee, etc., R. ^Co., 60 Fed. R. 993; Central R., etc., Co. v. Bruns- wick, etc., Co., 87 Ga. 386, s. c. 13 S. E. R. 520. 'See Kellow v. Central, etc., R. Co., 68 Iowa 470, s. c. 23 N. W. R. 740, 27 N. W. R. 466; Richmond, etc., R. Co. r. Greenwood, 99 Ala. 501, 14 So. R. 495, 500; GrandRapids, etc., R. Co.w. Ellison, 117 Ind. 234, s. c. 20 N. E. R. 135, 39 Am. & Eng. R. Cas. 480 ; Flint, etc., R. Co. V. Detroit, etc., R. Co., 64 Mich. 350, s. c. 31 N. W. R. 281. But it is not liable if the injury is caused solely by the negligence of the other company. Bunting v. Pennsylvania R. Co., 118 Pa. St. 204, s. c. 12 Atl. R. 448; Wright v. Midland R. Co., 42 L. J. Ex. 89, s. c. 21 W. R. 460, L. R. 8 Ex. 137. ^Farlow v. Kelly, 108 U. S. 288, s. c. 2 Sup. Ct. R. 555. 3 North Chicago,etc., R. Co. v. Will- iams, 140 111. 275, s. c. 29 N. E. R. 672, 2 Am. Neg. Cas. 684; Denver, etc., R. Co. V. Dwyer, 20 Colo. 132, 36 Pac. R. 1106; Elliott v. Newport,- etc., R. Co., 18 R. I. 707, 28 Atl. R. 338; Gray v. Rochester, etc., R. Co., 61 Hun 212, s. c. 15 N. Y. Supp. 927 ; Car- rico V. West Virginia, etc., R. Co., 35 W. Va. 389, s. c. 14 S. E. R. 12. < Jones V. Grand Trunk R. Co., 45 U. C. Q. B. 193; Curtis v. Rochester, etc., R. Co., 18 N. Y. 534; Latch v. Rumner R. Co., 27 L. J. Ex. 155, 3 H. & N. (Am. Ed.) 930; Keeley». Erie R. Co., 47 How. Pr. (N.Y.) 256; Har- ris V. Union Pac. R. Co., 13 Fed. R. 591. ^Ante, §1269. 2572 CARRIERS. § 1637 top of or at the side of cars and yet be perfectly safe so far as passengers inside the car are concerned. In a recent case it was held that, although the tracks of a street railway company were so close together that there was a space of only seventeen inches between passing cars, and the plaintiff while standing on the lateral step of an open car was struck and injured by a passing car on the other track, the railway company was not guilty of negligence.' When passengers are injured by ob- structions near the track it is usually because they are not where they belong, and they can not recover if the injury is due to their own negligence, no matter whether the company is negligent or not. But there are many cases in which it has been held not to be negligence per se to ride on the platform or steps of a street car, especially if it is crowded, and in which passengers so riding have been allowed to recover for injuries received from obstructions near the track or passing vehicles or cars.^ It is clear, however, that one who hangs on the platform of a dummy car and is injured by thus striking a post, lawfully near the track, of the existence of which he was well aware, is guilty of negligence and can not recover for such injury.' § 1637. Ejection of passengers. — We have elsewhere con- sidered the right of railroad companies to eject travelers for not paying fare or presenting a proper ticket,' but we did not consider, in that connection, the right of the company to eject ' Craighead v. Brooklyn City R. Co., Topeka, etc., R. Co. v. Higgs, 38 Kan. 123 N. Y. 391, s. c. 25 N. E. R. 387. It .37.5. But see Vrooman .■. Houston, was also held that it was not the duty etc., R. Co., 27 N. Y. Supp. 1128; Car- of the company to warn him that he roll ». Interstate, etc., Co., 107 Mo. 653, was in a position of danger, especially 17 S. ^Y. R. 889; Chicago, etc., R. Co. as past experience seemed to have v. Scates, 90 111. 586. shown that there was none. ^ Aikin v. Frankford, etc., R. Co., 2 Clark V. Eighth Ave. R. Co., 36 N. 142 Pa. St. 47, s. c. 21 Atl. R. 78l! Y. 135, s. c. 93 Am. Dec. 495; Gray v. See, also, Richmond, etc., R. Co. v. Rochester, etc., R. Co., 61 Hun (N. Scott, 88 Va. 9.58, s. c. 14 S. E. R. 763; Y.) 2] 2 ; Bruno II. Brooklyn City R. State m. Lake Roland, etc., R. Co., Co., .55 N. Y. S. R. 215; Geitz v. Mil- (Md.) .34 Atl. R. 1130. waukee, etc., R. Co., 72 Wis. .307; *Ante, ^ i^M, et seq. As to ejection City R. Co. V. Lee, 50 N. J. L. 435; of trespassers, see ante, § 1255. ^637 INJURIES TO PASSENGERS. 2573 disorderly passengers nor the manner of expulsion and the lia- bility of the company where passengers are wrongfully or im- properly ejected. It may be stated, as a general rule, that a railroad company may eject all persons who, having a reason- able opportunity, fail to comply with its reasonable regulations or whose presence, because of their misconduct or their having a contagious disease, or the like, is the cause of danger or great inconvenience to the other passengers.' Thus, where passengers, after a reasonable opportunity has been afforded, fail to produce a ticket or pay the extra fare demanded on the train, in accordance with the reasonable regulations of the company, they may be expelled.^ So, where a passenger is so ' New Orleans, etc., R. Co. v. Burke, 53 Miss. 200; Chicago, etc., R. Co. v. Flagg, 43 111. 364; Peck v. New York, etc., R. Co., 70 N. Y. 587 ; Hutchinson on Carriers, (2d ed.) §§546, 587 ; 1 Red- iieldon Railways, 91, 92; McGowenc. Morgan's, etc.,R.Co., 41 La. Ann. 732, 5 L. R. A. 817, and note ; Gulf, etc., R. Co. V. Moody, 3 Tex. Civ. App. 622, s. c. 22 S. W. R. 1009 ; McMillan v. Fed- eral, etc., R. Co., (Pa.) 33 Atl. R. 560. May eject for failure to pay back fare in accordance with regulations. Man- ning V. Louisville, etc., R. Co., 95 Ala. 392, s. c. 11 So. R. 8, 16 L. R. A. 55, and note. For riding on freight train where ticket is for passenger train. Thomas u. Chicago, etc., R. Co., 72 Mich. 355, s. c. 40 N. W. R. 463; Hobbs V. Texas, etc., R. Co., 49 Ark. 357, s. C.5S. W. R. 586. A father can not be expelled on account of the mis- conduct of an adult son with whom he is traveling. Louisville, etc., R. Co. V. Maybin, 66 Miss. 83, s. c. 5 So. R. 401. But compare Philadelphia, etc., R. Co. V. Hoeflich, 62 Md. 300, s. c. 50 Am. R. 223, 18 Am. & Eng. R. Cas. 373. As to ejection of one who claims to have a valid pass, see Chicago, etc., R. Co. V. Herring, 57 HI. 59 ; Elliott v. Western, etc., R. Co., 58 Ga. 454; Graham v. Pacific, etc., R. Co., 66 Mo. 536. Conductor may remove holder of second-class ticket from first-class car. Alabama, etc., R. Co. v. Drummond, (Miss.) 20 So. R. 7 ; New York, etc., R. Co. V. Bennett, 50 Fed, R. 496. But compare Louisville, etc., R. Co. v. Gaines, (Ky.) 36 S. W. R. 174. 'i State V. Goold, 53 Me. 279; Curl v. Chicago, etc., R. Co., 63 Iowa 417 ; In- ternational, etc., R. Co. V. Wilkes, 68 Tex. 617, s. c. 34 Am. & Eng. R. Cas. 331; Russell v. Missouri, etc., R. Co., (Tex. Civ. App.) 35 S. W. R. 724; Baltimore, etc., R. Co. v. Blocher, 27 Md. 277; Post v. Chicago, etc., R. Co., 14 Neb. 110; Peabody v. Oregon, etc., Co., 21 Ore. 121, s. c. 12 L. R. A. 823, and note ; Grogan v. Chesapeake, etc., R. Co., 39 W. Va. 415, s. c. 19 S. E. R. 562; Cox v. Los Angeles, etc., R. Co., 109 Cal. 100, s. c. 41 Pac. R. 794; White v. Grand Rapids, etc., R. Co., (Mich.) 65 N. W. R. 521; Wiggins V. King, 36 N. Y. Supp. 768; Atchison, etc., R. Co. v. Brown, 2 Kan. App. 604, 42 Pac. R. 588; Scott V. Cleveland, etc., R. Co., (Ind.) 43 N. E. R. 133 ; Williams v. Mobile, etc., R. Co. (Miss.) 19 So. R. 90; Church V. Chicago, etc., R. Co., (S. Dak.) (iO N. W. R. 854; Atchison, etc., R. Co. 2574 CAKEIEKS. § 1637 drunk' or disorderly^ as to seriously inconvenience or endanger the other passengers, or is afflicted with a contagious disease,* he may be ejected. According to the weight of authority and the better reason, a passenger who has persistently refused to pay his fare or produce a ticket can not gain a right to be car- ried and make the expulsion unlawful by a tender of the fare after the conductor has begun to expel him;' but it has been V. Gants, 38 Kan. 608, s. c. 34 Am. & Eng. R. Oas. 290; Memphis, etc., R. Co. V. Benson, 85 Tenn. 627, s. c. 31 Am. & Eng. R. ] 12 ; Swan v. Manches- ter, etc., R. Co., 132 Mass. 116, s. c.42 Am. R. 432. Indeed, we have else- where shown, many authorities hold that even if the passenger has been misled by a ticket agent, or has not had a reasonable opportunity to pur- chase a ticket, he should pay his fare and then sue the company, and that he can not sue for the ejection when the conductor acts in accordance with the reasonable regulations of the com- pany, and the passenger refuses to pay the fare and has no ticket appar- ently good on its face. 'McClelland v. Louisville, etc., R. Co., 94 Ind. 276, s. c. 18 Am. & Eng. R. Cas. 260; Baltimore, etc., R. Co.». McDonald, .68 Ind. 316; Murjihy v. Union R. Co., 118 Mass. 228; Lemont V. Washington, etc., R. Co., 1 Mackey (D. C.) 180, s. c. 1 Am. & Eng. R. Cas. 263; Haley u. Chicago, etc., R. Co., 21 Iowa 15 ; Louisville, etc., R.Co. V. Sulhvan, 81 Ky. 624. But see Put- nam V. Broadway E. Co., 55 N. Y. 108. 2 Vintouc. Middlesex R.Co. ,11 Allen (Mass.) 304; Sullivan u. Old Colony, etc., R. Co., 148 Mass. 119, s. c. 1 L. R. A. 513, and note ; Chicago, etc., R. Co. V. Griffin, 68 111. 499; Murphy v. Western, etc., R. Co., 23 Fed. R. 637; Peavy v. Georgia, etc., E. Co., 81 Ga. 485, s. c. 37 Am. & Eng. R. Caa. 114; Philadelphia, etc., R. Co- v. Larkin, 47 Md. 155; Thurston v. Union Pac. R. Co., 4 Dill. (U. S. C. C.) 321 ; Rob- inson -0. Eockland, etc., R. Co., 87 Me. 387, s. c. 32 Atl. R. 994. But see Chicago City R. Co. v. Pelletier, 134 111. 120, s. c. 24 N. E. E. 770; Brown t). Memphis, etc., R. Co., 7 Fed. E. 51. 'Paddock v. Atchison, etc., R. Co., 37 Fed. R. 841; Atchison, etc., R. Co. V. Weber, .33 Kan. 543, 52 Am. R. 543, s. c. 21 Am. & Eng. R. Cas. 418. As to when an insane person may be ejected, although his conduct is not such as to indicate danger, see Meyer V. St. Louis, etc. E. Co., 54 Fed. E. 116. * Atchison, etc,, E. Co. u. Dewelle, 44 Kan. 394, s. c. 44 Am. & Eng. E. Cas. 402; Stone O.Chicago, etc., E. Co., 47 Iowa 82, s. c. 29 Am. E. 458; O'Brien v. Boston, etc., R. Co., 15 Gray (Mass.) 20; Marshall ». Boston, etc., E. Co., 145 Mass. 164, s. c. 31 Am. & Eng. R. Cas. 18; Cincinnati, etc., E. Co. V. Skillman, 39 Ohio St. 444, s. c. 13 Am. & Eng. E. Cas. 31 ; State V. Campbell. 32 N. J. L. 309; Pease v. Delaware, etc., R. Co., 101 N. Y. 367; Hoffbauer v. Davenport, etc., R. Co., 52 Iowa 342; Georgia, etc., R. Co. V. Asmore, 88 Ga. 529, s. c. 15 S. E. R. 13, 16 L. R. A. 53, and note; Pickens v. Richmond, etc., R. Co., 104 N. Car. 312 ; Harrison v. Fink, 42 Fed. E. 787 ; Thomas v. Geldart, 20 New Bruns. 95. Contra, O'Brien v. New York, etc., E. Co., 80 N. Y. 236; Wardwell v. Chicago, etc., R. Co., 46 §1637 INJUKIES TO PASSENGERS. 2575 held that if he has no money another may pay his fare for him before he is expelled.' The company must exercise its right to eject passengers in a lawful manner and with some regard to their safety. Excessive and unnecessary force must not be used.* So, if a passenger is injured by being ejected while the car is in motion, or in a dangerous and improper place, where he is exposed to unnecessary peril, the railroad company may be held liable for such injury.' If he is so intoxicated or so young or feeble as not to be able to take care of himself or Minn. 514, s. c. 49 N. "W. R. 206; Louisville, etc., R. Co. v. Harris, 9 Lea (Tenn.) 180, s. c. 16 Am. & Eng. R. Cas. 374; Gould v. Chicago, etc., R. Co., 18 Fed. R. 155; Texas, etc., R. Co. V. Bond, 62 Tex. 442, s. c. 60 Am. R. 532; Bland v. Southern, etc., R. Co., 55 Cal. 570, s. c. 36 Am. R. 50. In most of these cases, however, the circumstances were peculiar or the re- fusal was not willful. See, also, Chi- cago, etc., R. Co. V. Bryan, 90 111. 126; Louisville, etc., R. Co. v. Breckin- ridge, (Ky.) 34 S. W. R. 702. ' Louisville, etc., R. Co. u. Garrett, 8 Lea (Tenn.) 438, s. c. 3 Am. & Eng. R. Cas. 416. See, also, Clark v. Wil- mington, etc., R. Co., 91 N. Car. 506; Hoffbauer v. Davenport, etc., R. Co., 52 Iowa 342; O'Brien v. New York, etc., R. Co., 80 N. Y. 236; South Car- olina R. Co. V. Nix, 68 Ga. 572. ^New Jersey, etc., R. Co. v. Brock- ett, 121 U. S. 637, s. c. 7 Sup. Ct. R. 1039; Jardine v. Cornell, 50 N. J. L. 485, s. c. 14Atl. R. 590; Jackson ti. Second Ave. R. Co., 47 N. Y. 274; New York, etc., R. Co. v. Haring, 47 N. J. L. 137, s. c. 21 Am. & Eng. R. Cas. 436; Chicago, etc., R. Co. v. Bills, 118 Ind. 221, s. c. 37 Am. & Eng. R. Cas. 121, and note; Citi- zens' St. R. Co. V. Willoeby, 134 Ind. 563, s. C.33 N. E. R. 627; Brown 1). Hannibal, etc., R. Co., 66 Mo. 588; Wright V. California Cent. R. Co., 78 Cal. 360, 8. c. 20 Pac. R. 740; Knowles V. Norfolk, etc., R. Co., 102 N. Car. 59 ; Gulf, etc., R. Co. V. Kuenhle, 4 Tex. App. (Civ. Cas.) 427, s. c. 16 S. W. R. 177; Marquette v. Chicago, etc., R. Co., 33 Iowa 562; Bass v. Chicago, etc., R. Co., 39 Wis. 636; ante, § 1255. sSanford v. Eight Ave. R. Co., 23 N. Y. 343, s. c. 80 Am. Dec. 286 ; Kan- sas City R. Co. V. Kelly, 36 Kan. 655; Gallena v. Hot Springs, etc., R. Co., 13 Fed. R. 116; Holmes v. Wakefield, 12 Allen (Mass.) 580; Railway Co. v. Valleley, 32 Ohio St. 345, s. c. 30 Am. R. 601 ; Healey v. City, etc., R. Co., 28 Ohio St. 23; Atchison, etc., R. Co. V. Weber, 33 Kan. 543, s. c. 21 Am. & Eng. R. Cas. 418; Hall v. South Caro- lina, etc., R. Co., 28 S. Car. 261, s. c. 34 Am. & Eng. R. Cas. 311 ; Kline v. Central Pac. R. Co., 37 Cal. 400; Wyman v. Northern Pac. R. Co., 34 Minn. 210; Ham v. Delaware, etc., R. Co., 142 Pa. St. 617, s. c. 21 Atl. R. 1012; Arnold v. Pennsylvania R. Co., 115 Pa. St. 135; Vicksburg, etc., R. Co. V. Phillips. 64 Miss. 693, s. c. 30 Am. & Eng, R. Cas. 587 ; State v. Kin- ney, 34 Minn. 311; Gulf, etc., E. Co. V. Kirkbride, 79 Tex. 457, s. c. 15 S. W. R. 495 ; Fell v. Northern Pac. R. Co., 44 Fed. R. 248; Southern Kan. R. Co. V. Rice, 38 Kan. 398, s. c. 16 Pac. R. 817. But compare Southern, etc., R. Co. V. Sanford, 45 Kans. 372, s. c. 25 Pac. E. 891. 2576 CARRIERS. § 1637 look out for his own safety, the company should exercise reas- onable care to see to it that he is not expelled and abandoned in such a place and under such circumstances that he will be ex- posed to unnecessary peril.' In some states it is provided by statute that a passenger can be lawfully ejected only at a station or usual stopping place, and this has been held to be the law in some jurisdictions, even in the absence of such a statute;^ but the better rule is that, if there is no such statute, one whom the company has a right to eject may be expelled between stations as well as at a station.' We have elsewhere considered the liabil- • Louisville, etc., R. Co. v. Ellis' Admx., (Ky.) 30 S. W. R. 979; Louisville, etc., R. Co. v. Sullivan, 81 Ky. 624, s. c. 16 Am. & Eng. R. Cas. 390, 50 Am. R. 186 ; Conolly v. Cres- cent City R. Co., 41 La. Ann. 57; Johnson v. Louisville, etc., R. Co., 104 Ala. 241, s. c. 16 So. R. 75 ; Louisville, etc., R. Co. V. Johnson, (Ala.) 19 So. R. 51; Texas, etc., R. Co. -u. McDon- ald, 2 Tex. App. (Civ. Cas.) 144. See, also, Cincinnati, etc., R. Co. v. Cooper, 120 Ind. 469, s. c. 22 N. E. R. 340 ; In- dianapolis, etc., R. Co. V. Pitzer, 109 Ind. 179; Atchison, etc., R. Co. v. Weber, 33 Kan. 543. s. c. 52 Am. R. 543; Cincinnati, etc., R. Co. v. Kas- sen, 49 Ohio St. 230, s. c. 16 L. R. A. 674; Guy v.'New York, etc., R. Co., 30 Hun (N. Y.) 399; Illinois Cent. R. Co. v. Sutton, 53 111. 397. But com- pare Roseman v. Carolina Cent. R. Co., 112 N. Car. 709, s. c. 16 S. E. R. 766, 19 L. R. A. 327; Haley u. Chi- cago, etc., R. Co., 21 Iowa 15; Mc- Clelland V. Louisville, etc., R. Co., 94 Ind. 276; Louisville, etc., R. Co. v. Johnson, 92 Ala. 204, s. c. 9 So. R. 269; Louisville, etc., R. Co. v. Haw- kins, 92 Ala. 241, s. c. 9 So. R. 271; Louisville, etc., R. Co. v. Logan, 88 Ky. 232, s. c. 3 L. R. A. 80; Missouri Pac. R. Co. V. Evans, 71 Tex. 361, s. c. 1 L. R. A. 476; Railway Co. v. Val- leley, 32 Ohio St. 345, 30 Am. R. 601. These latter cases are not in conflict with the rule as we have stated it. They hold, and correctly, as we think, that if the passenger does not appear too drunk to take care of himself, or if his ejection in that state is not a proximate cause of his subsequent in- jury, or where he is put off at a proper place and wanders back on the track, or the like, the company is not liable. ^Boehm v. Duluth, etc., R. Co., 81 Wis. 592, s. c. 65 N. W. R. 506, (hold- ing that a statute authorized ejection of a passenger at a station or usual stopping place or near a dwelling im- pliedly forbids it at any other place) ; Illinois Cent. R. Co. v. Latimer, 128 111. 163, s. c. 21 N. E. R. 7; Texas, etc., R. Co. V. Casey, 52 Tex. 112; Stephen v. Smith, 29 Vt. 160; St. Louis, etc., R. Co. v. Branch, 45 Ark. 524 ; South Florida R. Co. v. Rhodes, 25 Fla. 40. 'Scott V. Cleveland, etc., R. Co., (Ind.) 43 N. E. R. 133; Jeffersonville R. Co. )'. Rogers, 28 Ind. 1, 38 Ind. 116; :Mooreu. Columbia, etc., R. Co., 38 S. Car. 1, s. c. 16 S. E. R. 781; Great Western, etc., R. Co. v. Miller, 19 Micb. 305 ; Brown v. Chicago, etc., R. Co., 51 Iowa 235; Rudy v. Rio Grande, etc., R. Co., 8 Utah 165, s. c. 30 Pac, R. 366; Magee». Oregon, etc., §1637 INJURIES TO PASSENGERS. 2577 ity of railroad companies for the wrongful acts of their em- ployes, whether willful or otherwise/ and little remains to be said upon the subject in this connection. There is, however, it may be well to state, considerable conflict among the author- ities as to whether a passenger may resist a wrongful attempt to eject him and the effect of such resistance upon the liability of the company. It is clear, we think, that a passenger has a right to resist an attempt to eject him from a rapidly moving train or under other circumstances where it will endanger his life,^ but it is equally clear that if he is in the wrong and is sought to be e;xpelled in a proper manner he can not recover for injuries invited by his resistance and caused by the exercise of reasonably necessary force to overcome that resistance.' If he is in the right some of the courts hold that he may resist expulsion and recover additional damages for injuries inflicted by the conductor in using force necessary to overcome his re- Co., 46 Fed. R. 734; Burch v. Balti- more, etc., E. Co., 3 App. Cas. (D. C.) 346, 26 L. R. A. 129, and note, where authorities on both sides are collected ; O'Brien v. Boston, etc., R. Co., 15 Gray (Mass.) 20, s. c. 77 Am. Dec. 347; McClureu. Philadelphia, etc., R. Co., 34 Md. 532, s. c. 6 Am. R. 345; Illinois, etc., R. Co. v. Whittemore, 43 111. 420; Wyman v. Northern R. Co., 34 Minn. 210; Cincinnati, etc., R. Co. V. Skillman, 39 Ohio St. 444. ' See ante, § 1265 ; post, § 1638. See, al- so, as to willful or wrongful ejection of apassenger by employes. Terre Haute, etc., R. Co. V. Fitzgerald, 47 Ind. 79; Kline v. Central Pac. R. Co., 37 Cal. 400; Louisville, etc., R. Co. v. Whit- man, 79 Ala. 328 ; Perkins v. Missouri, etc., R. Co., 55 Mo. 201 ; Hoffman v. New York, etc., R. Co., 87 N. Y. 25, s. c. 41 Am. R. 337 ; Eads v. Metropolitan etc., R. Co., 43 Mo. App. 536; Great Western, etc., R. Co. v. Miller, 19 Mich. 305; Ramsden ». Boston, etc., R. Co., 104 Mass. 117; Pennsylvania R. Co. «7. Vandiver, 42 Pa. St. 365; Moore v. Fitchburg, etc., R. Co., 4 Gray (Mass.) 465; Chicago, etc., R. Co. V. Bryan, 90 111. 126; Philadel- phia, etc., R. Co. V. Derby, 14 How. (U. S.) 468. But compare Pennsylva- nia Co. V. Toomey, 91 Pa. St. 256, s. c. 1 Am. & Eng. R. Cas. 461. ^Sanford v. Eighth Ave. R. Co., 23 N. Y. 343, s. c. 80 Am. Dec. 286; En- glish u. Delaware, etc., R. Co., 66 N. Y. 454; Southern Kan. R. Co. v. Rice, 38 Kan. 398, s. c. 16 Pac. R. 817. In such a case it is reasonable to hold that he may recover all damages sus- tained, although more force is used on account of his resistance. 'Chicago, etc., R. Co. v. Wilson, 23 111. App. 63; Chicago, etc., R. Co. v. Willard, 31 111. App. 435; Moore v. Columbia, etc., R. Co., 38 S. Car. 1, 16 S. E. R. 781, s. c. 58 Am. & Eng. R. Cas. 493; Peavy v. Georgia, etc., R. Co., 81 Ga. 485, 8 S. E. R. 70, s. c. 37 Am. & Eng. R. Cas. 114; Townsend v. New York, etc., R. Co., 56 N. Y. 295 ; Murphy v. Union R. Co., 118 Mass. 228. 2578 CARKIERS. § 1638 sistance/ but other courts hold that such resistance should not be encouraged and that he can recover no damages for increased injuries received on that account in addition to what he would otherwise have been entitled to recover.^ One who enters a car expecting and desiring to be ejected in order that he may sue the company for damages can not recover for wounded feelings or pain of mind on being ejected/ § 1638. Assaults and injuries by employes. — It is well set- tled that railroad companies are liable not only for injuries to their passengers, who are without fault, by the negligent acts of their employes, but also for injuries willfully inflicted upon such passengers by their employes within the scope or line of their duty while engaged in executing the contract of carriage.' But if the terms "scope of their employment" or "line of their duty" are used in their 'narrowest sense, and this is the full 'Louisville, etc., R. Co. ■«. Wolfe, 128 Ind. 347, s. c. 27 N. E. R. 606, 47 Am. & Eng. R. Gas. 630 ; United States V. Kane, 9 Sawy. (U. S. 0. 0.) 614. See, also, New York, etc., R. Co. v. Winter, 143 U. S. 60, s. c. 12 Sup. Ct. R. 356; Pittsburgh, etc., R. Co. v. Russ, 57 Fed. R. 822; Lake Erie, etc., R. Co. V. Acres, 108 Ind. 548, s. c. 28 Am. & Eng. R. Cas. 112; Chicago, etc., R. Co. V. Holdridge, 118 Ind. 281. '.Brown v. Memphis, etc., R. Co., 7 Fed. R. 51, s. c. 1 Am. & Eng. R, Cas. 247; Hufford v. Grand Rapids, etc., R. Co., 53 Mich. 118, s. c. 18 N. W. R. 580; Pennsylvania R. Co. v. Connell, 112 111.295; Hall v. Memphis, etc., R. Co., 15 Fed. R. 57. See, also, Southern Kan. R. Co. v. Rice, 38 Kan. 398, s. c. 34 Am. & Eng. R. Cas. 316, 320; Chicago, etc., R. Co. v. Griffin, 68 111. 499; Peabody ». Oregon, etc., R. Co., 21 Ore. 121, s. c. 26 Pac. R. 1053. ' Railway Co. v. Trimble, 54 Ark. 354, B. c. 15 S. W. R. 899; Cincinnati, etc., R. Co. V. Cole, 29 Ohio St. 126. *New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, s. c. 7 Sup. Ct. E. 1039, 1041; Jeffersonville, etc., R. Co. V. Rogers, 38 Ind. 116; Louis- ville, etc., R. Co. V. Wood, 113 Ind. 544 ; American Express Co. v. Patter- son, 73 Ind. 430; Milwaukee, etc., R. Co. V. Finney, 10 Wis. 388; Moore v. Fitchburg R. Co., 4 Gray (Mass.)465; Weed V. Panama, etc., R. Co., 17 N. Y. 362 ; Pennsylvania R. Co. i/. Van- diver, 42 Pa. St. 365; Bryant v. Rich, 106 Mass. 108, s. c. 8 Am. R. 311; Ramsden v. Boston, etc., R. Co., 104 Mass. 117, s. c. 6 Am. R. 200; North Chicago, R. Co. v. Gastka, 128 111. 613 ; Western, etc., R. Co. v. Turner, 72 Ga. 292; Chamberlain v. Chandler, 3 Mason (U. S. C. C.) 242; Wabash R. Co. V. Savage, 110 Ind. 156, s. c. 9 N. E. R. 85, and authorities cited on page 87; Harrold v. Winona, etc., R. Co., 47 Minn. 17, s. c. 49 N. W. R. 389 ; Palmeri v. Manhattan R. Co., 133 N. Y. 261, s. c. 28 Am. St. R. 632, and note. i 1638 INJURIES TO PASSENGERS. 2579 measure ana limit of their liability in such cases it would seem that, so far as the willful acts of their employes are concerned, their duty and liability to their passengers are not, practically, appreciably greater than they are to licensees or even mere trespassers, and that it would be fully as difficult for a passen- ger to recover damages from the company when assaulted by one of its employes as when assaulted by a fellow passenger or a stranger upon the train. On the other hand, if a railroad company is to be held liable for a willful injury to a passenger by a servant outside the scope of his authority, and at all events, it may be plausibly argued that this would make it an insurer of the perfection of its employes, and render it liable for what it could not be deemed to have even impliedly authorized. There is much apparent conflict among the authorities upon this subject, but we think some of it is due to the use of the term "scope of employment" or "line of duty" in a different sense in different cases, or to a failure to place the decision upon the correct ground. It is not merely a question of negligence in such cases, nor is it strictly a question depending upon the scope of the servant's particular employment. It is a question of the absolute duty of a railroad company to its passengers as long as that relation subsists, and a breach of that duty on its part whether caused by the willful act of an employe or not. A carrier is bound to discharge the implied duty, arising out of its contract and imposed by law, that its passengers shall be protected from injury by its servants and shall not be willfully insulted and harmed by them, and if it commits the discharge of this duty to an employe it may well be held to do so at its peril, notwithstanding the exercise of care on its part in se- lecting its servants. Either the company or the passengers must take the risk of infirmities of temper, maliciousness and mis- conduct of the employes whom the company has placed upon the train and to whom it has committed the discharge of its duty to protect and look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is, therefore, but just to make the company, rather than the passengers, take 2580 CARRIERS. §1638 this risk, and to hold it responsible. This leads us to the con- clusion that a railroad company is liable for an injury willfully inflicted upon a passenger by its employes while engaged iri performing a duty which the carrier owes to the passenger, or in executing the contract, although the company is guilty of no negligence in selecting them and such act was not strictly within the scope of their employment or line of their duty in the sense that it was done for the carrier or arose out of the performance of their particular duty.^ In a broader sense, however, it may be said that it is within the scope of their em- 'Goddard v. Grand Trunk R. Co., 67 Me. 202, s. c. 2 Am. E. 39; Chicago, etc., B. Co. V. Flexmau, 103 111. 546, s. c. 42 Am . R. 33 ; Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588, s. c. 43 Am. E. 185; Smith v. Manhattan R. Co., 18 N. Y. Supp. 759; Landreaux v. Bell, 5 La. (O. S.^ 434; Hanson v. European, etc., R. Co., 62 Me. 84; Savannah, etc., R. Co. V. Bryan, 86 Ga. 312, s. c. 12 S. E. R. 307; Winnegar's Admr. v. Central Pass. R. Co., 85 Ky. 547, s. c. 4 S. W. R. 237; Wise e. South Cov- ington, etc., R. Co., (Ky.) 34 S. W. R. 894; Dillingham v. Anthony, 73 Tex. 47, 8. c. 11 S. W. R. 139; Sherley V. Billings, 8 Bush (Ky.) 147; Pendle- ton V. Kinsley, 3 Cliff. (U. S. C. C.) 416; Eads v. Metropolitan R. Co., 43 Mo. App. 536; "Williams «. Pullman, etc., Co., 40 La. Ann. 87, s. c. 3 S. W. R. 631; Springer Transp. Co. v. Smith, 16 Lea (Tenn.) 498, s. c. 1 S. W. R. 280; Baltimore, etc., R. Co. u. Barger, 80 Md. 23, s. c. 26 L. E. A. 220; New Orleans, etc., R. Co. v. Jopes, 142 U. S. 18, s. c. 12 Sup. Ct. R. 109, 112; Gillingham v. Ohio River R. Co., 35 W Va. 588, s. c. 14 L. R. A. 798, 29 Am. St. R. 827; Indianap- olis, etc., R. Co. V. Cooper, 6 Ind. App. 202, s. c. 33 N. E. R. 219 ; 2 Wood on Railroads, 1371, et seq.; 3 Wood on Railroads, 1684, 1685 ; Taylor on Priv. Corp., (3d ed.) §347; note to Ware v. Barataria, etc., Co., 15 La. 169, 35 Am. Dec. 189, 201 (citing McKinley v. Chi- cago, etc., R. Co., 44 Iowa 314, s. c. 24 Am. R. 748; Bass v. Chicago, etc., R. Co., 42 Wis. 654, s. c. 24 Am. R. 437; Philadelphia, etc., R. Co. v. Derby, 14 How.(U.S.) 468 ; Baltimore, etc., R.Co. V. Blocher, 27 Md. 277 ; Healey v. City etc., R. Co., 28 Ohio St. 23, and other cases) ; note to Richmond, etc., R. Co. V. Jefferson, .32 Am. St. R. 87, 95. We can best show the distinction we have attempted to draw by an illus- tration. Suppose a conductor, in ejecting a passenger for good cause should maliciously use unnecessary force, or should strike or abuse him in an altercation over the sufficiency of a ticket which the passenger had presented. In such a case the con- ductor would be acting within the scope of his employment or in the line of his duty in the narrowest sense. But suppose two passengers should be quietly discussing politics and the conductor, hearing them, should take issue with one of them and willfully assault him because they disagreed upon that subject. In such a case the conductor would not be acting within the scope of his employ- ment or line of his duty in the nar- rowest sense, yet, we think the rail- road company would clearly be liable under the authorities we have cited. § 1638 INJURIES TO PASSENGERS. 2581 ployment or line of their duty, for employes, especially con- ductors and brakemen, to themselves refrain from willfully in- juring passengers, and some courts have therefore held the company liable upon the ground that employes to whom the carrier entrusts the performance of its duty to passengers con- tinue in the line of their employment until their relation as servants of the master is dissolved, and that, while the speci- fied duty of an employe in such a case may be very limited, "the scope of the employment is as broad as the obligation the master has assumed.'" There are expressions in many cases to the effect that the act, in order to render the company liable, must be within the "scope of the employment" or the "line of the employe's duty," but from the conclusion reached in nearly all of such cases we think it clear that the coart used these terms in their broadest sense, as explained in the first case cited in the last note, and did not intend to apply the same rule to passengers as to strangers and to limit the liability of the company to cases in which the employe was acting in further- ance of the master's business, or in the line of his duty in sucli a sense that the master might be deemed to have authorized it, nor to cases in which the company was negligent in employing the servant.' The rule we approve is, however, denied by ' See, for instance, Larkin W.Oregon, Ind. 79; Indianapolis, etc., R. Co. w. etc., R.Co., 15 Ore. 220; Great Western Anthony, 43 Ind. 183; Pittsburgh, R. Co. V. Miller, 19 Mich. 305. See, etc., R. Co. v. Theobald, 51 Ind. 246; also, Western, etc., R. Co. v. Turner, 72 New Jersey, etc., Co. v. Brockett, 121 Ga. 292, s. c. 53 Am. R. 842 ; Hinckley U. S. 637, s. c. 7 Sup. Ct. R. 1039. V. Chicago, etc., R. Co., 38 Wis. 194; ^For cases in which it is said, or Belknap v. Boston, etc., R. Co., 49 N. intimated that the act must be within H. 358 ; Malecek v. Tower Grove, etc., the line of the servant's duty or scope R. Co., 57 Mo. 17; Passenger R. Co. v. of his employment, but in which these Young, 21 Ohio St. 518, s. c. 8 Am. R. terms were evidently used in the sense 78; Rounds v. Delaware, etc., R. Co., indicated in the text, see Louisville, 64N. y. 129; Coleman ». New York, etc., R. Co. v. Kelly, 92 Ind. 371; etc., R. Co., 106 Mass. 160; Chicago, Smith v. Louisville, etc., R. Co., 124 etc., R. Co. V. Williams, 55 111. 185, s. Ind. 394; Mulligan v. New York, etc., c. 8 Am. R. 641; Dwinelle v. New R. Co., 129 N. Y. 506, s. c. 29 N. E. R. York, etc., R. Co., 120 N. Y. 117, s. c. 952, 53 Am. & Eng. R. Cas. 47 ; Heen- 17 Am. St. R. 611 ; Conger v. St. Paul, rich v. Pullman, etc., Co., 20 Fed. R. etc., R. Co., 45 Minn. 207; Terre 100, s. c. 18 Am. & Eng. R. Cas. 379 ; Haute, etc., R. Co. v. Fitzgerald, 47 Ramsden v. Boston, etc., R. Co., 104 2582 CARRIERS. §1638 some courts and text writers, who maintain that a railroad company is not an insurer against the willful assaults of its employes any more than it is an insurer of their safety in other matters; that it is liable only for negligence, and that it is not negligence when a servant who has been carefully selected, but is nevertheless human and mortal, "does that in the exercise of his own volition and to serve his own purposes, which the railway has not expressly nor impliedly authorized him to do in its behalf.'" Under the rule which we have approved rail- road companies have been held liable where a brakeman, al- though not authorized to clean out cars, willfully drenched a passenger with water while so doing, ^ where the conductor forcibly kissed a female passenger,^ where a brakeman, accused of theft by a passenger, struck him in the face,' for insulting Mass. 117; Johnson v. Chicago, etc., R. Co., -58 Iowa 348, s. c. 8 Am. & Eng. R. 206; Fick v. Chicago, etc., R. Co., 68 Wis. 469, s. c. 34 Am. & Eng. R. Cas. 378 (holding that assault by ticket agent was within scope ol his employment, notwithstanding finding of jury to contrary) ; Louisville, etc., R. Co. V. Kendall, 138 Ind. 313, s. c. 36 N. E. R. 41.5, and cases cited in last preceding note. ' Patterson's Ry. Ace. Law, 112, 117 ; Hutchinson on Carriers, (2d ed.) §§599, 600; Little Miami R. Co. v. Wetmore, 19 Ohio St. 110 ; Isaacs v. Third Ave. R.Co., 47 N.Y. 122, (limited in other New York cases) ; Poulton v. London, etc., R. Co., L. R. 2Q. B. 534 ; Louisville, etc., R. Co. v. Douglass, 69 Miss. 723, 11 So. R. 933; :McKeon'/;. Citizens' R. Co., 42 Mo. 79 (overruled in Spohn v. Missouri, etc., R. Co., 87 Mo. 74, 101 Mo. 417) ; Evansville, etc., R. Co. V. Baum, 26 Ind. 70. Mr. Pat- terson says the company will be liable, however, if it subsequently ratifies the act. Patterson's Ry. Ace. Law, 113, citing Bass v. Chicago, etc., R. Co., 39 Wis. 636; Gasway v. Atlanta, etc., R. Co., 58 Ga. 216. But it seems to us that he is hardly consistent in this, the act not being for the benefit of the company nor in furtherance of its business in any way. See Dillingham V. Russell, 73 Tex. 47, s. c. 15 Am. St. R. 753; Eastern, etc., R. Co. ». Broom, 6 Exch. 314, s. c. 15 Jur. 297; Goff v. Great Nortnern R. Co., 3 El. & El. 672, s. c. 30 L. J. Q. B. 148; Cooleyon Torts, 127. ^Terre Haute, etc., R. Co. v. Jack- son, 81 Ind. 19. ' Craker v. Chicago, etc., R. Co., 36 Wis. 657, s. c. 17 Am. R. 504. So, in other cases of indecent assaults upon female passengers or improper con- duct towards them by a conductor or other employe in charge. Louisville, etc., R. Co. V. Ballard, 85 Ky. 307; Campbell v. Pullman, etc., Car Co., 42 Fed. R. 484 ; Nieto v. Clark, 1 Cliff. (U. S. C. C.) 145; St. Louis, etc., R. Co. V. Grifiith, (Tex. Civ. App.) 35 S. W. R. 741. * Chicago, etc., R. Co. o. Flexman, 103 in. 546, s. c. 8 Am. & Eng. R. Cas. 354. ^1638 INJURIES TO PASSENGERS. 2583 and abusive language wrongfully used by a conductor or street car driver/ and, in some cases, for assaults by its employes even where the passenger was not upon the train, but the rela- tion of carrier and passenger nevertheless existed at the time,^ as, for instance, where a railroad gate-keeper assaulted a pas- senger who was on his way to the train/ On the other hand, it has been held that a railroad company is not liable for an assault with a hatchet upon a passenger by a baggage master growing out of a personal altercation,* nor for an assault by its driver upon a passenger after he had left the car and was on the way to report the driver to the superintendent of the com- pany/ The company is not liable where the passenger is in fault and brings the injury upon himself, as for instance, where he wrongfully provokes and renders it apparently necessary, ° or is rightfully ejected by the use of no more force than is nec- essary. Nor is it liable if he is injured by pure accident, as, for instance, where an employe accidentally slips and falls against him.' 'Bryan v. Chicago, etc., R. Co., 63 Iowa 464, s. c. 16 Am. & Eng. R. Cas. 335; Lafltte v. New Orleans, etc., R. Co., 43 La. Ann. 34, s. c. 8 So. R. 701, 12 L. R. A. 337; Wise v. South Cov- ington, etc., R. Co., (Ky.) 34 S. W. R. 894; Richberger v. American Exp. Co., (Miss.) 31 L. R. A. 390; Atlanta, etc., R. Co. V. Condor, 75 Ga. 51. ^Peeples v. Brunswick, etc., R. Co., 60 Ga. 281 ; Wise v. South Covington, etc., R. Co., (Ky.) 34 S. W. R. 891; Fick v. Chicago, etc., R. Co., 68 Wis. 469; Smith v. Southeastern R. Co., 39 L. J. C. P. 346; McKinley v. Chicago, etc., R. Co., 44 Iowa 814; Walker v. Southeastern R. Co., 39 L. J. C. P. 346. ' Indianapolis, etc., R. Co. v. Cooper, 6 Ind. App. 202, s. c. 33 N. E. R. 219; Dickerman v. St. Paul, etc., Co., 44 Minn. 433, s. c. 45 Am. & Eng. R. Cas. 596. But compare Priest ■!). Hud- son River R. Co., 65 N. Y. 589. * Little Miami R. Co. v. Wetmore, 19 Ohio St. 110. = Central R. Co. v. Peacock, 69 Md. 257. This, however, was decided upon the theory that the relation of carrier and passenger had ceased. But in Savannah, etc., R. Co. v. Bryan, 86 Ga. 312, s. c. 12 S. E. R. 307, it was held that the company was liable under a similar state of facts. « Scott V. Central, etc., R. Co., 53 Hun (N. Y.) 414, s. c. 6 N. Y. Supp. 382; Flynn v. Central Park, etc., R. Co., 49 N. Y. Super. Ct. 81 ; Ricketts V. Chesapeake, etc., R. Co., 33 W. Va. 433 ; Harrison v. Fink, 42 Fed. R. 787 ; New Orleans, etc., R. Co. v. Jopes, 142 TJ. S. 18, s. c. 12 Sup. Ct. R. 109. But see Chicago, etc., R. Co. v. Flex- man, 103 111. 546; Haman v. Omaha, etc., R. Co., 35 Neb. 74, 52 N. W. R. 830. ' Skinner v. Atchison, etc., E. Co., 39 Fed. E. 188. 2584 CARRIERS. §1639 § 1639. Injuries caused by other passengers and third per- sons. — Although railroad companies are not, perhaps, bound to protect their passengers from injuries by third persons and other passengers to the same extent as they are bound to protect them from injuries by their employes, yet it is their duty to use proper care and vigilance to protect them from injuries by such persons that might reasonably have been foreseen and antici- pated.' As a railroad company is in duty bound to use care and vigilance to protect its passengers who have placed themselves under its control, and as it has the right and power to eject disorderly persons, it is liable to a passenger who, without fault on his part, is assaulted and injured by a stranger or a fellow passenger, if it or its employes in charge of the train, could reasonably have foreseen and prevented it.^ Thus, where an intoxicated and disorderly or dangerous person is knowingly admitted to the train,' or the conductor and other employes ' See ante, § 1591. etc., R. Co., (Ky.) 34 S. W. E. 1066; ''New Orleans, etc., R. Co. ■!'. Burke, Winnegar's Admr. v. Central, etc., R. 53 Miss. 200, s. c. 24 Am. R. 689; Illi- nois Cent. R. Co. v. Minor, 69 Miss. 710, s. c. 16 L. R. A. 627, 11 So. R. 101 ; Richmond, etc., R. Co. v. Jeffer- son, 89 Ga. 554, s. c. 32 Am. St. R. 87, and note; Pittsburgh, etc., R. Co. v. Hinds, 53 Pa. St. 512, s. c. 91 Am. Dec. 224; Pittsburgh, etc., R. Co. v. Pillow, 76 Pa. St. 510 ; Britton v. At- lanta, etc., R. Co., 88 N. Car. 536, s. c. 43 Am. R. 740, 18 Am. & Eng. R. Cas. 391; King v. Ohio, etc., R. Co., 22 Fed. R. 413, s. c. 18 Am. & Eng. R. Cas. 386; Chicago, etc., R. Co. v. Pillsbury, 123 111. 9, s. c. 31 Am. & Eng. R. Cas. 24; Atchison, etc., R. Co. V. Weber, 33 Kan. 543, s. c. 52 Am. R. 543. "There is an implied obliga- tion, growing out of the contract be- tween the carrier and the passenger that the former shall afford to the lat- ter reasonable protection and immu- nity from the insults, violence and wanton interference of intruders, fel- low-passengers, and the carrier and his servants," Kinney v. Louisville, Co., 85 Ky. 547, s. c. 4 S. W. R. 237; Sherley v. Billings, 8 Bush (Ky.) 147 ; 1 Add. Torts, 33, note ; Goddard V. Grand Trunk R. Co, 57 Me. 202. But compare Royston v. Illinois Cent. R. Co., 67 Miss. 376. In Flint v. Nor- wich, etc., Transp. Co., 34 Conn. 554, the company was held liable for an injury to a passenger caused by the discharge of a gun, which was dropped by soldiers engaged in scuffling. So, where a person called to assist the conductor in ejecting a passenger uses excessive force. International, etc., R. Co. V. Miller, (Tex. Civ. App.) 28 S. W. R. 233; Murphy v. Western, etc., R. Co., 23 Fed. R. 637 ; Jardine v. Cornell, 50 N. J. L. 485, s. c. 14 Atl. R. 590. So, where a passenger on a platform is injured by a mail pouch thrown by a postal clerk. Carpenter V. Boston, etc., R. Co., 97 N. Y. 494. =1 Hendricks v. Sixth Ave. R. Co., 12 Jones & S. (N. Y.) 8; Meyer v. St. Louis, etc., R. Co., 54 Fed. E. 116. iS 1G39 INJURIES TO PASSENGERS. 2585 fail to take any steps to remove a passenger who becomes dis- orderly and dangerous, or to otherwise protect other passengers from him when they could do so,' the company will usually be liable for injuries caused by him to such other passengers. But if the company and its employes have no knowledge of the dangerous character or condition of the person who com- mits the injury and could not reasonably have foreseen and anticipated it, the company is not liable," especially where its employes do all they can to prevent injury after discovering the sudden and unexpected danger." Thus, where a passenger is slightly intoxicated, but apparently peaceable and well be- haved, the company is not liable to another passenger suddenly and unexpectedly injured by him merely because it received him upon its train or did not eject him before he became disorderly.' 'Flannery v. Baltimore, etc., E. Co.,4Mackey (D. C.) Ill; Holly v. Atlanta, etc., E. Co., 61 Ga. 215, s. c. 34 Am. E. 97; Pittsburgh, etc., E. Co. V. Hinds, 53 Pa. St. 512 ; Wright u. Chicago, etc., E. Co., 4 Colo. App. 102, 35 Pac. E. 196; Evansville, etc., E. Co. I. Darting, 6 Ind. App. 375; Eich- mond, etc., E. Co. v. Jefferson, 89 Ga. 554, s. c. 16 S. E. E. 69; Lucy v. Chi- cago, etc., E. Co., (Minn.) 65 N. W. R. 944, s. C.31L. E. A. 551. ^Connell's Exr, v. Chesapeake, etc., E. Co., (Va.) 24 S. E. R. 467, (passen- ger murdered by intruder at night) ; Spohni). Missouri Pac. E. Co., 87 Mo. 80; Jackson v. Missouri Pac. E. Co., 104 Mo. 448; Felton b. Chicago, etc., E.Co., 69Iowa577, (passenger thrown out of car by fellow-passenger) ; Put- nam V. Broadway, etc., E. Co., 55 N. Y. 108, 8. c. 14 Am. E. 190; Batton v. South, etc., E. Co., 77 Ala. 591, (female passenger insulted by intrud- ers at station) ; Mulligan v. New York, etc., R. Co., 129 N. Y. 506; Galveston, etc., R. Co. V. Long, (Tex. Civ. App.) 36 S. W. R. 485; Louisville, etc., E. Co. V. McEwan, (Ky.) 31 S. W. E. 465 ; Pounder v. Northeastern R. Co., L. R. (1892) 1 Q. B.385, 390; Smith v. Great Eastern, etc., E. Co., L. E. 2C. P. 4. A railroad company is not bound to anticipate that a discharged em- ploye will turn a switch and wreck a train out of revenge and the mere fact that it fails to get the key from him on discharging him will not render it lia- ble. East Tennessee, etc., E. Co. v. Kane, 92 Ga. 187, s. c. 18 S. E. E. 18. ' Mullan tK Wisconsin Cent. E. Co., 46 Minn. 474, s. c. 49 N. W. E. 249; McGuinn i'. Forbes, 37 Fed. E. 639; Kinney v. Louisville, etc., R. Co., (Ky.) 34 S. W. E. 1066. * Galveston, etc., E. Co. v. Long, (Tex. Civ. App.) 36 S. W. R. 485; Kinney v. Louisville, etc., R. Co., (Ky.) 34 S. W. R. 1066; Pittsburgh, etc., R. Co. ■;;. Vandyne, 57 Ind. 576; Thompson v. Manhattan R. Co., 27 N. Y. Supp. 608, s. c. 75 Hun 548. The mere fact that the conductor was present does not necessarily render the railroad company liable. Spring- field, etc., R. Co. V. Flynn, 55 111. App. 600. See, also, Gulf, etc., R. Co. V. Shields, (Tex. Civ. App.) 28 S. W. R. 709. 2586 CARRIERS. § 164a So, whiere a passenger in boarding a train at a station was knocked down and robbed by some unknown person, it was held that the company was not liable.* A railroad company is not necessarily liable for injuries to a passenger caused by his being jolted off of the steps of the car by other passengers,'' nor for injuries caused by a stranger hastily shutting a door in his face,' but it is liable' in a proper case for injuries to pas- sengers caused by a crowd at terminal gates, stations and on cars, where it has reason to expect the same and makes no provision to guard against danger therefrom.' § 1640. Injuries received in sleeping cars. — We have else- where called attention to the peculiar position occupied by sleeping car companies. ° The contract of a passenger for car- riage is with the railroad company rather than with the sleep- ing car company," and the former is liable for injuries to its passengers in a sleeping car caused by its negligence or breach of duty which it owes them as a carrier of passengers. The employes of the sleeping car company, in so far as their duties relate to the carriage or transportation of passengers are regarded as the employes of the railroad company, where there 'Sachrowitz v. Atchison, etc., E. 23 L. E. A. 606 ; Hayman ». Pennsyl- Co., 37 Kan. 212, s. c. 34 Am. & Eng. vania E. Co., 118 Pa. St. 508, s. c. 11 E. Cas. 382. It was claimed in this Atl. E. 815. case that the act was done by a brake- * Taylor c. Pennsylvania E. Co., 50 man, or other servant of the company, Fed. E. 755 ; Treat v. Boston, etc., E. and the case is instructive upon the Co., 131 Mass. 371; Lynn v. Southern subject of identification, the court Pac. E. Co., 103 Cal. 7, 24 L. E. A. holding that it was insufficient. 710, and note; Neslie v. Second, etc., ^Ellinger v. Philadelphia, etc., E. St. E. Co., 113 Pa. St. 300, s. c. 6 Atl. Co., 153 Pa. St. 213, Jarmy v. Duluth E. 72; Sheridan v. Brooklyn City E. St. E. Co., 55 Minn. 271, s. c. 56 N. W. Co., 36 N. Y. 39, s. c. 93 Am. Dec. 490 ; E. 813; Joliet St. E. Co. v. McCarthy, Merwin v. Manhattan E. Co., 1 N. Y. 42 111. App. 49; Eandall ^. Franktord, S. 267, 49 Hun (N. Y.) 608; Lott ». etc., E. Co., 139 Pa. St. 464; Buck v. New Orleans.etc., E. Co., 37 La. Ann. Manhattan, etc., E. Co., 15 Daly (N. 337. See, also, Evansville, etc., E. Co. Y.) 550. See, also, Cleveland v. New v. Duncan, 28 Ind. 441, s. c. 92 Am. Jersey Steamboat Co., 68 N. Y. 306, Dec. 322. 125N. Y.299. 'Ante, ^1616. ^Graeff v. Philadelphia, etc., E. ° Pullman Palace Car Co. ». Smith, Co., 161Pa. St.230,s.c. 28Atl.E. 1107, 73 111. 360, s. c. 24 Am. R. 258. § 1640 INJURIES TO PASSENGERS. 2587 is no contract which changes the rule and which is or ought to be known to the passenger, so that the railroad company is liable for their negligence.' Thus, railroad companies have been held liable where berths fell upon passengers, owing to the negligence of the sleeping car employes,^ and even for assaults committed upon them by sleeping car porters.' But the sleep- ing car company may also be liable for the negligent or wrong- ful acts of its employes' in the scope of their employment or line of duty to it, and, as we have elsewhere said, we believe there are some negligent acts or omissions for which it alone will be liable,^ just as there are some for which the railroad company is liable. So, it is held in a recent case that a sleep- ing car company, though not a common carrier, is responsible to its passengers for the discharge of certain general duties in- volving the exercise of ordinary and reasonable care, among which is the duty to provide a properly warmed and comforta- ble car, and that a violation of this duty which proximately causes a cold and permanent injury to a passenger's eyes "may be made the subject-matter of an action either ex contractu or ex delicto. ' '^ But neither the sleeping car company nor the rail- 1 Williams v. Pullman, etc., Co., 40 v. Pullman, etc., Co., 42 Fed. R. 484; La. Ann. 417, s. e. 4 So. E. 85. See, Heenrichii. Pullman, etc., Co., 20 Fed. also, authorities cited in following R. 100. But compare Williams v. Pull- notes; also, ante, §§1618, 1625. man, etc., Co., 40 La. Ann. 87, s. c. 3 ^Pennsylvania R. Co. v. Roy, 102 So. R. 631; Pullman, etc., Co. v. Ehr- U. S. 451; Railroad Co. v. Walrath, man, 65 Miss. 383. 38 Ohio St. 461 ; Northern Pac. R. = See ante, §§ 1618, 1621, 1625. Co. II. Hess, 2 Wash. 383, s. c. 26 Pac. « Hughes v. Pullman Palace Car Co., R. 866. 74 Fed. R. 499. See, also, Nevin v. ' Dwindle v. New York Cent., etc., Pullman, etc., Co., 106 111. 222, s. c. 11 R. Co., 120 N. Y. 117, s. c. 8 L. R. A. Am. & Eng. R. Cas. 92; Pullman, etc., 224, 24N. E. R. 319; Thorpe v. New Co. v. Booth, (Tex. Civ. App.) 28 York Cent., etc., R. Co., 76 N. Y. 402, S. W. R. 719. But compare Pullman s. c. 32 Am. R. 325; Williams v. Pull- Palace Car Co. v. Barker, 4 Colo. 344, man, etc., Co., 40 La. Ann. 417, s. c. and Pullman, etc., Co. v. Bales, 80 4 So. E. 85. Tex. 211, s. e. 47 Am. & Eng. R. Cas. ' Pullman Palace Car Co. v. Smith, 416. In this last case it was held that 79 Tex. 468; Meyer v. St. Louis, etc., the company was not liable where its R. Co., 54 Fed. R. 116; Mann Boudoir servants rudely pulled aside the cur- Car Co. V. Dupre, 54 Fed. R. 646, s. c. tain and exposed the plaintiff and his 21 L. R. A. 289, and note; Campbell wife undressed in the same berth ■2588 CARRIERS. §1641 road company is liable for an injury which is not proximately caused by the negligence of either. In other words, neither is an insurer of the safety of passengers. Thus, in another recent case, it was held that where an intruder entered the car at night for the purpose of robbery and killed a passenger there was no liability in the absence of any knowledge of dan- ger on the part of the employes or any circumstances to arouse their suspicion.' §1641. Injuries received at stations. — We have elsewhere treated of the limited duty of railroad companies to trespassers and licensees at stations, and have shown that a higher duty is due to those who come upon the invitation of the company where they had no Tight to both oc- cupy one berth together. So, where a passenger on an ordinary car, with- out right entered a sleeping car to induce the steward to sell him liquor in violation of law, it was held that the sleeping car company was not lia- ble for an assault on him l)y the steward. Cassedy v. Pullman, etc., Co., (Miss.) 17 So. E. .'573. ' Connell'a Exs. v. Chesapeake, etc., R. Co., (Va.) 24 S. E. R. 467. Among other things, the court said: "Ex- perience teaches us that, when prop- erty is exposed to theft, it is apt to be stolen ; but murder is of infre- quent occurrence. When, therefore, a sleeping-car company receives a passenger, and he retires to rest, it may well be assumed to anticipate and be required to guard and protect him against a crime which is likely to occur whenever the temptation and the opportunity are presented. It can not be deemed to have anticipated nor be expected to guard and protect him against a crime so horrid, and happily so rare, as that of murder. There is no casual connection between the negligence pleaded and the injury sustained. In a peaceful community, in a law-abiding and Christian land, a car of the defendant company is in- vaded in the night-time by an assas- sin, and an innocent man falls a vic- tim to his murderous assault. Can it be said that, in leaving a door ajar, in permitting a stranger or passenger to enter, the defendants were guilty of negligence, when to hold them negli- gent would be to say that they should have expected the tragedy which gave rise to this action? To do so would be to require of them more than. human foresight as to the minds and motives of men, and make them, in- deed, insurers of the safety of passen- gers, while under their care, against all dangers, however remotely con- nected with their acts of omission or commission." The court cited, among other cases, Pittsburgh, etc., R. Co. ■». Hinds, 5.3 Pa. St. 512; Schefferw. Rail- road Co., 105 U. S. 249; Putnam v. Broadway R. Co., 55 N. Y. 108 ; Britton V. Atlanta, etc., R. Co., 88 N. Car. 636; Batton V. South, etc., R. Co., 77 Ala. .591 ; Pounder v. Northeastern R. Co., L. R., (1892) 1 Q. B. 390. See, also, Davis V. Chicago, etc., R. Co., (Wis.) 67 N. W. R. 16. ^ 1641 INJURIES TO PASSENGERS. 2589 to do business with it or to assist passengers in arriving and departing.' Here we shall consider the duty of the company to passengers with respect to its stations and platforms and its liability for injuries received by them at such places. It is the duty of a railroad company to keep its stations, platforms and approaches in such a condition that passengers who have occasion to use them for the purpose for which they are de- signed can do so in safety, and a passenger who is injured by a breach of this duty, without contributory negligence on his part, may maintain an action for damages against the com- pany.'' Thus, railroad companies have been held liable for injuries to passengers by reason of broken planks or other similar defects in their platforms,' by reason of the platform being placed higher than the platform of the coach so that passengers were required to get in and out through the bag- gage car,' and by reason of the platform being too narrow and ' See ante, § 1256. 2 Sweeny v. Old Colony R. Co., 10 Allen (Mass.) 368; Dodge v. Boston, etc., Co., 148 Mass. 207, s. c. 2 L. R. A. 83, and note ; Railroad Co. v. Han- ning, 15 Wall (U. S.) 649 ; McDonald u Chicago, etc., R. Co., 26 Iowa 124 ; Bennett v. Railroad Co., 102 U. S. 577; Texas, etc., R. Co. v. Orr, 46 Ark. 182; Lonisville, etc., R. Co. o. Lucas, 119 Ind. 583, s. c. 21 N. E. R. 968 ; Pennsylvania R. Co. v. Marion, 123 Ind. 415, s. c. 23 N. E. R. 973; Kelley v. Manhattan R. Co., 112 N. Y. 443, s. c. 20 N. E. R. 383 ; Cooley on Torts, 604; Beach on Contrib. Neg., (2d. ed) § 160; Bishop Non-Cont. Law, § 1086; Longmore v. Great Western R. Co., 19 C. B. N. S. 183; Green v. Pennsylvania R. Co., 36 Fed. R. 66; Collins V. Toledo, etc., R. Co., 80 Mich. 390, s. c. 45 N. W. R. 178; Hoffman i). New York, etc., R. Co., 75 N. Y. 605 ; Keefe v. Boston, etc., R. Co., 142 Mass. 251 ; Wallers. Missouri, etc., R. Co., 59 Mo. App. 410; Alexandria, etc., R. Co. V. Herndon, 87 Va. 193, s. c. 12 S. E. R. 289; Texas, etc., R. Co. v. Brown, 78 Tex. 397, s. c. 14 S. W. R. 1034 ; ante, § 1590. No defense that station is used in conjunction with an- other company. Louisville, etc., R. Co. V. Lucas, 119 Ind. 583, s. c. 21 N. E. R. 968. See, also, Skottowe v. Ore- gon, etc., R. Co., 22 Ore. 430. Or that the company is a mere lessee. Mont- gomery, etc., R. Co. V. Thompson, 77 Ala. 448, s. c. 54 Am. R. 72. 'Louisville, etc., R. Co. v. Lucas, 119 Ind. 583, s. c. 21 N. E. R. 968; Toledo, etc., R. Co. v. Grush, 67 111. 262; Liscomb v. New Jersey, etc.. Railroad, etc., Co., 6 Lans. 75; Knight V. Portland, etc., R. Co., 56 Me. 234; Fullerton v. Fordyce, 121 Mo. 1, s. c. 25 S. W. R. 587; Ft. Worth, etc., R. Co. -u. Davis, 4 Tex. Civ. App. 351, s. c. 23 S. W. R. 737 (sharp railroad spike in platform.) * Turner v. Vicksburg, etc., R. Co., 37 La. Ann. 648. See, also, Collins v. Toledo, etc.,R. Co., 80 Mich. 390. 2590 CARRIERS. §1641 too near the track.' So, where passengers are received and discharged after dark it is the duty of the company to light its stations or platforms, and it is liable to a passenger who is in- jured without fault on his part by reason of its failure to do so.'' A railroad company is not, however, bound to have a platform at a mere road crossing at which trains stop on signal for the mere convenience of those desiring passage,' nor to have a platform on each side of the track,* and if it has a reasonably safe and suitable platform it is not liable for a purely accidental injury to a passenger thereon. ° So, of course. ' Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315 ; Union Pac. R. Co. v. Sue, 25 Neb. 772; Lake Shore, etc., R. Co. V. Ward, 135 111. 511, s. c. 26 N. E. R. 520; Hurlbert V. New York, etc., R. Co., 40 N. Y. 145. So, it has been held that it may be negligence to require a passenger to alight on a small box. Missouri Pac. R. Co. v. Wortham, 73 Tex. 25. But a passenger who trips over the feet of a baggage master en- gaged in unloading baggage in the usual way, where there is ten feet of unobstructed platform in which to pass, can not recover. Connor v. Concord, etc., R. Co., (N. H.) 30 Atl. R. 1121. Otherwise where the baggageman carelessly runs a truck over him while on the platform. Chi- cago, etc., R. Co. V. Woolridge, 32 111. App. 237. ^ Moses V. Louisville, etc., R, Co., 39 La. Ann. 649, s. c. 2 So. R. 567; Reynolds v. Texas, etc., R. Co., 37 La. Ann. 694; Alabama, etc., R. Co. v. Arnold, 84 Ala. 159, s. c. 4 So. R. 3-59 ; Fordyce v. Merrill, 49 Ark. 277, s. c-. 5 S.W. R. 329 ; Grimes v. Pennsylvania Co., 36 Fed. R. 72; Wallace v. Wil- mington, etc., R. Co., 8 Hous. (Del.) 529,8. e. 18 Atl. R. 818; Stewart v. International, etc., R.Co., 53 Tex. 289 ; Alexandria, etc., R. Co. v. Herndon, 87 Va. 193, s. c. 12 S. E. R. 289; Beard v. Connecticut, etc., R. Co., 48 Vt. 101 ; Quaife v. Chicago, etc., R. Co., 48 Wis. 513, s. c. 4 N. W. R. 658; Buenemann v. St. Paul, etc., R. Co., 32 Minn. 390, s. c. 20 N. AV. R. 379; Nicholson ■«. Lancashire, etc., R. Co., 3 H. & C. 5.34. But where the com- pany furnished all the light that ex- perience had shown to be necessary, it was held not to be liable in a re- cent case. Lafflin v. Buffalo, etc., R. Co., 106 N. Y. 136. Reasonable care in lighting is all that is necessary. Hiatt V. Des Moines, etc., R. Co., (Iowa) 64 N. W. R. 766. 'Alabama, etc., R. Co. v. Stacy, 68 Miss. 463, s. c. 9 So. R. 349; Cincin- nati, etc., R. Co. V. Peters, 80 Ind. 168, s. c. 6 Am. & Eng. R. Cas. 126. Nor at the end of a new and incom- plete road, where the passenger is aware of its incomplete condition. Chicago, etc., R. Co. v. Frazer, .55 Kan. .582. 40 Pac. R. 923. ' Michigan Cent. R. Co. v. Coleman, 28 Mich. 440. But when a passenger, without fault, got off on the opposite side from the platform, and was struck by a passing train, the railroad company was held liable. Van Ostran V. New York, etc., R. Co., 35 Hun 590, 104 N. Y. 683 ; McQuilken v. Cen- tral Pac. R. Co., 64 Cal. 463. But see, ante, §li;28, p. 2.5.50, note 1. 'Stokes V. Suffolk, etc., R. Co.' 107 N. Car. 178, s. c. 11 S. E. R. 991. AH « 1641 INJURIES TO PASSENGERS. 2591 if the passenger is guilty of negligence, which is a proximate cause of his injury, he can not recover.' A passenger is not necessarily negligent in going to his train in the usual way in the dark or in unintentionally getting out of the proper way in the dark in seeking a safe place, ^ but if he recklessly and un- necessarily wanders about in the dark and walks off of the platform, or the like," or goes through a dark passage or down a dark stairway in making his exit, when other passages or ways, plainly intended for that purpose, are properly lighted and open to his sight, he can not recover for an injury received in consequence thereof.* So, where a passenger, in going to a train fell over lumber which he knew was upon the platform but had forgotten about, he was held guilty of contributory negligence. ° The duty of railroad companies to exercise or- dinary care to keep their stations reasonably safe for passen- gers extends to water-closets and similar accommodations intended for their use,* and it has also been held that it is the that is required is ordinary and reason- able care on its part. Ante, § 1590. ' Illinois, etc., R. Co. v. Green, 81 111. 19, s. c. 25 Am. R. 255; Evans- ville, etc., R. Co. v. Duncan, 28 Ind. 441; Forsyth 1). Boston, etc., R. Co., 103 Mass. 510; Renneker v. South Carolina R. Co., 20 S. Oar. 219, s. c. 18 Am. & Eng. R. Cas. 149; Little Rock, etc., R. Co. V. Cavenesse, 48 Ark. 106, B.C. 2 S. W. R. 506; Gunderman v. Missouri, etc., R. Co., 58 Mo. App. 370 ; Railway Co. v. Cox, 60 Ark. 106, s. c. 20 S. W. R. 38. But the defect must be such as would suggest danger to a man of ordinary understanding and reasonable prudence, and a passen- ger is not obliged to make a close in- spection, such as the company or its servants might be required to make. Ohio, etc., R. Co. v. Stansberry, 132 Ind. 533, s. c. 32 N. E. R. 218. ' Wallace v. Wilmington, etc., R. Co., 8 Hous. (Del.) 529, s. c. 18 Atl. R. 818; Moses v. Louisville, etc., R. Co., 39 La. Ann. 649, s. c. 2 So. R. 567 ; Missouri Pac. R. Co. v. Neiswanger, 41 Kan. 621; Louisville, etc., R. Co.b. Treadway, 142 Ind. 475, s. c. 40 N. E. R. 807, 41 N. E. R. 794; Texas, etc., R. Co. V. Brown, 78 Tex. 397, s. c. 14 S. W. R. 1034. See, also, Kentucky, etc., Co. V. McKinney, 9 Ind. App. 213, s. c. 36 N. E. R. 448. 3 Reed v. Axtell, 84 Va. 231, s. c. 4 S. E. R. 587 ; Sturgis I). Detroit, etc., R. Co., 72 Mich. 619; Gulf, etc., R. Co. v. Hodges, (Tex. Civ. App) 24 S. W. R. 563. ' Bennett v. New York, etc., R. Co., 57 Conn. 422, s. c. 18 Atl. R. 668. See, also, Forsyth u. Boston, etc., R. Co., 103 Mass. 510. 'Wood V. Richmond, etc., R. Co., 100 Ala. 660, s. u. 13 So. R. 552. See, also, Chicago, etc., R. Co. v. Mahara, 47 111. App. 208. ^ McKone v. Michigan, etc., R. Co., 51 Mich. 601, s. c. 17 N. W. R. 74 ; Mis- souri Pac. R. Co. V. Neiswanger, 41 2592 CARRIERS. § 1642 duty of such companies to provide and maintain a comfortable room in which passengers may stay while waiting for their trains.' But if a railroad company has exercised ordinary and reasonaVjle care, we think it is not liable for failing to guard against accidents that could not reasonably have been anticipated/ and a passenger is certainly not justified in vol- untarily incurring an obvious danger merely to avoid a tem- porary inconvenience.' § 1642. Contributory negligence. — We have already treated different phases of the subject of contributory negligence so fully in considering injuries received by passengers under par- ticular circumstances that little remains to be said. As a general rule a passenger, like every one else, is bound to exer- cise ordinary and reasonable care to avoid or prevent injury to himself, and if his failure to do so proximately causes or con- tributes to his injury, he can not recover,* unless the injury was willfully inflicted under such circumstances as to make the company responsible. Whether he exercised such care or not is usually a question for the jury to determine,* but, as we Kan. 621; Jordan v. New York, etc., sylvania R. Co. ■». Aspell, 23 Pa. St. R. Co., 165 Mass. .346, s. c. 32 Jj. R. A. 147, s. c. 62 Am. Dec. 323; Price v. 101. St. Louis, etc., R. Co., 72 Mo. 414; ' McDonald v. Chicago, etc., R. Co., Fisher v. West Virginia, etc., R. Co., 26 Iowa 124. As to the liability of the (W. Va.) 24 S. E. R. 570; MacLeod v. company for illness or other injuries Graven, 73 Fed. R. 627; notes to Freer caused by exposure in such a case, see v. Cameron, 55 Am. Dec. 663, (4 Rich. Boothby v. Grand Trunk R. Co., (N. L. 228) and Hartfieldt>. Roper, 34 Am- H.) 34 Atl. R. 157; Texas, etc., R. Dec. 273, C21 Wend. 615) ; Thomp. on Co. V. Cornelius, (Tex. Civ. App.) 30 Carriers, 257; Pattersons Ry. Ace. S. W. R. 720; Texas, etc., R. Co. j;. Law, 46 ; Beach on Contrib. Neg., §§ 14, Pierce, (Tex. Civ. App.) 30 S. W. R. 145. This general rule is so well set- 1122. tied and has been so often referred to 2 Grafter v. Metropolitan, etc., R. and its application so fully shown in Co., L. R. 1 C. P. 300; Cornman v. the preceding sections of this chapter, Eastern, etc., R. Co., 4 H. & N. 781. that citation of the numerous authorit- See, also, ante, § 1590. ies is here unnecessary. ^ Adams v. Lancashire, etc., R. Co., ' Beach on Contrib. Neg., §§444,450; L. R. 4 C. P. 739. Eichorn v. Missouri, etc., R. Co., 130 «Wahl II. Shoulder, (Ind. App.) 43 Mo. 575, 32 S. W. R. 993; Brodie i;. N. E. R. 458; Jeffersonville, etc., R. Carolina, etc., R. Co., (S. Car.) 24 S. Co. V. Hendricks, 26 Ind. 228; Penn- E. R. 180; Missouri, etc., R. Co. v. § 1642 INJURIES TO PASSENGERS. 2593 have seen, his conduct may be such as to constitute negligence per se or make a prima facie case of contributory negligence against him, and it is a general rule that if the facts are un- disputed and but one reasonable inference can be drawn there- from the court should draw it and take the case away from the jury.' On the other hand, as we have also shown, if his negli- gence had nothing to do with causing the injury, or did not proximately contribute thereto, he can not be defeated upon the ground of contributory negligence,^ and this is also true where he does an act not obviously dangerous under the di- rection of employes upon whose knowledge and directions he has a right to rely, notwithstanding such act, if performed without such directions, or if known to him to be dangerous, might have been negligent.' So, where he is placed in imminent peril by the negligence of the company he may recover, in a proper case, for injuries received in attempting to escape or avoid it, if he exercised ordinary and reasonable care under the circumstances as they reasonably appeared to him at the time, although in acting upon the spur of the mo- ment and under excitement he did not do what was best, or would not have been injured if he had done nothing but to remain quiet.' Meyers, (Tex. Civ. App.) 35 S. W. R. v. Northern, etc., R. Co., 26 Minn. 421; Henshaw II. Raleigh, etc., E. Co., 278, s. c. 3 N. W. R. 333; Cuyler v. (N. Car.) 24 S.E.R. 426; Omaha, etc., Decker, 20 Hun (N. Y.) 173; Shannon R. Co. ■!). Crow, (]Sreb.)66N. W. R. 21; v. Boston, etc., R. Co., 78 Me. 52; Georgia, etc., R. Co. v. Watkins, (Ga.) Dimmey v. Wheeling, etc., R. Co., 27 24 S. E. R. 34; ante, §1628, p. 2548, W. Va. 32; Bischoff v. People's R. notes, 1 and 2. Co., 121 Mo. 216, s. c. 25 S. W.R.908; ' Elliott's Gen. Pr., §§ 437, 887, 889 ; Odom v. St. Louis, etc., R. Co., 45 La. ante, §§1628, 1630, 1632, 1633; Beach Ann. 1201, s. c. 14 So. R. 734; Beach on Contrib. Neg., §§447, 449. on Contrib. Neg. §§ 40, 41 ; ante, § 1627. ^ See, also, Beach on Contrib. Neg., But the fear or peril must be caused §§ 33, 34. by the negligence or wrong of the 'See post, §1643. company and not by the passenger * St. Joseph, etc., R. Co. i>. Hedge, himself. Austin, etc., R. Co. d. Beatty, 44 Neb. 448, 62 N. W. R. 887; Iron R. 73 Tex. 592, s. c. U S. W. R. 858; Co. V. Mowery, 36 Ohio St. 418 ; South Reary v. Louisville, etc., R. Co., 40 La. Covington, etc., R. Co. v. Ware, 84 Ann. 32, s. c. 3 So. R. 390; Woolery Ky. 267, s. c. 1 S. W. R. 493; Wilson «. Louisville, etc., R. Co., 107 Ind. 381, s. c. 57 Am. R. 114; Chicago, etc., R. 2594 CARRIERS. § 1643 § 1643. Effect of directions by trainmen to occupy danger- ous position. — A passenger who might otherwise have been defeated upon the ground of contributory negligence may some- times recover because he acted under the directions of the conductor. There is some conflict among the authorities as to how far a passenger is justified in acting upon an invitation or order of a trainman, but is clear that he may do so if the trainman is authorized, either expressly or impliedly, to give the invitation or order and the act is not such as the passenger ought to know is dangerous or in violation of the company's rules, and it is equally clear that where he knows that the act is in violation of the rules of the company and will place him in imminent peril he is not justified in taking the risk and can not hold the company liable if he is injured in so doing, even though he acted upon the advice or under the directions of the conductor or other trainmen. The conflict exists in the disputed territory between these two extremes. The solution of the problem may sometimes depend upon the authority, or apparent authority of the employe, to give the permission or order or to waive a rule of the company, or it may depend upon the nature of the act, that is, whether it is so dangerous that a reasonably prudent man would not, in the exercise of ordinary care, perform it even with the permission or under the direction of the employe. Where the directions of the em- ploye are within the scope of his authority and obedience to them will not expose a passenger to known or apparent dan- ger which a prudent man would not incur, the passenger is justified in acting upon them and is not necessarily guilty of contributory negligence, although he maybe injured in so do- ing.' But if the danger is obvious and such as a reasonably Co. V. Pelton, 125 111. 458, s. c. 17 N. 227, 14 N. W. R. 46; Filer v. New E. R. 765. York, etc., R. Co., 49 N. Y. 47; St. 'Cincinnati, etc., R. Co. v. Carper, Louis, etc.,R. Co.?;. Cantrell, 37 A.rk. 112 Ind. 26, s. c. 13 N. E. R. 122; 519, s. c. 40 Am. R. 105; Fowler v. Louisville, etc., R. Co. v. Kelly, 92 Baltimore, etc., R. Co., 18 W. Va. 579; Ind. 371, B. c. 47 Am. R. 149; Louis- Philadelphia, etc., R. Co. v. Boyer, 97 ville, etc., R. Co. v. Bisch, 120 Ind. Pa. St. 91; Indianapolis, etc., R. Co. 549; Pool V. Chicago, etc., R. Co., 53 v. Horst, 93 U. S. 291; St. Louis, etc.. Wis. 657, B. c. 11 N. W. R. 15, 56 Wis. R. Co. v. Person, 49 Ark. 182, a. c. 4 S. § 1643 INJUKIES TO PASSENGERS. 2595 prudent man would not incur under the circumstances the passenger must not assume the risk, for he will be guilty of negligence if he does so, especially if he acts on the mere per- mission or invitation of the employe, or if he knows, or ought to know, that the employe has no authority to give the direc- tion or that the act is in violation of a rule of the company in- tended for the safety of passengers.' This, we think, is the true distinction, although there are many authorities which go very far towards exonerating a passenger where he obeys the directions of an employe, even where it is obviously dan- gerous to do so, or is in violation of the rules of the company.^ W. E. 755; Lake Shore, etc., E. Co. v. Brown, 123 111. 162, s. c. 5 Am. St. E. 510; Kansas, etc., E. Co. v. Dorough, 72 Tex. 108; Lent?). New York, etc., E. Co., 120 N. Y. 467; Bucher v. New York, etc., E. Co., 98 N. Y. 128; Bal- timore, etc., E. Co. II. Kane, 69 Md. 11 ; Central E. Co. v. Smith, 69 Ga. 268; McCaslin v. Lake Shore, etc., E. Co., 93 Mich. 553 ; Hutchinson on Car- riers, (2d ed.) §§ 535, 661c. ' Pennsylvania E. Co. v. Langdon, 92 Pa. St. 21, s. c. 37 Am. E. 651 ; Cin- cinnati, etc., E. Co. V. Carper, 112 Ind. 26, s. c. 13 N. E. E. 122, 123; Cincinnati, etc., E. Co. v. McClain, (Ind.) 44 N. E. E. 306; South, etc., E. Co. V. Schaufler, 75 Ala. 136 ; Penn- sylvania E. Co. V. Lyons, 129 Pa. St. 113, s. c. 18 Atl. E. 759; Chicago, etc., E. Co. V. Eandolph, 53 111. 510, s. c. 5 Am. E. 60; Florida Southern E. Co. V. Hirst, 30 Fla. 1, s. c. 16 L. E. A. 631, and note; Hunter v. Coopers- town, etc., E. Co., 112 N. Y. 371 ; Auf- denberg v. St. Louis, etc., R. Co., (Mo.) 34 S. W. E. 485 ; Railroad Co. v. Jones, 95 U. S. 439; Bardwell v. Mo- bile, etc., R. Co., 63 Miss. 574; Lind- sey V. Chicago, etc., E. Co., 64 Iowa 407, s. c. 20 N. W. R. 737; Vimont v. Chicago, etc., E. Co., 71 Iowa 58, s. c. 32 N. W. E. 100; Herman v. Chi- cago, etc., R. Co., 79 Iowa 161, s. c. 44 N. W. E. 298; Powers v. Boston, etc., E. Co., 153 Mass. 188, s. c. 26 N. E. E. 446; HickeyiJ. Boston, etc., E. Co., 14 Allen (Mass.) 429 ; Eichmond, etc., E. Co. V. Morris, 31 Gratt. (Va.) 200; St. Louis, etc., E. Co. v. Eice, (Tex. Civ. App.) 29 S. W. R. 525 ; Beach on Con- trib. Neg., (2d ed.) §§ 152, 153, 154; 2 Wood on Railways, §§ 121, 1277 ; ante, § 1628, p. 2551, note 1. See, also, Wa- terbury v. New York, etc., R. Co., 17 Fed. R. 671, and note on page 690, et seq; Lake Shore, etc., E. Co. v. Pin- chin, 112 Ind. 592, s. c. 13 N. E. E. 677 ; Little Eock, etc., R. Co. v. Miles, 40 Ark. 298; Cincinnati, etc., E. Co. ?>. Peters, 80 Ind. 168. 2 Hanson i>. Mansfield E. Co., 38 La. Ann. Ill, s. c. 58 Am. E. 162; Gallo- way V. Chicago, etc., E. Co., 87 Iowa 458, s. c. 54 N. W. E. 447; Lambeth?;. North Carolina, etc., E. Co., 66 N. Car. 494, s. c. 8 Am. E. 508; Georgia, etc., E. Co. V. McCurdy, 45 Ga. 288, s. c. 12 Am. E. 577; Jones v. Chicago, etc., E. Co., 43 Minn. 279, s. c. 45 N. W. E. 444; Irish v. Northern Pac. E. Co., 4 Wash. 48, 29 Pac. E. 845 ; Phila- delphia, etc., E. Co. V. Derby, 14 How. (TJ. S.) 468; Beach on Contrib. Neg., (2d ed.) § 148; Hutchinson on Carriers, (2d ed.) § 654; ante, § 1631, p. 2560, note 1. 2596 CAREiEES. § 1644 § 1644. Burden of proof. — As in other cases, one who sues a railroad company for personal injuries received while on its train as a passenger has, of course, the burden of proving all the material facts necessary to constitute his cause of action, including negligence on the part of the company.' But negli- gence may often be inferred from circumstances and proof of the accident and injury may sometimes not only justify such an inference, but may also give rise to a presumption of negli- gence on the part of the company and make a prima facie case against it so far as proof of its negligence is necessary.^ It is sometimes said the fact that a passenger is injured on a car- rier's train raises a presumption of negligence on its part and makes a prima facie case, so far as such negligence is con- cerned, sufficient to cast the burden upon the carrier to show that it was not guilty of negligence, and to entitle the plaintiff to recover, if free from contributory negligence, unless it re- buts such presumption.' But in most of the cases in which such a broad statement of the rule was made it was unnecessary to state it in such general terms and the facts were such as to show that the injury could not well have been inflicted but for the negligence of the company, or the like. We think it clear that if the plaintiff, by his own evidence, shows that the acci- dent was caused, or probably caused, by the act of God, or some 'Deyo». New York Cent. B. Co., 34 * Baltimore, etc., R. Co. w. Swann, 81 N. Y. 9; Holbrook v. Utica, etc., R. :\Id. 400, 32 Atl. R. 175, 176, and cases Co., 12 N. Y. 236; Button v. Hudson cited; Laing v. Colder, 8 Pa. St. 479, River B. Co., 18 N. Y. 248; Chicago, (distinguished and qualified in several etc., R. Co. V. Felton, 125 111. 458, s. c. Pennsylvania cases hereafter cited) ; 17N. E. R. 765; Hardwicku. Georgia, Salena, etc., B. Co. u. Yarwood, 17 etc., B. Co., 85 Ga. 507, s. c. 11 S. E. 111. 509; Zemp v. Wilmington, etc., B. R. 832; Herstine v. Lehigh Valley, Co., 9 Rich. L. 84; Yeomans v. Con- etc, R. Co., 151 Pa. fit. 244, s. c. 25 tra Costa, etc., Co., 44 Cal. 71 ; George Atl. R. 104; Cotton v. Wood, 8 Com. v. St. Louis, etc., R. Co., 34 Ark. 613; B. (N. S.) 568; Hutchinson on Car- Saltonstall i). Stockston Taney (U s' riers, (2d ed.) §§ 798, 799. C. C.) 11, afiirmed in Stokes v. Salton- 2 In some cases, "the very nature of stall, 13 Pet. 181 ; Louisville, etc., B. the accident" it is said, "may of itself, Co. v. Jones, 83 Ala. 376, s'. c. o'so. and through the presumption it car- E. 902, limited in Georgia Pac. B. Co. ries, supply the requisite proof." i^. Love, 91 Ala. 432 ; Carter o. Kansas Whart. on Neg., §421. City, etc., R. Co., 42 Fed. R. 37. § 1644 INJURIES TO PASSENGERS. 2597 other unavoidable cause, not within the control of the com- pany, the burden is not cast upon it although the plaintiff may have been injured while a passenger on its train.' So, where a missile came through the window and struck a passenger, and there was no showing as to where it came from, it was held that there was no presumption of negligence on the part of the company.' In another case the injury was caused by a rock becoming detached from a hillside above and beyond the rail- road cut and falling upon the train, and it was held that there was no presumption of negligence on the part of the company and that the burden of proving it remained upon the plaintiff.' Again, suppose the plaintiff merely shows that he had his arm broken while a passenger on the defendant's train, and then rests his case. This might have happened entirely because of his own fault, or that of some one outside of the car and not under the control of the company, or it might have been caused by the negligence of the company. Mere proof of the injury without showing any collision, derail- ment, or other cause or circumstances certainly raises no pre- sumption of negligence on the part of the company. "If the witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carrier," the presumption of negligence will gen- erally arise. "On the other hand, if the witness who proves this injury swears that at the moment when it happened he heard the report of a gun outside of the car and found a bullet in the fractured limb, the presumption would be against the negligence of the carrier. * * * The presumption arises 'McOlaryu. Sioux City, etc., E. Co., R. A. 820; Thomas d. Philadelphia, 3 Neb. 44; Gillespie v. St. Louis, etc., etc., E. Co., 148 Pa. St. 180, s. c. 23 R. Co., 6 Mo. App. 554; Smith v. St. Atl. R. 989. Paul, etc., E. Co., 32 Minn. 1, s. c. 18 'Fleming v. Pittsburgh, etc., E. Co., N. W. E. 827, 50 Am. R. 550; Norfolk, 158 Pa. St. 130, s. c. 27 Atl. R. 858, 38 etc., E. Co. V. Marshall, 90 Va. 836, 20 Am. St. R. 835, and note, distinguish- S.E. R. 823. ingGleeson V.Virginia, etc., E. Co. ,140 « Pennsylvania R.Co.B.MacKinney, U. S. 435, s. c. 11 Sup. Ct. E. 859, 4 124 Pa. St. 462, s. c. 17 Atl. E. 14, 2 L. Lewis' Am. E. Corp. E. 398. Corp. 165 2598 CARRIERS. § 1644 from the cause of the injury, or from other circumstances attend- ing it, and not from the injury itself.'" So the mere fact that a passenger is injured in boarding or alighting from a train does not raise a presumption of negligence on the part of the company and cast the burden upon it, where it is not shown that the train suddenly moved, or other circumstances are not shown which will afford a basis for such a presumption.'' Many other illustrations might be given, if necessary, to show that mere proof of injury to a passenger is not always sufficient to raise a presumption of negligence on the part of the company and shift the burden of proof.' It is, therefore, too broad a statement of the rule to say that, in all cases, a presumption of negligence on the part of the carrier arises from the mere hap- pening of an accident or an injury to a passenger regardless of the circumstances and nature of the accident.* The true rule would seem to be that when the injury and circumstances at- 'Holbrook v. Utica, etc., R. Co., 12 N. Y. 236. ' Delaware, etc., R. Co. v. Napheys, 90 Pa. St. R. 135, s. c. 1 Am. & Eng. R. Cas. 52; Dennis v. Pittsburg, etc., R. Co., 165 Pa. St. 624, s. c. 31 Atl. 52 ; Mitchell V. Chicago, etc., R. Co., 51 Mich. 236, s. c. 12 Am. &Eng. R. 163; Chicago, etc., R. Co. v. Trotter, 60 Miss. 442; Railroad Co. v. Mitch- ell, 11 Heisk. (Tenn.) 400. See, also, Etson V. Ft. Wayne, etc., R. Co, (Mich.) 68 N. W. R. 298; Bradley v. Ft. Wayne, etc., R. Co., 94 Mich, 35, 8. c. 53 N. W. R. 915. 'Thus, it is held that there is no presumption of negligence on the part of the company where a passenger stumbles over baggage in the aisle. Stimson v. Milwaukee, etc., R. Co., 75 Wis. 381, s. c. 44 X. W. R. 748. See, also, Morris v. New York Cent., etc., R. Co., 106 N. Y.678; Farley v. Phila- delphia, etc., Co., 132 Pa. St. 58. So, we suppose that no such presumption necessarily arises where he is hurt in a personal controversy with another passenger, or by an assault of a mob, "road agents," orthelike. *Long V. Pennsylvania R. Co., 147 Pa. St. 343, s. c. 30 Am. St. R. 732, and note, 23 Atl. R. 459, 460; Herstinetv Lehigh Valley R. Co., 151 Pa. St. 244, s. c. 25 Atl. R. 104; Curtis v. Roches- ter, etc., Co., 18 N. Y. 534, (approved and followed in Transportation Co. v. Downer, 11 Wall. 129; Holbrook v. Utica, etc., R. Co., 12 X. Y. 236 ; Saun- ders V. Chicago, etc., R. Co. (So. Dak.) 60 X. W. R. 148; Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312 ; Hawkins v. Front Street, etc., Co., 3 Wash. 592, s. c. 28 Am. St. R. 72 ; Stern v. Michigan Cent. R. Co., 76 :\Iich. 591, s. c. 43 N.W. R. 587 ; Federal Street, etc., R. Co. v. Gibson, 96 Pa. St. 83; Daniel v. Metropolitan R. Co., L. R. 3 C. P. 216, 591, L. E. 5 H. L. 45; Welfare v. London, etc., R. Co., L. R. 4 Q. B. 693; Dougherty v. :\rissouri Pac. R. Co., 9 Mo. App. 478; Railroad Co. v. ilitchell, 11 Heisk. (Tenn.) 400; Birmingham, etc.,R.Co.D. Hale, 90 Ala. 8, s. c. 24 Am. St. R. 748, § 1644 INJURIES TO PASSENGERS. 2599 tending it are so unusual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equip- ment or operation of the road, over which the company has entire control, without contributory negligence on the part of the passenger, a presumption of negligence on the part of the company usually arises from proof of such facts, in the ab- sence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.' In a recent case, however, it was held that, al- though the derailment of a train, at a place where the train and track are entirely under the control of the company, raises tlie presumption of negligence, yet it does not devolve upon the company the duty of showing by a preponderance of the evidence that the accident was not the result of its own negli- gence, and it is entitled to a verdict if the evidence upon that and note; San Antonio, etc., E. Co. v. Robinson, 73 Texas 277, s. c. 11 S. W. K. 327; note to Farish v. Reigle, 62 Am. Dec. 666, 681, 685. See, also, Davis V. Chicago, etc., R. Co. (Wis.) 67 N. W. R. 16, 1132. ' As to the presumption from derail- ments and collisions, see ante, §§1634, 1635. For other cases where presump- tion has been held to arise, see the elaborate notes to Barnowski v. Kel- son, 15 L. R. A. 33; to Farish v. Reigle, 62 Am. Dec. 666, 682, et seq; to Philadelphia, etc., R. Co. v. Ander- son, 20 Am. St. R. 483, 490, et seq. Giving way of bridge or track : Bed- ford, etc., R. Co. V. Rainbolt, 99 Ind. 551; Louisville, etc., R. Co. v. Sny- der, 117 Ind. 435, s. c. 10 Am. St. R. 60; Arkansas Midland R. Co. v. Can- man, 52 Ark. 517, s. c. 2 Lewis' Am. R. & Corp. R. 311, and note. Fall- ing object in car : White v. Boston, etc., R. Co.., 144 Mass. 404; Rail- road Co. V. Walrath, 38 Ohio St. 461, 8. c. 48 Am. E. 433. Collision with animal or obstruction on track : Sullivan v. Philadelphia, etc., R. Co., 30 Pa. St. 234, s. c. 72 Am. Dec. 698 ; Louisville, etc., R. Co. u. Hendricks, 128 Ind. 462; Louisville, etc., R. Co. V. Ritter, 85 Ky.368. Injury by serv- ant: Memphis, etc., R. Co. v. Mc- Cool, 83 Ind. 392; Kentucky, etc., R. Co. V. Quinkert, 2 Ind. App. 244, s. c. 28 N. E. R. 338. Breaking of axle or wheel: Toledo, etc., R. Co. v. Beggs, 85 111. 80; Hegeman v. Western R. Co., 16 Barb. (N. Y.) 353, 356; Balti- more, etc., R. Co. V. Wightman, 29 Gratt. (Va.) 431; Edgerton v. New York, etc., R. Co., 39 N. Y. 227. Ex- plosion : Robinson v. New York Cent. R. Co., 20 Blatchf. (U. S. C. C.) 338; Spear v. Philadelphia, etc., R. Co., 119 Pa. St. 61; IDinois, etc., R. Co. v. Houck, 72 111. 285. This list is not in- tended to be exhaustive. Other ex- amples and cases will be found in the notes to which we have above re- ferred. 2600 CAEEIERS. § 1645 issue, including and giving effect to the presumption, is equally balanced.' We have elsewhere called attention to the diversity of opinion that exists upon the question as to the bur- den of proving contributory negligence or freedom therefrom, and we shall not attempt to review the cases in this conection.^ § 1645. Contracts limiting liability. — We have elsewhere considered the question of the right of common carriers of things to limit their liability,' and have incidentally treated the subject of limiting liability in connection with the rights and liabilities of sleeping car companies,* as well as in connec- tion with the subject of passes,' and what has been said applies generally to the questions which it is our immediate purpose to consider. As we have heretofore shown, the authorities un- questionably require the conclusion that where the railroad company is under a duty to carry and it undertakes to carry for hire or reward it can not contract for exemption from neg- ligence.' We have elsewhere expressed our opinion that where a purely gratutious pass is bestowed upon the traveler, no con- sideration, direct or indirect, being paid, a contract exempting the company from liability is valid.' Our reason for this con- ' Mexican Cent. R. Co. B. Lauricella, St, 526; Mobile, etc., E. Co. v. Hop- 87 Tex. 277, 8. c. 28 S. W. E. 277, 47 kins, 41 Ala. 486; Cleveland, etc., E. Am. St. R. 103. Co. v. Curran, 19 Ohio St. 1 ; Ohio, ^See authorities reviewed in note to etc., R. Co. v. Selby, 47 Ind. 471, s. c. Farish v. Eeigle,62 Am. Dec. 666,686. 17 Am. R. 719; Wagner v. Missouri, See, also, Beach on Contrib. Keg., etc., Co., 97 Mo. 512. (2d ed.) §417, et seq; Patterson Ry. ' We think that the cases which hold Ace. Law, 435. that where a free pass is given a ' Ante, chapter Lxi. stipulation exempting from liability is * Ante, § 1627. invalid erroneously confuse cases ' Ante, § 1608. where there is a duty to carry with ^ In addition to the authorities cited cases where there is no such duty. in the sections referred to in the pre- It seems to us clear that as there is no ceding notes see, Louisville, etc., R. duty to carry without compensation Co. ^). Fay lor, 126 Ind. 126; .lacobusn. the reason for the rule invalidating St. Paul, etc., R. Co., 20 Minn. 125, s. stipulations utterly fails, in cases c. 18 Am. E. 360 ; Rose v. Des Moines, where no compensation of any kind is etc.,R. Co., 39Iowa246; Gulf, etc., R. provided for or paid. See American Co. V. McGown, 65 Tex. 643 ; Indiana, Law Review, March, April, 1892. The etc., Co. V. Mundy, 21 Ind. 48; Penn- New York rule is different from that eylvania R. Co. v. McCloskey, 23 Pa. held by the American courts gener- ■§ 1645 INJURIES TO PASSENGERS. 2601 elusion is that one who receives a pass as a matter of bounty, benevolence or favor must take it upon the terms upon which it is donated.' The phase of the question which remains for con- sideration is as to whether the company can effectively stipu- late for exemption in cases where it is not under an obligation to carry. In our judgment an effective and valid contract relieving the company from liability may be made in cases where that obligation does not exist. If the obligation does not exist then the company has a free right of election and it may determine on what terms it will undertake to render serv- ice. If it is not under a duty it is free to contract, and if free to contract there is no reason why it may not prescribe such terms as the person with whom it contracts is willing to ac- ally. Poucher v. New York, etc., R. Co., 49 N. Y. 263 ; Bissell v. New York, etc., R. Co., 25 N. Y. 442; Wells i). New York, etc., R. Co., 24 N. Y. 181 ; Brewer v. New York, etc., R. Co., 124 N. Y. 59, s. c. 26 N. E. R. 324. As to the English rule see McCawley v. Furness R. Co., L. R. 8 Q. B. 67 ; Gal- lin V. London, etc., R. Co., 10 Q. B. 212; Alexander v. Toronto, etc., R. Co., 33 U. C. Q. B. 474. '■ Ante, § 1608. See, also, Muldoon v. Seattle, etc., R. Co., 7 Wash. 528, s. c. 35 Pac. R. 422; Illinois, etc., R. Co. v. Read, 37 111. 484 ; Muldoon v. Seattle, etc., R. Co., 10 Wash. 311, 39 Pac. R. 995; Annas?). Milwaukee, etc., R. Co., 67 Wis. 46, s. c. 30 N. W. R. 282 ; Quimby v. Boston, etc., R. Co., 150 Mass. 365; Kinney ». Central, etc., R. Co., 34 N. J. Law 513; Griswold v. New York, etc., R. Co., 53 Conn. 371, s. c. 4 Atl. R. 261 ; Rogers v. Kennebec, •etc., Co., 86 Me. 261, 29 Atl. R. 1069. See Western, etc., Co. v. Bishop, 50 ■Ga. 465; Gardner v. New Haven, etc., R. Co., 51 Conn. 143, s. c. 50 Am. R. 12. In the case of The Louisville, «tc., R. Co. V. Keefer, (Sup. Ct. of In- diana, October 1, 1896) it was held in a strongly reasoned opinion that a contract between the messenger of an express company and a railroad com- pany limiting the liability of the latter company for injuries received by mes- sengers of the former company is valid. We think the conclusion af- firmed in the case to which we have referred is clearly right. Employes riding on a pass are not passengers, and a contract limiting liability is valid. Texas, etc., Co. v. Smith, 67 Fed. R. 524; Howland v. Milwaukee, etc., R. Co., 54 Wis. 226; Kumber ». Junction, etc., R. Co., 33 Ohio St. 150; Ohio, etc., R. Co. v. Tindall, 13 Ind. 366, s. c. 74 Am. Dec. 279 ; McQueen V. Central, etc., R. Co., 30 Kan. 689; Chicago, etc., R. Co. u. Keefe, 47 111. 108; Abend v. Terre Haute, etc., R. Co., Ill 111. 202, s. c. 53 Am. R. 616; O'Brien v. Boston, etc., R. Co., 138 Mass. 387, 52 Am. R. 279; New York, etc., R. Co. V. Burns, 51 N. J. L. 340; Manville v. Cleveland, etc., R. Co., 11 Ohio St. 424, ante, §1578. But see Pool V. Chicago, etc., R. Co., 56 Wis. 227; State v. Western, etc., R. Co., 63 Md. 433 ; Washburn v. Nashville, etc.. R. Co., 3 Head 638, s. c. 75 Am. Dec. 784. 2602 CARRIEKS. § 164.> cept. The unfettered right to contract implies the right to agree upon the terms of the contract. There is, it is obvious, an essential difference between cases where there is a duty to carry and cases where there is no such duty, for the existence of the duty restrains the right of contract, but where there is no such duty the right of contract is practically unfettered. In the one case the undertaking to carry is a matter of favor or accommodation rather. than of duty,^ in the other the under- taking to carry is obligatory. It seems entirely fair and just that if an accommodation or favor is desired, which the carrier is at liberty to grant or withhold, the parties should be per- mitted to make their own agreement and prescribe the terms of their contract.' The case is very different where the carrier is under a duty, since it would not then have liberty of action, but where there is no obligatory duty we can see no reason why it may not, by contract, designate the terms and condi- tions upon which it will perform the desired service.' As we have seen, the adjudged cases hold that express messengers are passengers,* and while it may be true that express messen- gers are in a limited sense passengers, yet we think that they can not be regarded as passengers in the broad sense in which persons who pay fare as ordinary travelers journeying from place to place are passengers, for there is a duty to carry such persons, but according to the decisions in the Express Cases, a ' This distinction is recognized in text is supported by the reasoning in the cases which discriminate between the case of Hartford, etc., Co. v. Chi- the duties of public and private car- cago, etc., 70 Fed. R. 201, where it riers. Ante, ^1397. Robertson »;. Old was held that in its character of lessor Colony, etc., R. Co., 156 Mass. 525, s.c. a railroad company might effectively 31 N. E. R. 650; Railroad Co. ». Lock- stipulate for exemption from negli- wood, 17 Wall. 357 ; Griswold v. New gence. The opinion in the case re- York, etc., R. Co., .53 Conn. 371; Bates ferred to discriminates very clearly V. Old Colony R. Co., 147 Mass. 255. between cases where the obligation of ^Hosmer v. Old Colony R. Co., 156 the company as a carrier requires it to Mass. 506, s. c. 31 N. E. R. 652; Bates perform service and cases where the V. Old Colony R. Co., 147 Mass. 255; acts are not done or required to be done Muldoon V. Seattle, etc., R. Co., 10 in the capacity of a public carrier. Wash. 311, 38 Pac. R. 995; Quimby ». «^nte, §§1578, 1604. See, also, Penn- Boston, etc., R. Co., 150 Mass. 365, s. sylvania Co. ». Wood worth, 26 Ohio c. 23 N. E. R. 205. St. 585 ; Yeomans v. Contra Costa, 'We think the statement in the etc., Co., 44 Cal. 71. § 1645 INJURIES TO PASSENGEKS. 2603 public carrier is not under a duty to carry for express com- panies. A railroad company may, as we have elsewhere shown, make special contracts with express companies and may grant to one express company exclusive privileges.' As a railroad company is not bound as a public carrier to carry the goods or employes of an express company, it may, upon the principle we have stated, make a valid contract exempting it from lia- bility for injuries to express messengers.^ There must, ac- cording to the decisions, be a contract containing appropriate stipulations, and the contract must be assented to by the mes- senger.' We believe the true doctrine to be that a person who is not entitled to take passage under the rule of law which im- poses upon a railroad company the obligation to accept and carry passengers is bound by the stipulations of a contract which he freely enters into in order to obtain passage under special circumstances and conditions, and that, having asked or obtained passage under such circumstances and conditions, and not under the law, he can not successfully invoke the as- sistance of the law to enable him to avoid his contract.' ' St. Louis, etc., R. Co. (•. Southern such a sense as to entitle him to exact Express Co., 117 U. S. 1, s. c. 6 Sup. the performance of the extraordinary Ct. R. 542. See Sargent v. Boston, duty which a public carrier owes to etc., R. Co., 115 Mass. 416; mife, §1394. passengers unless he is on the train "Hosmer v. Old Colony R. Co., 156 and at a place where, under the law, Mass. 506; Louisville, etc, R. Co. v. passengers as such have a right to be Keefer, (Ind. Sup. Ct. Oct. 1, 1896.) carried. Ante, §§1580, 1581, 1582; 'Kenney v. New York, etc., Co., 125 Union, etc., R. Co. v. Nichols, 8 Kan. N. Y. 422, s. c. 26 N. E. R. 626, 7 N. 505, s. c. 12 Am. R. 475; Fleming v. Y. Sup. 225; Brewer v. New York, Brooklyn, etc., R. Co., 1 Abb. New etc., R. Co., 124 N. Y. 59. See as to Cas. 433; Snyder v. Hannibal, etc., R. effect of accepting ticket or pass con- Co., 60 Mo. 413; Flower d. Pennsyl- taining conditions, Rogers v. Kenne- vania R. Co., 69 Pa. St. 210, s. c. 8 bee, etc., Co., 86 Me. 261, s. c. 29 Atl. Am. R. 251. See McGee v. Missouri, R. 1069; Fonseca v. Cunard Steam- etc., R. Co., 92 Mo. 208; Lake Shore, ship, 153 Mass. 553, s. c. 27 N. E. R. etc., R. Co. v. Brown, 123 111. 162; 665; Hill v. Boston, etc., R. Co., 144 St. Joseph, etc., R. Co. v. Wheeler, 35 Mass. 284, s. c. 10 N. E. R. 836. Kan. 185; International, etc., R. Co. *The reasoning ofStiles, J., on Mul- v. Cock, 68 Tex. 713. In Wagner f. doon V. Seattle, etc., R. Co., 7 Wash. Missouri, etc., R. Co., 97 Mo. 512, 528, 8. c. 35 Pac. R. 422, 58 Am. & there is stated a doctrine which op- Eng. R. Cas. 546, is very clear and poses that which we favor but in that- satisfactory and fully supports the case two of the judges, Ray and Slier- text. As we have said we do not be- wood, JJ., dissented, lieve that a person is a passenger in CHAPTER LXX. BAGGAGE. § 1646. Definition. 1647. What things are personal baggage. 1648. When a qaestion for the jury and when lor the court. 1649. Merchandise as baggage. 1650. Excess of baggage. 1651. When company is liable as a common carrier. 1652. When company is liable as a warehouseman. 1653. Delivery to the company. 1654. Rule where passenger retains custody of baggage. § 1655. Baggage checks. 1656. Baggage on one train and owner on another. 1657. Rule where baggage is re- ceived by mistake. 1658. Baggage shipped over con- necting roads. 1659. Delivery by company — Duty of owner. 1660. Liability for loss, injury or delay. 1661. Limiting liability. 1662. Carrier's lien on baggage. § 1646. Definition. — It is somewhat difficult to give an ac- curate definition of the term baggage. In its broadest sense it denotes those things which a passenger takes with him on his journey, either for his use while in transit or to accom- plish the ultimate purpose of his journey, and may include not only things taken for the personal convenience of the pas- senger, but also merchandise knowingly received and carried along with the passenger as baggage. In its strictest sense it may be defined as meaning those things which passengers of the same class usually or fittingly carry with them for their personal use or convenience on similar journeys.' Mr. Law- ' Chief Justice Cockburn, in the leading case of Macrow v. Great West- ern R. Co., L. R. 6 Q. B. 612, gives this definition: "We hold the true rule to be, that whatever the passen- ger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs, either with ref- erence to the immediate necessities or to the ultimate purpose of the jour- ney, must be included as personal (2604) ^ 1647 BAGGAGE. 2605 son, in a carefully written article in the Central Law Journal, gives the following definition: " 'Baggage' means such goods and chattels as the convenience, or comfort, the taste, the pleasure, or the protection of passengers generally makes it fit and proper for the passenger in question to take with him for his personal use, according to the habits or wants of the class to which he belongs, either with reference to the period of the transit or the ultimate purpose of the journey." ' The defini- tions which we have given will suffice to indicate what baggage is in a general way. The difficult question in cases concern- ing baggage is not so much what is the definition of baggage in the abstract as what falls within the term baggage, and in the sections following we will consider what things are regarded as personal baggage and what articles of merchandise are prop- erly regarded as baggage in particular cases. § 1647. What things are personal baggage. — Broadly stated, the rule is that those things are personal baggage which a passenger carries with him for his personal use and conven- ience on his journey, and during his stay at the place to which he may be going. ^ The difficulty is to determine what things baggage. This would include, not also, Hawkins «. Hoffman, 6 Hill 586; only articles of apparel, whether for Bouvier's Law Diet., title "Baggage" ; use or ornament, but also the gun case Railroad Co. v. Fraloff, 100 U. S. 24. or fishing apparatus of the sportsman, ' "A Legal Definition of Baggage," the easel of the artist on a sketching 38 Cent. L. J. 5, 6. tour, or the books of the student, and ' Hawkins v. Hoffman, 6 Hill (N.Y.) other articles of an analogous charac- 586; Macrow jj. Great Western R. Co., ter, the use of which is personal to L. R. 6 Q. B. 612; Railroad Co. v. the traveler, and the takings of which Fraloff, 100 U. S. 24; Jordan v. Fall have arisen from the fact of his jour- River R. Co., 5 Cush. (Mass.) 69; neying. On the other hand, the term New Orleans, etc., R. Co. v. Moore, 'ordinary baggage' being thus con- 40 Miss. 39; Gleason v. Goodrich fined to that which is personal to the Trans. Co., 32 Wis. 85; Metz v. Cali- passenger and carried for his use or fornia, etc., R. Co., 85 Cal. 329, s. c. convenience, it follows that what is 20 Am. St. R. 228. The rule stated in carried for the purpose of business, the text is, perhaps, in one respect, a such as merchandise or the like, or little too narrow, for as we shall here- for larger or ulterior purposes, such after see the articles need not always as articles of furniture or household be for the personal use of himself ; goods, would not come within the de- he may sometimes be allowed to carry scription of ordinary baggage, unless things for members of his family, accepted as such by the carrier." See, 2606 CARRIERS. § 1647 are regarded as personal baggage within the rule which we have just stated. In determining whether or not any particu- lar article is baggage many things are to be considered, such as the station which the person who owns the baggage occu- pies in life, the length and duration of his journey, the period of his stay at the place to which he may be traveling, the pur- pose of his journey and often the business in which the person maybe engaged. We have not attempted to enumerate all the things which may enter as elements in determining the ques- tion of what may or may not be personal baggage. We name only a few of the more important elements, enough to illustrate the rule that the surrounding circumstances attending the passenger largely determine the question of what he is enti- tled to carry as baggage.' The station which the passenger occupies in life is, according to the cases, very material, for what would be regarded as baggage of a person occupying a high posi- tion in life might not be so regarded where the passenger was 'In Dibble v. Brown, 12 Ga. 217, s. c. 56 Am. Dec, 460, the court, in con- sidering what was and what was not personal baggage, said: "When we settle down with Judge Story upon the proposition that by baggage is to be understood 'such articles of neces- sity or personal convenience as are usually carried by passengers for their personal use,' we are still without a rule for determining what articles are included in baggage. For such things as would be necessary to one man would not be necessary to another; articles which would be held but or- dinary conveniences by A, might be considered incumbrances by B. One man, from choice or habit, or from educational incapacity to appreciate the comforts or conveniences of life, needs, perhaps, a portmanteau, a change of linen, and an indifferent razor; whilst another, from habit, position and education, is unhappy without all the appliances of comfort which surround him at home. The quantity and character of baggage must depend very much upon the con- ditions in life of the traveler — his call- ing, his habits, his tastes, the length or shortness of his journey, and whether he travels alone or with a family. If we agree further with Judge Story and say that the articles of necessity or of convenience must be such as are usually carried by travelers for their personal use, we are still at fault, because there is in no state of this Union, nor in any part of any one state, any settled usage as to the baggage which trav- elers carry with them for their per- sonal use. The quantity and charac- ter of baggage found to accompany passengers are as various as are the countenances of travelers." See Han- nibal R. Co. V. Swift, 12 Wall. (U. S.) 262; Mauritz v. New York, etc., Co., 2.3 Fed. R. 765, 21 Am. & Eng. R. Cas. 286. § 1647 BAGGAGE. 2607 from the lower walks of life.' The purpose of the journey often determines the question of what is or is not personal baggage, and so does the length of the journey or proposed stay.^ The business in which the person is engaged is also important for what would be regarded as personal baggage for a person en- gaged in one line of business would not for a person in an entirely different line of business.' It is not necessary that the articles, in order to be considered baggage, should be used on the journey; if they are such as are reasonably necessary for the passenger either while in transit or temporarily staying at a particular place, they will be considered as baggage.' The general rule is, that a passenger is only entitled to carry his own things or those of some member of his family as baggage;' articles belonging to a stranger will not be considered baggage.' It is impossible to notice all the different articles which have been held to be or not to be personal baggage. Among the things which have been held to be personal baggage are suffi- cient money for the purposes of the passenger's journey,' 'Dibble v. Brown, 12 Ga. 217, 56 527; Jones v. Priester, 1 Tex. App. Am. Dec. 460; Railroad Co. v. Fraloff, (Civ. Cases) 326. 100 U. S. 24; Merrill v. Grinnell, 30 «Weed v. Saratoga, etc., R. Co., 19 N. Y. 594. See Phelps «. Londori R. Wend. 534; Mississippi, etc., R. Co. Co., 19 C. B. (N. S.) 321; Coward v. v. Kennedy, 41 Miss. 671; Chicago, East Tenn. R. Co., 16 Lea (Tenn.) etc., R. Co. v. Boyce, 73 III. 510. 225, s. c. 57 Am, R. 226. 'Hatchings v. Western R. Co., 25 "Hannibal Railroad v. Swift, 12 Ga. 61 ; Fairfax ». New York, etc., R. Wall. 262; Merrill v. Grinnell, 30 Co., 73 N. Y. 167; Dunlap v. Interna- N. Y. 594. tional, etc., Co., 98 Mass. 371 ; Toledo, 'See Gleason v. Goodrich Transp. etc., R. Co. v. Hammond, 33 Ind. 379, Co., 32 Wis. 85, s. c. 14 Am. R. 716; 5 Am. R. 221; Mad River R. Co. v. Kansas City, etc., R. Co. v. Morrison, Fulton, 20 Ohio 318 ; Davis v. Michi- 34 Kan. 502, s. c. 55 Am. R. 252, and gan Central R. Co., 22 HI. 278; lUi- authorities cited in the following sec- nois Cent. R. Co. v. Copeland, 24 111. tion. 332; Jordan v. Fall River R. Co., 5 ♦Dexter v. Syracuse, etc., R. Co., Cush. (Mass.) 69, s. c. 51 Am. Dec. 42 N. Y. 326; Toledo, etc., R. Co. v. 44. In Railway Co.?;. Berry, 60 Ark. Hammond, 33 Ind. 379; Hopkins v. 433, s. c. 28 L. R. A. 501, it was said: Westcott, 6 Blatchf. (U. S. C. C.) 64. "The carrier is liable, as insurer, for 5 Curtis V. Delaware, etc., R. Co., 74 money which the passenger, bonafld^, N. Y. 116; Dexter v. Syracuse, etc., includes in his baggage to pay travel- R. Co., 42 N. Y. 326, s. c. 1 Am. R. ing expenses, and for personal use on 2608 CARRIERS. §1647 clothing/ jewelry to be worn on the person/ fire-arms,' and fish- ing tackle* of sportsmen, and many others, under particular cir- cumstances.* Among those things which have been held not to be personal baggage may be mentioned, money in excess of that reasonably sufficient to pay the expenses of the pas- senger's journey,* jewelry not to be worn by the passen- his journey, provided no more is taken than is necessary or usual for passen- gers of like station, habits and condi- tions in life, while on similar jour- neys." But seeHickox v. Naugatuck B. Co., 31 Conn. 281, s.c. 83 Am. Dec. 143. ' Baltimore R. Co. v. Smith, 23 Md. 402; Dibble v. Brown, 12 Ga. 217; Brooke v. Pickwick, 4 Bing. 218; Munster ■!). Southeastern E. Co., 4 C. B. N. S. 676; Toledo, etc., R. Co. v. Hammond, 33 Ind. 379; Dexter v. Syracuse, etc., R. Co., 42 N. Y. .326, s. c. 1 Am. R. 527 ; Fairfax v. New York, etc., R. Co., 73 N. Y. 167; Doyle V. Kiser, 6 Ind. 242; McGill v. Row- and, 3 Pa. St. 451, s. c. 45 Am. Dec. 654. Clothing may be cut into patterns and not made up. Duffy v. Thompson, 4 E. D. Smith (N. Y.) 178; Van Horn V. Kermit, 4 E. D. Smith 4,53. 2 Railroad Co. v. Fraloff, 100 U. S. 24; Mauritz v. New York, etc., R. Co., 23 Fed. R. 765; Pettigrew v. Bar- num, 11 Md. 434; Coward v. East Tennessee, etc., R. Co., 16 Lea 225; Michigan, etc., R. Co. v. Carrow, 73 111. 348. Or a sword of a military officer to be worn when in full dress. Merrill V. Grinnell, 30 N. Y. 594. 3 Hawkins t>. Hoffman, 6 Hill (N.Y.) 586; Woods v. Devin, 13 111. 746; Davis V. Michigan Central R. Co., 22 111.278; Bruty v. Grand Trunk R. Co., 32 Up. Can. Q. B. 66; Parmelee V. Fischer, 22 111. 212, s. c. 74 Am. Dec. 138. But where a grocer is going into the country to buy butter one pistol is all he will be allowed to carry as baggage. Chicago, etc., E. Co. ■». Collins, 56 111. 212. *Macrow v. Great Western E. Co., L. R. 6 Q. B. 612. 'We give a number of illustrative cases of what has been held to be per- sonal baggage. A traveling salesman's catalogue or price-list : Staub v. Ken- drick, 121 Ind. 226, 40 Am. & Eng. E. Cas. 632; Gleason v. Goodrich Trans- portation Co., 32 Wis. 85, s. c. 14 Am. E. 716. Books for amusement and en- tertainment : Doyle v. Kiser, 6 Ind. 242. A reasonable quantity of tools for a mechanic : Porter v. Hildebrand, 14 Pa. St. 129; Kansas City, etc., E. Co. V. Morrison, 34 Kan. 502, 23 Am. & Eng. E. Cas. 481; Davis v. Cayuga, etc., R. Co., 10 How. Pr. (N. Y.) 330. Opera glasses : Toledo, etc., E. Co. v. Hammond, 33 Ind. 379. Telescopes for one crossing the ocean : Cadwal- lader v. Grand Trunk E. Co., 9 L. Can- ada 169. A carpet : ilinter v. Pacific E. Co., 41 Mo. 503. Manuscript and books of a student : Hopkins v. West- cott, 6 Blatchf. (U. S.) 64. A pair of gold spectacles: Newb. Admr. 494. Stage costumes where the carrier knowingly accepts them as baggage : Oakes v. Northern Pac. E. Co., 20 Ore. 392, 26 Pac. E. 230, s. c. 12 L. E. A. 318. As to bicycles, see " Bicycles as Baggage," 43 Cent. L. J. 363. «Pflster V. Central, etc., E. Co., 70 Cal. 169 ; Dunlap v. International, etc., Co., 98 Mass. 371; Phelps v. London, etc., E. Co., 19 C. B. N. S. 321; Hickox V. Naugatuck, etc., E. Co., 31 § 1648 BAGGAGE. 2609 ger,' bed clothing and articles of furniture and bedding not to be used on the journey" and many others.' § 1648 . When a question for the jury and when for the court. — ^There is apparently some slight conflict among the authori- ties as to whether the question of what articles of property are personal baggage is one of law or one of fact. The true rule is Conn. 281 ; Jordan v. Fall River R. Co., 5 Cash. (Mass.) 69; Cincinnati, etc., R. Co. V. Marcus, 38 111. 219; First National Bank v. Marietta, etc., R. Co., 20 Ohio St. 259; Illinois, etc., R. Co. V. Copeland, 24 111. 332; Whit- more V. Steamboat Caroline, 20 Mo. 513; Hillis v. Chicago, etc., R. Co., 72 Iowa 228; Rome, etc., R. Co. v. Wim- berly, 75 Ga. 316. But where the pas- senger informs the agent of the com- pany that a trunk which he tenders as baggage contains a large sum of money, more than necessary for the expenses of the passenger, and the agent ac- cepts it as baggage, the carrier will be liable for its loss. Railway Co. ■;;. Berry, 60 Ark. 433. A company may rightfully refuse to accept $90,000 as baggage. Pflster v. Central, etc., R. Co., 70 Cal. 169, s. c. 11 Pac. R. 686, 27 Am. & Eng. R. Cas. 246. ' Michigan, etc., R. Co. v. Carrow, 73 111. 348 ; The Ionic, 5 Blatch. (U. S.) 538; Belfast, etc., R. Co. v. Keys, 9 H. L.556; Metz v. California, etc., R. Co., 85 Cal. 329, s. c. 24 Pac. R. 610. ' Mauritz v. New York, etc., R. Co., 23 Fed. R. 765, s. c. 21 Am. & Eng. R. Cas. 286; Connolly v. Warren, 106 Mass. 146; Texas, etc., R. Co. v. Fer- guson, 1 Tex. App. (Civil Cases) 724, s. c. 9 Am. & Eng. R. Cas. 395; Ma- crow V. Great Western R. Co., L. R. 6 Q. B. 612. But a reasonable amount may be under some circumstances: Ouimit V. Henshaw, 35 Vt. 605, s. c. 84 Am. Dec. 646; Glovinsky v. Cu- nard, etc., Co., 24 N. Y. Supp. 136. ' Silver knives, forks and spoons : Giles V. Fauntleroy, 13 Md. 126; Or- ange County Bank v. Brown, 9 Wend. (N. Y.) 85 ; Hawkins v. Hoffman, 6 Hill (N. Y.) 586. A sacque, muff and silver napkin rings carried by a man : Chicago, etc., R. Co. o. Boyce, 73 111. 510, s. c. 24 Am. R. 268. Deeds and documents: Phelps v. London, etc., E. Co., 19 C. B. N. S. 321 ; Thomas v. Great Western R. Co., 14 Up. Can. Q. B. 389; Masonic Regalia: Nevins V. Bay State S. Co., 4 Bosw. (N. Y.) 225. Pencil sketches made by an ar- tist: Mytton «. Midland R. Co., 28 L. J. Exch. 385. A child's hobby horse : Hudston V. Midland R. Co., L. R. 4 Q. B. 366, 38 L. J. R. (Q. B.) 213. Dogs: Honeyman v. Oregon, etc., R. Co., 13 Ore. 352, s. c. 10 Pac. R. 628; but compare Cantling v. Hannibal, etc., R. Co., 54 Mo. 385. Masquer- ade costumes: Michigan, etc., R. Co. V. Oehm, 56 111. 293. A silk bed quilt carried in a lady's trunk: St. Louis, etc., R. Co. v. Hardway, 17 111. App. 321. Ladies' jewelry carried by a man : Metz v. California, etc., R. Co., 85 Cal. 329, 44 Am. & Eng. R. Cas. 433. A concertina: Bruty v. Grand Trunk R. Co., 32 U. C. Q. B. 66. Handcuffs: Bomar v. Maxwell, 9 Humph. (Tenn.) 620, s. c. 51 Am. Dec. 682. Under other circumstances, however, some of these things might properly have been considered as 2610 CARRIERS. §1648 as we believe, that it is usually for the jury to say, under in- structions from the court and subject to the right of the court to correct abuses, what articles are or are not personal baggage in the particular case.' There are, however, as we have inti- mated, some authorities which hold that the question is one of law.'' What is a reasonable amount of baggage or how much of any particular article shall be regarded as baggage is, ordi- narily, a question for the jury;' but where the facts are undis- puted and there can be no reasonable difference of opinion, upon the subject, we think it may well become a question for the court to determine not only what is baggage in a general sense but also whether the particular articles should be re- garded as baggage in the particular instance.' 'Texas, etc., R. Co. v. Ferguson, 1 Tex. App. (Civ. Cas.) 724, 9 Am. & Eng. E. Cas. 395; Fairfax v. New York Central R. Co., 73 N. Y. 167; Brock V. Gale, 14 Fla. 523, s. c. 14 Am. R. 356; Mauritz v. New York, etc., R. Co., 23 Fed. R. 765; Oakes v. Northern Pac. R. Co., 20 Ore. 392, s. c. 47 Am. & Eng. R. Cas. 437, 26 Pac. R. 230, 12 L. R. A. 318; Dibble ». Brown, 12 Ga. 217; Ouimit v. Hen- shaw, 35 Vt. 605. It was said in Rail- road Co. V. Fraloff, 100 U. S. 24: "Whether they were such articles in quantity and value as passengers of like station and under like circum- stances ordinarily or usually carry for their personal use, and to subserve their convenience, gratification, or comfort while traveling, was not a pure question of law for the sole or final determination of the court, but a question of fact for the jury, under proper guidance from the court as to the law governing such cases." ^See Jones v. Priester, 1 Tex. App. (Civ. Cas.) 326; Humphreys v. Perry, 148 U. S. 627, s. c. 13 Sup. Ct. R. 711 ; Connolly v. Warren, 106 Mass. 146; Kansas, etc., R. Co. v. Morrison, 34 Kan. 502. ^Kansas City, etc., E. Co. v. Morri- son, 34 Kan. 502, s. c. 23 Am. & Eng. R. Cas. 481 ; Railroad Co. v. Fraloff, 100 U. S. 24. Cases illustrative of the rule are those which hold that it is for the jury to say how much money car- ried by the passenger is reasonably necessary for the expenses of the journey. Railway Co. v. Berry, 60 Ark. 433, s. c. 28 L. R. A. 501 ; Jones V. Priester, 1 Tex. App. (Civ. Cas.) 326; Merrill v. Grinnell, 30 N. Y. 594. * To take an extreme case, we sup- pose that if a woman, going from a neighboring town to Brooklyn to at- tend services at church in the day- time, should carry with her half a dozen revolvers and a bowie knife, any court would correctly say that they were not baggage, and that a court might also well hold that if a man should carry half a dozen revol- vers, ostensibly for his own protection and sole use while traveling in a civil- ized and peaceable country, no more than one, or at the most, two of them could be considered as baggage. See Chicago, etc., R. Co. v. Collins, 56 111. 212. See, also, Humphreys v. Perry, 148 U. S. 627, s. c. 13 Sup. Ct. R. 711; Hutchinson on Carriers, (2ded.) §688. §1649 BAGGAGE. 2611 § 1649. Merchandise as baggage. — Merchandise is often carried as baggage, but the carrier is not always liable for it as such. The general rule is that the carrier is not liable for merchandise shipped as baggage, in the absence of conversion or gross negligence, unless it had notice that such merchandise was being so shipped and accepted it as such.' Thus where the trunk of a passenger contains both personal baggage and also merchandise, but the carrier has no notice that merchandise is in the passenger's trunk, it will be liable only for the loss of the personal baggage and not for the merchan- dise.^ Where a traveling agent for a wholesale jewelry house checked a trunk containing a large quantity of jewelry as bag- gage and the trunk was destroyed by fire, it was held that the company was not liable for its loss in the absence of notice of its contents at the time it was accepted as baggage.' Where a passenger presents a trunk to be carried as baggage and there 'Collins V. Boston, etc., R. Co., 10 Cush. 506; Stimson v. Connecticut, etc., E. Co., 98 Mass. 83; Hawkins v. Hoffman, 6 Hill 586; Belfast, etc., Railway Co. v. Keys, 9 H. L. Cas. 556 ; Great Northern R. Co. v. Shep- herd, 8 Exch. 30; Blumantle i;. Fitch- burg R. Co., 127 Mass. 322, s. c. 34 Am. Rep. 376; Chamberlain v. West- ern Trans. Co., 45 Barb. (N. Y.) 218; Simpson v. New York, etc., R. Co., 38 N. Y. Supp. 341 ; Cahill v. London, etc., R. Co., 10 Com. B. (N. S.) 154; Mississippi, etc., R. Co. v. Kennedy, 41 Miss. 671 ; Pennsylvania Co. u. Mil- ler, 35 Ohio St. 541, s. c. 35 Am. Rep. 620; Toledo, etc., R. Co. v. Ambach, lOOhioCir. Ct.R.490; Michigan, etc., R. Co. V. Oehm, 56 HI. 293; Spooner V. Hannibal, etc., R. Co., 23 Mo. App. 403. Liability, however, may exist where there is gross negligence. Mich- igan, etc., R. Co. V. Carrow, 73 111. 348; Smith w. Boston, etc., R. Co., 44 N. H. 325. "Simpson v. New York, etc., R. Co., 38 N. Y. Supp. 341; Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. R. 711, 54 Am. & Eng. R. Cas. 29, revers- ing Central Trust Co. v. Wabash, etc., R. Co., 39 Fed. Rep. 417, s. c. 40 Am. & Eng. R. Cas. 636 ; Wunsch v. North- ern Pac. R. Co., 62 Fed. R. 878. ' Humphreys v. Perry, 148 U. S. 627, s. c. 13 Sup. Ct. R. 711. See, also, Ailing ■U.Boston, etc., R. Co., 126 Mass. 121; Blumantle v. Fitchburg R. Co., 127 Mass. 322; Michigan, etc., R. Co. V. Carrow, 73 111. 348; Haines u. Chi- cago, etc., Ry. Co., 29 Minn. 160, 12 N. W. Rep. 447. In Humphreys v. Perry, 148 IT. S. 627, it was shown that it was usual to carry trunks in the manner referred to, but it was also shown that no company would do so when it had notice of their contents. It was held that proof of the custom would not render the carrier liable. Blumenthal v. Maine, etc., R. Co., 79 Me. 550, 34 Am. & Eng. R. Cas. 247, is to the same effect on point of cus- tom. 2612 CARRIERS. §1649 is nothing about the trunk to indicate that it contains mer- chandise the carrier is not bound to inquire as to the contents, but may assume that it contains only the personal baggage of the passenger.' The rule is that the passenger is entitled to have carried, as baggage free of charge, only such things as are personal baggage,' but if the carrier itself accepts articles of merchandise and transports them as baggage it will be liable for their loss,^ although no compensation other than the ticket purchased by the passenger was paid for their transportation.* It is also said that knowledge on the part of the carrier that the baggage contains merchandise may be acquired by observ- ing the baggage, where its nature is obvious, or by notice from the passenger to that effect.' Merchandise is ordinarily carried as baggage under a contract not contained in the ticket pur- chased by the passenger.' In the prosecution of a great many kinds of business, such as the sale of costly articles, taking or- ' Haines v. Chicago, etc., R. Co., 29 Minn. 160, 12 N.W. Rep. 447, approved in Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. Rep. 711, in which the case of Kuter v. Michigan, etc., R. Co., 1 Bias. 35, on this point was criticised. See, also, Cahill v. London R. Co., 10 Com. B. (N. S.) 154. Held a question for the jury as to whether the agent had such knowledge in Bowler, etc., Co. V. Toledo, etc., R. Co., 10 Ohio Circ. Ct. R. 272. ^Pfister V. Central, etc., R. Co., 70 Cal. 169, 11 Pac. Rep. 686; Blumenthal ■B. Maine, etc., R. Co., 79 Me. .550, 34 Am. & Eng. R. Cas. 247 ; Wilson v. Grand Trunk Railway, 56 Me. 60; Hoeger v. Chicago, etc., R. Co., 63 Wis. 100, 23 N. W. R. 435; Oakes v. Northern, etc., R. Co., 20 Ore. 39, 26 Pac. Rep. 230, 4 Lewis R. R. & Corp. R. 571; Minter v. Pacific R. Co., 41 Mo. 503; Jacobs v. Tutt, 33 Fed. Rep. 412; Stoneman v. Erie R. Co., 52 N. Y.429; Hellmanc.Holladay, IWoolw. (C. C; 365 ; Sloman v. Great Western R. Co., 6 Hun 546; Haines v. Chicago, etc., R. Co., 29 Minn. 160; Texas, etc., R. Co. V. Cupps, (Tex.) 16 Am. & Eng. R. Cas. 118; Chicago, etc., R. Co. u. Conklin, 32 Kan. 55, 3 Pac. Rep. 762; Hannibal R. Co. ■». Swift, 12 Wall. 262 ; Strouss V. Wabash, etc., R. Co., 17 Fed. Rep. 209; Waldron v. Chicago, etc., R. Co., 1 Dak. 351, 46 N. W. Rep. 456. ' Butler V. Hudson River R. Co., 3 E. D. Smith 571; Hamburg, etc., Packet Co. r. Gattman, 127 HI. 598; Ross u. Missouri, etc., R. Co., 4 Mo. App. 582. 'Oakes v. Northern, etc., R. Co., 20 Ore. 39, 26 Pac. Rep. 230 ; Great North- ern R. Co. V. Shepherd, 8 Exch. 30; Macrow v. Great Western R. Co., L. R. 6 Q. B. 612. 'Thompson on Carriers, 523. But actual knowledge is usually required. ^See Millard v. Missouri, etc., R. Co., 86 N. Y. 441, s. c. 6 Am. & Eng. R. Cas. 311. § 1649 BAGGAGE. 2613 ders and the like by commercial travelers, it is necessary that they carry with them, either for sale direct or for samples, dif- ferent articles of merchandise. In such cases carriers usually accept such merchandise and carry it as baggage, charging a compensation therefor. Under such contracts the company becomes a carrier of goods for hire and is subject to all the lia- bilities of a common carrier, that is, it is an insurer of the goods carried and is liable for their loss or damage,' unless such loss or damage was caused by the act of God, the public enemy or the inherent nature of the goods themselves, or un- less there is a valid contract limiting its liability. It has been held that one who, by the exercise of ordinary care, diligence and intelligence, could have known that the checking by a station agent or baggage-master of cases or trunks containing merchandise was prohibited by a rule of the carrier, can not recover the value of the same if lost or destroyed,* and that notice to the baggage-master that trunks offered and received as baggage contain merchandise will not bind the carrier to transport it as baggage in the absence of authority in the bag- gage-master to make a special agreement to that effect.' But the last proposition seems to be contrary to the prevailing rule which we have already stated, and it has been held by other courts that a baggage-master is not acting outside the scope of his employment and beyond his implied authority in receiving extra baggage, or merchandise as baggage, although contrary to his instructions or the rules of the company, which are un- known to the passenger.* 'Millard v. Missouri, etc.,E. Co., 86 See, also, Bomarw. Maxwell, 9 Humph. N. Y. 441; Oakes t>. Northern Pac. E. (Tenn.) 620; Blumenthal v. Maine, Co., 20Ore. 39,26 Pac.Eep. 230; Parley etc., E. Co., 79 Me. 550, s. c. 11 Atl. V. New York, etc., R. Co., 65 N. Y. R. 605. 374 ; Jacobs v. Tutt, 33 Fed. R. 412. ' Eailway Co. v. Berry, 60 Ark. 433, "Weber Co. v. Chicago, etc., E.Co., s. c, 30 S. W. E. 764, 28 L. E. A. 501 ; (Iowa) 60 N. W. E. 637. Strousst>. Wabash, etc., R. Co., 17 Fed. 3 Blumantle I). FitchburgR. Co., 127 R. 209; Minter v. Pacific E. Co., 41 Mass. 322; Ailing v. Boston, etc., R. Mo. 503; Waldron ^.Chicago, etc., R. Co., 126 Mass. 121 ; Jordan v. Fall Co., 1 Dak. 351, s. c. 46 N. W. R. 456. River E. Co., 5 Cush. (Mass.) 69. See, also, Isaacson u. New York, etc., Corp. 166 2614 CARRIERS. § 1650 § 1650. Excess of baggage. — Railroad companies no doubt may, and usually do, make reasonable regulations as to the amount or weight of baggage which they will carry for each passenger.' In some states, there are statutory provisions fix- ing the amount, and for extra baggage or any excess in weight over that amount the company has the right to stipulate for compensation.' The mere payment of extra compensation on account of overweight of baggage does not necessarily convert it into freight.' Of course, as shown in the preceding section, where it is not properly baggage — but merchandise, for instance — and the company is notified of its character, the carrier's liability on accepting it with the extra compensation may be the same as for freight. §1651. When company is liable as a common carrier. — Where there is a liability on the part of a carrier for baggage the liability is sometimes that of a common carrier and sometimes that of a warehouseman. The general rule is that the carrier is liable for baggage as a common carrier, that is, it is liable for the loss or injury to the baggage at all events,' except where R. Co., 94 N. Y. 278; Camden, etc., original contract made in the pur- R. Co. V. Baldauf, 16 Pa. St. 67 ; Ja- chase of the ticket, cobs jj. Tutt, 33 Fed. R. 412; Hauni- ' Hamburg-American Packet Co. v. bal R. Co. V. Swift, 12 Wall. (U. S.) Gattman, 127 111. 598, s. c. 20 N. E. R. 262; Great Northern R. Co. j). Shep- 662,664. But see Sloman v. Great herd, 8 Exch. 30, s. c. 7 Eng. Ry. & Western R. Co., 67 N. Y. 208. Canal Cas. 310; Kansas City, etc., R. *Dibble v. Brown, 12Ga. 217; Cam- Co. V. Higdon, 94 Ala. 286, 14 L. R. A. den, etc., Co. v. Burke, 13 Wend. 611 ; 515, and note; Hutchinson on Car- Christie u. Griggs, 2 Camp. 79; Brooke riers, (2d ed.) § 688a. v. Pickwick, 4 Bing. 218; Georgia, ' See Norfolk, etc., R. Co. v. Irvine, etc., R. Co. v. Thompson, 86 Ga. 327 ; 84 Va. 553; Railroad Co. (7. Fraloff, 100 Peterson v. Chicago, etc., R. Co., 80 U. S. 24 ; The Majestic, 60 Fed, R. 624. Iowa 92 ; Shaw v. Northern Pacific R. ' Qali, etc., R. Co. w. Ions, 3 Tex. Co., 40 Minn. 144; Coskery v. Nagle, Civ. App. 619, s. c. 22 S. W. R. 1011, 83 Ga. 696; Oakes v. Northern Pacific 1012; Dibble", Brown, 12 Ga. 217, s. R. Co., 20 Ore. 392, s. c. 26 Pac. R. c, 56 Am. Dec. 460, 468. In the first 230, 23 Am. St. R. 126, 47 Am. & Eng. case just cited it is said that all tick- R. Cas. 437; Staub v. Kendrick, 121 ets are purchased with a knowledge Ind. 226; Kansas City, etc., R. Co. v. of the statute, and that a demand for Patten, (Kan. App.) 45 Pac. R. 108; pay for extra baggage is neither a vio- Leavenworth, etc., R. Co. i- Maris, 16 lation, change nor substitute of the Kan. ?":). § 1651 BAGGAGE. 2615 the loss or damage is caused by the act of God, the act of the ■owners, or inevitable accident, or by public enemies.' The liability of the company as a common carrier begins, as a rule, at the time the baggage is delivered to it for transpor- tation unless the time of such delivery be an unreasonable length of time before the owner's intended departure." In order that the liability as a common carrier should exist it is not always necessary that the passenger should have purchased a ticket, nor that he should even make the journey which he intends to make. As persons often become entitled to the rights of passengers before the purchase of a ticket, so the lia- bility of the carrier for baggage often begins before the pur- chase of a ticket or even before the company becomes liable to the owner of the baggage as a passenger.' Where a person in good faith intends to take passage on a railway train or the like and delivers his baggage to the company a reasonable time in advance of the anticipated journey, it seems that the company will be liable for such baggage as a common carrier from the time of such delivery and acceptance.* And in such cases the company may be liable although the person does not purchase a ticket or make the proposed jour- ney, as for instance, where he is prevented by so doing by the loss or destruction of the baggage before the journey begins.^ 'StrousstJ. Wabash, etc., R. Co., 17 warded upon the same or the next Fed. R. 209; Long v. Pennsylvania R. train. Co., 147 Pa. St. 343, s. c. 23 Atl. R. ' Hickox v. Naugatuck R. Co., 31 459; Pennsylvania R. Co. u. McKin- Conn. 281; Lake Shore, etc., R. Co. ■«. ney, 124 Pa. St. 462. Poster, 104 Ind. 293 ; Green v. Mil- ^ Lake Shore, etc., R. Co. ■«. Foster, waukee, etc., R. Co., 41 Iowa 410; 104 Ind. 293; Illinois, etc., R. Co. v. Van Horn ». Kermit, 4 E. D. Smith Tronstine, 64 Miss. 834, s. c. 31 Am. & (N. Y.) 453. Eng. R. Cas. 99; Fitchburg, etc., R. * Hickox v. Naugatuck R. Co., 31 Co. V. Hanna, 6 Gray (Mass.) 539; Conn. 281 ; Camden, etc., Co. v. Bel- Michigan, etc., R. Co. V. Shurtz, 7 knap, 21 Wend. 354; Rogers ». Long Mich. 515. In Shaw v. Northern, etc.. Island, etc., R. Co., 1 T. & C. (N. Y.) R. Co., 40 Minn. 144, s. c. 41 N. W. R. 396. But see Goodbar v. Wabash R. 548, it was held that this liability at- Co., 53 Mo. App. 434; Little Rock, tached at the time of delivery for etc., R. Co. v. Hunter, 42 Ark. 200, s. transportion although for the conven- c. 18 Am. & Eng. R. Cas. 527. ience of the carrier, the passenger ' "Suppose a party at a railway consented that it need not be for- station places his baggage in posaes- 2616 CARRIERS. §1652 A company may, however, adopt a regulation that it shall not b^ liable for baggage as a common carrier until the owner has purchased a ticket. Such a regulation is reasonable, but it has been held that unless it is regularly enforced it does not bind a person delivering baggage to the carrier before the purchase of a ticket.' The liability of a company as a common carrier in respect to baggage terminates when the company has trans- ported the baggage to its destination and given the owner a reasonable time and opportunity to claim and take it away.^ § 1652. When company is liable as a warehouseman. — We have seen that during transit and for a reasonable time after the arrival of baggage at its destination, the liability of a com- pany is that of a common carrier.' At the expiration of a rea- sonable time after baggage reaches its destination the liability as a common carrier ceases,' but it does not follow that from sion of the baggage-master and pro- cures a check, and proceeds to pur- chase a, ticket, but before he makes the purchase his baggage is stolen, in consequence of which he is compelled to forego the journey, and determines not to buy a ticket, may he not re- cover on account of the loss of his baggage? * * * xhe true question is not what the party might do, but what, in view of all the circumstances disclosed, did he intend to do?" Green 1). Milwaukee, etc., E. Co., 41 Iowa 410. ' Lake Shore, etc., R. Co. v. Foster, 104 Ind. 293. ^ Hoeger v. Chicago, etc., E. Co., 63 Wis. 100, s. c. 53 Am. R. 271 ; Toledo, etc., R. Co. 1). Tapp, 6 Ind. App. 304; Mote V. Chicago, etc., R. Co., 27 Iowa 22, 8. c. 1 Am. R. 212; Dininny v. New York, etc., R. Co., 49 N. Y. 546; Louisville, etc., R. Co. v. Mahan, 8 Bush (Ky.) 184; Bartholomews. St. Louis, etc., R. Co., 53 111. 227; Bur- nell«. New York, etc., R. Co., 45 N. Y. 184; Chicago, etc., R. Co. v. Boyce, 73 111. 510 ; Vineberg v. Grand Trunk R. Co., 13 Ont. App. Rep. 93, s. c. 27 Am. & Eng. R. Cas. 271. The rule is thus stated in the case of Kansas City, etc., R. Co. v. Patten, (Kan. App.) 45 Pac. R. 108: "A common car- rier of passengers for hire is an in- surer of the safety of the passenger's baggage intrusted to it, during transit, and for a reasonable time after its ar- rival at the place of destination, in order to allow the passenger time to re- ceive and repiove it. Leavenworth, etc., R. Co. V. Maris, 16 Kan. 333. But the liability of the carrier termi- nates when the baggage has arrived at its destination, and has remained there a reasonable time, sufficient to allow the owner to receive and re- move it from the carrier's premises." ' Ante, § 1651. *Mote V. Chicago, etc., R. Co,, 27 Iowa 22; Patscheider v. Great West- ern R. Co., L. R. 3 Ex. Div. 353; Din. inny v. New York, etc., R. Co., 49 N. Y. 546; Louisville, etc., R. Co. v. Ma- han, 8 Bush 184; Cohen v. St. Louis, § 1652 BAGGAGE. 2617 that time there is no liability whatever. If the owner of bag- gage does not call for it within a reasonable time after it reaches the destination a duty rests upon the carrier to store it and care for it a reasonable time until called for.' The rule is that after the baggage has been held for a reasonable time after its arrival, and the owner does not call for it, the liabil- ity as a common carrier ceases and the liability of a ware- houseman for hire begins.^ The measure of duty resting upon the carrier as warehouseman is that of reasonable care, and in such cases it is only liable for loss or injury to the bag- gage which results from its actual negligence.' In providing a place for storing the baggage the carrier is bound to exercise only such a degree of care as would be used by a reasonably prudent man under the circumstances ; it is not bound to pro- vide a place either fire or burglar proof.* The test for deter- mining liability is whether or not there was negligence.' In etc., R. Co., 59 Mo. App. 66; and other authorities cited in the last note to the preceding section. 1 Wald V. Louisville, etc., R. Co., 92 Ky. 645, 58 Am. & Eng. R. Cas. 123 ; St. Louis, etc., R. Co. v. Hardway, 17 111. App. 321 ; Galveston, etc., R. Co. v. Smith, 81 Tex. 479 ; Matteson ii. New York, etc. R. Co., 76 N. Y. 381. ' Laffrey v. Grummond, 74 Mich. 186, 8. c. 16 Am. St. R. 624; Galves- ton, etc., R. Co. V. Smith, 81 Tex. 479, 17 S.W.R. 133;Ouimit u. Henshaw, 35 Vt. 605 ; Ross v. Missouri, etc., R. Co., 4 Mo. App. 582; Kansas City, etc., R. Co. V. Patten, (Kan. App.) 45 Pac. R. 108; Leavenworth, etc., R. Co. v. Maris, 16 Kan. 333; Wald u. Louis- ville, etc., R. Co., 92 Ky. 645, 58 Am. & Eng. R. Cas. 123 ; Geo. F. Ditman, etc., Co. V. Keokuk, etc., R. Co., 91 Iowa 416, 59 N. W. R. 257; Texas, etc., R. Co. V. Capps, 2 Tex. App. (Civ. Cas.) 35; Louisville, etc., R. Co. V. Mahan, 8 Bush 184 ; Nealand v. Boston, etc., R. Co., 161 Mass. 77, 36 N. E. R. 592. " Kansas City, etc., R. Co. v. Patten, (Kan. App.) 45 Pac. R. 108; Galves- ton, etc., R. Co. V. Smith, 81 Tex. 479, 17 S.W. R. 133 ; Chicago, etc.. Railway Co. V. Boyce, 73 111. 510; Hoeger v. Chicago, etc.. Railroad Co., 63 Wis. 100, 23 N. W. R. 435. * Kansas City, etc., R. Co. v. Patten, (Kan. App.) 45 Pac. R. 108; Wald v. Louisville, etc., R. Co., 92 Ky. 645, 58 Am. & Eng. R. Cas. 123. Whether reasonably safe, held a question for the jury in Nealand v. Boston, etc., R. Co., 161 Mass. 67, s. c. 36 N. E. R. 592. 'Chicago, etc., R. Co. v. Fairclough, 52 111. 106; Georgia, etc., R. Co. v. Thompson, 86 Ga. 327, s. c. 12 S. E. R. 640; Curtis v. Delaware, etc., R. Co., 74 N. Y. 116. There is no pre- sumption of negligence against a warehouseman. It must appear from the evidence. Wald v. Louisville, etc., R. Co., 92 Ky. 645, 58 Am. & Eng. R. Cas. 123 ; Texas, etc., R. Co. V. Capps, (Tex.) 16 Am. & Eng. R. Cas. 118; Kahn v. Atlantic, etc., R. 2618 CARRIERS. § 1652 some cases the liability of the carrier is not even that of a warehouseman for hire. The liability may sometimes be only that of a gratuitous bailee. Thus, where on the arrival of bag- gage and the owner at the destination the owner calls for his baggage and is given an opportunity to remove it, but requests that the company keep and care for it for a while, the compa- ny then becomes a mere gratuitous bailee and is liable only for what is known as gross negligence.' In order, however, to re- duce the liability of the company to that of a warehouseman the company must give the owner reasonable opportunity to de- mand his baggage and take it away.' If on the arrival of bag- gage the company immediately stores it and locks its baggage room so that the owner can not secure the baggage, the liability of a common carrier still continues and does not terminate until reasonable opportunity is given the owner to remove his baggage.' The carrier can not terminate or change its liability by its own wrong. What is a reasonable time in which to call for and remove baggage has been held, where the facts are un- disputed, to be one of law,* but where the facts are disputed it is a mixed question of law and fact.' Co., 115 N. Car. 638, s. c. 20 S. E. R. v. Moody, (Tex. Civ. App.) 30 8. W. 169. E. .574. ' Minor v. Chicago, etc., R. Co., 19 ' Toledo, etc., R. Co. v. Tapp, 6 Ind. Wis. 40; Little Rocli, etc., R. Co. v. App. 304; Georgia R., etc., Co. v. Hunter, 42 Ark. 200, s. c. 18 Am. & Phillips, 93 Ga. 801, s. c. 20 8. E. R. Eng. R. Cas. .527. See, Mortland v. 646. Philadelphia, etc., R. Co., 81 Hun 473, « Burgevin v. New York, etc., R. 8. c. 30 N. Y. Supp. 1021 ; Galveston, Co., 69 Hun 479, 23 N. Y. Supp. 415 ; etc., R. Co. V. Smith, (Tex. Civ. App.) Toledo, etc., R. Co. v. Tapp, 6 Ind. 24 S. W. R. 668. App. 304. ^Toledo, etc., R. Co. v. Tapp, 6 Ind. ^xoledo, etc., E. Co. v. Tapp, 6 Ind. .Vpp. 304. See, also, George F. Dit- App. .304; Louisville, etc., R. Co. v. man Boot and Shoe Co. u. Keokuk, Mahan, 8 Bush 184; Mote v. Chica- etc, R. Co., 91 Iowa 614, s. c. 59 N. go, etc., R. Co., 27 Iowa 22; Brown v. W. R. 257. It was held in a recent Canadian Pac. R. Co.,3 Manitoba R. case that the company, in ejecting 496. See, generally, as illustrative a passenger, had no right to put his cases of what is a reasonable time for baggage off in a place where it would the removal of baggage. Roth v. be injured, and that he had a right to Buffalo, etc., R. Co., 34 N. Y. 548; use such force as was necessary to Jones v. Norwich, etc., R. Co., 50 prevent its injury. Gulf, etc., R. Co. Barb. (N.Y.) 193. § 1653 BAGGAGE. 2619 § 1653. Delivery to the company. — In order that any liabil- ity may arise on the part of a carrier in respect to baggage it is necessary that there should be a delivery of the baggage to the carrier." Unless there is a delivery there is no liability.' The general rule is that there must be a delivery and accept- ance by the carrier, although there may sometimes be a con- structive acceptance.^ Where delivery has been made and there is an actual acceptance by the carrier there is no question as to the responsibility of the company. But where there is no actual acceptance the question is what is a sufficient deliv- ery to make the acceptance constructive so as to bind the car- rier. Where baggage was left on a dock near a steamboat and the person leaving the baggage called the attention of an employe on the boat to it, who answered "all right," it was held that the delivery was sufficient.* Merely depositing baggage on the carrier's platform or vehicle without calling any one's attention to it is not a sufficient delivery to the car- rier to cause its liability to attach. ° Delivery must, as a rule, in order to render the carrier liable, be made to some duly authorized agent of the company. It need not always be made to the person expressly authorized to care for baggage; it may sometimes be made to the ticket agent or other agent who is permitted to hold himself out as authorized to receive baggage and does actually receive baggage,^ especially where such is the 'Kerr v. Grand Trunk E. Co., 24 ' Wright?;. Caldwell, 3 Mich. 51; U. C. C. P. 209; Wilson v. Grand Rider u. Wabash, etc., R. Co., 14 Mo. TrunkR. Co., 57 Me. 138;Kingwaltr. App. 529; Kerr v. Grand Trunk R. Wabash R. Co., 45 Neb. 760, s. c. 64 Co., 24 U. C. C. P. 209; Ball v. New N. W. R. 219, 12 Lewis' Am. R. & Jersey Steamboat Co., 1 Daly (N. Y.) Corp. R. 40. 491. ^Michigan, etc., R. Co. ». Meyers, * Rogers v. Long Island R. Co., 38 21 111. 627; Aikin u. Westcott, 123 N. How. Pr. (N. Y.) 289; Camden, etc., Y. 363, s. c. 25 N. E. R. 503. R. Co. v. Belknap, 21 Wend. (N. Y.) 'Merriam ti. Hartford, etc., R. Co., 354; Witbeck v. Schuyler, 31 How. 20 Conn. 354, s. c. 52 Am. Dec. 344. Pr. (N. Y.) 97; International, etc., R. 'Rogers v. Long Island R. Co., 1 Co. v. Folliard, 66 Tex. 603, s. c. 1 S. T. &C. (N. Y.) 396; Merriam K.Hart- W. R. 624; Jordan «. Fall River R. ford, etc., R. Co., 20 Conn. 354, s. c. 52 Co., 5 Cush. (Mass.) 69. The baggage Am. Dec. 344. See, also, Bankier ij. neednot necessarily come into th epos- Wilson, 5 L. Can. R. 203. session of the company at the time 2620 CARRIERS. § 1654 custom. Delivery, as we have just intimated, is often affected by custom. Thus, when it is customary to take baggage to a railway station and deposit it in the carrier's depot the car- rier may become liable although no agent's attention was ex- pressly called to the baggage.' But, as we have elsewhere shown, where the passenger retains exclusive custody and con- trol of the baggage, there is no such constructive delivery or acceptance as will render the company liable for it as a com- mon carrier.' The general subject of delivery and acceptance has been heretofore discussed at full length.' § 1654. Eule where passenger retains custody of baggage. — The general rule in regard to the liability of common carriers of goods is, as we have elsewhere seen, that they are not liable as such unless they have the sole custody of the goods. This rule has also been applied to baggage in some cases, but it should not, perhaps, be applied with the same strictness, al- though the rule is essentially the same in both classes of cases. If the passenger retains the sole possession and custody of the baggage, so that there is no delivery to the company, the latter is not liable for its injury or loss, at least in the absence of negligence on its part, and even though negligent it may not always be liable.* Thus, where a passenger kept a hand-bag the check is issued. Chicago, etc., R. 'Greene. Milwaukee, etc., R. Co., Co. V. Clayton, 78 111. 616. In En- 38 Iowa 100; Freeman v. Newton, 3 gland it is customary for porters to E. D. Smith (N. Y.), 246. receive baggage for the company, and 'Fast, § 1654. it is held that the liability of the com- » ^„f^^ §§ 1403^ I414 pany attaches as soon as it is placed ' Ante, § 1623 ; Beach on Contrib. in their hands for the purpose of Xeg., §173; Kerr ». Grand Trunk R. transit. Lovell ii. London, etc., R. Co., 24 U. C. C. P. 209; Towerc. Utica Co., 45 L. J. Q. B. 476, 24 W. R. 394. R. Co., 7 Hill (N. Y.) 47, s. c. 42 Am. But not where placed in their hands Dec. 36; Bergheim v. Great Eastern merely for custody and deposit. Great R. Co., L. R. 3 C. P. Biv. 221, s. c. 6 Western R. Co. v. Bunch, 13 App. Cent. L. J. 222 ; DeValle ». Steamboat Cas. 31, 57 L. J. Q. B. 361 ; Welch v. Richmond, 27 La. Ann. 90; Cohen v. London, etc., R. Co., 34 Weekly R. 166. Frost, 2 Duer (N. Y.) 335; Kerr v. See, also, Leach v. South Eastern R. Grand Trunk R. Co., 24 U. C. C. P. Co., 34 L. T. R. 134; Bunch v. Great 209. This is particularly true in re- Western R. Co., L. R. 17 Q. B. Div. gard to clothing and other articles 215, s. c. 26 Am. & Eng. R. Cas. 137. carried on or about the person. The § 1654 BAGGA.GE. 2621 in her possession and accidentally dropped it out of the car window, it was held that the company was not liable, although upon notice of the loss it refused to stop to enable her to re- cover it.* But it has been held that the mere fact that, by the mutual consent of the carrier and passenger, part of his bag- gage is placed in the same car in which he travels, and is to a ■certain extent under his immediate control, will not necessarily relieve the carrier from its liability as an insurer.' If, however, he assumes the control and custody of it, the carrier will be liable ■only for loss or injury caused by its failure to exercise reason- able and ordinary care.' So, in any event, "if the negligence of the passenger conduces to the loss," there can be no re- covery. E. E. Lee, 2 Abb. (U. S.) 49; Carpen- ter V. New York, etc., R. Co., 124 N. Y. 53, s. c. 26 N. E. E. 277; Clark v. Burna, 118 Mass. 275; Steamboat Chrystal Palace v. Vanderpool, 16 B. Mon. (Ky.) 302. See, also. Weeks v. New York, etc., E. Co., 72 N. Y. 50; First Nat. Bank v. Marietta, etc., E. Co., 20 Ohio St. 259, s. c. 5 Am. E. 655 ; Hillisi?. Chicago, etc., E. Co., 72 Iowa 228, s. c. 33 N. W. E. 643; Abbott v. Bradstreet, 55 Me. 530. 'Henderson v. Louisville, etc., E. Co., 20 Fed. E. 430, s. c. on appeal, 123 U. S. 61, 3 Sup. Ct. E. 60. ^LeConteur D.London, etc., E. Co., L. E. IQ. B. 54; Eichards^. London, etc., E. Co., 7 Man., G. & S. 838, s. c. r)2Eng. Com. L. 838; Butcher v. Lon- don, etc., E. Co., 16 Com. B. 13 ; Great Western E. Co. v. Bunch.L. E. 13 App. Cas. 31 ; Great Northern R. Co. u. Shep- herd, 8 Exch. 30; Gamble t). Great Western E. Co., 3 Up. Can. Error and App. 163; Hannibal, etc., E. Co., v. Swift, 12 Wall. (U. S.) 262; "Baggage in the Custody of the Passenger," 40 Cent. L. J. 444. But see ante, § 1623 ; Bergheim v. Great Eastern R. Co., L. E. 3 C. P. Div. 221, s. c. 6 Cent. L. J. 222; Talley v. Great Western R. Co., L. E. 6 C. P. 44. ' Ante, § 1623 ; Hutchinson on Car- riers, (2d ed.) § 700 ; Bonner v. Grum- bach, 2 Tex. Civ. App. 482, 21 S. W. R. 1010 ; Williams v. Keokuk, etc., Co., 3 Cent. L. J. 400; Kinsley ti. Lake Shore, etc., E. Co., 125 Mass. 54; American Steamship Co. v. Bryan, 83 Pa. St. 446; Pullman's Pal. Car. Co. V. Pollock, 69 Tex. 120, s. c. 5 S. W. E. 814, 816, 5 Am. St. R. 31. See, also, Carpenter v. New York, etc., E. Co., 124 N. Y. 53, s. c. 26 N. E. R. 277 ; Mc- Kee V. Owen, 15 Mich. 115. But com- pare Macklin u.New Jersey Steamboat Co., 7 Abb. Pr. N. S. (N. Y.) 229; Mudgett V. Bay State Steamboat Co., 1 Daly (N. Y.) 151 ; Gore v. Norwich, etc., Transp. Co., 2 Daly (N. Y.) 254. * Tower v. Utica, etc., R. Co., 7 Hill (N. Y.) 47, s. c. 42 Am. Dec. 36; Wy- ckoff V. Queens County Ferry Co., 52 N. Y. 32, s. c. 11 Am. R. 650; Talley V. Great Western R. Co., L. E. 6 C. P. 44 ; Gleason v. Goodrich Trans. Co., 32 Wis. 85; Wilson v. Baltimore, etc., E. Co., 32 Mo. App. 682; Henderson v. Louisville, etc., E. Co., 20 Fed. R. 430, s. c. on appeal, 123 U. S. 61, 3 Sup. 2622 CARRIERS. § 1655 § 1 655 . Baggage checks. — Baggage checks are ch ecks or tick- ets which railway companies issue to owners of baggage when the same is received for transportation. The custom of issuing baggage checks is in force on nearly, if not quite, all railroads in this country, and is so well known and established that the courts will take judicial knowledge of the general system.' The most important question that arises in regard to baggage checks is as to their effect. While there is some slight conflict in the authorities the strong current of opinion is to the effect that a baggage check does not embody the contract between the carrier and the person whose baggage is being carried but is merely a token or a receipt for the baggage given to the owner to enable the baggage to be identified at the end of the line.^ There are some authorities, however, to the ef- fect that a baggage check partakes of the nature of a bill of lading, and is evidence of the contract between the carrier and the owner of the baggage.' The possession of a baggage check Ct. R.60; Bonner D.Grambach, 2 Tex. Civ. App. 482, 21 S. W. R. 1010; Great Western R. Co. v. Bunch, L. R. 13 App. Cas. 31, s. c. 57 L. J. Q. B. 361, s. c. 34 Am. & Eng. R. Cas. 224; ante, § 1624. But see Bonner v. Mendoza, 4 Tex. App. (Civ. Cas.) 392, s. c. 16 S. W. R.976. ' Abbott's Traveling Law School, 58 ; Isaacsons. New York, etc., R.Co., 94 N. Y. 278, s. c. 16 Am. & Eng. R. Cas. 188. ^Hickox V. Naugatuck R. Co., 31 Conn. 281, s. c. 83 Am. Dec. 143; -A-hlbeck v. St. Paul, etc., R. Co., 39 Minn. 424, a. c. 12 Am. St. R. 661, 40 N. W. R. .364; Chicago, etc., R. Co. v. Clayton, 78 111. 616; Smith v. Boston, etc., E.Co.,44N.H. 325; Mississippi, etc., R. Co. V. Kennedy, 41 Miss. 671 ; Isaacson v. New York, etc.. Railroad Co., 94 N. Y. 278; Hyman v. Central Vt. R. Co., 21 N. Y. Supp. 119; Raw- son V. Pennsylvania R. Co., 48 N. Y. 212; Cleveland, etc., R. Co. v. Tyler, 9 Ind. App. 689, s. c. 35 N. E. R. 523. But failure to read a check has been held to be contributory negligence. Gonthiero. New Orleans, etc., R. Co., 28 La. Ann. 67. ' "The check is in legal effect a bill of lading." Louisville, etc., R. Co. /■. Weaver, 9 Lea 38, s. c. 16 Am. & Eng. R. Cas. 218. "A check for baggage answers the purpose of a bill of lading. It is evidence of the contract Vjetween the carrier and the traveler for tlie transportation of his baggage, and this suit was brought on that contract." Anderson v. Wabash, etc., R. Co., ii-> Iowa 131, s. c. 18 Am. & Eng. R. Cas. 377. So, it has been held that where a check is given for baggage to be car- ried only a part of the distance called for by the ticket, the check is regarded as standing in the place of a bill of lading for the distance called for, and the carriage and delivery must be made accordingly. Louisville, etc., R. Co. V. AVeaver, 9 Lea (Tenn.) 38. §1655 BAGGAGE. 2623 is prima facie evidence of the receipt of the baggage by the carrier.' Such evidence is not conclusive, however, but may be explained by other evidence.^ It has also been held that proof of the presentation of the check with a demand for the baggage at a proper time at the place of destination, and an unconditional refusal on the part of the carrier to deliver it, raises a presumption of negligence on its part and makes a prima facie case against it." Where baggage is checked by an owner who intends making a journey over lines of different railroads and at the end of one line he surrenders the baggage check first received and receives the baggage check of the sec- ond line the latter check is evidence that the line issuing it had received the baggage represented by such check.* But a through check over several different lines will not of itself, without a contract for through transportation, make the carrier responsible for loss of the baggage by one of the other connect- s. c. 16 Am. & Eng. R. Cas. 218; Dill V. South Carolina, etc.,B. Co., 7 Eich. L. (So. Car.) 158; Wilson v. Chesa- peake, etc., E. Co., 21 Gratt. (Va.) 654. 'Davis V. Michigan, etc., R. Co., 22 111. 278, 8. c. 74 Am. Dec. 151 ; Dill v. South Carolina R. Co., 7 Rich. L. (So. Car.) 158, s. c. 62 Am. Dec. 407; Den- ver, etc., R. Co. V. Roberts, 6 Colo. 333, s. c. 18 Am. & Eng. Cas. 627; Atchison, etc., R. Co. v. Brewer, 20 Kan. 669; Louisville, etc., R. Co. v. Weaver, 9 Lea (Tenn.) 38. ' Chicago, etc., E. Co. v. Clayton, 78 111. 616; Davis v. Michigan, etc., E. Co., 22 111. 278. Baggage checks have also been held admissible in evidence to show the nature of the carrier's con- tract. Wilson V. Chesapeake, etc., E. Co., 21 Gratt. (Va.) 654. 'Atchison, etc., R. Co. v. Brewer, 20 Kan. 669; Schouleron Bailm. & Car., §694; Cleveland, etc., R. Co. «. Tyler, 9 Ind. App. 689, s. c. 35 N. E. R. 523. Indeed, it was held in the last case that such a demand and refusal made a prima facie case although the check was not presented. But this last case seems to unjustly put the burden upon the company of determining at its peril who is the true owner, and re- quire it to deliver the baggage to him without any proof of identity. The carrier has been held liable for deliv- ering baggage to one upon his state- ment that he was the owner, without presentation of the check, and if this is the law, and if the check is prima facie evidence of identity against the carrier, it is difficult to see why it is not prima facie evidence in its favor, and why it should be held liable to one who demands the baggage without presentation of the check or preof of identity or right to it. See Abbott's Traveling Law School, 58; Laffrey r. Grummond, 74 Mich. 186, s. c. 41 N. W. R. 894, 895. *Ahlbeck v. St. Paul, etc., R. Co., 39 Minn. 424, 40 N. W. Rep. 364; St. Louis, etc., R. Co. v. Hawkins, 39 111. -ipp. 406; Kansas Pacific R. Co. v. Montelle, 10 Kan. 119. 2624 CARRIERS. § 1656 ing carriers.' In some states statutes are in force which im- pose upon railway companies a penalty for failure to check baggage.' § 1656. Baggage on one train and owner on another. — In the absence of anything to the contrary, the rule is that the im- plied contract to carry a passenger's baggage which arises from the purchase of a ticket is that the passenger and his baggage shall be transported by the same train.' The purchase of a ticket, usually entitles a passenger only to transportation for himself and his baggage on the same train and nothing more.* Where baggage is received after the passenger has gone, the baggage, if carried at all, is carried as freight, and the carrier is entitled to compensation for such carriage.^ While, as we have seen, the company is ordinarily under the duty to carry i:iaggage on the same train on which the owner is carried, there are cases in which the carrier must carry the baggage as such although the owner does not accompany it on the same train. Thus, where the carrier receives the baggage in ample time to send it by the same train on which the owner takes passage, but fails to do so, it is still under an obligation to trans- port it on subsequent trains as baggage.' And where the com- pany makes such a contract on the purchase of a ticket that it is bound to transport the baggage at all events, it is bound to 'Green v. New York, etc., R. Co., 4 York, etc., R. Co., 36 Barb. (N. Y.) Daly (N. Y.) 553 ; Stimson v. Connec- 557. ticut, etc., R. Co., 98 Mass. 83; Tal- * Blumenthal v. Maine, etc., R. Co., cott V. Wabash R. Co., 89 Hun 492, 35 79 Me. 550, s. c. 34 Am. & Eng. R. N. Y. Supp. 574. See Louisville, etc., Cas. 247, 11 Atl. R. 605; Becher b. R. Co. V. Weaver, 9 Lea (Tenn.) 38, Great Eastern R. Co., L. R. 5 Q. B. s. c. 16 Am. & Eng. R. Cas. 218, and 241, 18 W. R. 627. compare Fox v. Wabash etc., R. Co., 'Wilson ». Grand Trunk Railway 38 N. Y. Supp. 88. Co., 56 Me. 60, s. c. 8 Am. Law Reg. ''Norfolk, etc., R. Co. v. Irvine, 84 (N. S.) 398; Collins v. Boston, etc., Va. 553, 5 S. E. Rep. 532, 1 L. R. A. R. Co., 10 Cush. (Mass.) 506; Graffam 110; Commonwealth v. Connecticut ». Boston, etc., R. Co., 67 Me. 234. River R Co., 15 Gray Olass.) 447. MVilson v. Grand Trunk Railway 'Toledo, etc., R. Co. v. Tapp, 6 Ind. Co., 56 Me. 60, s. c. 8 Am. Law Reg. App. 304; Wilson v. Grand Trunk, (N. S.) 398; Warner v. Barlmgton, etc., R. Co., 56 Me. 60, s. c. 8 Am. etc., R. Co., 22 Iowa 166. Law Reg. (N. S.) 398; Glasco v. New § 1657 BAGGAGE. 2625 exercise the same degree of care in the transportation of such baggage whether the same goes on a preceding or on a subse- quent train to that on which the owner goes.' In order that there may be a recovery for lost or injured baggage, or that it should be carried as such, it is not always necessary that the owner himself should accompany the baggage. Some person who is a member of the owner's family and interested in the baggage may accompany it, and if the baggage is lost or injured the holder of the title to the baggage may recover.^ But it has been held that where a servant, who pays his own fare, carries with him a parcel of baggage belonging to his master, who travels on a later train, and the baggage is lost, the master can not recover.' § 1657. Rule where baggage is received by mistake. — As a general rule, at least, "no man can have the care of another's property thrust upon him, without his invitation or consent, in such a way as to raise a duty calling for the performance of positive acts of protection." It is therefore held that where baggage is delivered to a carrier by the owner, who erroneously supposes that his ticket entitles him to have it transported by such carrier, and the latter receives it under the naistaken be- lief that the owner had bought a ticket over its own road en- titling him to have it so transported, when, in fact, he had purchased his ticket over another road, such carrier is not lia- ble even for negligence in transporting the baggage, and the only duty it owes the owner with reference thereto is to abstain from willful or wanton injury to it.* If, however, the mistake occurs solely on account of the fault of the railroad company, as, for instance, where it takes baggage checked over another route, or not delivered to it, such company is doubtless liable at least for loss or injury caused by its failure to exercise or- dinary care.° ' Warner v. Burlington, etc., E. Co., ' Becher v. Great Eastern E. Co., L. 22 Iowa 166; Wilson u. Chesapeake, R. 5 Q. B. 241, 39 L. J. Q. B. 122. etc., R. Co., 21 Gratt. (Va.) 654. < Beers v. Boston, etc., R. Co., 2 Curtis V. Delaware, etc., E. Co., 74 (Conn.) 34 Atl. R. 541. N. Y. 116, 'See Fairfax v. New York, etc., R. 2626 CAERIERS. § 1658 § 1658. Baggage shipped over connecting roads. — The sub- ject of connecting carriers of freight has been fully treated elsewhere,' and, as the rules in regard to baggage are, in most respects, substantially the same, it will be unnecessary here to treat the subject at length. A railroad company is not bound to transport passengers and their baggage beyond its own ter- minus,^ and may, as we shall hereafter see, limit its liability for baggage by contract to its own line, as in the case of freight. But, as the carriage of baggage is considered as an incident to the contract for the carriage of its owner, a through contract for the transportation of a passenger over several con- necting lines is a through contract for the carriage of his bag- gage, and the initial company, in the absence of any valid limitation, may be held liable for the loss or destruction of the baggage on any of the lines.* The passenger may, how- ever, if he elects to do so, proceed directly against the com- pany on whose line the baggage was lost.' And, as we have Co., 73 N. Y. 167, 170. See, also, Isaacson v. New York, etc., R. Co., 94 N. Y. 278; Estes v. St. Paul, etc., R. Co., 7 N. Y. Supp. 863. ' A>ite, chapters Lvm, lix. ' Maurltz v. New York, etc., R. Co., 23 Fed. R. 765, a. c. 21 Am. & Eng. R. 286; Central Trust Co. v. Wabash, etc., R. Co., 31 Fed. R.247; Harris v. Howe, 74 Tex. 534, s. c. 39 Am. & Eng. R. Cas. 498; Pennsylvania R. Co. V. Schwarzenberger, 45 Pa. St. 208. 'Talcott V. Wabash R. Co., 66 Hun 456, s. c. 21 N. Y. Supp. 318; Hart v. Rensselaer R. Co., 8 N. Y. 37; Bur- nell V. New York, etc., R. Co., 45 N. Y. 184; Wilson v. Chesapeake, etc., R. Co., 21 Gratt. (Va.) 654; Najac v. Boston, etc., R. Co., 7 Allen (Mass.) 329; Smith v. Grand Trunk R. Co., 35 U. C. Q. B. 547; Louisville, etc., R. Co. V. Weaver, 9 Lea (Tenn.) 38, s. c. 16 Am. & Eng. R. Cas. 218 ; Illinois Cent. R. Co. v. Copeland, 24 111. 332 ; Candee ». Pennsylvania R. Co., 21 Wis. 582; Wolff v. Central, etc., R. Co., 68 Ga. 653, s. c. 45 Am. R. 501 ; Mytton V. Midland R. Co., 4 H. & N. 615; Baltimore, etc., R. Co. v. Camp- bell, 36 Ohio St. 647, s. c. 3 Am. & Eng. R. Cas. 246; Hawley v. Screven, 62 Ga. 347, s. c. 35 Am. R. 126. 'Atchison, etc., R. Co. v. Roach, 35 Kan. 740, s. c. 12 Pac. R. 93, s. c. 27 Am. & Eng. R. Cas. 257; Louisville, etc., R. Co. V. Weaver, 9 Lea (Tenn.) 38, s. c. 16 Am. & Eng. R. Cas. 218, 225; Baltimore, etc., Co. v. Smith, 23 Md. 402; Davis v. Michigan, etc., R. Co., 22 111. 278; Savannah, etc., R. Co. V. Mcintosh, 73 Ga. 532, s. c. 27 Am. & Eng. R. Cas. 269; McCormick V. Hudson River, etc., R. Co., 4 E. D. Smith (N. Y.) 181; Chicago, etc., R. Co. V. Fahey, 52 111. 81 ; Root v. Great Western R. Co., 45 N. Y.524; Hooper V. London, etc., R. Co., 50 L. J. Q. B. Div. 103, s. c. 29 W. R. 241; ante, § 1448. § 1658 BAGGAGE. 2627 elsewhere shown, a railroad company, in selling a ticket over several different lines, may be acting simply as agent for the other lines, so that the contract will not be a contract for through transportation on its part either for the passenger or his baggage.' So, it has been held that the mere fact that the initial carrier issues a through check is not sufficient to make it liable beyond its own line if the passenger's ticket is not a through ticket, or the liability of the company is expressly limited to its own line.^ But, in other cases, baggage checks have been held admissible to show the nature of the carrier's undertaking.' In a recent case, although the ticket was what is known as a coupon ticket, over three roads, it was held that evidence that each coupon contained the initials of all the roads, that when the plaintiff reached the end of the first car- rier's line he received a check from the second company over both its line and that of the last company, and was charged for extra weight of the baggage, and that the baggage went through from that point with him on the same train to his des- tination was sufficient to authorize a finding that the under- taking was a joint one and that the last two companies were jointly liable for articles which had been taken out of the trunk at some unknown place after it had left the line of the first carrier, which was not liable because it had expressly con- tracted against liability beyond its own line.' Where there is ' Ante, § 1596. See, also, § 1433, was held that the undertaking of the et seq.; Central Trust Co. v. Wabash, company was to deliver to the con- etc, R. Co., 31 Fed. R. 247. necting carrier over the route named ^ Green ». New York, etc., R. Co., in the tickets and that it remained 12 Abb. Pr. N. S. (N. Y.) 473; Milnor liable as an insurer. Isaacson i). New V. New York, etc., R. Co., 53 N. Y. York Cent., etc., R. Co., 94 N. Y. 278, 363; Mennonstein D. Pennsylvania R. s. c. 16 Am. & Eng. R. Cas. 188. See, Co., 34 N. Y. Supp. 97. One reason also, Rome R. Co. v. Wimberly, 75 Ga. for this, as said in the last case just 316, s. c 58 Am. R. 468. cited, is that a baggage-master as such ' Wilson v. Chesapeake, etc., R. Co., has no authority to contract for car- 21 Gratt. (Va.) 654; Anderson v. riage beyond the line of his own com- Wabash, etc., R. Co., 65 Iowa 131, s. pany. Where tickets over a certain c. 21 N. W. R. 485; Louisville, etc., R. route were presented to the baggage- Co. v. Weaver, 9 Lea (Tenn.) 38, s. c. master, who agreed to check over that 16 Am. & Eng. R. Cas. 218. route, and he checked the baggage 'Peterson v. Chicago, etc., R. Co., over a different connecting road, it 80 Iowa 92, s. c. 45 N. W. R. 573. But 2628 CAKRiEES. § 1659 a valid contract limiting the liability of the first carrier to its own line, or in any case in which the passenger sues one of the connecting carriers, it is frequently difficult to locate the place of the loss or injury to the baggage. In such a case the last carrier has sometimes been held liable where the baggage started in good condition and was delivered by it in bad con- dition, upon the ground that it might be presumed to have reached it in the condition in which it started;' but proof of the mere failure of the last carrier to deliver any of the bag- gage, without proof that it ever came into its hands, is insuf- ficient to entitle the passenger to recover from it.^ § 1659. Delivery by company — Duty of owner. — As already shown, it is the duty of a railroad company to have a passen- ger's baggage ready for delivery to him at a proper place as soon as it reasonably can after his arrival at his destination, and it is the duty of the passenger to call for it within a rea- sonable time.' As a general rule this reasonable time does not extend to "another day or another occasion."* A passenger compare Montgomery, etc., R. Co. v. s. c. 27 Am. & Eng. R. Cas. 264. But Culver, 75 Ala. 587, s. c. 22 Am. & see Savannah, etc., R. Co. v. Me- Eng. R. CaB.411. See, also. Gulf, etc., Intosh, 73 Ga. 532, s. c. 27 Am. & R. Co. V. Ions, 3 Tex. Civ. App. 619, Eng. R. Cas. 269, with which compare s. c. 22 S. W. R. 1011; Felder v. Col- East Tenn., etc., R. Co. v. Johnson, umbia, etc., R. Co., 21 So. Car. 35, s. 85 Ga. 497, s. c. 11 S. E. R. 809. See, c. 53 Am. R. 656; Texas, etc., R. Co. also, Ringwalt v. Wabash R. Co., 45 V. Ferguson, 1 Tex. App. (Civ. Cas.) Neb. 760, s. c. 12 Lewis' Am. R. & 724, s. c. 9 Am. & Eng. R. Cas. 724; Corp. R. 40, and note, where the gen- Wolff u. Central R. Co., 68 Ga. 653, s. eral subject is fully discussed and c. 6 Am. & Eng. R. Cas. 441. many analogous authorities relating 'Montgomery, etc., R. Co. ». Culver, to the presumption in case of goods 75 Ala. 587, s. c. 22 Am. & Eng. R. lost or injured by connecting carriers Cas. 411 ; Lin v. Terre Haute, etc., R. are cited. See, also, §§ 1448, 1450. Co., 10 Mo. App. 125; Jacobs v. Tutt, 'Ante, § 1652; Patscheider v. Great 33 Fed. R. 412; McCormick v. Hud- Western R. Co., L. R. 3 Exch. Div. son River, etc., R. Co., 4 E, D. Smith 153, s. . . 26 W. R. 268; Ouimit v. Hen- (N. Y.) 181 ; Myerson v. Woolverton, shaw, 35 Vt. 605 ; Hoeger v. Chicago, 29 N. Y. Supp. 737; Caldwell v. Erie etc., R. Co., 63 Wis. 100, s. c. 23 N. w'. Transfer Co., 33 N. Y. Supp. 993. R. 435; Vinfeberg v. Grand Trunk R. ^Kessler v. New York, etc., R. Co., Co., 13 Ont. App. 93, s. c. 27 Am. & 61 N. Y. .538 ; Stimson v. Connecticut Eng. R. Cas. 271. River R. Co., 98 Mass. 83; Felder u. * Ouimit v. Hensbaw, 35 Vt. 605- Columbia, etc., R. Co., 21 So. Car. 35, Roth v. Buffalo, etc., R. Co. 34 N. Y.' §1659 BAGGAGE. 2629 has a right to have his baggage delivered, in a proper case, at any regular station at which the train stops, and a regulation that baggage will be delivered at only one of several regular stations at which the train stops in a large city is unreasonable.' A delivery to the wrong person upon a forged order, it has been held, will not discharge the company.^ It has also been held that where it is the custom to deliver the baggage into a carriage, and the baggage is lost while a railway porter is so delivering it, the company is liable.^ But the general rule is that where the passenger, after arriving at his destination, takes charge of the baggage himself, or, after it is there deliv- ered to him, either actually or constructively re-delivers it to a third person, or even to one of the company's employes as his agent, the company will not be liable for its loss.' If a railroad company carries baggage beyond the proper station and puts it in its baggage room at another station, from which it is stolen, it is liable for the loss,° and, as elsewhere shown, 548 ; Jacobs v. Tutt, 33 Fed. R. 412 ; Chicago, etc., R. Co. v. Addizoat, 17 Bradw. (111. App.) 632; Louisville, etc., E. Co. V. Mahan, 8 Bush (Ky.) 184; Jones v. Norwich, etc., Transp. Co., 50 Barb. (N. Y.) 193 ; Vineberg v. Grand Trunk R. Co., 13 Ont. App. 93, s. c. 27 Am. & Eng. R. Cas. 271 ; Pen- ton V. Grand Trunk R. Co., 28 U. C. Q. B. 367; Wiegand v. Central R. Co., 75 Fed. R. 370. But see Burnell r. New York, etc., R. Co., 45 N. Y. 184; Pric- kett V. New Orleans, etc.. Line, 13 Mo. App. 436; Burgevint). New York, etc., R. Co., 69 Hun 479, 23 N.Y. Supp.415, s. c. 52 N. Y. St. R. 617 ; Mote v. Chicago, etc., R. Co., 27 Iowa 22 ; Cary v. Cleve- land, etc., R. Co., 29 Barb. (N. Y.) 35. ' Pittsburgh, etc., R. Co. v. Lyon, 123 Pa. St. 140, s. c. 16 Atl. R. 607. 2 Powell v. Myers, 26 Wend. (N. Y.) 591. See, also, Brown v. Canadian Pac.R. Co., 3 Manitoba 496. But com- pare Mattison v. New York, etc., E. Co., 57 N. Y. 552. Corp. 167 ' Butcher v. London, etc., R. Co., 16 C. B. 13, s. c. 3 W. R.409. Explained in Bergheim v. Great Eastern R. Co., L. R. 3 C. P. Div. 221, s. c. 26 W. R. 318. See, also. Mobile, etc., R. Co. v. Hopkins, 41 Ala. 486, s. c. 94 Am. Dec. 607 ; Ouimit v. Henshaw, 35 Vt. 605, 8. c. 84 Am. Dec. 646. * Hodkinson v. London, etc., E. Co., L. R. 14 Q. B. Div. 228, 32 W. R. 662 Midland, etc., R. Co. v. Bromley, 1^ C. B. 372; Minor v. Chicago, etc., R Co., 19 Wis. 40 ; Mulligan v. Northern etc., Co., 4 Dak. 315, s. c.29 N. W. R 659, 27 Am. & Eng. R. Cas. 33 ; Texas etc., R. Co. V. Capps, 2Tex. App. (Civ Cases) 35, s. c. 16 Am. &,Eng. R. Cas 118. But see Voss v. Cleveland, etc. R. Co., (Ind.App. Ct.)43N. E. R.20 Curtis^. Avon, etc., R. Co., 49 Barb. (N. Y.) 148. 'Toledo, etc., E. Co. ». Hammond, 83 Ind. 379. 2630 CARRIERS. § 16^0 it may be liable as a warehouseman for damages caused by its failure to exercise ordinary care after it had the baggage ready for delivery, although the passenger failed to call for it at that time.' § 1660. Liability for loss, injury or delay.— We have already considered the liability of a railroad company generally in re- gard to baggage, and have shown when it is responsible as a common carrier, when as a warehouseman, and when merely as a gratuitous bailee.' It may be liable in tort for the loss of a passenger's baggage although his fare was paid by another,' and it has been held that a married man may recover for the loss of baggage furnished by him for the use of his wife and children as well as that used by himself, although he goes on one train and the baggage goes with the family on another,' and that where merchandise or extra baggage is knowingly received by the company and paid for by the passenger as the property of another, for whom he is agent, the principal may recover for its loss.° But it has been rightly held, on the other hand, that a railroad company is not liable for the goods of one who is not a passenger which are carried in the trunk of a passenger without its knowledge.' In another case passengers who had bought a ticket jointly and received a joint check for their baggage, which consisted of a chest owned by them jointly and articles therein owned by them in severalty, were permitted ' Ante, § 1652. s. c. 5 So. R. 308; Baltimore, etc., Co. 'AnU,, §§ 1651, 1652. v. Smith, 23 Md. 402. 'Nugent V. Boston, etc., E. Co., 80 ^Sloman v. Great Western R. Co., Me. 62, s. c. 12 Atl. R. 797, 800, citing 67 N. Y. 208; Fort Worth, etc., R. Co. Marshall v. York, etc., R. Co., 11 C. v. I. B. Rosenthal, etc., Co., (Tex. Civ. B. (73 E. C. L.) 655. See, also. Cat- App.) 29 S W. R. 196. But compare lin V. Adirondack Co., 20 Hun (N. Weed v. Saratoga, etc., R. Co., 19 Y.) 19; Flint, etc., R. Co. >'. Weir, ?,7 Wend. (\. Y.) 534. Mich. Ill; Van Horn v. Kermit, 4 E. «Giirney r. Grand Trunk R. Co., 59 D. Smith (N. Y.) 453; Macklin w. New Hun 625, s. c. 14 N Y. Supp. 321 ; Tal- .Tersey, etc., Co., 7 Abb. Pr. N. S. cott «. Wabash R. Co., 66 Hun 456 s (^'- Y-) 229. c. 21 N. Y. Supp. 318 ; Becher t.. Great * Curtis «. Delaware, etc., R. Co., 74 Eastern R. Co., L. R. 5 Q B 241 s N. Y. 116. See, also, Richardson^, c. 18 W. R. 627; Dunlap v. Inter^a- Louisville, etc., R. Co., 85 Ala. 559, tional, etc., Co., 98 Mass. 371. -§1660 BAGGAGE. 2631 to maintain a joint action.' Where baggage is lost or injured while in the custodj"^ of a railroad company as a common car- rier, the presumption is generally against the company.* At common law, under the rule that parties in interest were in- competent, it was held in some jurisdictions that a passenger could not testify as to the contents and value of baggage in a trunk or the like,' but in others such evidence was admitted on the ground of necessity,* and it is certainly admissible now, in most jurisdictions at least, under the modern statutes and rules of evidence. Damages may be recovered, in a proper case, for delay as well as for loss or injury to baggage.' But it has been held that a carrier is not liable for the loss of bag- gage caused by an unforeseen and unprecedented flood, al- though the flood would not have been encountered but for the carrier's delay. ° " Anderson v. Wabash, etc., E. Co., 65 Iowa 131, s. c. 21 N. "W. E. 485. ' Camden, etc., E. Co. v. Baldauf, 16 Pa. St. 67; Montgomery, etc., E. Co. V. Culver, 75 Ala. 587, s. c. 22 Am. & Eng. E. Cas. 411; Chicago, etc., E. Co. V. Conklin, 32 Kan. 55, s. c. 3 Pac. E. 762; Burnell v. New York, etc., E. Co., 45 N. Y. 184, s. c. 6 Am. E. 61; Matteson v. New York, etc., E. Co., 76 N. Y. 381; Brown v. Eastern E. Co., 11 Cash. (Mass.) 97; Pelland w. Canadian Pac. E. Co., 7 Mont. L. E. (S. C.) 131. But compare WaldB. Lou- isville, etc., E. Co., 92Ky. 645; Mc- Questen v. Sanford, 40 Me. 117. 'Snow V. Eastern E. Co., 12 Met. (Mass.) 44; Wright v. Caldwell, 3 Mich. 51 ; Bingham v. Eogers, 6 Watts & S. (Pa.) 495; Dill v. South Carolina E. Co., 7 Eich. L. (So. Car.) 158. *Cadwallader v. Grand Trunk E. Co., 9 Low. Can. 169 ; Dibble v. Brown, 12 Ga. 217; McGill v. Eowand, 3 Pa. St. 451; Mad Eiver, etc., E. Co. v. Fulton, 20 Ohio 318. See, also, Illi- nois, etc., E. Co. V. Taylor, 24 111. 323 ; Davis V. Michigan, etc., E. Co., 22 111. 278; Douglass 1). Montgomery, etc., E. Co., 37 Ala. 638. = Gulf, etc., E. Co. V. Vancil, 2 Tex. Civ. App. 427, s. c. 21 S. W. E. 303; Gulf, etc., E. Co. V. Douglas, (Tex. Civ. App.) 30 S. W. E. 487; Texas, etc., E. Co. 0. Taylor, 3 Tex. App. (Civ. Cas.) 234. But the company will not always be liable for delay merely be- cause it does not carry the baggage on the same train with the passenger. St. Louis, etc., E. Co. v. Eay, (Tex. Civ. App.) 35 S. W. E. 951. As to the measure of damages for loss or in- jury, see Gulf, etc., E. Co. v. Jackson, 4 Tex. App. (Civ. Cas.) 73, s. c. 15 S. W. E. 128; Lake Shore, etc., E. Co. V. Warren, 3 Wyo. 134, 6 Pac. E. 724; Fairfax v. New York, etc., E. Co., 73 N. Y. 167 ; New Orleans, etc., E. Co. V. Moore, 40 Miss. 39 ; Spooner v. Han- nibal, etc., E. Co., 23 Mo. App. 403; Texas, etc., E. Co. v. Ferguson, 1 Tex. App. (Civ. Cas.) 724, s. c. 9 Am. & Eng. E. Cas. 395. « Wald V. Pittsburgh, etc., E. Co., 60 111. App. 460. See, also, Cooley on Torts 72, and authorities there cited. 2632 CARRIERS. § 1661 §1661. Limiting liability. — A railroad company, although it sells a through ticket for a continuous passage over several different lines, may, by a stipulation in the contract of car- riage, limit its liability for loss or injury to baggage to such as may occur on its own line.' So, it has been held that car- riers of passengers may, by specific regulations brought to the knowledge of the passenger, "protect themselves against lia- bility as insurers for baggage exceeding a fixed amount in value, except upon additional compensation proportioned to the risk, provided the regulations are reasonable, and not in- consistent with any statute or their duties to the public.'" It has been held by some courts, however, that the liability of the carrier can not be restricted by words on a ticket or check or by other notice, even if brought to the knowledge of the passenger, unless he agrees to it.' Other courts, also treating a ticket or a check as a mere token, voucher or receipt, and not as a contract, have taken the same view where it did not appear that the passenger accepted it with notice of the condition or limitation.* There is certainly good reason for In another recent case it is also held v. Liverpool, etc., Co., 57 N. Y. 1; that where the baggage is lost in such Texas, etc., R. Co. ». Willis, 3 Tex. a flood there is no presumption of App. (Civ. Cas.) 94; Wilton «. Atlan- negligence against the carrier and the tic, etc., Co., 10 C. B. N. S. 453. burden of proving negligence rests 'Baltimore, etc., R. Co. v. Camp- upon the plaintiff. Long v. Pennsyl- bell, 36 Ohio St. 647, s. c. 3 Am. & vania R. Co., 147 Pa. St. 343, s. c. 23 Eng. R. Cas. 246; General Liabihty of Atl. R. 459. Carriers of Passengers for Baggage," 2 'Peterson v. Chicago, etc., R. Co., Am. & Eng. R. Cas. (N. S ) i, and au- 80 Iowa 92, s. c. 45 N. W. R. 573 ; Gulf, thorities cited ; Davis v. Chicago, etc., etc., R. Co. V. Ions, 3 Tex. Civ. App. R. Co., 83 Iowa 744, s. c. 49 N. W. R. 619, s. c. 22 S. W. R. 1011 ; Zunz v. 77 (invalid under statute) ; Indian- Southeastern R. Co., L. R. 4 Q. B. apolis, etc., R. Co. ?;. Cox,29Ind. 360, 539; Burke v. Southeastern R. Co., L. s. c. 95 Am. Dec. 640; Camden, etc.^ R. 5 C. P. Div. 1, s. c. 28 W. R. 306; R. Co. v. Burke, 13 Wend. (N. Y.) Nealon v. Grand Trunk R. Co., 42 611. Hun (N.Y.) 651; Central Trust Co. J). « Wilson u. Chesapeake, etc., R. Wabash, etc., R. Co., 31 Fed. R. 247, Co., 21 Gratt. (Va.) 654; Mauritz t>. s. c. 31 Am. & Eng. R. Cas. 103. New York, etc., R. Co., 23 Fed. R. 2 Railroad Co. v. Fraloff, 100 U. S. 765, s. c. 21 Am. & Eng. R. Cas. 286; 24; The Majestic, 56 Fed. R. 244, 8. c. Brown v. Eastern R. Co., ll'cush! 60 Fed. R. 624; Smith v. North Car- (Mass.) 97; Kent v. Midland R. Co.^ olina R. Co., 64 N. Oar. 235; Steers L. R. 10 Q. B. 1; Madan v. Sherard^^ <§1661 BAGGAGE. 2633 applying this rule where the notice or condition is printed in such a manner as to deceive or mislead the passenger, and without negligence on his part, he fails to discover it at all, or until after his journey has commenced,' and a carrier after unconditionally receiving a passenger's baggage can not limit its responsibility by such a notice printed on a ticket after- wards purchased.^ But, in some jurisdictions, it has been held that notice printed on a ticket is sufficient to bind the passen- ger,' and we think that where it is in the form of a contract, as is frequently the case where commutation and limited tickets or the like are issued, and the passenger has an oppor- tunity to read it, he will be bound thereby, if the limitation is valid, even if he does not read it, especially if he signs it.* We have elsewhere stated our views upon this subject, ° and have fully treated the effect of an attempt on the part of a car- rier to contract against liability for its own negligence. ° 73 N.Y. 329 ; Blossom v. Dodd, 43 N.Y, 264 ; Kansas City, etc., E. Co. v. Kude- baugh, 38 Kan. 45, -s. c. 34 Am. & Eng. E. Cas. 219 ; Parker v. Southeastern E. Co., L. E. 2 C. P. Div. 416, s. c. 25 W. E. 564. ' Malone ». Boston E. Co., 12 Gray (Mass.) 388; Verner v. Sweitzer, 32 Pa. St. 208; Camden E. Co. ^. Bal- dauf , 16 Pa. St. 67 ; Clayton v. Hunt, 3 Camp. 27; Butlerc. Heane, 2 Camp. 415 ; Eawson C.Pennsylvania E. Co., 48 N. Y. 212; Anderson v. Canadian Pac. E. Co., 17 Ont. E. 747, s. c. 40 Am. & Eng. E. Cas. 624 ; Blossom v. Dodd, 43 N. Y. 264 ; Isaacson v. New York, etc., E. Co., 94 N. Y. 278; Hendersons. Stevenson, L. E. 2 Sc. & Div. App. Cas. 470, s. c. 32 L. T. N. S. 709. ^Nevins ». Bay State, etc., Co., 4 Bosw. (N. Y.) 225. 'Laing v. Colder, 8 Pa. St. 479; Pennsylvania E. Co. v. Raiordon, 119 Pa. St. 577 ; Hopkins v. Westcott, 6 Blatch. (U. S. C. C.) 64. ' Louisville E. Co. v. Nicholai, 4 Ind. App. 119, s. c. 30 N. E. E. 424; Terra Haute, etc., E. Co. v. Fitzgerald, 47 Ind. 79; Louisville, etc., R. Co. v. Harris, 9 Lea (Tenn.) 180, s. c. 42 Am. E. 668; Cresson v. Philadelphia, etc., E. Co., 11 Phila. 597; Bland v. South- ern Pac. E. Co., 55 Cal. 570, s. c. 86 Am. E. 50 ; Bate v. Canadian Pac. E. Co., 15 Ont. App. 338, s. c. 37 Am. & Eng. E. Cas. 208 ; Steers v. Liverpool, etc., Co., 57 N. Y. 1 ; The Majestic, 60 Fed. E. 624; Fonseca i). Cunard, etc., Co., 153 Mass. 553, s. c. 27 N. E. E. 665, 12 L. E. A. 340; Harris v. Great Western E. Co., L. E. 1 Q. B. Div. 515. 5 Ante, §§ 1501, 1502, 1593, et seq. and notes. « Ante, §§ 1497, 1498, 1500, 1510. The entire subject is fully considered and numerous authorities are cited in an article entitled "General Liability of Carriers of Passengers for Baggage, 2 Am. & Eng. E. Cas. (N. S.) i." 2634 CARHIEES. § 1662 § 1662. Carrier's lien on baggage.— As the fare charged a passenger is for, or includes, the transportation of his baggage as well as himself, the carrier has a lien on the baggage, while in its possession, for the payment of such fare.' But it has no lien upon the clothing and other articles upon the person of the passenger or retained in his exclusive possession.^ The right of a carrier to detain baggage, under its lien, for the pay- ment of fare, must be properly exercised, and if it permits part of the baggage to be wrongfully taken away, or if it is lost or injured on account of the carrier's negligence while so detain- ing it, the carrier will be answerable therefor.' ' Roberts v. Koehler, 30 Fed. R. 94 ; ' See Ramsden v. BoBton, etc., E.Co., Wolf V. Summers, 2 Camp. 631; 104 Mass. 117; Lynch ^. Metropolitan, Hutchinson on Carriers, (2d ed.) § 719. etc., R. Co., 90 N. Y. 77. See, also, Rumsey v. Northeastern R. ' Southwestern R. Co. v. Bently, 51 Co., 14 C. B. N. S. 641, s. c. 11 W. R. Ga. 311. See, also, Tanco v. Booth, 89 911 ; Nordemeyer v. Loescher, 1 Hilt. N. Y. St. R. 82. (N. Y.) 499. CHAPTER LXXI. THE INTERSTATE COMMERCE ACT. 1663. The source, nature, and ex- tent of the federal power over interstate railroads. 1674, 1664. Commerce clause of the fed- 1675. eral constitution — General- 1676. ly- 1665. state power as limited by the commerce clause of the fed- 1677. eral constitution— General- ly. 1666. The interstate commerce act — Generally. 1678. 1667. Construction of the interstate commerce act. 1668. The police power as afiected by the commerce clause. 1679. 1669. State statutes held to be reg- ulations of interstate com- 1680. merce. 1681. 1670. State statutes held not to be regulations of interstate commerce. 1682. 1671. Interstate commerce. 1683. 1672. The interstate commerce com- 1684. mission. 1685. 1673. Railroads engaged in domes- 1686. tic commerce — When a rail- 1687. road is interstate. 1688. Commerce and manufactures — Monopolies — Trusts — Conspiracies. Combinations — Pooling. Discrimination — Undue pref- erence — What is under the interstate commerce act. Preference — Discrimination — When not unjust — Difier- ences in circumstances and conditions. Undue preference — Discrim- ination — Illustrative in- stance. Undue preference — Queatioii one of mixed law and fact. Rebates as affected by the in- terstate commerce act. Formation of connecting lines — Preference — Ter- minal facilities. Long and short haul. Group rates. Reasonable charges. Interchange of business. Joint tariffs — ^Through rates. Party rates — Mileage and commutation tickets. Violations of the interstate commerce act — Indictment. § 1663. The source, nature and extent of the federal power over interstate railroads. — To ascertain and determine the na- ture and extent of the federal power over interstate railroads two provisions of the national constitution rnust be considered, namely, (1) that which declares that: "Congress shall have (2635) 2636 CARKiERS. § 1663 power to regulate commerce with foreign nations and among the several states and with the Indian tribes,'" and (2) that which reads thus: "Congress shall have power to make all laws which shall be necessary and proper for the carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."" The effect of these pro- visions is to vest in congress supreme power over all instru- mentalities of interstate commerce and to confer upon it the authority to enact such laws as it may deem necessary to the proper and effective exercise of that power. The principal power being granted and authority conferred to adopt meas- ures to carry that power into execution, congress has a plenary discretion as to the choice of means and methods. As said in an early case: "Congress must possess the choice of means and must be empowered to use any means which are in fact condu- cive to the exercise of a power granted by the constitution.'" The grant of power is very broad and comprehensive and ex- tends to all matters legitimately connected with "commerce among the several states."* It has, indeed, been said that: "The power of congress to regulate an instrumentality of com- merce is practically unlimited because it may reach the com- merce itself as well as its agencies.'" The term "commerce" means "commercial intercourse between nations and parts of nations in all its branches.'" This principle requires the con- clusion that the constitution extends to and embraces all the branches of commerce "among the several states" and all the agencies and instrumentalities engaged or employed in that commerce.' "Wherever commerce among the states goes the > Const, art. i, § vm, subdivisioa 4. priate means" of exercising the power. 'Const., art. i, § viii, subdivision McCulloch u. Maryland, 4 Wheat 316, 19. The provisions of the federal con- 409. stitution are potent enough to author- ' United States v. Fisher, 2 Cranch :ze congress to establish railroads. 358; Legal Tender Cases, 110 U. S. 421. California v. Central Pac. R. Co., 127 'United States i>. Coombs, 12 Pet. 72. TJ. S. 1 ; Cherokee Nation v. Southern, ^ Louisville, etc., R. Co. v. Railroad etc., R. Co., l.Sr, V. S. 641. Having Commission, 19 Fed. R. 678. power to regulate commerce the ^Gibbons u. Ogden, 9 Wheat. 1. united States "may select the appro- 'Gibbons v. Ogden, 9 Wheat. 1- ^ 1663 THE INTERSTATE COMMERCE ACT. 2637 power of the nation goes with it.'" It is a matter of history as well as of express adjudication that one of the principal objects of the authors of the constitution was to secure uni- formity, avert the clashing of conflicting state interests and prevent sectional legislation dictated by state jealousy or local prejudice." It is unquestionably true that the framers of the constitution desired to secure uniformity and prevent di- versity, and that for the purpose of attaining that object they placed the commerce clause in the constitution. It seems to us, as elsewhere suggested, that the inaction of congress does not authorize action by the states, but it can not be safely af- firmed that the authorities warrant the broad conclusion sug- gested, for the conflict is so great that as much as can be safely said is that, where the subject is one requiring uniformity of regulation, inaction on the part of congress does not authorize action by the states, and that there are cases where inaction on the part of congress justifies action by the states. It has been held that the United States has no common law, and that when the federal courts do enforce common law rules they do so only upon the theory that the common law is regarded as part of the local law of the state.' Accepting as good law the State Freight Tax Cases, 15 Wall. 232 ; 138 U. S. 78, s. c. 11 Sup. Ct. R. 218 ; Smith V. Turner, 7 How. 283; White's Donald v. Scott, 67 Fed. R. 854; Can- Bank V. Smith, 7 Wall. 646 ; Corfield tini «. Tillman, 54 Fed. R. 969 ; Pierce V. Coryell, 4 Wash. C. C. 371 ; Pensa- v. New Hampshire, 5 How. 554; South cola, etc., Co. v. Western Union Tel. Carolina v. Seymour, 153 U. S. 353; Co., 96 U. S. 1 ; Western Union Tel. In re Minor, 69 Fed. R. 233; Ex parte Co. u. Pendleton, 122 U. S. 347; Mc- Hough, 69 Fed. R. 330. Call ». California, 136 U. S. 104; 'Gilman v. Philadelphia, 3 Wall. Brown v. Maryland, 12 Wheat. 419; 713. Stockton V. Baltimore, etc., R. Co., 32 "County of Mobile v. Kimball, 102 Fed. R. 9; The Daniel Ball, 10 Wall. U. S. 691; Welton v. State, 91 U. S. 557; The Montello, 20 Wall. 430; The 275; Leisy v. Hardin, 135 U. S. 100; City of Salem, 2 Interst. Com. R. 418; Wabash, etc., R. Co. v. Hlinois, 118 Stanley v. Wabash, etc., R. Co., 3 In- U. S. 557. terst. Com. R. 176. See, generally, 'Wheaton v. Peters, 8 Pet. 591; Preston v. Finley, 72 Fed. R. 850; Railroad Co. v. Lockwood, 17 Wall. Plenson ». Lett, 8 Wall. 148; Wood- 357; Swift v. Philadelphia, etc., R. ruff V. Parham, 8 Wall. 123; Emert Co., 64 Fed. R. 59; Phipps b. Hard- in. Missouri, 156 U. S. 296, s. c. 15 ing, 70 Fed. R. 468; In re Barry, 42 Sup. Ct. R. 367; Brimmer v. Rebman, Fed. R. 113; The Scotland, 105 U. S. 2638 CARRIEES. § 16G:i rule that there is no such thing as federal common law the necessary conclusion is that the rights, duties and liabilities of interstate railroad companies must, so far as regards com- merce among the several states, be regulated by federal legis- lation. It is difficult, however, to reconcile the doctrine of the cases which affirm that there is no federal common law with the doctrine of many other federal decisions.' It is not easy to perceive how the doctrine can be reconciled with that as- serted in the great number of cases which affirm that the f ed- 24, 32; In re Burrus, 136 U. S. 586, s. c. 10 Sup. Ct. R. 850; Kendall v. United States, 12 Pet. 524. But see Murray v. Chicago, etc., R. Co., 62 Fed. R. 24; Fenn u. Holme, 21 How. 481, 484; Kohl v. United States, 91 U. S. 367, 374, 376; Moore u. United States, 91 U. S. 270; Atchison, etc., Co. V. Denver, etc., Co., 110 U. S. 667, 4 Sup. Ct. R. 185. In Coffin v. United States, 1.56 U. S. 432, s. c. 15 Sup. Ct. R. 394, the court relied upon the rules of the common law and of the civil law, saying of one of the common law rules that : "It lies at the foundation of the administration of our criminal law." If this be true, as unquestionably it is, is there not a federal common law? We think the common law in a sense envelopes all American courts, except where there is a system of law excluding it, much as the atmosphere does the earth Life and letters of .loseph Story, vol 1, p. 299; 2 Elliott's Gen. Pr., § 297 Duncan ii. United States, 7 Pet. 435 Cox V. United States, 6 Pet. 172, 173 ' Baltimore R. Co. v. Baugh, 149 U S. 368, s. c. 13 Sup. Ct. R. 914, and cases following it. Many of the decisions of the Supreme Court of the United States do recognize the fact that there is such a thing "as a general common law." In scores of cases where the question was not local to the state in any sense, as, for instance, such cases as Muun v. Illinois, 94 U. S. 113, the court invokes the common law. If there is a general rule of law not local to the state, as there is in very many of the interstate commerce cases, and that rule influences the decisions of the federal courts it must be a federal common law rule. In admiralty cases general common law rules bring about decisions and in admiralty cases local law is not an element. Constitutions are framed with reference to existing things and upon the theory that there is an organized society governed by laws, and when a subject is provided for in the constitution it is the subject as recognized by organized society and governed by law. All constitu- tions presume a reign of law, not a condition of anarchy. See, generally, Murray v. Chicago, etc., R. Co., 62 Fed. R. 24; Watson v. Tarpley, 18 How. (U. S.) 517; Van Ness v. Pacard, 2 Pet. (U. S.) 137, 148; United States V. Reid, 12 How. U. S. 361 ; Ameri- can Ins. Co. V. Canter, 1 Pet. oil, 546; New Jersey, etc., Co. v. Mer- chants' Bank, 6 How. 344, 390; Cox V. United States, 6 Pet. 172; Duncan V. United States, 7 Pet. 435; Swift v. Tyson, 16 Pet. 1, 18; Gates v. Na- tional Bank, 100 U. S. 239; Railroad Co. ■». National Bank, 102 U. 8. 14; Cooley Const. Lim., 31. § 1663 THE INTERSTATE COMMERCE ACT. 2639 eral courts will follow the decisions of the state tribunals upon local questions but not upon questions of general law. Were it not for the decisions of eminent judges afl&rming that there is no federal common law we should be firmly of the opinion that when the constitution conferred upon the general govern- ment supreme power over a subject long known to the law and often passed upon by the courts it carried with the subject the common law. Even as against these decisions we venture the opinion that there is such a thing as unwritten law which forms part of our whole system of jurisprudence, national and state. It is quite difficult for us to conceive how a subject can be expressly and entirely placed under the dominion of the federal government and yet the common law of the subject not go with it. We do not believe that any written statutes can contain all the law there is upon a subject and do believe that recourse must be had to living principles. In American and English jurisprudence those principles are chiefly found in the common law. We can not believe that legislation does or can compass all the principles of right and justice, nor all the principles which govern the conduct and business of men or control the administration of justice.' It seems to us that the general principles of the common law (that is, such prin- ciples as are not peculiar to the governmental or social system of England, but such general principles as affect primary rights of persons or property) are part of the law of this na- tion. In cases far too numerous for citation reference is made to the principles contained in the Magna Charta, the Petition of Right and to the rules laid down by the courts of England, and these references indicate that notwithstanding some declar- 'In Town of Pawlet v. Clark, 9 Fisk's Critical Period of Am. History, Cranch 292, it was said : "We take it 97 ; 1 Kent. Com. 471 ; 1 Story Const., to be a clear principle that the com- §157; Cooley's Const. Lim., 37; Eob- mon law in force at the emigration of inson v. Cambell, 3 Wheat. 212. But our ancestors is deemed the birthright see Bucher v. Cheshire Railroad, 125 of the colonies unless it is inapplicable U. S. 555; United States v. Railroad, to their situation or repugnant to their etc,, Co., 6 McLean 517; Lorman v. other rights and privileges." See, Clarke, 2 McLean 568. also, Norris v. Harris, 15 Cal. 226, 232; 2640 CAREIERS. § 1664 ations to the contrary, the federal courts do, consciously or un- consciously, recognize the fact that there is a federal common law. It is, indeed, almost impossible to exclude it from the mind in considering any case involving great general prin- ciples.' § 1664. Commeree clause of the federal constitution — Gen- erally. — In other places we have considered the commerce clause of the federal constitution and have spoken of the lim- itations it imposes upon the power of the states.^ As we have shown, the effect of the commerce clause of the federal consti- tution is to deprive the states of the power to enact statutes, which, no matter what form they may assume, are strictly and in a clear legal effect regulations of interstate commerce.' It 708. As to taxation of interstate rail- roads, see ante, §§ 753-784. See, as to the general power of the federal gov- ernment, In re Debs, 158 U. S. 564, s. c. 15 Sup. Ct. R. 900; United States v. Cassidy,67 Fed. E.698; Gulf, etc., R. Co. V. Hefley, 158 U. S. 98, s. c. 15 Sup. Ct. R. 802; Solan v. Chicago, etc., R. Co., (Iowa) 63 N. W. R. 692; Houston, etc., R. Co. «. Williams, (Texas Civ. App.) 31 S. W. R. 556; Cuban, etc., Co. v. Fitzpatrick, 66 Fed. R. 63 ; Ex parte Jervey, 66 Fed. R. 957; Jervey v. The Carolina, 66 Fed. R. 1013; Ames v. Union, etc., R. Co., 64 Fed. E. 165; Frere i).Von Schoeler, 47 La. Ann. 324, s. c. 16 So. R. 808, 27 L. R. A. 414; City of San Bernardino Southern, etc., R. Co. 107 Cal. 524, s. c. 40 Pac. R. 796. ^Ante, §§658, 667. We do not think that the decision in Hennington v. Georgia, 163 U. S. 299, 16 Sup. Ct. R. 1086, can be regarded as denying the doctrine of the cases which ad- judge that a state can not enact a statute regulating interstate commerce but it must be confessed that it is dif- ficult to reconcile some of the state- ments of the opinion with the rulings ' As illustrating the doctrine of the text, see Moore v. United States, 91 U. S. 270; United States v. Clark, 96 U. S. 37; Oscanyan I). Arms Co., 103 U. S. 261 ; Marshall v. Baltimore, etc., R. Co., 16 How. 314; Tool Co. v. Norris, 2 Wall. 45; Trist v. Child, 21 Wall. 441; Hannauer v. Doane, 12 Wall. 342; Thomas ■». City of Rich- mond, 12 Wall. .349; Woodstock, etc., Co. V. Richmond, etc., Co., 129 U. S. 643, s. c. 4 Sup. Ct. R. 402; Kohl V. United States, 91 U. S. 367; Atchi- son, etc., R. Co. V. Denver, etc., R. Co., 110 U. S. 667, s. c. 4 Sup. Ct. R. 485; Fenn v. Holme, 21 How. 481; Gates u. National Bank, 100 U. S.239; Railroad Co. v. National Bank, 102 U. S. 14; Moore v. United States, 91 U. S. 270. In Smith v. Alabama, 124 U. S. 465, s. c. 8 Sup. Ct. R. 564, it is said that: "There is, however, one clear exception to the statement that there is no national common law." But courts can not make law, so that if there be law not contained in stat- utes upon which courts can give judg- ment it must be the law our ancestors brought from the mother country. 'Ante, §§658, 667, 668, 670, 671, 690, § 1665 THE INTERSTATE COMMERCE ACT. 2641 is safe to say that the power to regulate interstate or foreign commerce resides in the federal congress, and that if congress elects to exercise the power the states can not effectively legis- late upon the subject. As elsewhere indicated, the questions of doubt and difficulty are those which arise in cases where there is inaction by congress and in cases where the controlling in- quiry is whether the state statute is such "a regulation of com- merce among the several states" as brings it into conflict with the federal constitution or laws." We think it clear that where there is such conflict, that is, where the statute impedes or ob- structs commerce between the states, the statute must yield and the commerce clause of the federal constitution prevail. § 1665. State power as limited by the commerce clause of the federal constitution — Generally. — It was said several years ago by one of the justices of the supreme court of the United States that all the decisions upon the power of the states under the commerce clause of the federal constitution were given by a divided court, and it is still true that in the majority of cases the court is divided in opinion. Individual notions creep into opinions, for the judge to whom the duty of writing the opin- ion for the court is delegated very often incorporates in the in other cases. The statement of the the subject is, by the paramount law, text is supported by the cases collected lodged in the general government, in- in the notes to the sections above re- action by congress can not transfer ferred to. See Pembina, etc., Co. v. the power nor authorize its exercise by Pennsylvania, 125 U. S. 181 ; Hender- state legislatures. Whether congress son V. Mayor of N. Y., 92 U. S. 259; acts or does not act can not, as we be- Chy Lung v. Freeman, 92 U. S. 275; lieve, vest a right in the states which. People?;. Compagnie, etc., 107 U. S. 59; by the constitution is vested in the Eailroad Co. v. Husen, 95 U. S. 465; United States. Where the supreme Hall V. DeCuir, 95 U. S. 485 ; Wabash, law places the power there it resides etc., Co. V. Illinois, 118 U. S. 557; even though it may not be exercised. Leisy v. Hardin, 135 IT. S. 100 ; Bow- The failure to exercise the power by man v. Chicago, etc., E. Co., 125 U. the government to which it belongs S. 465; McCall v. California, 136 U. S. can not, as we believe, justify its ex- 104. ercise by a government to which the ' We venture to say, but not with- power does not belong. Stoutenburgh out hesitation and diffidence, that it v. Hennick, 129 TJ. S. 141, 148; Rob- is difficult for us to accept the doctrine bins V. Shelby County Taxing Dist., of concurrent power. As power over 120 U. S. 489, 498. 2642 CAREIEES. § 1665 opinion his individual views or, at least, gives tone and color to the conclusions of the court from his individual conceptions, and this has deepened the confusion. Very able opinions have been written, strong in argument and rich in authority, but the truth remains that there is yet confusion and obscurity. The opinions of the great chief justice, John Marshall, laid with a master's power the foundations of the doctrines of our day, but the expansion of commerce and the changes that time has wrought, have brought into existence new conditions, new agencies, and new situations, so that there are many questions which the earlier cases did not meet or decide. The meaning of the term "regulation of interstate commerce" has not been defined with clearness and distinctness, and it is very difficult to say with precision what meaning should be assigned to.the term. The courts, it is true, have adjudged many statutes to be void because they assumed to regulate commerce among the states and have upheld others for the reason that, although they affect interstate commerce, they are not to be regarded as regu- lations of that commerce within the meaning of the organic law, but yet it is true that there is no authoritative adjudication that will warrant the statement of a definition or rule of general ap- plication. In saying, as we have often done, that a state has no power to enact a statute that assumes to establish a regulation of interstate commerce, or a statute that in its effect and operation does make such a regulation, we are not to be understood as affirming that a state may not, in the absence of legislation by congress, legislate upon subjects connected with interstate com- merce, but on the contrary, we affirm that the weight of au- thority is, although there is conflict, that in the absence of leg- islation by congress a state may legislate upon the subject al- though it can not establish a regulation that is in effect and operation "clearly a regulation of interstate commerce." It is, indeed, safe to say that no state has power to establish regu- lations that so operate as to burden, impede or obstruct' com- •Leisy v. Hardin, 135 U. S. 100; 8. 622; In re Rahrer, 140 U. S. 545; Bowman v. Chicago, etc., R. Co., 125 Illinois, etc., R. Co. v. People, 163 U.S. 465; Brown II. Houston, 114 U. U. S. 142, 16 Sup. Ct. R. 1096; Rail- §1665 THE INTERSTATE COMMERCE ACT. 2643 merce between the several states,' but as is evident from what we have said, what is a regulation of interstate commerce within the meaning of the law is not easily determined. The question as to the power of the states to legislate upon subjects connected with interstate commerce has, as we have seen,'' often been before the courts, but, notwithstanding this fact, the limitations upon the power of the states have not been precisely marked out, and although it is well settled that there are strong and unbending limitations upon the power of the states it can not be affirmed that the lines which bound the respective spheres of the state and national governments are distinctly known, and hence it can not be known just what state legisla- tion is such a regulation of commerce as cuts into the sphere of the national government, and is, for that reason, to be con- demned. It has been held that a state statute requiring a do- mestic railroad company to provide separate accommodations for white and colored persons is valid, ° but the clear implication road Co. v. Eichmond, 19 Wall. 584; Stone V. Farmers', etc., Trust Co., 116 TJ. S. 307, 334. Ante, §§ 662, 668, 669, 672, 679, 689-692. 'The principle stated in the text has often been asserted in tax cases. Ante, §§753, 754, 755, 760, 761. See, also, Bank Tax Cases, 2 Wafl. 200; Society, etc., v. Coite, 6 Wall. 594; Provident, etc., v. Massachusetts, 6 Wall. 611; McCulloch v. Maryland, 4 Wheat. 316; Weston v. City of Charleston, 2 Pet. 449 ; People v. Com- missioners, 2 Black 620; Railroad Co. V. Peniston, 18 Wall. 5; Achison w. Huddleson, 12 How. 293 ; California ». Central Pac. R. Co., 127 U. S. 1 ; Thompson v. Pac. E. Co., 9 Wall. 579 ; Passenger Cas., 7 How. 469-482; Brown v. Maryland, 12 Wheat. 419 ; Crandall v. State, 6 Wall. 35 ; Woodruff V. Parham, 8 Wall. 123; Waring v. Mayor, 8 Wall. 110 ; Cook v. Pennsyl- vania, 97 U. S. 566 ; Hinson v. Lott, 8 Wall. 148; Osborne v. Mobile, 16 Wall. 479; Tiernan^. Einker, 102 U. S. 123; Webber ^.Virginia, 103 U. S. 344, and cases cited ; Ward v. Maryland, 12 Wall. 418 ; Eatterman v. Western Union Tel. Co., 127 U. S. 411, and cases cited; Hays v. Pacific, etc.. Steamship Co., 17 How. 596. See Western Union, etc., Co. «. Taggart, 163 U. S. 1, 16 Sup. Ct. E. 1054; Columbus Railway Co. v. Wright, 151 U. S. 470, s. c. 14 Sup. Ct. R. 396; Western Union, etc., Co. v. Taggart, 141 Ind. 281, s. c. 40 N. E. R. 1051. ^Ante, §§662, 668-672, 679, 689-692. ' Plessy V. Ferguson, 163 U. S. 537, 16 Sup. Ct. R. 1138, affirming Ex parte Plessy, 45 La. Ann. 80 s. c. 11 So. R. 948, and citing State v. McCann, 21 Ohio St. 198; Lehew v. Brummell, 103 Mo. 546, 15 S. W. R. 765 ; Ward v. Flood, 48 Cal. 36; Bertonneau v. Board of Directors, 3 Woods 177, s. c. 3 Fed. Cas. 1361 ; People v. Gallagher, 93 N. Y.438; Cory v. Carter, 48 Ind. 327; Dawson v. Lee, 83 Ky. 49; State V. Gibson, 36 Ind. 389. 2644 CARRIERS. § 1666 from the case referred to, and the express statements in other cases, require the conclusion that a statute of that character would be regarded as void if it assumed to regulate commerce be- tween the states. But it has been held that, where the charter or local law prohibited the exclusion of persons on account of their color the company could not rightfully require colored persons to travel in cars exclusively assigned to such persons although the cars were as good as those provided for white per- sons.' It has also been held that a statute of a state providing that interstate carriers shall give to all persons, without dis- tinction of race or color, equal accommodations, is void because it is a regulation of interstate commerce.'' § 1666. The interstate commerce act — Generally. — As the power of the federal government over commerce among the several states is supreme, and as the general government has a free choice of means and methods there can be no doubt as to the validity of the interstate commerce act. That act rests upon solid foundations so far as the legal aspects of the ques- tion are concerned, no matter what may be thought of the policy or expediency of such a law. But there is no necessity nor, indeed, any excuse for discussing the question of the validity of the law since that question is at rest,' and with 'Eallroad Co. v. Brown, 17 Wall. Owen, 5 Mich. 520; Chesapeake, etc., 445; Carrey v. Spencer, 36 N. Y. S. R. Co. v. Wells, 85 Tenn.613, s. c. 4 S. 886. W. R, 5; The Sue, 22 Fed. R. 843; 2 Hall V. Be Cuir, 95 U. S. 485. In Logwood v. Memphis, etc., R. Co., 23 Plessy V. Ferguson, 163 U. S. 587, the Fed. R. 318 ; McGuinn v. Forbes, 37 court said of the case cited, that, "The Fed. R. 639; People ■». King, 110 N. courtinthatcase, however, disclaimed Y. 418, 18 N. E. R. 245- Houck i. that it had anything whatever to do Southern, etc., R. Co., 38 Fed. R. 226; with the statute as a regulation of in- Heard v. Georgia R. Co., 3 Interst. terstate commerce, or affecting any- Com. R. Ill, s. c. 1 Interst. Com. R. thing else than commerce among the 428. states." See, also, Louisville, etc., R. 'Ante, §§675, 676; Kentucky, etc., Co. V. Mississippi, 133 U. S. 587, 591, Co. v. Louisville, etc., Co., 37 Fed. r! B.C. 10 Sup. Ct. R. 348; Louisville, 567, s.-c. 2 L. R. A. 289 2 Interst. etc., R. Co. V. State, 66 Miss. 662, s. c. Com. R. 351 ; United State's d. Boston, 6 So. R. 203; State v. Hicks, 44 La. etc., R. Co., 15 Fed. R. 209- United Ann. 770, 11 So. R. 74; West Chester, States v. Louisville, etc. R. Co 18 etc.,Co.». Miles, 55 Pa.St. 209; Dayu. Fed. R. 480; United States j». East §1667 THE INTERSTATE COMMERCE ACT. 2645 mere questions of policy and expediency the courts are not concerned. The act is entitled "An act to regulate commerce'" and it was intended to and does, it has been held, cover the whole field of foreign and interstate commerce.' § 1667. Construction of the interstate commerce act. — ^The American courts have not, so far as our investigation enables us to determine, declared in express terms whether the inter- state commerce act is to be construed strictly as against inter- state carriers, but, as we shall hereafter see, the courts have, as a rule, given the act such a construction as interferes with the free right of contract and the free use of property as little as it is possible to do and yet protect the public. The English courts have construed the English statute, which is in many respects similar to the American, very liberally in favor of the public' We think that as the act was designed to advance the interests of commerce and promote the public welfare it should be liberally construed in favor of the public, except, Tennessee, etc., R. Co., 13 Fed. R. 642; Canada, etc., Co. ». International, etc., Co., 8 Fed. R. 190; Kaeiser v. Illinois, etc., R. Co., 18 Fed. 151; Mobile, etc., Co. v. Sessions, 28 Fed. R. 592; Illinois, etc., Co. v. Stone, 20 Fed. R. 468 ; Railroad Commissioners V. Railroad Co., 22 So. Car. 220; Pacific, etc., Co. v. Board of Rail- road Com., 18 Fed. R. 10. See, generally. United States v. Union Pacific R. Co., 91 U. S. 72; South Carolina v. Georgia, 93 U. S. 4; Louis- ville, etc., R. Co. V. Railroad Com., 19 Fed. R. 679; Missouri, etc., R. Co. v. Texas, etc., R. Co., 30 Fed. R. 2. For a history and statement of the general scope and purpose of the act, see Re- port of The Commission ; 1 Interst. Com. Com. 260; Louisville, etc., R. Co. V. Nashville, etc., R. Co., 1 Interst. Com. Com. 64. All the decisions de- termining questions arising upon the Corp. 168 act proceed upon the theory that it is valid. '24 U. S. Statutes at Large 379, 25 U. S. Statutes at Large 855. 'Texas, etc., R. Co. v. Interst. Com. Com., 162 U. S. 197, s. c. 16 Sup. Ct. R. 666. But while the statement in the case cited is a very broad one, we suppose that the interstate commerce act can not be regarded as containing the only federal legislation upon the subject of interstate commerce, nor the whole law upon the subject, for there are other statutes upon the subject, as, for instance, the act of March, 1873, U. S. Statutes, §§ 4386, 4390, and the act in relation to the regulation of the sale of intoxicating liquors. 'Caledonian, etc., R. Co. v. North British, etc., R. Co., 3 Nev. & Macq. R. Cas. 403; Belfast, etc., R. Co. «. Great Northern, etc., R. Co., 3 Nev. & Macq. R. Cas. 419. 2646 CARRIERS. § 1667 perhaps, where it tends to abridge the right of contract or re- strict the use of property, and there, while the construction should be reasonable, it should not be so strict as to unneces- sarily limit the right to contract. The act was not designed to benefit carriers but to promote the public good, and as this is its object it should be liberally construed in favor of the public' But while the act is to be liberally construed in fa- vor of the public the construction can not justly be such as will unnecessarily abridge the right of contract or the right to the enjoyment of property. The scope of the act is very broad and comprehensive, and includes all foreign and interstate commerce, and all its instrumentalities and agen- cies.' The act has not, however, as yet been so fully consid- ered as to justify the statement of many general rules, but some of its provisions have received authoritative construc- tion. Thus, it has been held that, a railroad company which enters into an arrangement with other companies and un- der such arrangement receives goods brought from another state, is part of a continuous line "under a common control, management or arrangement for a continuous carriage or shipment.'" It has been held that in construing the act the ' Kentucky Bridge Co. v. Louisville, In the case first cited it was said : etc., R. Co., 37 Fed. E. 567. "All we wish to be understood to ^In Texas, etc., R. Co. v. Interstate hold is that when goods are shipped Com. Com., 162 U. S. 197, s. c. 16 Sup. under a through bill of lading from a Ct. R. 666, 672, the court in speaking point in one state to a point in an- of the act said: "It would bediflBcult other, and when such goods are re- to use. language more unmistakably ceived in transit by a state common signifying that congress had in view carrier, under a conventional division the whole field of commerce (except- of the charges, such carrier must be ing commerce wholly within a state), deemed to have subjected its road to as well that between states and ter- an arrangement for a continuous car- ritories as that going to or coming from riage or shipment, within the meaning foreign countries." of the act to regulate commerce. » Cincinnati, etc., R. Co. v. Interst. "When we speak of a 'through bill of Com. Com., 162 U. S. 184, s. c. 16 lading,' we are referring to the usual Sup. Ct. R. 700, distinguishing Chi- method in use by connecting carriers, cago, etc., R. Co. V. Osborne, 52 Fed. and must not he understood to imply R. 912 (s. 0. 4 Interst. Com. R. 257), that a common control, management, ajid affirming Interstate Com. Com. or arrangement might not be other- V. Cincinnati, etc., R., 5f) Fed. R. 925. wise manifested." It has, however 4 1668 THE INTERSTATE COMMERCE ACT. 2647 interest of the interstate carrier is a proper matter for consid- eration,' and this ruling forbids a construction that would deprive carriers of the right of contract or of the right of property without due process of law. It has been held that the clause "common control, management or arrangement for continuous shipment," was intended to cover all interstate traffic over all railroad lines as well as over part water and jDart railroad transportation.^ § 1668. The police power as affected by the commerce clause. — We have elsewhere considered the question of the nature of the police power of the states, and, to some extent, discussed the question of the limitations imposed upon the police power by the commerce clause of the federal constitution,' but the question requires a somewhat fuller consideration in connec- tion with the subject of this chapter. In a late case it was held that a state statute prohibiting the running of trains on Sunday was a valid exercise of the police power of the state, and was not a violation of the commerce clause of the federal constitution.' There is, we say with deference, reason for been held that a mere "through book- Hennington v. State, 90 Ga. 396, 17 S. ing" is not an "arrangement" within E. E. 1009. The court cited the cases the meaning of the statute. Ayr of Mugler v. Kansas, 123 U. S. 623, Harbor, etc., v. Glasgow R. Co., 4 R. 661, s. c. 8 Sup. Ct. R. 273; Minnesota & Canal Traf. Cas. 81. v. Barber, 136 U. S. 313, 320, s. c. 10 'In the case of Interstate Com. Com. Sup. Ct. R. 862; Ex parte Newman, 9 V. Louisville, etc., R. Co., 73 Fed. R. Cal. 502 ; Bloom u. Richards, 2 Ohio St. 409, 420, it was said: "It was at one 387, 392; Specht v. Commonwealth, 8 time thought doubtful whether the Pa. St. 312 ; Commonwealth v. Has, interests of the railway could be taken 122 Mass. 40 ; Frolickstein v. Mobile, 40 into consideration but it is now estab- Ala. 725 ; Scales v. State, 47 Ark. 476, lished that they can be. Interstate 482, s. c.l S. W. R. 769; States. Ambs, Com. Com. V. Baltimore, etc., R. Co., 20 Mo. 214; Mayor of Nashville v. 43 Fed. R. 37; Ames ». Union, etc., Linck, 12 Lea 499, 515; Gibbons v. R. Co., 64 Fed. 176 ; Reagan v. Mer- Ogden, 9 Wheat. 1, 203, 210 ; Pound v. cantile Trust Co., 154 U. S. 413, s. c. Turck, 95 U. S. 459, 463; Willson v. 14 Sup. Ct. R. 1047." Black Bird, etc., Co., 2 Pet. 245, 251, ^Railroad Commission I). Clyde, etc., 252; Gil man «. Philadelphia, 3 Wall. Co., 5 Interst. Com. Com. R. 326. 713; Cooley «. The Board, etc., 12 '^««B, §§658, 663-666, 667, 668. How. 299; Owners of Brig James 'Hennington v. Georgia, 163 U. S. Gray v. Owners, etc., 21 How. 184; 299, 16 Sup. Ct. R. 1086, affirming; Railroad Co. «. Fuller, 17 Wall. 660, 2648 CARRIERS. § 1668 questioning the soundness of the decision of the court in the case referred to, for it is difficult to perceive why the prohibi- tion against running trains on Sunday is not essentially a reg- ulation of interstate commerce.' We do not, of course, doubt the power of a state legislature to prohibit the conduct of ordi- nary business on Sunday, but it does seem to us that interdict- ing the running of interstate trains on a specified day through a state is a regulation of interstate commerce. If a legislature may prohibit the running of trains on one day, it is not easy to see why it may not, at its pleasure, choose the day, nor why, if it may select one day, it may not select more than one day. If the power to prohibit the running of trains be conceded to the state legislature, then it would seem that the right to select the day or determine the number of days is a matter of legis- lative discretion. But while there is reason for questioning the soundness of the decision, there is, nevertheless, much force in the argument by which the conclusion of the court is supported. It is true — as the court affirms — that a state stat- ute, although it may affect interstate commerce, is not neces- sarily a regulation of that commerce, and if the statute was not a regulation of interstate commerce the decision is unques- tionably right. The majority of the court in the case upon 567; Railroad Co. v. Husen, 95U.;S. of uniform regulation. The power of 465, 470; Morgans's, etc., Co. v. congress to regulate it is exclusive, Louisiana Board, etc., 118 TJ. S. 455, and under the constitution it is free B.C. 6 Sup. Ct. R. 1114; Henderson v. and untrammeled, except as congress Mayor, etc., 92 IT. S. 259; New Or- otherwise provides. This statute, in leans, etc., Co. v. Louisiana, etc., Co., requiring the suspension of interstate 115 U. S. 650, s. c. 6 Sup. Ct. R. 252; commerce for one day in the week, Smith V. Alabama, 124 U. S. 465 ; Sher- amounting to a regulation of that corn- lock V. Ailing, 93 U. S. 99 ; Nashville, merce, and is invalid because the pow- etc, Co. i>. Alabama, 128 U. S. 96, s. c. er of congress in that regard is exclu- 9 Sup. Ct. R. 28. See, also, State v. sive. But it is said that the act is not Railroad Co., 24 W. Va. 783. a regulation of commerce, but a mere 'In the case referred to, Fuller, 0. regulation of police, and that the so- J., in his dissenting opinion, said: called police power of a state is plen- "Intercourse and trade between the ary. The result, however, is the same, states by means of railroads passing When a power of a state and a power through several states, is a matter na- of the general government come into tional in its character and admitting collision, the former must give way." ^ 1668 THE INTERSTATE COMMERCE ACT. 2649 which we are commenting proceeded upon the theory that the statute under consideration did not establish a regulation of interstate commerce, and for that reason was not within the con- stitutional interdiction.' A very important doctrine was de- clared in another recent case." In the case to which we refer it was adjudged that a statute of the state of Illinois, which re- quired an interstate railroad passenger and mail train to run three and one-half miles in order to stop at a station for which reasonable facilities had been provided, was void because it was not a reasonable exercise of the police power, and was an un- reasonable obstruction of interstate commerce. It seems to fol- low from the principle asserted in the case under immediate consideration, and in other cases, that, as elsewhere said,' the controlling question is as to whether the statute is a regulation of interstate commerce. There can be no doubt that the states neither delegated to the general government the police power, nor surrendered it, but, on the other hand, there can be no doubt that the commerce clause of the federal constitution does carry to the general government the subject of commerce among ' In the course of the majority opin- versing Illinois Central R. Co. v. Peo- ionitwas said: "The argument in be- pie, 143 111. 434, s. c. 33 N. E. R. 173. half of the defendants rests upon the See ante, § 668, note 5. In the case erroneous assumption that the statute cited the court referred to the follow- of Georgia is such a regulation of in- ing cases : Railroad Co. v. Richmond, terstate commerce as is forbidden by 19 Wall. 584, 589 ; Stone v. Farmers' the constitution, without reference to Trust Co., 116 U. S. 307, s. c. 6 Sup. affirmative action by congress, and not Ct. R. 334, 388; Smith v. Alabama, merely a statute enacted by the state 124 U. S. 465, s. c. 8 Sup. Ct. R. 564 ; under its police power, and which. Union Pac. Railroad Co. v. Hall, 91 although in some degree affecting in- TJ. S. 343; Chicago, etc., R. Co. v. terstate commerce, does not go beyond Minnesota, 134 U. S. 418, s. c. 10 the necessities of the case, and there- Sup. Ct. R. 462, 702. In the case fore is void, at least until congress in- first cited it was said : "The state may tdrferes." It was also said : "We are make reasonable regulations to secure -of opinion that such a law, although the safety of passengers, even on in- in a limited degree affecting interstate terstate trains, while within its bord- commerce, is not, for that reason, a ers. But the state can do nothing that needless intrusion upon the domain of will burden or impede the interstate federal jurisdiction, nor strictly a reg- traffic of the company or impair the ulation of interstate commerce." usefulness of its facilities for such pur- * Illinois Central R. Co. the several states with all its incidents, so that the conclusion must be that the states can not, by statutes professedly passed in the exercise of the police power, defeat the supreme power ex- pressly and entirely vested in the nation.' The power of a state to enact police regulations is limited, as are all other legislative powers, and, " every exercise of the police power must be reasonable and extend only to such laws as are en- acted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.'" § 1669. State statutes held to be regulations of interstate commerce. — Many of the cases heretofore referred to by us adjudge state statutes to be invalid, and it is not our purpose to again consider those cases, nor, indeed, shall we attempt to consider all the cases not heretofore discussed. The rule in regard to a state statute which assumes to regulate interstate commerce was clearly declared in a case in which it was held that a state statute prescribing a penalty for charging or col- lecting a greater sum than that specified in the bill of lading was held void because it was a regulation of commerce among the several states.' The general question was well considered by the supreme court of Iowa and it was held that a state statute as- suming to give a right of action for the recovery of over- ' Western Union Tel. Co. v. James, (Civil Rights Cases) 109 TJ. S. 3 162 U. S. 650, 16 Sup. Ct. B. 934; Slaughter-house Cases, 10 Wall. 36 Kimmish v. Ball, 129 U. S. 217, s. c. 9 Reading Railroad Co. v. Pennsylvania, Sup. Ct. R. 277; Railroad Co. u. Hu- (State Freight Tax) 15 Wall. 232 sen, 95 U. S. 465. In re Rahrer, 140 Webber v. Virginia, 103 U. S. 344 U.S. 545, 8. c. 11 Sup. Ct. R. 865; Patterson i). Kentucky, 97 U. S. 501 Plumley v. Massachusetts, 155 U. S. People v. Rock Island, etc., R. Co., 71 461, s. c. 15 Sup. Ct. R. 451; United Fed. R. 753; Crutcher v. Kentucky, States V. Knight Co., 1.56 U. S. 1, 11, s. 141 U. S. 47, s. c. 11 Sup. Ct. R. 851; c. 15 Sup. Ct. R. 249 ; New Orleans, etc., Ex parte Loeb, 72 Fed. R. 657. Co. V. Louisiana, etc., Co., 115 U. S. ^Plessyu. Ferguson, 103 U. S. 537, 650, s. c. 6 Sup. Ct, R. 2.=)2; Peete v. 16 Sup. Ct. R. 1138, citing Tick Wo v. Morgan, 19 Wall. 581,682; Kidd ii. Hopkins, 118 U. S. 356. Pearson. 128 U. S. 1, s. c. 9 .Sup. Ct. 'Gulf, etc., R. Co. v. Hefley, 1.58 U. R. 6; United States r.DeWitt, 9 Wall. S. 98, s. c. 15 Sup. Ct. R. 802; St. 41 ; United States v. Reese, 92 U. S. Louis, etc., R. Co. v. Garden, (Tex. 214; United States i). Cruikshank, 92 Civ. App.) 34 S. W. B. 145. U. S. 542; United States v. Stanley, § 1669 THE INTERSTATE COMMERCE ACT. 2651 charges on shipments of freight in cases of an alleged unjust discrimination was invalid.' It has often been held that state statutes which prohibit the transportation of Texas cattle through the state are regulations of commerce among the several states and are in conflict with the federal constitution.' It has been held, and rightly, that a state statute which pro- hibits interstate railroad companies from charging a greater rate for hauling freight a shorter distance than the rate charged for hauling freight a greater distance on the same line of road violates the federal constitution and is void.' In a recent cage the supreme court of Nebraska fully considered the question of the power of a state to regulate interstate commerce and held void a state statute which assumed to require a railroad 'Gatton I). Chicago, etc., R. Co., (Iowa) 63 N. W. R. 589. The court professedly distinguished the cases of Cook V. Chicago, etc., R. Co., 81 Iowa 551, s. c. 46 N. W. R. 1080; Fuller V. Chicago, etc., R. Co., 31 Iowa 187, 209, but practically over- ruled much of the doctrine asserted in Cook V. Chicago, etc., R. Co. The decision of the court was mainly rested upon the cases of Wabash, etc., R. Co. V. Illinois, 118 U. S. 557, b. c. 7 Sup. Ct. R. 4, and Hart v. Chicago, etc., R. Co., 69 Iowa 485, s. c. 29 N. W. R. 597. Reference was also made to Carton v. Illinois, etc., R. Co., 59 Iowa 148, s. c. 13 N. W. R. 67, and to Mr. Draper William Lewis' Federal Power over Commerce, 122, 123. In the course of the opinion the court quoted with approval the statement that: "The inaction of congress with reference to legislation touching inter- state commerce is equivalent to a declaration that such commerce shall be free and untrammeled." ' Kimmish v. Ball, 129 U. S. 217, s. c. 9 Sup. Ct. R. 277; Minnesota v. Barber, 136 U. S. 313, s. c. 10 Sup. Ct. R. 862; Brown v. Piper, 91 U. S. 37; Railroad Co. v. Husen, 95 TJ. S. 465; State V. Klein, 126 Ind. 68; Adams Ex. Co. V. Board, etc., 65 How. Pr. 72; Gilmore ti. Hannibal, etc., R. Co., 67 Mo. 323; State v. Railroad Co., 24 W. Va. 783; Grimes v. Eddy, 126 Mo. 168, s. c. 28 S. W. R. 756; Selvege r. St. Louis, etc., R. Co., (Mo.) 36 S. W. R. 652. In the case first cited, Brad- ford V. Floyd, 80 Mo. 207, was over- ruled. See, as to judicial knowledge, Missouri, etc., R. Co. v. Finley, 38 Kan. 550, s. c. 16 Pac. R. 951 ; Patee V. Adams, 37 Kan. 133, s. c. 14 Pac. R. 505. As to the liability of rail- road carriers for transporting dis- eased cattle, see Frye v. Chicago, etc., R. Co., 73 111. 399. Refusal to receive diseased cattle, see Chicago, etc., R. Co. V. Erickson, 91 111. 613; Chicago, etc., R. Co. «. Gasaway, 71 111. 570. See ante, § 1547. ' McGuigan v. Wilmington, etc. E. Co., 95 N. Car. 428. It seems to us that the doctrine of the case cited is in conflict with the doctrine of Bagg V. Wilmington, etc., R. Co., 109 N. Car. 279, s. c. 14 S. E. R. 79. 2652 CARRIERS. §1670 company to carry freight over longer lines at the same rates as those charged by companies whose lines were shorter. § 1670. State statutes held not to be regulations of inter- state commerce. — It is our purpose to refer to some of the cases in which state statutes, although affecting the agencies of commerce among the several states, have been held valid, and this we do for the reason that it is almost impossible to state general rules that will be of any practical utility. It is held in a recent case that a state statute prescribing a penalty for the failure to promptly deliver telegraph messages coming into the state from another state is valid. ^ Consolidation of rail- road corporations is a matter for state regulation, and a state statute prohibiting the consolidation of companies owning par- allel railroads does not violate the commerce clause of the fed- eral constitution.' In a Virginia case it was held that a state ' State V. Sioux City, etc., R. Co., 46 Neb. 682, 31 L. E. A.47, citing, among ottier cases, Ames v. Union, etc., E. Co., 64 Fed. E. 65, s. c. 4 Interst. Com. E. 835; Paxtonu. Farmers', etc., Co., 45 Neb. 884, s. c. 29 L. E. 853. ^ Western Union Tel. Co. v. .James, 162 U. S. 650, 16 Sup. Ct. R. 934. In the case cited the court distin- guished the case of Western Union Tel. Co. V. Pendleton, 122 U. S. 347, s. c. 7 Sup. Ct. E. 1126, but it seems to us that there ia no distinction and that the last decision ia right and the earlier decision is wrong. See V/est- ern Union Tel. Co. v. Lark, (Ga.) 23 S. E. E. 118. Upon the point that the states can not encroach upon the powers of the federal government, the court cited, among others, the cases of Walling v. Michigan, 116 U. S. 446, 460, s. c. 6 Sup. Ct. R. 252; Gulf, etc., E. Co. V. Hefley, 158 U. S. 98, s. c. 15 Sup. Ct. E. 802. The court also re- ferred to the case of Covington, etc., Co. V. Kentucky, 154 U. S. 204, s. c. 14 Sup. Ct. R. 1087, where it was said, "The, adjudications of this court with respect to the power of the state over the general subject of commerce are divided into three classes: First, those in which the power of the state is exclusive ; second, those in which the states may act in the absence of legislation by congress; third, those in which the power of congress is ex- clusive, and the state can not inter- fere at all." The court also distin- guishes the case of Primrose v. West- ern Union Tel. Co., 154 U. S. 1, s. c. 14 Sup. Ct. R. 1098. 'Louisville, etc., R. Co. v. Ken- tucky, 161 U. S. 677, 16 Sup. Ct. R. 714, aflfirming Louisville, etc., R. Co. V. Commonwealth, (Ky.) 31 S. W. R. 476. The question of the right to prohibit the consolidation of paral- lel lines is discussed in the cases first above cited, and the cases of Han- cock V. Louisville, etc., R. Co., 145 U. S. 409, s. c. 12 Sup. Ct. R. 969; Pear- sail V. (Treat Northern Ry., 161 U. S. 646, 16 Sup. Ct. R. 705, are cited. In the case last named the court very fully i 1670 THE INTERSTATE COMMERCE ACT. 2653 statute providing in substance that a carrier accepting any- thing for transportation directed to a destination beyond the terminus of its own line or route shall be deemed thereby to assume an obligation for its safe carriage to the place of destination, unless, at the time of such acceptance, the carrier, by a contract signed by the consignor, be released from liabil- ity.' We are inclined to regard the decision in the case re- ferred to as erroneous, for it seems to us that compelling an interstate carrier to assume responsibility for the acts of other interstate carriers is laying a burden upon commerce among the several states.* It seems to us that requiring an interstate carrier to assume a burden that does not exist at common law, but is wholly the creation of statute, does "impede and ob- struct commerce among the several states," and if it does it certainly is opposed to the rule declared by the decisions of the supreme court of the United States. A requirement that one company shall be responsible for the acts of another company, although the latter company is a corporation of another state, considers the question of the right to consolidate, and enforces the rule of strict construction. The case of Cleve- land V. Spencer, 73 Fed. E. 559, has an important bearing upon the ques- tion of the consolidation of railroad companies. In PearsoU v. Great Nor- thern Ry. Co., 161 U. S. 646, it was also held that the grant of an exclu- sive privilege can not be presumed, citing, among other cases, Pennsyl- vania R. Co. V. Miller, 132 U. S. 75, s. c. 10 Sup. Ct. R. 34 ; Providence Bank V. Billings, 4 Pet. 514 ; Turnpike Co. V. State, 3 Wall. 210. ' Richmond, etc., R. Co. v. Patter- son, etc., Co., (Va.) 24 S. E. R. 261, citing Western U. Tel. Co. v. Ty- ler, 90 Va. 297, s. c. 18 S. E. R. 280; Talbott V. Merchants', etc., Transpor- tation Co., 41 Iowa 247; Sherlock v. Ailing, 93 U. S. 99. Much to the same effect is the decision in McCann v. Eddy, (Mo.) 33 S. W. R. 71, citing Solan V. Chicago, etc., R. Co., (Iowa) 63 N. W. R. 692; Bagg v. Wilming- ton, etc., R. Co., 109 N. Car. 279, s. c. 14 S. E. R. 79. In the case last cited the court referred to the cases of Martin v. Hunter, 1 Wheat. 304 ; State ». Moore, 104 N. Car. 714, s. c. 10 S. E. R. 143; Train v. Boston Disinfecting Co., 144 Mass. 523, s. c. 11 N. E. R. 929; Wilson u. McNamee, 102 U. S. 572; Inman, etc., Co. v. Tinker, 94 U. S.238; Philadelphia, etc., Co. v. Penn- sylvania, 122 U. S. 326 ; Asher v. Tex- as, 128 U. S, 129, s. c. 9 Sup. Ct. R. 1, and other cases. As indicated in the text, we regard the doctrine de- clared as unsound. " Western Union Tel. Co. v. Pendle- ton, 122 U. S. 347, s. c. 7 Sup. Ct. R. 1126; Gulf, etc., R. Co. v. Hefley, 158 U. S. 98, B. c. 15 Sup. Ct. R. 802; Gat- ton V. Chicago, etc., R. Co., (Iowa) 63 N. W. R. 589. 2654 CAKRiEiis. § 1670 can not, as we conceive, be regarded as a police regulation, but, on the contrary, is a regulation of the right to contract for the transportation of articles of interstate commerce, and, as the regulation directly affects the instrumentalities of com- merce, it is one the state has no power to make. A statute requiring an interstate railroad carrier to take upon itself re- sponsibility for the acts of the carrier of another state is essen- tially different from a statute forbidding carriers to limit their common-law liability. The principle involved is the same as if a state should require an interstate carrier to run trains be- yond the state in a designated mode. In a Kentucky case it was held that the provision of the state constitution prohibit- ing railroad companies from limiting their common-law liabil- ity was not in conflict with the commerce clause of the federal constitution.' In the case referred to the court proceeds upon the theory that the state has power to prescribe remedies and to provide what shall or shall not be a valid contract, and this theory seems tenable. The case is close to the line, and some of the statements are probably too broad, but we are inclined to think that the conclusion reached is correct, for the ad- judged cases recognize the power of the states to prescribe what contracts may be made with public carriers,^ and analo- gous cases have affirmed that state statutes regulating contracts may be valid although they concern subjects over which con- gress is given jurisdiction.' A similar question arose in a 'Ohio, etc., R. Co. v. Tabor, (Ky.) St. 370; Haskell v. Jones, 86 Pa. St. 36 S. W. R. 18, citing Owen v. Louis- 17.3. The authoritieB are reviewed in ville, etc., R. Co., 87 Ky. 626, s. c. 9 an able opinion by Baker, .7., in S. W. R. 968; Peik v. Chicago, etc.. Reeves v. Corning, 51 Fed. R. 774. Ry. Co., 94 U. S. 164. Among the cases there referred to are ^In many cases it has been held the following: Patterson n. Kentucky, that statutes forbidding public carriers 97 U. S. 501; In re Brosnahan, 18 from limiting their common-law lia- Fed. R. 62; Jordan v. Overseers, 4 bihty are valid. Liverpool, etc., Co. Ohio 295; Webber d. Virginia, 103 1^ V. Phenix Ins. Co., 129 U. S. 397 ; Mc- S. .344 ; Castle v. Hutchinson, 25 Fed. Daniel v. Chicago, etc., R. Co., 24 R. 394; Barbierw. Connolly, 113 TJ. K. Iowa 412; Hart v. Chicago, etc., R. 27, s. c. 5 Sup. Ct. R. .357; Powell v. Co.,69Iowa485, s.c. 29N.W. R. 597. Pennsylvania, 127 U. S. 678, s. c. 8 •New V. Walker, 108 Ind. 365, s. c. Sup. Ct. R. 992. 9 N. E. R. 386; Tod v. Wick, 36 Ohio § 1671 THE INTERSTATE COMMERCE ACT. 2655 Wisconsin case, and it was held that a state statute forbidding public carriers from linaiting their common-law liability did not contravene the provisions of the federal constitution.' § 1671. Interstate commerce. — Any commerce which crosses a state line and concerns more states than one is interstate commerce, but unless more than one state is concerned, or the transit is in part over the high seas, the commerce is not in- terstate although a state line is crossed, for commerce which entirely originates and wholly ends in one state is domestic commerce notwithstanding the fact that in the transit a state line is crossed.'' If, however, the transit is from one state to another the commerce is interstate, and commerce is not do- mestic commerce when it is over the high seas.' It is, perhaps. 'Davis V.Chicago, etc., R. Co., (Wis.) 67 N. W. R. 16, and 1132. The case re- ferred to quotes from the opinion in Liverpool, etc., Co. u. Phenix Ins. Co., 129 U. S. 397, 439, s. c. 4 Sup. Ct. R. 469, the following: "The consti- tutional grant to congress of the power to regulate commerce did not super- sede or displace the common law, but conferred upon congress the power to make such regulations as it saw fit; and until congress acts in the prem- ises, the principles of the common law governing such contracts apply, and can not be regarded as obnoxious to the objection that they are regulations of commerce, within the meaning of the constitutional provision. Rail- road Co. V. Pratt, 22 Wall. 123, 134; Railway Co. v. Stevens, 95 U. S. 655; Bank of Kentucky v. Adams Ex. Co., 93 U.S. 174; Phenix, etc., Co. v. Erie, etc., Co., 117 U. S. 312, s. c. 6 Sup. Ct. R. 750, 1156." Mnie, §690; ^a; parte Koehler, 30 Fed. R. 867; Lehigh, etc., R. Co. v. Pennsylvania, 145 U. S. 192; Camp- bell V. Chicago, etc., R. Co., 86 Iowa 587; State v. Western Union Tel. Co., 113 N. Car. 213; Leavell v. Western Union Tel. Co., 116 N. Car. 211, s. c. 47 Am. St. R. 798 ; Campbell V. Chicago, etc., R. Co., 86 Iowa 587, B. c. 4 Interst. Com. R. 203, 17 L. R. A 443; Scammon v. Kansas City, etc., R. Co., 41 Mo.App. 194; Cutting V. Florida, etc., R. Co., 46 Fed. R. 641 ; Missouri, etc., R. Co. v. Cape Girar- deau, etc., Co., 1 Interst. Com. R. 607 ; Downing v. Alexandria, 10 Wall. 173; Louisville, etc., Ry. Co. U.Mississippi, 133 U. S. 587; Wabash, etc., R. Co. v. Illinois, 118 U. S. 557 ; Heck v. East Tennessee, etc., R.Co., 1 Interst. Com. R. 775. See State v. Chicago, etc., R. Co., 40 Minn. 267, s. c. 41 N. W. R. 1047; Commonwealth v. Lehigh, etc., R. Co., (Pa. St.) 17 Atl. R. 179; New Orleans, etc., Exchange v. Cin- cinnati, etc., R. Co., 2 Interst. Com. R. 289; Sternberger v. Cape Fear, etc., Co., 29 S. Car. 510, s. c. 2 L. R. A. 105. 'Lord V. Steamship Co., 102 U. S. 541; Oowden v. Pacific, etc., Co., 94 Oal. 470, 8. c. 28 Am. St. R. 142; Car- penter V. Schooner Emma Johnson, 1 Cliff. (U. S. C. C.) 633; Pacific, etc., Co. u. Board of Railroad Commission- 2656 CARRIERS. §1671 unsafe to affirm, in view of the conflict in the decisions,' that the federal power over interstate commerce is absolutely exclu- sive and that silence or inaction on the part of the general government invariably forbids action by the states, but we think that where the subject is one that requires uniform reg- ulation, inaction or silence on the part of congress does not justify action by the states, since, if there may be action by the states, uniformity is broken and the chief object of the consti- tution defeated. It is over interstate commerce, and not in- ternal or domestic commerce, that the federal power ex- tends and over interstate commerce the federal power is supreme." Where the subject is national and admits of only one uniform system, then, as we believe, the federal power is exclusive, and inaction by congress does not authorize action by the states in the form of regulations of commerce among the several states since inaction on the part of congress im- plies that the commerce shall be free and untrammeled.* The era, 18 Fed. B. 10. See Missouri, etc., R. Co. V. Sherwood, 84 Tex. 125, s. c. 17 L. R. A. 643, 4 Interst. Com. R. 240. 'Cooley ». Board of Wardens, 12 How. 299; WeltoQ v. State, 91 U. S. 275; Bowman^;. Chicago, etc., R. Co., 125 U. S. 465; County of Mobile v. Kimball, 102 U. S. 691 ; Leisy v. Har- din, 135 U. S. 100; Brown v. Houston, 114 U. S. 622; In re Rahrer, 140 U. S. 545 ; Stoutenburgh v. Hennick, 129 U. S.141; Robbinsw. Shelby County Tax- ing District, 120 U. S. 489; Henning- ton V. State, (U. S. Sup. Ct. District) 163 U. S. 299, 16 Sup. Ct. R. 1086; Western Union, etc., Co. v. James, 162 U. S. 650, 16 Sup. Ct. R. 934. ^Ante, §690; Wisconsin v. Duluth, 96 U. S. 379; Veazie v. Moor, 14 How. 568, 574; California v. Central Pac. Railroad Co., 127 U. S. 1 ; Brown V. State, 12 Wheat. 419 ; The City of Salem, 37 Fed. R. 846 ; Railroad Co. v. Richmond, 19 Wall. 584; City of Council Bluffs v. Kansas City, etc., R. Co., 45 Iowa 338; Chicago, etc., R. Co. V. Chicago, etc., Co., 79 111. 121, 127; Stockton v. Baltimore, etc., R. Co., 32 Fed. R. 9; Sinnot v. Daven- port, 22 How. 227; Foster?;. Daven- port, 22 How. 244; Iowa v. Chicago, etc., R. Co., 33 Fed. R. 391 ; Mayor of New York v. Miln, 11 Pet. 102, 155 ; United States «. Marigold, 9 How. 560. See Heiserman v. Burlington, etc., R. Co., 63 Iowa 732. 5 Walling V. Michigan, 116 U. 8. 446; Almy V. State of California, 24 How. 169; McCall v. California, 136 U. S. 104; Brown ». Houston, 114 U. S. 622; Pickardw. Pullman, etc., Co., 117 U. S. 34; Wabash, etc., R, Co. v. Illi- nois, 118 U. S. 557 ; Robbins o. Shelby County Taxing Dist., 120 U. S. 489; Welton V. State of Missouri, 91 U. S. 275; Sinnot v. Davenport, 22 How. 227 ; Cannon v. New Orleans, 20 Wall. 577; Federalist, Nos. xxvi, xlv; Chirac t). Chirac, 2 Wheat. 259 ; Sturges V. Crowninshield, 4 Wheat. 122, 192; Webster's Argument, 9 Wheat. 9. § 1672 THE INTERSTATE COMMERCE ACT. 2657 federal power extends to all the agencies and inseparable inci- dents of commerce among the several states.' It seems to be a necessary conclusion from the premises established by the decisions that a state statute which so far constitutes a regula- tion of interstate commerce as to impede or obstruct that commerce is an invasion of the federal dominion, and for that reason void, but there is some confusion if not conflict in the cases. ^ § 1672. The interstate commerce commission. — We have elsewhere referred incidentally to the nature and powers of the interstate commerce commission and have said that it can not be considered as a judicial tribunal in the sense that a court is a judicial tribunal.^ In a recent decision of the supreme court of the United States it was held that the commission "is a body corporate with legal capacity to be a plaintiff or defend- ant in the federal courts.'" The commission is not in the strict sense either a judicial or legislative tribunal,' but is an instrumentality of government belonging to the administrative or ministerial department, created for the purpose of effectively aiding, under the laws of the country, in properly and justly regulating commerce between the several states. We venture to say that, while it is, in a limited sense, a body corporate it is not a corporation in the strict sense of the term. It is the 1 McCall V. California, 136 U. S. 104 ; Com. v. Atchison, etc., E. Co'., 149 U. Norfolk, etc., R. Co. v. Pennsylvania, S. 264, s. c. 13 Sup. Ct. E. 837. The 136 IT. S. 114; Leloup v. Port of Mo- decision in the case of Interst. Com. bile, 127 U. S. 640; Crutcher w. Ken- Com. ■(>. Texas, etc., R. Co., 57 Fed. R. tucky, 141 TJ. S. 47. 948, was reversed. *See Maine v. Grand Trunk, etc., 'Texas, etc., E. Co. ■!). Interst. Com. E. Co., 142 U. S. 217; Hennington v. Com., 162 U. S. 197, 16 Sup. Ct. R. Georgia, 163 U. S. 299, s. c. 16 Sup. 666. In Interst. Com. Com. v. Louie- Ct. R. 1086. ville, etc., R. Co., 73 Fed. R. 409, 414, 'Ante, §§675,676. it was said: "The investigation con- *Texas, etc., R. Co. ■». Interst. Com. ducted before the commission and its Com., 162 U. S. 197, 16 Sup. Ct. R. order thereon are quasi judicial, al- 666. The court referred to the cases though it may be considered as settled of the Interst. Com. Com. v. Balti- that the proceeding is not a judicial more, etc., E. Co., 145 D. S. 264, s. c. one, as that term is used with refer- 12 Sup. Ct. R. 844, and Interst. Com. enceto courts of general jurisdiction." 2658 CARRIERS. § 1G72 creature of legislation and possesses only such express powers as are conferred upon it by congress and such incidental powers as are necessary to effectuate the principal powers granted. The extent and nature of the powers of the commis- sion have not, as yet, been defined with precision or accuracy, and we think it unsafe to attempt to lay down any general rules. The courts have held that the power of the courts to compel obedience to the "lawful order" of the commission is purely statutory, and that the courts can not modify or amend the orders of the commission, but must either refuse to com- pel obedience to the order made by the commission or un- qualifiedly compel obedience.' It must follow from the decis- ion in the case to which we have referred, and from general principles as well, that the commission is a special statutory tribunal with such powers as the statutes have granted it. If the powers of the established courts are statutory and special certainly those of such a tribunal as the interstate commerce commission must be statutory and special, but while this is true the powers of the commission are nevertheless very broad and comprehensive. The commission has no power either ex- press or implied to establish maximum rates of freight.'' It 'Detroit, etc., E. Co. v. Interst. ^Cincinnati, etc., R. Co. r;. Interst. Com. Com., 74 Fed. 803, reversing Com. Com., 162 U. S. 184, 16 Sup. Interst. Com. Com. ■«. Detroit, etc., R. Ct. R. 700; Interstate Com. Com. v. Co., 57 Fed. R. 1005, and citing Stone Cincinnati, etc., R. Co., 66 Fed. R.925. 1'. Detroit, etc., R. Co., 3 Interst. Com. The case of Chicago, etc., R. Co. v. Os- Com. R.,613; Interst. Com. Com. v. borne, 52 Fed. R. 912, was distin- Delaware, etc., R. Co.,64Fed. R.723; guished. In commenting upon that Kentucky, etc., Co. v. Louisville, etc., case it was said: "All we wish to be Co., 37 Fed. R. 567; Shinkle v. Louis- understood to hold is that when goods ville, etc., R. Co., 62 Fed. R. 690; are shipped under a through bill of Little Rock, etc., R. Co. ■». East Ten- lading from a point in one state to a nessee, etc., R. Co., 47 Fed. R. 772; point in another, and when such Texas, etc., R. Co. v. Interst. Com. goods are received in transit liy a Com., 162 U. S. 197, 16 Sup. Ct. R. state common carrier, under a con- 666; Interst. Com. Com. ». Baltimore, ventional division of the charges, etc., R. Co., 43 Fed. R. 37, 50, s. c. 145 such carrier must be deemed to have TJ. S. 263, 12 Sup.Ct. R. 844; Cincin- subjected its road to an arrangement nati, etc., R. Co. v. Interst. Com. for a continuous carriage or shipmpn!, Com., 162 U.S. 184,16 Sup. Ct. R. within the meaning of the act to regu- '^00. late commerce." The views of Judge § 1673 THE INTERSTATE COMMERCE ACT. 2659 has been held that: "no power is given by the act to court or commission, to compel connecting companies to contract with each other to abandon full control of their separate roads or to unite in a joint tariff.'" A similar doctrine has been de- clared in other cases. ^ The orders of the commission must substantially conform to the requirements of the act of con- gress by which it was created. Upon this principle it has been held that it is not sufficient to state in a report general con- clusions, but the report "should show what the issues in the scae are and what facts it finds in regard to such issues," "should make suitable reference to theevidence," and, in short, "should give the parties to be affected, as well as the court, in any judicial proceeding afterwards instituted, definite and dis- tinct information as to what was found as facts, and the com- mission's opinion thereon.'" § 1673. Railroads engaged in domestic commerce — When a railroad is interstate. — A railroad company which does not Jackson in Interst. Com. Com. v. Baltimore, etc., Co., 43 Fed. R. 37, s. c. 145 U. S. 263, 12 Sup. Ct. E. 844, were adopted. The opinion of Judge Jackson was thus expressed: "Suh- ject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons, or traffic similarly circum- stanced, the act leaves common car- riers as they were at common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and ap- portion their rates so as to meet the necessities of commerce, and gener- ally to manage their important inter- ests upon the same principles which are regarded as sound and adopted in other trades and pursuits." To the same effect is the decision in Interst. Com. Com. v. Northeastern, etc., R. Co., 74 Fed. R. 70; Interst. Com. Com. V. Lehigh, etc., R. Co., 74 Fed. E. 784. 'Per Brewer, J., in Chicago, etc., E. Co. V. Osborne, 52 Fed. R. 912, 915, citing St. Louis, etc., R. Co. v. South- ern Ex. Co., (Express Cases) 117 U. S. 1, s. c. 6 Sup. Ct. R. 542, 628; Kentucky, etc., Co. v. Louisville, etc., Co., 37 Fed. R. 567; Little Rock, etc., R. Co. V. St. Louis, etc., E. Co., 41 Fed. R. 559. See Cincinnati, etc., R. Co. V. Inters. Com. Com., 162 U. S. 184, 16 Sup. Ct. R. 700. ^Interst. Com. Com. v. Alabama, etc., R. Co., 74 Fed. R. 715, 723; Texas, etc., R. Co. v. Interst. Com. Com., 162 U. S. 197, 16 Sup. Ct. R. 666 ; Cincinnati, etc., R. Co. v. Interst. Com. Com., 162 U. S. 184, 16 Sup. Ct. R. 700. 'Interst. Com. Com. v. Louisville, etc., R. Co., 73 Fed. R. 409, 414. 2660 CARRIERS. § 1673 transport freight or passengers beyond the limits of the state, but is wholly engaged in carrying goods from point to point within the state, is not an instrumentality of interstate com- merce and is not within the commerce clause of the federal constitution.' The fact that the lines of a company are wholly within one state does not, however, carry it out of the opera- tion of the federal constitution, nor does it carry it out of the scope of the interstate commerce law. The test is not whether the lines of a railroad company are wholly within the bound- aries of a single state, but whether the company carries freight and passengers that are destined to other states or come from other states into the state in which its lines are located.^ In other words, a company which receives from connecting lines freight or passengers brought from other states, or a company that receives freight or passengers to be carried to connecting lines and by such lines transported to other states is an inter- state railroad company, but a company which does business entirely within one state, is engaged in domestic commerce and is not an interstate railroad company. So, where a state carrier accepts goods for transportation upon a through bill of lading it becomes, at least as to such shipment, an interstate car- rier.' In a Virginia case, however, a doctrine adverse to that stated by us was declared.* The decision in the case referred to is that a train of cars prepared and intended for the transporta- tion of freight from a point without the state to a point within ' Ante, § 780. affect other nations or states or the 2 Augusta, etc., R. Co. v. Wrights- Indian tribes, that is to say, thepurely ville, etc., R. Co., 74 Fed. R. 522; internal commerce of a state, the com- Mattingly v. Pennsylvania Co., 2 In- merce which is wholly confined with- terst. Com. R. 806, 812. In the case in the limits of a state.' Under this last cited the court said: "What is principle transportation to which the meant by transportation wholly with- act does not apply must originate and in the state? The answer seems end in the same state." plain. It is evidently the transports- = Cincinnati, etc., R. Co. v. Interst. tion that is an element of the com- Com. Com., 162 U. S. 184, 16 Sup. merce not subject to the jurisdiction Ct. R. 700, explaininganddistinguish- of congress. This commerce the courts ing Chicago, etc., R. Co. ■». Osborne, 52 Hay is only that which is 'confined Fed. R. 912. exclusively within the jurisdiction 'Norfolk, etc., R. Co. r. Common- and territory of a state, and does not wealth, (Va.) 24 S. E. R. 837. § 1673 THE INTERSTATE COMMERCE ACT. 2661 the state was not engaged in interstate commerce. We think the decision upon the point we are discussing' is erroneous, for transportation of freight from state to state is, as has been said, "interstate commerce itself." A train used and intended for that purpose whether lying at a station or running over the road is clearly the train of an interstate commerce road and, as such, is engaged in interstate commerce. The fact that the train prepared for use in conveying property from state to state is for a time within the limits of a particular state does not strip it of its character as the train of an interstate railroad.^ If it did, then taxes might be levied upon it in violation of the provisions of the federal constitution and the rights of its own- ers be limited and controlled according to the pleasure of the state legislature and that this can not be done is well settled.* 'In Norfolk, etc., R. Co. v. Com- monwealth, (Va.) 24 S. E. R. 837, the court on the original hearing held that the state statute prohibiting the running of trains on Sunday vio- lated the provisions of the federal constitution, and cited the case of Norfolk, etc., E. Co. v. Common- wealth, 88 Va. 95, s. c. 13 S. E. R.340, but, on the petition for a rehearing, following the decision in Henning- ton V. Georgia, 163 U. S. 299, 16 Sup. Ct. R. 1086, it overruled the earlier case and held the statute valid. * Telegraph Co. v. Texas, 105 U. S. 460; Sands «. Manistee, etc., Co., 123 U.S. 288; Louisville, etc., R.'Co. v. Railroad Commission, 19 Fed. R. 679; The Daniel Ball, 10 Wall. 557. In the case last cited it was said: "We are unable to draw any clear and distinct line between the authority of congress to regulate an agency employed in commerce between the states, when that agency extends through two or more states, and when it is confined in its action entirely within the lim- its of a single state. If the authority Corp. 169 does not extend to any agency in such commerce when that agency is con- fined within the limits of a state, its entire authority over interstate com- merce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of the state, and leaving it at the boundary line of the other end, the federal jurisdiction would be entirely ousted, and the con- stitutional provision would become a dead letter." See ante, §§ 754, 756. ' Gibbons v. Ogden, 9 Wheat. 1, 229 ; Gloucester, etc., Co. v. Pennsylvania, 114 U.S. 196; California v. Central, etc., R. Co., 127 U. S. 1 ; Bridge Co. v. United States, 105 U. S. 470; Stockton V. Baltimore, etc., R. Co., 32 Fed. R. 9; Pensacola, etc., Co. v. Western Un- ion Tel. Co., 96 U. S. 1 ; Wabash, etc., R. Co. V. Illinois, 118 U. S. 557; Coe V. Errol, 116 U. S. 517 ; Fargo v. Mich- igan, 121 U. S. 230; Reading R. Co v. Pennsylvania, (State Freight Tax) 15 Wall. 279. See ante, §§658, 667,675. As to taxation, see, ante, §§ 753, 784. 2662 CARRIERS. § 1674 A provision in the charter of a railroad company declaring that it shall be subject to the laws applicable to common car- riers does not affect the character of the company as an agency of interstate commerce, and if it accepts goods for transporta- tion to another state it engages in interstate commerce and is within the dominion of the federal government under the com- merce clause of the constitution.' § 1674. Commerce and manufactures — Monopolies — Trusts — Conspiracies. — The extent and scope of the federal power under the commerce clause of the national constitution was marked out and defined by the supreme court of the United States in the case in which tlie act entitled "An act to protect trade and commerce against unlawful restraints and monopo- lies," came under consideration.' It was held in the case re- ferred to that the statute did not cover cases where manufac- turers entered into combinations or trusts and that the power to prevent such combinations resided in the states and was not delegated to the national government.' But it was also held that combinations so far in restraint of commerce as to create a monopoly might be suppressed by federal power. There can, 'Houston, etc., Co. v. iDSurance 'It waa said in the case cited: Co., (Tex.) 32 S. W. R. 889, revers- "That which belongs to commerce ing Houston, etc., Co. v. Insurance is within the jurisdiction of the Co., 31 S. W. R. 560. Upon the point United States, but that which does that the acceptance of freight for car- not belong to commerce is within riage to another state constitutes a the jurisdiction of the police power of railroad company an inter-state car- the state." It was also said : "Com- rier the court cited Coe v. Errol, 116 merce succeeds to manufacture and is U. S. 517, s. c. 6 Sup. Ct. R. 475; Sx not a part of it. The power to regu- parte Koehler, 30 Fed. R. 867 ; In rn late commerce is the power to pre- Greene, 52Fed. R. 104;Missouri, etc., scribe the rule by which commerce R. Co. V. Sherwood, 84 Tex. 12.5, s. c. shall be governed, and is a power in- 19S. W. R. 4.55; Harmon v. City of dependent of the power to suppress Chicago, 140 111. 374, s. c. 29 N. E. R. monopoly. But it may operate in re- 732; Foster v. Davenport, 22 How. pression of monopoly whenever that 244. comes within the rules by which com- ^ United States v. Knight Co., loi; merce is governed, or whenever the U. S. 1, s. c. 15 Sup. Ct. R. 249, affirm- transaction is itself a monopoly of ing United States v. Knight Co., 60 commerce." See Kidd v. Pearson 128 Fed. R. 934. U. S. 1, a. c. 9 Sup. Ct. R. 6. § 1675 THE INTERSTATE COMMERCE ACT. 2663 therefore, be no doubt that a combination or conspiracy of in- terstate carriers for the purpose of improperly or unduly re- straining commerce would come within the statute. If the restraint imposed or assumed to be imposed is of such a charac- ter as to create or tend to create a monopoly of commerce,' the combination would clearly be unlawful. § 1675. Combinations — Pooling. — The interstate commerce act contains stringent provisions against pooling contracts,* but we very much doubt whether the act essentially changes the common law rule. We do not doubt that the act does for- bid a combination entered into for the purpose of suppressing competition or for the purpose of creating a monopoly, but we do doubt whether it prevents arrangements entered into by several carriers in good faith and for the honest purpose of maintaining just, reasonable and fair rates and preventing ruinous competition. If fair, just and reasonable rates are es- tablished, and no monopoly is created or intended to be created, we can see no reason why a combination or association should per se be condemned as illegal.' It is, however, with ' It was further said in the opinion Co. v. Texas, etc., E. Co., 11 Fed. in the case referred to that: "Again R. 625; Menacho v. Ward, 27 Fed. R. all the authorities agree that, in order 529; Manchester, etc., R. Co. v. Con- to vitiate a contract or combination cord R. Co., 66 N. H. 100, s. c. 20 Atl. it is not essential that its result should R. 383; Midland Ry. Co. v. London, be a complete monopoly; it is suffi- etc., R. Co., L. R. 2 Eq. 524; Shrews- cient if it really tends to that end, and bury, etc., R. Co. o. London, etc., R. to deprive the public of the advant- Co., 2 Mac. &G. 324; Gulf, etc., E. Co. ages which flow from free competi- v. State, 72 Tex. 404; Gibbs v. Con- tion." solidated Gas Co., 130 IT. S. 396 ; Santa ' Section 5. For a discussion of the Clara, etc., Co. v. Hayes, 76 Cal. 387, common law rules upon the subject of 18 Pac. R. 391 ; Jackson v. McLean, "pooling arrangements," see ante, 36 Fed. R. 213; Woodstock Iron Co. «. §§ 365, 366, 367. See, also, Nashua, Richmond Extension Co., 129 TJ. S. etc., Corp. 1). Boston, etc., Corp., 19 643; Craft?;. McConoughy, 79 111. 346, Fed. R. 804 ; Charlton v. Newcastle, s. c. 22 Am. R. 171 ; Morrill v. Boston, etc., E. Co., 5 Juris, N. S. 1100; Stan- etc., R. Co., 55 N. H. 531; Eclipse, etc., ton ». Allen, 5 Denio 434; Central, Co. v. Ponchartrain R. Co., 24 La. «tc., R. Co. V. Collins, 40 Ga. 582; Ann. 12; Redfleld Rys., § 146. Hare C.London, etc., R. Co. ,2 Johns & 'Duncan «. Atchison, etc., E. Co., H. 80; Central Ohio, etc., Co. v. Guth- 4 Interst. Com. E. 385. rie, 35 Ohio St. 666; Pullman, etc.. 2664 CARRIERS. §1675 much hesitation that we venture to express an opinion, and in view of the broad terms of the act and the scant authority upon the immediate question' we feel that not much weight can be assigned to our opinion. Our conclusion is, however, sup- ported by a case in which the authorities were very carefully reviewed, and the conclusion reached by the court is well sus- tained by the reasoning of the court. ^ While there is conflict upon the general question we think the weight of authority — and sound reason as well — supports the conclusion that the law does not intend to prevent railroad carriers from entering into arrangements which to some extent may limit competition. We think that the mere fact that an arrangement is made which in some measure restrains or regulates competition is not of itself sufficient to bring the combination under the con- demnation of the law, but that if the purpose or effect of the arrangement is to fetter or stifle competition, or to create a ' There are, as we have seen, many decisions upon the question under the common law rule, but very few upon the question under the statute. * United States v. Trans-Missouri, etc., Asso., 58 Fed. R. 58, distinguish- ing Gibbsu. Consolidated Gas Co., 130 U.S. 396, s.c. 9 Sup. Ct. R. 533; West Virginia, etc., Co. v. Ohio, etc., Co. ,22 W. Va. 600; Chicago, etc., Co. v. Peo- ple's, etc., Co. ,121 111. 530, s. c.l3 N. E. R.169 ;Western Union Tel. Co. jj. Amer- ican, etc., Co., 65 Ga. 160. In the opinion of the court in the case first cited it was said, in speaking of the cases reviewed: "But we think in view of the state of facts on which the decisions were predicated, and the points actually adjudicated, it would be unwise to deduce an unbending rule that any and every contract be- tween two railway companies which enjoins or contemplates concert of ac- tion in the matter of establishing freight or passenger rates between competitive points is against public policy. No case, we believe, has yet gone to that extent or has declared that the business of transporting freight and passengers by rail is of such a character that no restraint whatever upon competition therein is permissible. On the contrary, con- tracts between common carriers which imposed some restrictions upon com- petition have been frequently sus- tained by our highest courts, and the rule has often been applied that the test of their validity was not the ex- istence but the reasonableness of the restriction imposed. Oregon, etc.. Navigation Co. v. Winsor, 20 Wall. 64 ; Chicago, etc., R. Co. v. Pullman, etc., Co., 139 U. S. 79, 11 Sup. Ct. R. 409; Mogul, etc., Co. V. McGregor, etc., Co., L. R. 21 Q. B. Div. 544; Manchester, etc., Co. V. Concord, etc., Co., 66 N. H. 100, H. c. 20 Atl. R. 383 ; Wiggins Ferry Co. •V.Chicago, etc., R.Co., 73Mo.389." See United States v. Trans-Missouri Asso., 53 Fed. R. 440; Anderson v. Jptt, 89 Ky . 375, 8. c. 12 S. W. R. 670 ; Beal V. Chase, 31 Mich. 490; In re Greene, 52 Fed. R. 104, 115." § 1375 THE INTERSTATE COMMERCE ACT. 2665 monopoly, or to secure or maintain unjust or unreasonable xates, or in any way to disable the railroad carrier from freely and justly performing its duty to the public the combination is illegal and should be condemned.' An agreement which empowers an association of companies to make discriminating rates for or against one of the companies has been held to be unlawful,' and, in our judgment, this ruling is right, for no railroad company can disable itself from freely and effectively performing its duties, but where there is nothing more than an association of companies, and the agreement between them has no tendency to create a monopoly, to suppress competition, or to enable the companies, or any one of them, to make discrim- inations or to establish unreasonable rates, the combination or association is not unlawful. The section of the interstate com- merce act is not to be considered as an isolated or detached fragment separate and apart from the other provisions of the act, but, on the contrary, is to be considered in connection with all the other provisions of the act, and so, too, the pur- pose of the act and the object it was intended to accomplish must also receive consideration." It is unquestionably true that the chief object of the act is to promote the interests of commerce,' and an association of companies which has in view the promotion of those interests can not, as it seems to us, be adjudged to be unlawful. The existence and successful opera- tion of railroads is essential to commerce, and an agreement which simply prevents injury to a competing company and does no injustice to the public can not be regarded as illegal, 'Chicago, etc., R. Co. v. Wabash, Co., 68 Pa. St. 173; Sayre v. Louis- etc, R. Co., 61 Fed. E. 993, citing ville, etc., Association, 1 Duv. 143; Cleveland, etc., R. Co. v. Closser, 126 Hooker v. Vandewater, 4 Denio 349. Ind. 348, 26 N. E. R. 159; Gulf, etc.. See, generally. Homer v. Ashford, 3 R. Co. V. State, 72 Tex. 404, s. c. 10 S. Bing. 322; Leather Cloth Co. v. Lor- W. R. 81 ; State v. Standard, etc., sont, 9 Eq. 345. Co., 49 Ohio St. 137, s. c. 30 N. E. R. ''Missouri, etc., R. Co. ii. Texas, etc., 279; Texas, etc., R. Co. v. Southern, R. Co., 30 Fed. R. 2. etc., R. Co., 41 La. Ann. 970, s. c. 6 ' Reiche v. Smythe, 13 Wall. 162. So. R. 888 ; Gibbs v. Consolidated Gas ' Texas, etc., R. Co. v. Interst. Com. Co., 130 U. S. 396, s. c. 9 Sup. Ct. R. Com., 162 U. S. 197, s. c. 16 Sup. Ct. 553; Morris, etc., Co. v. Barclay, etc., R. 666. 2666 CARRIERS. § 167& although it'may to some extent, but not to an extent injurious to the public, restrain the right of competition. § 1676, Discrimination— Undue preference— What is under the interstate commerce act. — We have elsewhere said that the common law forbids unjust discrimination,' and much that has been said applies to the subject here under immediate mention for the reasons that the courts look to the common law to aid them in determining what is or is not an unjust discrimina- tion, or an undue preference under the federal statute. The American courts very often refer to the English cases, and while it can not be justly affirmed that the English cases are im- plicitly followed since there are important differences between the English and American statutes, it is, nevertheless, true that they do exert an important, if not a controlling in- fluence upon the decisions of our courts.^ Neither at common law nor under the federal statute does the mere fact that there is a difference in rates necessarily constitute an unjust dis- crimination since there is no such discrimination in cases where the conditions and circumstances are essentially dif- ferent. It is the English rule that in passing upon the question of undue or unreasonable preferences various facts and circumstances must be considered, and that an undue preference, within the meaning of the statute, is not shown by mere evidence of a difference in charges.' The federal ^Ante, §§1467, 1565. See, also, 1 state Com. Com. ■!). Baltimore, etc., R., Hodges on Railways, 466 ; Great West- 145 U. S. 263, a. c. 12 Sup. Ct. R. 284, em, etc., R. Co. v. Sutton, L. R. 4 H. it was said that the English statutes of L. 226; Bayles v. Kansas, etc., R. were not so comprehensive as the Co., 13 Colo. 181 ; Christie v. Missouri, American, and that acts which would etc., Co., 94 Mo. 453; Concord, etc., not constitute an unjust discrimination Co. V. Foraaith, 59 N. H. 122. We under English statutes might do so think that the terms "unjust discrim- under the American, ination" and "undue preference," ^ Denaby, etc., Co. v. Manchester, have substantially the same meaning, etc., Co., L. R. 11 App. Cas. 97, 55 L. ' Interstate Com. Com. K.Louisville, J. Q. B. 181, s. c. 26 Am. & Eng. R. etc., R. Co., 73 Fed. R. 409; Interstate Cas. 293; Phipps v. London, etc., R. Com. Com. v. Baltimore, etc., R. Co., Co., L. R. (1892) 2 Q. B. 229; Buddr. 43Fed. R. 37, 145 U. S. 263,12 Sup. London, etc., Railway Co., '4 Ry. & Ct. R. 844. In the case of the Inter- Canal Tr. Cas. .393; London, etc. R. §1676 THE INTERSTATE COMMERCE ACT. 2667 courts have substantially adopted the rule declared by the En- glish courts.' It is safe to say that there is no undue prefer- ence where there is such a difference in circumstances and con- ditions as constitutes an inequality that renders the discrimina- tion just,^ but what constitutes such a difference in circumstan- ces and conditions is a question not so easily answered. Where there is a privilege granted to a favored shipper, which gives him an undue advantage over his rivals, the fact that the car- rier may withdraw the privilege at its pleasure does not make the preference lawful, but, notwithstanding that fact, such a preference constitutes an undue preference within the meaning of the law.' The object of the federal statute is to prevent unjust Co. 0. Evershed, L. R. 3 App. Cas. 1029; Harris 11. Cockermouth, etc. Ry. Co., 1 Nev. & McN. 97; Ransome v. Eastern, etc., R. Co., 1 Nev. & McN. 63; Nicholson v. Great Western, etc., R. Co., 5 C. B. (N. S.) 366 ; Baxendale V. Great Western, etc., R. Co., 5 C. B. (N. S.) 336, 28 L. J. C. P. 81 ; Hozier V. Caledonian Ry. Co., 1 Nev. & Mc- N. 27. The English cases are reviewed in Interstate Com. Com. r. Louisville, etc.,R. Co., 73 Fed. R.409, and copious extracts are made from the opinions of the judges, and so they are in In- terstate Com. Com. v. Baltimore, etc., R. Co., 145 U. S. 263, s. c. 12 Sup. Ct. R. 844. See, generally, Spofford v. Boston, etc., R. Co., 128 Mass. 326; Ragan v. Aiken, 9 Lea 609, s. c. 42 Am. R. 684; Menacho v. Ward, 27 Fed. R. 529; Ex parte Benson, 18 So. Car. 38, s. c. 44 Am. R. 564; Avinger »'. South Carolina, etc., R. Co., 29 So. Car. 265 ; Fitchburg R. Co. v. Gage, 12 Gray (Mass.) 393. ' In the case of Interstate Com. Com. V. Baltimore, etc., R. Co., 145 U. S. 263, s. c. 12 Sup. Ct. R. 844, the court said: "In short, the substance of all these decisions is that railway companies are only bound to give the same terms to all persons alike under the same conditions and circum- stances, and that any fact which pro- duces an inequality of condition and change of circumstances justifies an inequality of charge." The act of an agent in guaranteeing that passengers will reach their place of destination at a specified time does not constitute an undue preference or unjust dis- crimination. Foster?). Cleveland, etc., R. Co., 56 Fed. R. 434. ''Texas, etc., R. Co.i;. Interst. Com. Com., 162 U. S. 197, s. c. 16 Sup. Ct. R. 666; Union Pac. R. Co. v. United States, 117 U. S. 355, s. c. 6 Sup. Ct. R. 772; Interst. Com. Com. v. Louis- ville, etc., R. Co., 73 Fed. R. 409; In- terst. Com. Com. v. Alabama, etc., R. Co., 69 Fed. R. 227; Batchers', etc., Co. V. Louisville, etc., R. Co., 67 Fed. R. 35; Detroit, etc., R. Co. r. Interst. Com. Com., 74 Fed. R. 803; Interst. Com. Com. v. Alabama, etc., R. Co., 74 Fed. R. 715; Cincinnati, etc., R. Co. ,.. Interst. Com. Com., 162 U. S. 184, 8. c. 16 Sup. Ct.- R. 700; Interst. Com. Com. v. Atchison, etc., R. Co., 50 Fed. R. 295; Junodu. Chicago, etc., R. Co., 47 Fed. R. 290; Interst. Com. Com. V. Cincinnati, etc., R. Co., 56 Fed. R. 925. 'Butchers', etc., Co. v. Louisville, 2668 CARRIERS. § 1677 discrimination against places as well as against persons, and the district attorney of the United States may maintain a suit to enjoin a railroad company from making an unjust discrimi- nation against a city.' The cost of producing an article of commerce, as, for instance, coal, can not be considered as ex- cusing or justifying a discrimination in favor of the producer.'' Xor will a release of the carrier from an unliquidated claim for damages justify a discrimination in favor of the person who executes the release.' § 1677. Preference — Discrimination — When not unjust — Difference in circumstances and conditions. — As we have shown a mere difference in charges does not necessarily prove that there was an unjust discrimination or an undue preference, for in determining whether there was an unjust discrimination or an undue preference the conditions and circumstances of the particular case must be considered. Thus, it is proper to con- sider whether there were competitive rates, and this is so whether the traffic originated in foreign ports or within the limits of the United States.' So, the cost of the particular etc., E. Co., 67 Fed. R. 35; Interstate Co., 6 Hurl. & X. 644; Palmer v. Lon- Com. Com. B. Alabama, etc., E. Co., don, etc., E. Co., L. E. 6C. P. 194; 74 Fed. E. 715; Detroit, etc., E. Co. v. Parkinson v. Oreat E.Co., L.E. 6 C.P. Interst. Com. Com., 74 Fed. E. 803. 554; Liverpool, etc., Asso. v. Lon- 1 United States v. Missouri Pac. E. don, etr., E. Co., L. E. (1891) 1 Q. B. Co., 65 Fed. E. 903. Div. 120; Manchester, etc., E. Co. v. 2 Union, etc., E. Co. v. Goodridge, Denaby, etc., Co., L. E. 13 Q. B. 149 U. S. 680, s. c. 13 Sup. Ct. E. 970; Div. 674, L. E. 14 Q. B. Div. 209; Gar- Union, etc., E. Co. V. Taggart, 149 U. ton v. Great Western E. Co., 5 C. B. P. 698, s. c. 13 Sup. Ct. R. 977. fN. S.) 669; Palmer u. Great AVestern ' Authorities cited in preceding sec- Railway Co., L. R. 6 C. P. 194. See, tion. generally, as to what does or does not 'Texas, etc., R. Co. ». Interst. Com. constitute an unjust discrimination. Com.,162U.S. 197, s. c. 16Sup.Ct. R. Parsons ». Chicago, etc., R. Co., 63 666; Interst. Com. Com. v. Louisville, Fed. R. 903; Chicago, etc., E. Co. -v. etc., E. Co., 73 Fed. E. 409; Detroit, Hubbell, 54 Kan. 232, s. c. 38 Pac. E. etc., E. Co. V. Interst. Com. Com., 74 266; Michigan, etc., Co. v. Flint, etc.. Fed. E. 803 ; Imperial, etc., Co. u. Pitts- R. Co., 28 Chicago Legal News, 6; burg, etc., E. Co., 2 Interst. Corn. Kelly v. Chicago, etc., E. Co., (Iowa) Com. E. 618. See, generally, Parker 61 N. W. E. 957; St. Louis, etc., V. Great Western E. Co., 7 Man. & G. E. Co. v. McGill, 64 Fed. R. 165 • Little 1:53; Pegler v. Monmuthshire Canal Rock, etc., R. Co. v. St. Louis etc. § 1678 THE INTERSTATE COMMERCE ACT. 2669 service is a proper matter for consideration,' and so are many other facts and circumstances.' The fact that a joint through rate is less to a particular place than a local rate does not prove that there was an unjust discrimination or an undue preference, for "it never follows as a matter of law, that an undue preference has been given to a person or locality, be- cause a disparity is shown to exist between a local rate and a joint rate^'" § 1678. Undue preference — Discrimination — Illustrative instances. — Cartage furnished free to some shippers and de- nied to others, where circumstances and conditions are not substantially dissimilar, has been held to constitute an undue preference.* But it has been held that cartage may be "an accessorial service" and that circumstances and conditions may be such as to render free cartage proper and prevent it from constituting an undue preference.' The English courts E. Co., 63 Fed. E. 775, s. c. 26 L. E. A. 192. • Interst. Com. Com. v. Lehigh, etc., E. Co., 74 Fed. E. 784; Chicago, etc., E. Co. V. People, 67 111. 11, s. c. 16 Am. E. 599; Harris v. Cockermouth, etc., E. Co., 1 Nev. & McN. 97;Girar- dot ». Midland, etc., E. Co., 4 E. & Canal Traf. Cas. 291. See, generally, Foreman u. Great Eastern, etc., E. Co., 2 Nev. & McN. 202; Nitshill, etc., Co. V. Caledonian E. Co., 2 Nev. & McN. 39 ; Bellsdyke, etc., Co. v. North British E. Co., 2 Nev. & McN. 105; Bell V. London, etc., E. Co., 2 Nev. & McN. 185; Holland v. Festiniog, etc., E. Co., 2 Nev. & McN. 278 ; Providence, etc., Co. V. Providence, etc., E. Co., 1 Interst. Com. E. 363; Lotsperch v. Central, etc., E. Co., 73 Ala. 306, s. c. 18 Am. & Eng. E. Cas. 490; Burton, etc., Co. V. Chicago, etc., E. Co., 1 Interst. Com. E. 329. ^-Be Eeligious Teachers, 1 Interst. Com. E. 21 ; Interst. Com. Com. v. Alabama, etc., E. Co., 74 Fed. E. 715; Houston, etc., E. Co. v. Eust, 58 Tex. 98; Butchers, etc., Co. «. Louisville, etc., E. Co., 67 Fed. E. 35. 'Parsons v. Chicago, etc., E. Gp., 63 Fed. E. 903. 'Interstate Com. Com. v. Detroit, etc.,E. Co., 57 Fed. E. 1005, (but see Detroit, etc., E. Co. v. Interst. Com. Com., 74 Fed. E. 803) ; Hezel,etc., Co. V. St. Louis, etc., Co., 5 Interst. Com. Com. E. 57 ; Macloon v. Chicago, etc., E. Co., 3 Interst. Com. E. 711; Ever- shed V. London, etc., E. Co., L. E. 3 Q. B. D. 134; London, etc., E. Co. v. Evershed, L. E. 3 App. Cas. 1029; Thompson ». London, etc., E. Co., 2 Nev. & Mac. 115; Stone v. Detroit, etc., E. Co., 3 Interst. Com. Com. E. 613, 3 Interst. Com. E. 60. 'Detroit, etc., E. Co. v. Interst. Com. Com., 74 Fed. E. 803, reversing Interst. Com. Com. v. Detroit, etc., E. Co., 57 Fed. E. 1005. In the case first cited it was said : "These English cases abundantly establish three prop- ositions in relation to this subject: 2670 CARRIERS. §1678 hold that where some shippers have side tracks or switches connecting with their elevators, warehouses or the like, it is not an unlawful discrimination to make a reasonable allow- ance to such shippers on account of the saving to the carrier in the expense of loading and unloading,' but as the English stat- utes are different from the American, it is unsafe to implicitly "(1) That the collecting and delivery of goods is a separate and distinct business, notwithstanding the confu- sion to which we have adverted ; (2) that the railroad companies under- taking to do for themselves this sepa- rate business can not, by consolidating the compensation for each, avoid the restrictions that have been imposed upon them in respect of unlawful dis- criminations, and it is amply within the power of the railroad commissions and the courts, according to the facts of each particular case, to separate the two in order to prevent such an unlaw- ful discrimination ; (3) that notwith- standing the separable and independ- ent character of the two services, both whether in the hands of the same or separate carriers, are subject to the rules and regulations prescribed by law to prevent unlawful discrimina- tions." The court cited Pickford v. Grand Junction, etc., R., 10 Mees. & W. 399; Parkers. Great Western R. Co., 7 Man. & G. 253; Baxendale ^'. North, etc., R. Co., 3 0. B. (N. S.) 324; Gaston v. Bristol, etc., R. Co., 1 Best. &S. 112; Pegler u. Monmouth- shire Canal Co., 6 Hurl. & N. 644 ; Pal- mer V. London, etc., R. Co., L. R. 1 C. P. 588; West v. London, etc., R. Co., L. R. 5 C. P. 622 ; Parkinson v. Great Western, etc., R. Co., L. R. 6 C. P. 554; Liverpool, etc., Asso. v. Lon- don, etc., R. Co., L. R. (1891) 1 Q. B. Div. 120; Interstate Com. Com. v. Baltimore, etc., R. Co., 145 U. S. 264, s. c. 12 Sup. Ot. R. 844; Imperial Coal Co. V. Pittsburgh, etc., R. Co., 2 In- terst. Com. Com. R. 618 ; Ayresc. Chi- cago, etc., R. Co., 71 Wis. 372, s. c. 37 N. W. R. 432 ; In re Catherham R.Co., 1 C. B. (N. S.) 410; Railroad Com. v. Clyde, etc., Co., 5 Interst. Com. Com. R. 327; Lancashire, etc., R. Co. v. Greenwood, L. R. 21 Q. B. Div. 215; Gerke, etc., Co. v. Louisville, etc., 5 Interst. Com. Com. R. 596; Atchison, etc., R. Co. u. Denver, etc., Co., 110 U. S. 667, s. c. 4 Sup. Ct. R. 185; Northern, etc., R. Co. v. Washington Ty., 142 U. S. 492, s. c. 12 Sup. Ct. R. 283; Ex parte Koehler, 23 Fed. R. 529, 25 Fed. R. 73; Little Rock, etc., R. Co. V. St. Louis, etc., R. Co., 41 Fed. R. 559; Little Rock, etc., R. Co. V. East Tennessee, etc., R. Co., 47 Fed. R. 771, 776. 'Bell V. London, etc., R. Co., 2 Nev. & jMac. 185; Lees v. Lancashire, etc., R. Co., 1 Nev. & Mac. 352. See Robertson v. Midland-, etc., R. Co., 2 Nev. & Mac. 409; Thomas d. North Staffordshire R. Co., 3 Nev. & Mac. 1; Locke v. North Eastern R. Co., 3 Nev. & Mac. 44; Hall v. London, etc., R. Co., L. R. 15 Q. B. D. 505; Watkinson v. Wrexham, etc., R. Co., 3 Nev. & Mac. 5. While it is true that there are in some respects essential differences between the American and English statutes, still, as has often been decided, the federal courts will look to the English deci- sions. McDonald v. Hovey, 110 U. S. 619; McCool V. Smith, 1 Black 459; Pennock v. Dialogue, 2 Pet. 1. §1678 THE INTERSTATE COMMEKCE ACT. 2671 follow the English decisions. The English rule is that grant- ing the use of side tracks to some shippers and denying the use of them to others is an unjust discrimination/ and this is doubtless the rule under the federal statutes in cases where the circumstances and conditions are not substantially dissim- ilar.' Classification arbitrarily made in cases where there is no substantial dissimilarity in circumstances or conditions will not enable a carrier to evade the provisions of the act,' nor can a carrier arbitrarily and unreasonably deprive a ship- per of the natural advantages of location and surroundings.' Classifications must be made on a reasonable basis and not so made as to result in unreasonable charges, undue preferences, or unjust discriminations.' The motive of the shipper, as, 'Beeston, etc., Co. v. Midland E. Co., 5 R. & Canal Traf. Cas. 53; Girardot v. Midland R. Co., 5 R. & Canal Traf. Cas. 60. See Lancashire, etc., R. Co. 11. Gidlow, L. R. 7 Eng. & I. App. 517; Oxlade v. Northeastern, etc., R. Co., 1 C. B. (N.S.) 454; East, etc., Co. V. Shaw, etc., Co., L. R. 39 Ch. Div. 524. 'State V. Missouri, etc., R. Co., 29 Neb. 550, s. c. 45 N. W. R. 785, 3 Am. R. & Corp. R. (Lewis) 82; Hoyt V. Chicago, etc.. Railroad Co., 93 111. 601; Chicago, etc., R. Co. v. Peo- ple, 56 111. 365; Chicago, etc., R. Co. V. Suffern, 129 111. 274, s. c. 21 N. E. R. 824; Vincent v. Chicago, etc., Rail- road, 49 111. 33. As to the remedy by mandamus, see People v. Louisville, etc., Railroad Co., 120 111. 48, s. c. 10 N. E. R. 657 ; County of Pike v. State, 11 111. 202; City of Ottawa v. People, 48 111. 233; Union Pac. Railroad Co. t>. Hall, 91 U. S. 343. 'Nitshill V. Caledonian, etc., R, Co., 2 Nev. & Mac. 39; Coxe u. Lehigh, etc., Co., 3 Interst. Com. R.460; Hurl- burt V. Lake Shore, etc., R. Co., 2 Interst. Com. E. 81; Harvard Co. v. Pennsylvania Co., 3 Interst. Com. R. 257; Brownell v. Columbus, etc., E. Co., 4 Interst. Com. R. 285; Squire v. Michigan, etc., R. Co., 3 Interst. Com. R. 515. See, generally, Dow v. Beid- elman, 125 U. S. 680; Bates v. Penn- sylvania Co., 2 Interst. Com. R. 715. * Harris v. Cockermouth, etc., R. Co., 3 C. B. (N. S.) 693, 27 L. J. C. P. 162; Ransome v. Eastern, etc., R. Co., 4 C. B. (N. S.) 135, s. c. 1 Nev. & Mac. 109; Diphwys v. Festiniog E. Co., 2 Nev. & Mac. 73. ^Proctor V. Cincinnati, etc., R. Co., 3 Interst. Com. R. 131 ; Pyle v. East Tennessee, etc., R. Co., 1 Interst. Com. E. 767; Eice v. Western, etc., E. Co., 3 Interst. Com. E. 162; Eeyn- olds V. Western, etc., E. Co., 1 Interst. Com. E. 685; Duncan v. Southern, etc., E. Co., 4 Interst. Com. E. 385. See, generally, Warner v. New York, etc., E. Co., 3 Interst. Com. E. 74; Andrews, etc., Co. v. Pittsburgh, etc.. Co., 3 Interst. Com. E. 77 ; Spofford v. Boston, etc., E. Co., 128 Mass. 326; Sargent v. Boston, etc., E. Co., 115 Mass. 416; St. Louis, etc., E. Co. v. Hill, 4 Brad. (111. App.) 579; Louis- ville, etc., E. Co. V. Crown, etc., Co., 43 111. App. 228 ; Eailway Co. v. Bruce, 2672 CARRIERS. §1679 for instance, the desire to open a new avenue of trade, has been held not to be such a circumstance or condition as will author- ize a discrimination in his favor.' § 1679. Undue preference — Question one of mixed law and facf;, — In some of the decisions the question as to whether there is an undue preference is treated as one of law and not of fact. A recent decision of the supreme court of the United States seems, however, to assume that the question is purely one of fact.^ We venture the opinion, but with great defer- ence, that, in strictness, the question is generally one of min- gled law and fact. Whether certain facts have or have not been established is, of course, a question of fact, but the effect of the facts when found is, as we believe, ordinarily a question 55 Ark. 65; Kauffman, etc., Co. v. Missouri, etc., R. Co., 3 Interst. Com. R. 400. As to unlawful discriminations against hackmen, draymen and cart- ers, see McOonnell v. Pedigo, 92 Ky. 465, s. c. 18 S. W. R. 15, 5 Am. R. & Corp. R. (Lewis) 711 ; New York, etc., R. Co. V. Flynn, 74 Hun 124, 26 N. Y. S. 859; City of Colorado Springs v. Smith, 19 Colo. 554, s. c. 36 Pac. R. 540. In the note to McConnell v. Pedigo, 5 Am. R. & Corp. R. 715, many authorities are collected upon the subject of the power of a railroad company to make reasonable rules for the government of depots and ground. Among the cases cited are Kalamazoo, etc., Co. v. Sootsma, 84 Mich. 194, 8. c. 47 N. W. R. 667; Landrigan v. State, 31 Ark. 50; Com- monwealth V. Power, 7 Metcf. 596; Montana, etc., R. Co. v. Langlois, 9 Mont. 419, s. c. 24 Pac. R. 209; Cra- vens V. Rodgers, 101 Mo. 247 ; Old Col- ony, etc., R. Co. V. Tripp, 147 Mass. 35, B.C. 17 N. E. R. 89; Barker v. Midland, etc., R. Co., 18 C. B.46; Marriotts;. London, etc., Co., 1 C. B. (N. S.) 499; Beadell v. Eastern R. Co., 2 C. B. (N. S.) 509. ' Denaby, etc., Co. v. Manchester, etc., R. Co., L. R. 11 App. Cas. 97; London, etc., R. Co. v. Evershed, L. R. 3 App. Cas. 1029; Oxlade v. North Eastern, etc., R. Co., 1 C. B. (N. S.) 454, 1 Nev. & Mac. 72 ; Budd v. Lon- don, etc., Co., 4 R. & Canal Traf. Cas. 393; Ransome u. Eastern, etc., R. Co., 4C. B. (N. S.) 135, 1 Nev. & Mac. 109; Great Western, etc., R. Co. v. Sutton, L. R. 4 H. L. 226; Twells v. Penn- sylvania R. Co., 3 Am. Law Reg. (N. S.) 728. See Missouri, etc., R. Co. v. Texas, etc., R. Co., 30 Fed. R. 2. ''Texas, etc., R. Co. v. Interstate Com. Com., 162 U. S, 197, s. c. 16 Sup. Ct. R. 666. In the case cited it was said: "And as there is nothing in the act which defines what shall be due or undue, reasonable or unreasonable, such questions are questions not of law but of fact." It certainly has been uniformly held in analogous cases that whether a period of time or an act is reasonable or unreasonable is ordinarily a mixed question of law and fact. § 1680 THE INTEESTATE COMMERCE ACT. 2673 of law, SO that an ultimate judgment can not be reached with- out deciding both the questions of law and the questions of fact. When facts are ascertained their legal effect is deter- mined by applying to them the rules of law, and, ordinarily, until the rules of law are applied the effect of the facts can not be justly determined. We suppose that if a tribunal should determine that there was an undue preference in a case where the costs of the particular service, or the like, rendered proper a legal conclusion that there was no undue preference, the de- cision could not stand, although the particular or tangible facts were correctly found.' It may be true in a loose sense that whether there is or is not an undue preference is a question of fact, but we think that in strict accuracy it is a question in which the elements of law and fact are component parts. § 1680. Rebates as affected by the interstate commerce act. — Devices designed to enable an interstate railroad carrier to unjustly discriminate in favor of some shipper or shippers against another shipper or other shippers are forbidden by the statute. It has been held, however, that: "A rebate, draw- back or special rate is not of itself unjust discrimination, for it does not necessarily follow that a like rebate, drawback or special rate has not been extended to all the patrons of the car- rier."^ It seems quite clear upon principle and authority^ that a railroad carrier does not violate the statute by giving a rebate to one shipper, but if the rebate be given to one, and, where circumstances and conditions are substantially the same, denied to others, or if the intention is to evade the statute by discriminating in favor of one shipper and against others and a rebate is agreed upon for the purpose of carrying that inten- tion into effect, then there would be an unjust discrimination 'The decision in Interstate Com. E. Co., 94 Mo. 453; Root «. Long Is- Com. V. Alabama, etc., R. Co., 74 Fed. land R. Co., 114 N. Y. 300. R. 715, treats the question as one 'Ante, §1565; Ex parte Beneon, 18 purely of fact. So. Car. 38; Cowdrey v. Railroad Co., "United States v. Hanley, 71 Fed. 1 Woods (U. S.) 331, 335. R. 672, 673; Christie v. Missouri, etc.. 2674' CARRIERS. § 1681 within the meaning of the law.' A bill of lading is not vitiated by the granting of a rebate in violation of the interstate com- merce act, nor does the granting of a rebate in violation of the statute preclude a recovery against the carrier in the event of a loss of the property.^ § 1681. Formation of connecting lines — Preference — Ter- minal facilities. — The federal courts hold that a railroad com- pany may, for itself, determine with what other company or companies it will make traffic contracts, and that in making a contract with one company for the formation of a through line it does not transgress the interstate commerce act.' The law does not require a railroad company to treat all companies alike without regard to its own interests either as to terminal facilities or other matters; but, while this is true, it is also true that one railroad company can not arbitrarily refuse to transport freight or passengers destined to points upon its own line. It is no doubt true, as said in one of the cases cited, in speaking of a common carrier, that, "He certainly 'Providence Coal Co. v. Providence, 115 U. S. 587, s. c. 6 Sup. Ct. R. 194; etc., Co., 1 Interst. Com. Com. R. 107; St. Louis, etc., R. Co. v. SouthemEx- Martin v. Southern, etc., R. Co., 2 press Co., (Express Cases) 117 U. S. 1, Interst. Com. Com. 1; Kentucky s. c. 6 Sup. Ct. R. 542, 628 ; Little Rock, Bridge Co. ■B.Louisville, etc., R. Co., etc., R.'w. St. Louis, etc., R. Co. ,41 Fed. 37 Fed. R. 657 ; In re Louisville, etc., R. 559 ;Oregon, etc., R. Co. v. Northern R. Co., 5 Interst. Com. Com. R. 466. Pac. R. Co., 51 Fed. R. 465. In the See, generally, Great Western, etc., case last cited it was said : "It follows R. Co. V. Sutton, L. R. 4 H. L. 226; from this that the common carrier is Merry v. Glasgow, etc., R. Co., 4 Ry. left free to enter into arrangements & Canal Traf. Cas. 38.3; Nitshill, etc., for the use of its tracks or terminal Co. V. Caledonian, etc., R. Co., 2 Nev. facilities with one or more lines with- & Macq. 39; Hezel, etc., Co. v. St. out subjecting itself to the charge of Louis, etc., R. Co., 5 Interst. Com. giving undue or unreasonable prefer- Cora. R. 57. ences or advantages to such lines, or ''Merchants, etc., Co. ■». Insurance of unlawfully discriminating against Co.. 151 U. S. 368, s. c. 14 Sup. Ct. R. other carriers. In making arrange- 367. ments for such use by other compa- 'St. Louis, etc., Co. v. Louisville, nies, a common carrier will be gov- etc, Co., 65 Fed. R. 39; Atchison, erned by considerations of what is etc., Co. V. Denver, etc., R. Co., 110 best for its own interests." Seepost, V. 8. 667, s. c. 4 Sup. Ct. R. 185 ; Pull- § 1685. man, etc., Co. v. Missouri Pac. R. Co., ■§ 1682 THE INTERSTATE COMMERCE ACT. 2675 may select his own agencies and associates for doing his own work," but it can not be true that one railroad company may refuse to receive freight or passengers simply because such freight or passengers are brought to it by some com- pany other than the one with which it has made a traffic contract. The right to refuse passengers or freight can not be made to depend upon contracts between carriers themselves except in cases where there is no duty to carry, as, for in- stance, where the carrier is required to transport goods beyond its own line, for where there is a duty to carry the carrier can not by contract with other carriers escape from that duty. § 1682. Long and short hauls. — Section four of the interstate commerce act provides that, except as authorized by the inter- state commerce commission, it shall be unlawful to charge or receive any greater compensation in the aggregate' for trans- portation, under substantially similar circumstances and con- ditions, "for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance.'" It is also provided that this section shall not be construed as authorizing any common carrier "to charge and receive as great compensation for a shorter as for a longer distance." This section was intended to maintain and promote, rather than to destroy or neutralize, commercial ad- vantages resulting from location." Its prohibition is limited to cases in which the circumstances and conditions are substan- ' 24 U. S. St. L. 379, 1 Supp. U. S. 670; HinesB. Wilmington, etc., R. Co., Eev. St. 529, 530. The history of this 95 N. Car. 434. section ia given in Re Southern E., ^Raworth v. Northern Pac. R. Co., etc., Assn.; 1 Interst. Com. R. 278. 3 Interst. Com. R. 857; Chamber of Forsomewhat similar state statutes as Commerce v. Great Northern R. Co., to railroads and carriage within the 4 Interst. Com. R. 230 ; Eau Claire, state, and the construction of such etc., t>. Chicago, etc., R. Co., 4 Interst. statutes, see Wabash, etc., R. Co. f. Com. 65; James «. Canadian Pac. R. Illinois, 118 U. S. 557, s. c. 7 Sup. Ct. Co., 4 Interst. Com. R. 274; Ransome R. 4; People v. Wabash, etc., R. Co., v. Eastern Counties R. Co., 4 C. B. N. 104 111. 476; Illinois Cent. R. Co. v. S. 135. See, also, Anthony Salt Co. ■!). People, 121 111. 304, s. c. 12 N. B. R. Missouri Pac R. Co., 4 Interst. Com. R. 33. 2676 CAHRIEKS. § 1682 tially similar.' Among the things which may make the cir- cumstances and conditions dissimilar and justify an equal or greater charge for a short haul than for a long haul is com- petition with carriers which are not subject to the provision of the statute, particularly with carriers by water.' Competition of controlling force and amount with foreign railroads or those which are wholly within one state, and free from the operation of the statute, may justify such a charge as well as competition with carriers by water,' and the interstate commerce commis- sion originally made another exception in "rare and peculiar" cases of competition with other railroads subject to the statute where a strict application of the general rule would be de- ^ In re Louisville, etc., E. Co., 1 Interst. Com. Com. R. 31,53 ; Interstate Com. Com. V. Cincinnati, etc., E. Co., 56 Fed. E. 925; Be Southern E., etc., Assn., 1 Interst. Com. R. 278; Inter- state Com. Com. ». Alabama, etc., E. Co., 69 Fed. E. 227. But it seems to have been held that in case of doubt it should be resolved in favor of the law and the circumstances and condi- tions treated as substantially similar. Missouri Pac. E. Co. v. Texas, etc., R. Co., 31 Fed. E. 862. See, also, San Bernardino, etc., ». Atchison, etc., E. Co., 3 Interst. Com. R. 138. But in Detroit, etc., E. Co. v. Interstate Com. Com., 74 Fed. E. 803, 839, it is denied that there is any presumption against the carrier. ^Behlraer v. Louisville, etc., E. Co., 71 Fed. E. 835; Ex parte Koehler, 25 Fed. E. 73, 31 Fed. E. 315; Eice v. Atchison, etc., E. Co., 3 Interst. Com. R. 263; Interstate Com. Com. v. Atchison, etc., R. Co., 50 Fed. R. 295; Business Men's Assn. v. Chicago, etc., R. Co., 2 Interst. Com. Com. R. 52; King«. New York, etc., R. Co. ,3 Interst. Com. R. 272 ; New Orleans, etc., v. Illi- nois Cent. R. Co., 3 Interst. Com. Com. R. 534 ; Lehmann v. Southern Pac. R. Co., 3 Interst. Com. E. 80. But where the only real competition is by rail it seems that the fact that water competition is also possible will not make the circumstances and condi- tions dissimilar. Boston, etc., R. Co. V. Boston, etc., Co., 1 Interst. Com. Com. R. 158; San Bernardino, etc., V. Atchison, etc., R. Co., 3 Interst. Com. R. 138; Harwell v. Columbus, etc., R. Co., 1 Interst. Com. Com. R. 236; Merchants' Union ■». Northern Pac. R. Co., 4 Interst. Com. R. 183; Perry v. Florida Cent. R. Co. ,3 Interst. Com. R. 740. 'In re Louisville, etc., E. Co., 1 Interst. Com. Com. E. 31, 57; In- terstate Com. Com. v. Alabama, etc., R. Co., 69 Fed. E. 227, affirmed in 74 Fed. E. 715; Texas, etc., Co. r. In- terstate Com. Com., 162 U. S. 197, e. c. 16 Sup. Ct. R. 666. But even a state carrier, by engaging in interstate com- merce and becoming part of a continu- ous line, may come within the statute. Cincinnati, etc., R. Co. v. Interstate Com. Com., 162 U. S. 184, s. c. 16 Sup. Ct. E. 700. See for other things that may cause dissimilarity in circum- stances or conditions, Detroit, etc., R. Co. V. Interstate Com. Com., 74 Fed R. 803 ; Interstate Com. Com. v. Louis- ville, etc., R. Co., 73 Fed. R. 409. § 1682 THE INTERSTATE COMMERCE ACT. 2677 structive of legitimate competition.' But the view since taken is that, while such "rare and peculiar" cases will justify the commission in affording relief or permitting such charges, it is not a matter for the railroad companies to determine even in the first instance.^ In a very recent case the United States Supreme Court stated the elements which should be considered by the commission and the rules by which it should be gov- erned in determining questions arising under the third and fourth sections of the interstate commerce act, and held that ocean competition beyond the seaboard of the United States should be considered in determining whether a difference in rates between import and domestic traffic from the seaboard is not justified by reason of the dissimilar conditions and circum- stances." So, while a trade center can not demand, as matter of right, that the rates from a common source of supply shall be made up of the rate to itself and the rate thence to the smaller town,' and the arbitrary "basing point" system has been condemned,' yet it has been held that where the "basing point" was already a large distributing center and the compe- tition by water and otherwise is great such a combination rate made by adding to the competitive through rate to such center the local rate from such center to a local station beyond is not in violation of the statute.' The interstate commerce act refers to compensation "in the aggregate" and does not prohibit a reasonable and proper local rate, less in the aggregate than the through rate, although greater in proportion per mile than the through rate. Many elements or influences may affect the one ' J?e Southern, etc., E. Co., 1 Interst. ^Martin v. Chicago, etc., E. Co., 2 Com. E. 278. Interst. Com. Com. 25. 'Trammell v. Clyde, etc., Co., 4 ^ /n )•« Tariffs, etc., 3 Interst. Com. Interst. Com. E. 120. Com. 19; Hamilton v. Chattanooga, 'Texas, etc., E. Co. v. Interstate etc., E. Co., 3 Interst. Com. E. 482. Com. Com., 162 U. S. 197, s. c. 16 Sup. ^ Interstate Com. Com. v. Alabama, Ct. E. 666. But compare James v. etc., E. Co., 69 Fed. E. 227; affirmed East Tenn., etc., E. Co., 3 Interst. in 74 Fed. E. 715. But see Gerke, Com. Com. E. 225; New York Produce etc., Co. v. Louisville, etc., Co., 4 Exch. V. New York Cent., etc., E. Co., Interst. Com. E. 267, (lines converg- 2 Interst. Com. E. 553. ing from one point). Corp. 170 2678 CAKRiEKS. § 1682 which have no bearing on the other, and the fact the local rate is greater in proportion than the through rate, or greater than the carrier's share of a joint rate, does not of itself make it ille- gal.' But it is not a sufficient justification for a greater charge in the aggregate for a shorter than for a longer haul over the same line in the same direction, the shorter being included in the longer distance, that the traffic for which the greater charge is made is local traffic, while the other is not; nor, unless in exceptional cases, that the short haul traffic is more expensive to the carrier; nor that the lesser charge for the longer haul has for its motive the encouragement of manufacturing, or the like, or the building up of business or trade centers; nor that it is merely the continuation of the favorable rates under which industrial establishments or trade centers have been built up.' It was held by one of the circuit courts that furnishing free cartage at one city and not at another upon the company's line at a less distance and through which the goods pass to reach the former place, where the rates are the same, is a violation of the long and short haul clause of the interstate commerce act,' ^ Parsons v. Chicago, etc., R. Co., 63 Co. v. Hill, 14 111. App. 579; Illinois Fed. E. 903; Chicago, etc., ,R. Co. v. Cent. R. Co. v. People, 121 111. 304, s. Osborne, 52 Fed. R. 912; Tozer v. c. 12 N. E. R.670; King ». New York, United States, 52 Fed. R. 917 ; Coxe v. etc., R. Co., 4 Interst. Com. Com. R. Lehigh Valley R. Co., 3 Interst. R. 251. 460; Lippman'!?. Illinois Cent. R.. Co., ^Trammell v. Clyde, etc., Co., 4 2 Interst. Com.Com. R..584 ; McMorran Interst. Com. R. 120 ; He Southern, V. Grand Trunk R. Co., 2 Interst. etc., Assn., 1 Interst. Com. R. 278. See Com. R. 604; Martin J). Chicago, etc., R. also, Chicago, etc., R. Co. v. People, Co., 2 Interst. Com.Com. R. 25. But see 67 111. 11; Illinois Cent. R. Co. v. Cincinnati, etc., R. Co. v. Interstate People, 121 111. 304, s. c. 12 N. E. R. Com. Com., 162 IT. S. 184, s. c. 16 670. Sup. Ct. R. 700; Eau Claire, etc., v. 'Interstate Com. Com. v. Detroit, Chicago, etc., R. Co., 4 Interst. Cbm. etc., R. Co., 57 Fed. R. 1005, 4 Interst. R. 65. As to the meaning of the Com. R. 722. See, also. Stone v. De- phrase "in the aggregate," see De- troit, etc., R. Co., 3 Interst. Com. Com. troit, etc., R. Co. v. Interstate Com. R. 613. In Junod r. Chicago, etc., E. Com., 74 Fed. R. 803, where it is given Co., 47 Fed. R. 290, 3 Interst. Com. R. rather an unusual application if not 663,it was held a violation of the law to construction. See, also, Ragan v. forward grain from Nebraska through Aiken, 9 Lea (Tenn.) 609, s. c. 9 Am. places in Iowa to Chicago at a less & Eng. R. Cas. 201; St. Louis, etc., R. rate than charged from Chicago to § 1682 THE INTERSTATE COMMERCE ACT. 2679 but this ruling has recently been reversed in an elaborate opin- ion by the circuit court of appeals.' It will be observed that the prohibition in this clause is directed against a greater com- pensation for a shorter than for a longer distance over the same line, in the same direction, and controversy has arisen as to the meaning and effect of the phrase "over the same line." It has been held in several cases that the joint use of the same track by different companies does not necessarily make it the same line within the meaning of this clause so as to compel either com- pany to grade its tariff by that of the other, ^ and that where two companies owning connecting lines make a joint through tariff the two lines do not thereby become the "same line" within the meaning of the statute, and the joint through rate is not the standard by which the separate tariff of either is to be measured in determining its validity under the statute, for it may lawfully charge a greater local rate on its own line than its share of the joint rate for a longer haul.' But these cases are distinguished in a recent decision by the United State Su- preme Court, in which it is held that "when goods are shipped under a through bill of lading from a point in one state to a point in another, and when such goods are received in transit such points in Iowa. See, also, De- Northwestern la., etc., Assn. v. Chi- troit Board, etc., v. Grand Trunlc R. cago, etc., R. Co., 2 Interst. Com. R. Co., 2 Interst. Com. R. 199. So, in 431, (road consisting of main line and James v. East Tenn., etc., R. Co., 2 branch lines to same terminus) ; Interst. Com. R. 609, it was held that James, etc., Co. v. Cincinnati, etc , a difference in bulk and value of lum- Co., 3 Interst. Com. R. 682, (roads her did not justify a greater charge for forming a continuous line) . shorter distance where the carriers in ' Detroit, etc., Co. v. Interstate Com. their rate sheets had put the lumber Com., 74 Fed. R. 803. in the same class and at the same rate. ^Interstate Com. Com. v. Cincin- For other instances in which it was nati, etc., R. Co., 4 Interst. Com. R. held that the conditions and circum- 332, 56 Fed. R. 925. But see the last stances did not justify a less rate for a two notes to this section, longer haul, or a greater charge for a ' Chicago, etc., R. Co. ;'. Osborne, 52 shorter haul, see Raworth v. Northern Fed. R. 912, 4 Interst. Com. R. 257, 53 Pac. R. Co., 3 Interst. Com. R. 857; Am. & Eng. R. Cas. 18; Parsons v. Be Chicago, etc., R. Co.. 2 Interst. Chicago, etc., R. Co., 63 Fed. R. 903; Com. R. 137, (competition between Tozer v. United States, 52 Fed. R. two roads and unreasonably low rate 917; United States v. Mellen, 53 Fed. between two points by competitor) ; R. 229, 4 Interst. Com. R. 247. 2680 CARRIERS. § 1683 by a state common carrier, under a conventional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce;" and that it is "within the jurisdiction of the commission to con- sider whether the said company, in charging a higher rate for a shorter than for a longer distance over the same line, in the same direction, the greater being included within the longer distance, was or was not transporting property, in transit be- tween states, under substantially similar circumstances and conditions.'" It seems to have been assumed, however, rather than expressly decided, that the line formed by the several railroads was "the same line " within the meaning of the fourth section of the statute.^ § 1683. Group rates. — It has been held that the making of a "group rate," although it resulted in charging the same for a short as for a long haul, was not illegal under a state statute providing that no unjust discrimination shall be made against any person or place and that "it shall he prima facie evidence of an unjust discrimination for any railroad company to de- mand or receive from one person, firm or company a greater compensation than from another for the transportation in this state of any freight of the same kind or class, in equal or 'Cincinnati, etc., E. Co. c. Interstate receiving any greater compensation, Com. Com., 162 U. S. 184, 8. c. 16 in the aggregate, "for the shorter Sup. Ct. R. 700. See, also, as to when distance over the line formed by their a railroad wholly within one state is several railroads" from Cincinnati to subject to the interstate commerce Social Circle, "than they charge or re- act. Augusta, etc., Co. v. Wrights- ceive for the transportation of said ville, etc., Co., 74 Fed. E. 522; Mat- articles for the longer distance over tingly V. Pennsylvania Co., 3 Interst. the same line" from Cincinnati to Com. Com. E. .592, 609. Augusta. The circuit court held that ^ The effect of the term "same line" the new line formed by the separate in the fourth section of the act is not carriers was not "the same line." Its referred to in the opinion, but the de- decision was reversed by the circuit cree of the circuit court of appeals, court of appeals, whose judgment was which was affirmed, upheld that por- affirmed by the supreme court. See tion of the order of the interstate com- Interst. Com. Com. v. Cincinnati, merce commission which required etc., E. Co., 56 Fed. E. 925. the carrier to desist from charging or § 1683 THE INTEKSTATE COMMERCE ACT. 2681 greater quantities, for the same or a less distance.'" So, it seems to be settled that grouping rates upon such products as coal, milk or similar commodities for which a large demand exists, so as to give all in a certain producing district or within a certain distance a uniform rate and place them upon an equality among themselves and with those in other districts who compete in the same market, is not necessarily a viola- tion of section three of the interstate commerce law, prohibit- ing unjust discrimination nor of section four, making it un- lawful, under certain circumstances, to charge more for a shorter than for a longer distance.^ It must result in undue prejudice or injury in order to render it unlawful.' Thus, it has been held proper to make a group rate to a large number of mines, composing practically a single coal mining district, although some of the mines were many miles apart.' So, it has been held lawful to group stations, although from twenty- five to one hundred miles apart, and charge a common rate to each from some far distant point, the distance from such point to each being regarded as "practically the same in the large view of the subject;"' and a uniform rate upon nailk shipped 'Texas, etc., R. Co. v. Kuteman, 54 B. N. S. 135; Denaby Main Colliery Fed. R. 547, distinguishing Texas, Co. u. Mancliester, etc., R. Co., L. R. etc., R. Co. V. Kuteman, 79 Tex. 465, 11 App. Cas. 97, s. c. 26 Am. & Eng. s. c. 14 S. W. R. 693, in wliich it was R. Cas. 293; Lloyd v. Northampton, held, among other things, that the etc., R. Co., 3 Nev. & Mac. 259. provision against charging more for a ' Imperial Coal Co. v. Pittsburgh, less than a greater distance applies etc., R. Co., 2 Interst. Com. R. 436, 2 although the freight is not being Interst. Com. Com. R. 618. transported between the same points. * Rend v. Chicago, etc., R. Co., 2 * Howell V. New York, etc., R. Co., Interst. Com. R. 313, 2 Interst. Com. 2 Interst. Com. R. 162,2 Interst. Com.R.540. But see Denaby Main Col- Com. Com. R. 272; Rend v. Chicago, liery Co. v. Manchester, etc., R. Co., «tc., R. Co., 2 Interst. Com. R. 313, 2 3 Nev. & Mac. 426. Interst. Com. Com. R. 540 ; Coxe v. Le- ^ See Interst. Com. Com. v. Detroit, high Valley R. Co., 3 Interst. Com. R. etc., R. Co., 57 Fed. R. 1005,1010, 460, 4 Interst. Com. Com.R. 535. See, 1015, 1018. See, also, Cincinnati, etc., also. Rice v. Atchison, etc., R. Co., 3 R. Co. v. Interst. Com. Com., 162 TJ. Interst. Com. R. 263 ("blanket rate" S. 184, s. c. 16 Sup. Ct. R. 700. Judge on oil) ; Be Tariffs of Transcontinen- Taft also held in the first case that tal Lines, 2 Interst. Com. R. 203 ; Ran- such a grouping of stations was a con- some V. Eastern Counties R. Co., 4 C. elusive admission that the transporta- 2682 CARRIERS. § l*3f^4 to New York City from all stations within two hundred miles upon railroads running west of the Hudson River to Jersey- City has been held not to constitute unjust discrimination.' It is said by the United States Supreme Court, in a recent case, that the question as to what constitutes an undue preference or advantage, under the third section of the interstate commerce act, is one of fact, and that, in considering questions of dis- crimination between localities or questions arising under the fourth section, relating to long and short hauls, the welfare of the locality to which the goods are sent must be taken into account as well as the welfare of the locality where the traffic originates, or where the goods are placed on the cars.' § 1684. Eeasonable charges. — The provision of the act re- quiring charges to be "reasonable and just" does nothing more than give expression to the rule of the common law, for that rule, as we have seen, prohibited common carriers from mak- ing unjust and unreasonable charges. We suppose that whether charges are or are not reasonable must be determined, in particular cases, from the facts, circumstances and con- ditions, since many elements must be considered in order to justly determine whether rates are reasonable or unreasonable.' It is now well settled that railroad companies can not be re- tion from the point from which the * Severn, etc., E. Co. v. Great West- group rate was made to the warehouse ern,etc., E.Co., 5 Ey . & Canal Tr.Cas. of the company at each of such sta- 170; Business Men's Asso. i). Chicago, tions was under substantially similar etc., E. Co., 2 Interst. Com. Com. R. circumstances and conditions; but 52; Eice i>. Cincinnati, etc., E. Co., .5 .ludge Sevems dissented as to this Interst. Com. Com. E. 193; Eice r. proposition, and the latter's view was Louisville, etc., R. Co., 5 Interst. Com. taken by the court of appeals. De- E. 193; Loud i;. South Carolina E. Co., troit, etc., E. Co. v. Interst. Com. 5 Interst. Com. Com. E. 529; Perry?). Com., 74 Fed. E. 803. Florida, etc., E. Co., 5 Interst. Com. ' Howell !). New York, etc., R. Co., Com. E. 97; Boston, etc., v. Lake 2 Interst. Com. E. 162, 2 Interst. Com. Shore, etc., Co., 1 Interst. Com. Com. Com. E. 272. E. 4.36; Railroad Commissioners v. 2 Texas, etc., R. Co. ■!). Interst. Com. Savannah, etc., R. Co., 5 Interst. Com., 162 U. S. 197, s. c. Sup. Ct. R. Com. Com. R. 13, 136; Interst. Com. 066. And so must the welfare of the Com. v. Lehigh, etc., R. Co., 74 Fed. carrier. Interst. Com. Com. v. Ala- R. 784. bama, etc., R. Co., 74 Fed. R. 71.5. § 1684 THK INTERSTATE COMMERCE ACT. 2683 quired to render service as carriers without just compensation, so that it must necessarily follow that the cost of the service is always an important matter for consideration, and so are many other matters. We can not give in detail the facts, cir- cumstances or conditions that should be taken into considera- tion and must content ourselves with a reference to the decided cases.' "Reasonable" and "just rates" have been held to be such as are just and reasonable on the particular railroad, and in view of the surrounding circumstances.^ Upon a similar line of reasoning it has been held that the mere fact that the rates are such as make the business of the carrier very profitable is not proof that the rates are unreasonable.' It has been held that the fact that charges are not unreasonable per se does not prevent their being relatively unreasonable or constituting un- just discrimination by reason of being unequal,' but we sup- ' Board, etc., k. East Tennessee, etc., not unjustly discriminate so as to give R. Co., 5 Interst. Com. Com. E. 546; Murphy v. Wabash, etc., R. Co., 5 In- terst. Com. Com. E. 122; Detrol ., etc., Co. V. Grand Trunk, etc., E. Co., 2 Interst. Com. E. 199; Lincoln, etc., v. Missouri, etc., E. Co., 2 Interst Com. R. 98; Evans v. Oregon, etc., E. Co., 1 Interst. Com. C. E. 325; Severn v. Great Western, etc., E. Co., 4 Ry. & C. T.Cas. 170; Merchants' Union ti. North- ern, etc., E. Co., 5 Interst. Com. Com. R. 478 ; Delaware State Grange v. New York, etc., E.Co., 5 Interst. Com. Com. R. 161 ; James v. Canadian, etc., E.Co., 5 Interst. Com. Com. E. 612; Board V. East Tennessee, etc., E. Co., 5 In- terst. Com. Com. E. •546; Interst. Com. Com. V. Alabama, etc., R. Co., 74 Fed. E. 715. In the case last cited the pre- vailing doctrine was thus stated : "We do not discuss the third and fourth contention of the counsel farther than to say that, within the limits of the exercise of intelligent good faith in the conduct of their business, and sub- ject to the two leading propositions that their charges shall not be unjust or unreasonable and that they shall undue preference or disadvantage to persons or traffic similarly circum- stanced, the act to regulate commei-ce leaves common carriers, as they were at common law, free to make special rates looking to the increase of their business, to classify their traffic, to apportion and adjust their rates so as to meet the necessities of commerce and of their own situation and rela- tion to it and generally to manage their important interests upon the same principles which are regarded as sound and adapted to other trades and pursuits." ^New Orleans, etc., Exchange v. Il- linois Central E. Co., 3 Interst. Com. C. R. 534. ^ Howell V. New York, etc., E. Co., 2 Interst. Com. C. 272. See as to what is prima facie evidence of reason- ableness. In re Tariffs, etc., 2 Interst. Com. C. E. 324 ; Detroit, etc., E. Co. v. Interst. Com. Com., 74 Fed. E. 803; Ottinger r. Southern, etc., E. Co., 1 Interst. Com. C. E. 144. *Trammell v. Clyde, etc., Co., 5 Int. Com. Com. R. 324, 376, citing 2684 CARRIERS. § 168 pose that where the charges are not unreasonable per se it would devolve upon the complainant in the particular case to give evidence of circumstances and conditions clearly showing the charges to be unreasonable. § 1685. Interchange of business. — It is difficult to lay down faiy definite rule as to the rights of railroad companies in cases where there is an interchange of business. The provisions of the interstate commerce act' have been held not to prevent a rail- road company from requiring a company tendering it freight to break bulk and transfer the freight to the cars of the compa- ny to which the freight is tendered.^ It is, perhaps, safe to say that, subject to the prohibitions against unjust or unreason- able charges and against unjust discrimination, railroad com- panies are free to make contracts respecting the interchange of freight.' We also think that the authorities require the con- clusion that while a railroad company can not unjustly dis- criminate against another company, yet it may make reasona- ble rules and regulations respecting the interchange of freight, and distinguishing. Hozier v. Cale- Hays v. Pennsylvania Co., 12 Fed. R. donian, etc., R. Co., 1 Nev. & Mac. 309; Attorney General v. Birming- 27; Jones v. Eastern Counties, etc., ham, etc., R. Co., 2 Eng. R. & Canal R. Co., 1 Nev. & Mac. 4.5 ; Painter Cas. 124. V. London, etc., R. Co., 2 C. B. (N. 'Interstate Com. Act, §3. S.) 702. In Interst. Com. Com. 'Ante, § 1395- n. Baltimore, etc., R. Co., 14.5 U. S. ' Cincinnati, etc., R. Co. v. Inter- 263, the English statutes and cases state Com. Com., 162 U. S. 184, s. c. were reviewed and it was said : "These 16 Sup. Ct. R. 700; Interstate Com. traffic acts do not appear to be as Com. v. Baltimore, etc., R. Co., 43 comprehensive as our own and may Fed. R. 37, 145 U. S. 263, 12 Sup. Ct. justify contracts which with us would R. 844. See State v. Siuux City, etc., be obnoxious to the long and short- R. Co., 46 Neb. 682, s. c. 31 L. R. A. haul clause of the act or would be 47,53; Paxton p. Farmers', etc., Co., 45 open to the charge of unjust discrimi- Neb. 884, s. c. 29 L. R. A. 853 ; Atchi- nation." See, generally, Budd v. son, etc., R. Co. ?'. Denver, etc., R. Co., London, etc., R., 4 R. & Canal Traf. 110 IT. S. 667; Pullman, etc., Co. v. Cas. 393, n. ; Murray v. Glasgow, etc., Missouri, etc., R. Co., 115 IT. S. 587; R. Co., 4 R. & Canal Traf. Cas. 456; Be Joint Water and Rail Lines, 2 In- Stricki). Swasea, etc., Co.,]6C. B. N. terst. Com. R. 486; Rice v. Cincin- S. 245; Liverpool, etc., Asso. v. Lon- nati, etc., R. Co., 3 Interst. Com. R. don, etc., Co., L. R. (1891) 1 Q. B. 841. 120, s. 0. 45 Am. & Eng. R. Cas. 216; § 1686 THE INTERSTATE COMMERCE ACT. 2685 and is not under a duty to surrender its station buildings or the like to the use of another company.' We are not, how- ever, to be understood as affirming that a railroad company may refuse to interchange freight or that it can make unjust ■discriminations, but we do think that the right to use its own property for its own legitimate purposes is not abridged to any greater extent than is necessary to prevent unjust discrimina- tion and secure the free and fair interchange of freight.^ It is held that the provision of the act respecting the interchange of business does not require one company to yield its terminal facilities to another.' § 1686. Joint tariffs — Through rates. — The trend of the cases, as we have elsewhere shown, is against undue or un- necessary restrictions upon the rights of contract and of prop- erty, and, in accordance with that general doctrine, it is held that a railroad carrier can not be compelled to yield control of its road or make local rates to suit another carrier.* But where a railroad company becomes part of a continuous line, "under a common control, management or arrangement for a continu- ous carriage," it can not limit the control of the commission, "in respect to foreign traffic, to certain points on its road and to exclude other points.'" Where there is a continuous line, ' Ilwaco, etc., Co. v. Oregon, etc., R. etc., Co. v. Louisville, etc., R. Co., 37 Co., 57 Fed. R. 673 ; authorities cited Fed. R. 567, 2 L. R. A. 289 ; Little Rock, in preceding note to this section. etc., R. Co. v. East Tennessee, etc., R. *St. Louis, etc., R. Co. v. Southern Co., 2 Interst. Com. R. 454; Capehart Express Co., (Express Cases) 117 U. S. v. Louisville, etc., R. Co., 3 Interst. 1; Little Rock, etc., R. Co. I!. St. Louis, Com. R. 278; Interst. Com. Com. v. etc., R. Co., 41 Fed. R. 559 ; Kentucky, Baltimore, etc., R. Co., 145 U. S. 263, etc., Co. V. Louisville, etc., Co., 37 12 Sup. Ct. R. 844, 43 Fed. R. 37. Fed. R. 567. ^ Cincinnati, etc., R. Co. v. Interst. 'Little Rock, etc., Co. v. St. Louis, Com. Com., 162 U. S. 184, s. c. 16 etc., R. Co., 59 Fed. R. 400; Ilwaco, Sup. Ct. R. 700. See Boston, etc., etc., Co. V. Oregon, etc., R. Co., 57 Exch. v. New York, etc., R. Co., 3 Fed. R. 673. But see New York, etc., Interst. Com. R. 493, 604; Mattingly R. Co. V. New York, etc., R. Co., 50 v. Pennsylvania Co., 2 Interst. Com. Fed. R. 867. R. 806 ; Tranmell v. Clyde, etc., Co., 4 ♦Cincinnati, etc., R. Co. v. Interst. Interst. Com. R. 120; iJe Atlanta, etc., Com. Com., 162 U. S. 184, s. c. 16 Sup. R. Co., 2 Interst. Com. R. 461 ; Ham- Ct. R. 700; Chicago, etc., R. Co. v. ilton v. Chattanooga, etc., R. Co., 3 Osborne, 52 Fed. R. 912; Kentucky, Interst. Com. R. 482. 2686 CARRIERS. § 1686 although composed of the roads of two or more companies, the through rates must be reasonable.' It has been held that rail- road companies can not, by breaking a haul in two and assum- ing to be separate or independent carriers, evade the provisions of the act.^ Joint tariffs and joint through rates are held to be matters of contract, express or implied, between the different companies.' Rate sheets or schedules must be printed and posted, as the act requires, and must be adhered to by the carriers. 'Brady v. Pennsylvania Co., 2 In- v. Chicago, etc., Co., 2 Interst. Com. terst. Com. R. 78; James, etc., Co., B. 9; Business Men, etc., Assn. v, V. Cincinnati, etc., R. Co., 3 Interst. Chicago, etc., R. Co., 2 Interst. Com. Com. R. 682; Tranmell v. Clyde, etc., R. 41 ; Lippman v. Illinois Central R. Co.,4Interst. Com. R. 120, 139; Cham- Co., 2 Interst. Com. R. 414; Board v. berof Commerces. Flint, etc., R. Co., 2 Alabama, etc., R. Co., 4 Interst. Com. Interst.Com.C.R. 553; 7)1 re Passenger R. 348; Perry r. Florida, etc., Co., 3 Tariffs, 2Interst. Com. C.R. 649. See, Interst. Com. R. 740; Lehmann r. generally, 7)1 re Clark, 3 Interst. Com. Texas, etc., R. Co., 2 Interst. Com. C. R. 649. See, also, Central, etc., R. Co. R. 548; Tomlinson v. London, etc., v. Great Western, etc., R. Co., 4 R. & R. Co., 8 Ry. & Corp. L. J. 328. Canal Traf. Cas. 110; Greenock, etc., 'San Bernardino, etc., v. Atchison, R. Co. V. Caledonian R. Co., 3 Nev. & etc., R. Co., 3 Interst. Com. R. 138; Mac. 145; East, etc., R. Co. ■;;. Great Be Rate Sheets, 1 Interst. Com. 316; Western, etc., R. Co., 1 Nev. & Mac. In re Grand Trunk, etc., R. Co., 2 In- 331; Hammans ». Great Western, etc., terst. Com. R. 496; Phelps v. Texas, R. Co., 4 R. & Canal Traf. 181; War- etc., R. Co., 4 Interst. Com. R. 363; wick, etc., Co. v. Birmingham, etc., Lehmann v. Texas, etc., R. Co., 3 Co., 5 L. R. Exch. Div. 1. Interst. Com. R. 706; Coupland <■. ^ Brady v. Pennsylvania R. Co., 2 Housatonic, etc., R. Co., 61 Conn. Interst. Com. C. R. 131 ; Brady v. Penn- 531 ; Be Filing Copies, etc., 1 Intenst. sylvania R. Co., 2 Interst. Com. R. Com. R. 76; 7k /-e Grand Trunk, etc., R. 78; Board, etc., u. Alabama, etc., R. Co., 2 Interst. Com. R. 496; 7?ePassen- Co., 4 Interst. Com. R. 348; In re gerTariff, 2Interst.Com. It. 415; Town Grand Trunk R. Co., 2 Interst. Com. of East Hartford .■. American, etc., E- 496. Bank, 49 Conn. .539; Upton r. Tribil- ^ Kentucky, etc., Co. v. Louisville, cock,91IT. S.4.). For Enelish decisions etc., R. Co., 37 Fed. R. 567, s. c. 2 L. upon subject of "Rate books," see R. A. 289; Cincinnati, etc., R. Co. v. Cairns i\ North Eastern R. Co., 4 R. & Interst. Com. Com., 162 U. S. 184, s. Canal Traf. Cas. 221; Walkinson v. c. 16 Sup. Ct. R. 700; Chicago, etc., Wrexham, etc., R. Co., 3 Nev. &]\rac. R. Co. V. Osborne, 52 Fed. R. 912; 446; Clonmel Traders' v. Waterford, Duncan v. Atchison, etc., R. Co., 4 etc., R. Co., 4 R. & Canal Traf. Cas. 92. Interst. Com. R. 385. -See Gulf, etc., See, generally, ]\Ivrick v. Michigan, R. Co. V. Nelson, 5 Texas Civ. App. etc., R. Co., lOTU. S. 102, 108; Stewart 387. See, generally, upon the subject ". Terre Haute, etc., R. Co., 3 Fed. R. of through rates. La Crosse, etc., Co. 768. § 1687 THE INTERSTATE COMMERCE ACT. 2687 Advances and reductions in rates must be made in accordance with the provisions of the act.' § 1687. Party rates, mileage and commutation tickets. — The rule that discrimination may be made where the circum- stances are substantially dissimilar is recognized by many ex- press provisions of the act. Thus, "party rates" may be made and commutation tickets issued.* While mileage tickets may be issued, unjust discrimination is forbidden and such tickets must be issued to all persons alike when properly requested and the conditions and circumstances are substantially simi- lar.' § 1688. Violations of the interstate commerce act — Indict- ments. — It will aid us in securing a clear view of the construc- tion given the interstate commerce act to consider some of the decisions rendered in cases where violators of the act were prosecuted by indictment, and at the same time will assist us in reaching a correct conclusion upon the question of what facts an indictment must contain in order to make it good. In one of the cases an indictment professing to charge the defend- ant with unlawfully receiving less compensation from one shipper than from another which alleged that a rebate was given a designated shipper, but did not allege any instance in which a rebate was denied to another shipper, was held bad.' ' See MacFarlane v. North British, power of the Interstate Commerce etc., E. Co., 4 R. & Canal Traf. Cas. Commission respecting the excep- 269. tions, see Thatcher i\ FitchburgR. Co., ' Act to regulate commerce, § 22 ; 1 Interst. Com. R. 356 ; Be Theatrical Interst. Com. Com. v. Baltimore, etc., Rates, 1 Interest. Com. R. 18. As to R. Co., 145 TJ. S. 263, s. c. 12 Sup. Ct. when carriers may be authorized to R. 844; In re Jones & Eastern R. Co., make special rates, see Philadelphia, 3 C. B. (N. S.) 718; Oxlake v. North- etc., Co.'!;. Pennsylvania, 122 U. S. 326; eastern E. Co., 1 C. B. (N. S.) 454. Savery u. New York, etc., R. Co., 2 In- ' Associated, etc., Grocers', etc., v. terst. Com. R. 210; Jf« Indian Supplies. Missouri Pac. R. Co., 1 Interst. Com. 1 Interst. Com. R. 22; Smith v. North- Com. R. 156; Larrisonw. Chicago, etc., ernPac. R. Co., 1 Interst. Com. R.611 ; R. Co., 1 Interst. Com. Com. 147. For In re Religious Teachers, 1 Interst. a definition of commutation and mile- Com. R. 21 ; Sanger v. Southern, etc., age tickets, see Harper's Interstate R. Co., 2 Interst. Com. R. 548. Commerce Act, 188-192. As to the ' United States b. Hanley, 71 Fed. R. 2688 CARRIERS. § 1688 A conspiracy to obstruct or impede interstate commerce is an indictable offense, and subjects the offender to punishment.' It is held that signing a "line voucher" in the third federal circuit payable at a place in the eighth circuit even if a viola- tion of the interstate commerce act is not cognizable in the courts of the former circuit.^ It is held that it is not necessary in a prosecution for conspiring to violate the act regulating commerce to prove that schedules of rates were posted for the reasons that schedules are required to be posted for the infor- mation of the public and an established rate may be proved in other modes than by showing that schedules were posted.' So, 672. In the case referred to the court said: "The language of the statute recognizes that a uniform rate between different shippers is not always possi- ble or proper; that the time of service, the kind of traffic, and the circum- stances and conditions under which it is transported may materially change the just obligations and duties of the carrier to his patrons. Equality and uniformity of rate dissociated from considerations of the time, kind and circumstances of the transaction is, therefore, not the object aimed at. The object of the statute is to prevent one shipper from getting the advan- tage over his competitor in the matter of rates only when they both make substantially a like offering to the car- rier. " 'Thomas v. Cincinnati, etc.,E. Co., 62 Fed. R. 803; In re Phelan, 62 Fed. R. 803; In re Grand Jury, 62 Fed. R. 834; United States v. Elliott, 62 Fed. R. 801. See, generally, Toledo, etc., R. Co. V. Pennsylvania, etc., R. Co., .54 Fed. R. 730, 738 ; In re Debs, 1.58 V. S. 564, s. c. 15 Sup. Ct. R. 900. The case last cited contains an ex- haustive review of the authorities and affirms the power of the federal courts to prevent the obstruction of inter- state commerce. The following cases were cited: Lane County K.Oregon, 7 "Wall. 71, 76; Fong Yue Ting v. United States, 149 U. S. 698, s. c. 13 Sup. Ct. R, 1010. See, also, upon the question of conspiracy State v. Glid- den, 55 Conn. 46, s. c. 8 Atl. R. 890; State V. Stewart, 59 Vt. 273, s. c. 9 Atl. R. 559; Bowen v. Hall, 6 Q. B. Div. 333; Old, etc.. Steamship Co. v. McKeuna, 30 Fed. R. 48 ; Casey v. Cin- cinnati Typographical Union, 45 Fed. R. 135; United States v. Working- men's, etc., Asso., .54 Fed. R. 994; Temperton v. Russell, L. R. (1893) 1 Q. B. 715; Carew v. Rutherford, 106 Mass. 1; Angle v. Chicago, etc., Ry. Co., 151 U. S. 1, s. c. 14 Sup. Ct. R. 240. As to the remedy by injunction, see Sherry v. Perkins, 147 Mass. 212; Coeur D'Alene Co. v. Miners' Union, 51 Fed. R. 260; Blindell v. Hagan, 54 Fed. R. 40; Farmers', etc., Co. v. Northern, etc., R. Co., 60 Fed. R. 803. ^United States u. Fowkes, 53 Fed. R. 13, distinguishing In re Palliser, 136 U. S. 257, s. c. 10 Sup. Ct. E. 1034; Horner v. United States, 143 U. S. 207, s. c. 12 Sup. Ct. R. 407. 'United States v. Howell, .56 Fed. 21. In Tozer v. United States, 52 Fed. 917, it is held that there can be no conviction under the provisions of the act prohibiting "undue prefer- 1688 THK INTERSTATE COMMERCE ACT. 2689 it has been held that an agent who simply collects freight charges, and has nothing to do with fixing rates, is not indicta- ble under the long and short haul clause of the interstate com- merce act.' Other cases involving the construction of the in- terstate commerce act are cited in the last note. ences," in a case where the jury are required to determine whether the preference was reasonable or unrea- sonable, but this doctrine seems to be opposed to that asserted in other cases. ' United States v. Mellen, 53 Fed. R. 229. See, generally, United States v. Mellen, 4 Interst. Com. E. 247, s. c. 53 Fed. B. 229; United States v. Egan, 47 Fed. R. 112, 3 Interst. Com. R. 582 ; United States v. Morsman, 42 Fed. R. 448; Junod v. Chicago, etc., R. Co., 47 Fed.R. 290 ; United States v. Knight, 3 Interst. Com. R. 801 ; United States v. Cleveland, etc., R. Co., 3 Interst. Com. R. 290; Reginac. Bradford, etc., Co., 6 Best & L. 631 ; United States v. Michigan, etc., R. Co., 43 Fed. R. 26. CHAPTER LXXII. ACTIONS AGAINST RAILROAD COMPANIES. § 1689. Generally — Scope of chapter. 1696. 1690. Eemedy for breach of duty as public or common carrier — 1697. Mandamus. 1691. Kemedy for refusal to carry — 1698. Action for damages. 1699. 1692. Actions against common car- riers — Parties. 1700. 1693. Actions against common car- riers — Form of action. 1701. 1694. Actions against common car- riers—Pleading. 1702. 1695. Actions against common car- riers — Evidence . 1703. Actions for injuries to passen- gers. Actions for injuries to em- ployes. Pleading ordinances. Inspection and physical ex- amination of party. Experiments and practical tests — Real evidence. Presumptions. Withdrawing the case from the jury. Physical facts. § 1689. Generally — Scope of chapter. — In this chapter we propose to consider some matters of pleading, practice and procedure generally that we have found to be of use and im- portance in railroad litigation. This is a treatise upon sub- stantive law rather than upon procedure, and we shall not undertake to treat of pleading, practice or evidence, nor of the measure of damages, at any length. There is little in the law upon these subjects that is peculiarly applicable to railroads, and to treat them fully would require several volumes. The general subject of actions by and against corporations has al- ready been treated,' and the manner of enforcing particular rights and remedying particular wrongs has generally been pointed out in connection with the discussion of the substan- tive law governing such cases. We shall here consider merely such additional matters of pleading, practice and procedure as most frequently arise and are of practical use and importance in railroad litigation. ' Ante, chapter xxv. (2690) § 1690 ACTIONS AGAINST RAILROAD COMPANIES. 2691 § 1690. Remedy for breach of duty as a public or common •carrier — Mandamus. — The public nature of the duty of a rail- road company to transport goods or passengers is one of which performance may in some instances be coerced by mandamus.' The duty to carry" is a duty owing primarily to the public,' but there is a particular or specific right in every member of the public who makes a proper tender of goods or properly offers himself as a passenger, to enforce a performance of that duty. A violation of the duty may, of course, give to the person who properly demands its performance a private right of action, but because there may be a private right of action it does not necessarily follow that mandamus may not in some instances bean appropriate remedy. It is true that mandamus is an ex- traordinary remedy and can not be resorted to where an ordi- nary remedy will afford complete relief, but a private action for damages by a person who properly demands transportation for goods or passengers may not always afford adequate relief, and hence there are instances in which an individual may suc- cessfully invoke the extraordinary remedy. We do not mean to be understood as asserting that where there is simply a ques- tion affecting the private right of the parties in the particu- lar case mandamus will lie, as, for instance, where the refu- sal to carry is placed solely upon the ground that the offer or tender of goods was not made as the reasonable regulations of the company require; on the contrary, our opinion is that mandamus will not lie unless there is some element of a public nature, as, for instance, where there is favoritism or unjust dis- crimination, or some such violation of a public duty. We be- lieve, however, that mandamus is an appropriate remedy where there is a general and continuous refusal to carry, but we do not believe, as we have indicated, that where the refusal to 'State V. Delaware, etc., R. Co., 48 etc., R. Co., 22 Hun 533; Ex parte N. J. Law 55; Chicago, etc., R. Co. v. Robins, 3 Jur. 103; People v. Bab- People, 56 111. 365; Chicago, etc., R. cock, 16 Hun 313. Co. ». Burlington R. Co., 34 Fed. R. *The company is, as to such a duty, 481 ; People v. New York, etc., R |Co., in a restricted sense, a public agent. 28 Hun (N. Y.) 543, s. c. 9 Am. & Eng. Messenger v. Pennsylvania R. Co., 36 Cas. 1 . But see People v. New York, N. J. L. 407, s. c. 13 Am. R. 457. 2692 CARRIERS. § 1691 carry is based upon reasons peculiar to the particular case, and only incidentally involves matters concerning the public duty, that mandamus will lie.' Some of the cases seem to hold that mandamus will not lie except where the duty is created by stat- ute, but in our opinion mandamus will lie where there is a spe- cific duty created by law whether the law be embodied in a statute or not.* § 1691. Remedy for refusal to carry — Action for damages. — An action for damages is the ordinary remedy for a wrong- ful refusal to carry, ° but, as we have seen, mandamus to compel the performance of the duty, will lie in some instances.* It has been held that the right of action for a mere refusal to carry does not accrue to the consignee.^ A wrongful refusal by the railroad company will not justify the shipper in abandoning the property or in leaving it exposed to the ravages of the weather at the carrier's expense. It would still be the ship- per's duty to preserve the property, and it would be his right ' We think the principles declared in such cases as Central, etc., Co. v. State, 123 Ind. 113; Central, etc., Co. V. State, 118 Ind. 194; State v. Ne- braska, etc., Co., 17 Neb. 126; Vin- cent V. Chicago, etc., R. Co., 49 111. 83; People v. Manhattan, etc., Co., 45 Barb. 136, govern cases of the class referred to in the text. Analogous cases may also be cited, as, Mobile, etc., R. Co. V. Wisdom, 5 Heisk. 125; Haugen v. Albina, etc., Co., 21 Ore. 411, s. c. 28 Pac. R. 244; Price v. Riv- erside, etc., Co., 56 Cal. 431; People V. Rome, etc., R. Co., 103 N. Y. 95; People V. Albany, etc., R. Co., 24 N. Y. 261. * Price V. Riverside, etc., Co., 56 Cal. 431 ; Mobile, etc., R. Co. v. Wis- dom, 5 Heisk. 125; Durham v. Monu- mental, etc., Co., 9 Ore. 41; People V. Green, 64 N. Y. 499; Biggs v. Mc- Bride, 17 Ore. 640. See, also, note to Ex parte Koehler, 29 Am. & Eng. R. Cas. 44, 53, and ante, §§ 637-643. ''Fish??. Chapman, 2 Ga. 349; Doty V. Strong, 1 Pinney (Wis.) 313, s. c. 40 Am. Dec. 773; Nugent v. Smith, L. R. 1 C. P. Div. 19, 423; People v. New York, etc., R. Co., 22 Hun (K. Y.)533; Piedmont Mfg. Co. v. Co- lumbia, etc.. Railroad, 19 S. Car. 353; New Jersey S. N. Co. v. Merchants' Bank, 6 How. (U. S.) 344. It has been held that the action may be brought in the county where refusal occurred. Chase v. South P. C. R. Co., 83 Cal. 468, 42 Am. & Eng. R. Cas. 424. ' Chicago Ry. Co. v. Burlington Ry. Co., 34 Fed. R. 481 ; ante, § 1690. ' Lafaye v. Harris, 13 La. Ann. 553. The action should be brought by the party who offers the goods for shi])- ment and is injured by the refusal . Cobb V. Iowa Cent. R. Co., 38 Iowa 601 ; Pittsburgh, etc., R. Co. r. Racer, 5 Ind. App. 209, s. c. 31 N. E. R. 855. § 1691 ACTIONS AGAINST RAILROAD COMPANIES. 2693 to recover the reasonable expense therefor from the carrier, to- gether with the damages proximately caused by its breach of duty in refusing to carry.' It has been held that in an action for damages for the continual withholding of facilities, it is not necessary to state the points to which the goods were to be carried and to allege a tender of the freight.^ But there is no duty resting upon a railroad company to have cars standing at all times at all of its stations, ready to receive freight, and a reasonable notice or demand in advance of the time of the pro- posed shipment, as well as a tender of the goods for transpor- tation, must usually be shown as a condition precedent to a right of recovery.' As we have elsewhere seen, an unusual and extraordinary press of business may justify a carrier in ' St. Louis, A. & T. E. Co. v. Neel, 56 Ark. 279, s. c. 19 S. W. R. 963, 55 Am. & Eng. R. Cas. 428; Houston, etc., Co. V. Smith, 63 Texas 822; Hutchinson on Carriers, (2d ed.) § 774. The shipper can not, at his leisure, send the refused goods for- ward in parcels, and hold the carrier liable for the difference in freight. Ward's Cen. & Pac. L. Co. v. Elkins, 34 Mich. 439. Special damages should be particularly averred. Roberts v. Graham, 6 Wall. (U. S.) 578; Van- derslice v. Newton, 4 N. Y. 130; 1 Sutherland on Damages, § 419 ; City of Chicago V. O'Brennan, 65 111. 160. If there are other carriers it may also be the duty of the shipper to ship by them, and the difference in the cost of transportation may be the measure of the damages. Grand v. Pender- gast, 58 Barb. (N. Y.) 216; Crouch v. Great Northern R. Co., 11 Exch. 742; 3 Suth. on Dam., § 899. 2 Central & M. R. Co. v. Morris, 68 Texas, 49, 3 S. W. R. 457, 28 Am. & Eng. R. Cas. 50. A readiness to pay has been held to be as good an aver- ment as a tender. Pickford v. Grand Junction Railway, 8 M. & W. 372. It Corp. 171 would be safer, however, to aver pay- ment or a tender of freight, and there must at least be ability and readiness to pay. Wyld v. Pickford, 8 M. & W. 443; Batson v. Donovan, 4 B. & Aid. 21 ; Knight v. Providence, etc., R. Co., 13 R. 1. 572, s. c. 9 Am. & Eng. R. Cas. 90; 1 Greenl. on Ev., §210, note 6; Galena, etc., E. Co. v. Rae, 18 111. 488. But, as the measure of the damages usually depends upon the value of the goods at the place of shipment it would seem material to name that point. Michigan, etc., R. Co. v. Cas- ter, 13 Ind. 164 ; Sedgwick on Dam- ages, § 844. So it would seem material in order to show a breach of duty, for it might not be on the line of the road or the like. ' Ayres v. Chicago, etc., R. Co., 71 Wis. 372, s. c. 37 N. W. R. 432; Rich- ardson r. Chicago, etc., R. Co., 61 Wis. 596; Huston u. Wabash R. Co., 2 Mo. App. R. 941. See, also, Louisville, etc., R. Co. V. Flanagan, 113 Ind. 488; Louisville, etc., R. Co. v. God- man, 104 Ind. 490; Pittsburgh, etc., R. Co. V. Morton, 61 Ind. 539, 576; Corso V. New Orleans, etc., R. Co., (La.) 20 So. R. 752. 2694 CARRIERS. § 1692 failing or refusing to furnish cars and carry freight of a par- ticular shipper at the time it is offered, when to do so would jeopardize its other business and prevent it from fulfilling its duties as to prior shipments, and so may extraordinary floods or the like, which render it impossible to carry the goods at the time; but it has been held that, if the carrier is unable to fur- nish cars at the time and in the numbers required without un- due interference with its other business, it is a matter of defense and must be shown by the carrier.' § 1692. Actions against common carriers — Parties. — As a general rule, it is presumed, in the absence of any special con- tract, that a carrier is employed by the person at whose risk the goods are carried, that is, the owner or person who would suffer, if they were lost or injured.^ It will be presumed, in the absence of anything to the contrary, that the consignee is the owner of goods shipped over a railroad, and the real party in interest, and, for this reason, he is usually the proper plaint- iff, in an action to recover for their loss, injury or delay.' 'Chicago, etc., R. Co. v. Wolcott, Ala. 101; Southern Exp. Co. v. Arm- 141 lad. 267, s. c. 39 N. E. R. 451. stead, 50 Ala. .3.50; South & North ^ Dicey on Parties to Actions, 87; Alabama R. Co. v. Wood, 72 Ala. 451, 3 Wood on Railroads, 1936; Mobile, s. c. 18 Am. AEng. R. Cas. 634; Krul- etc, R. Co. V. Williams, 54 Ala. 168. der v. Ellison, 47 N. Y. 36; Arbuckle See, also, Law v. Hatcher, 4 Blkf. v. Thompson, 37 Pa. St. 170; Dun- (Ind.) .364; Congaru. Galena, etc., R. lop v. Lambert, 6 CI. & Fin. 600; Co., 17 Wis. 477; Harvey v. Terre Kirkpatrick «. Kansas City, etc, R. Haute, etc., R. Co., 74 Mo. .538, s. c. 6 Co., 86 IMo. 341 ; Bacharach v. Chester Am. & Eng. R. Co. 293; iliami, etc., Freight Line, 133 Pa. St. 414, s. c. 19 Co. w. Port Royal, etc., R. Co., 38 S. Atl. R. 409; Potter v. Lansing, 1 Car. 78, s. c. 16 S. E. R. 339; Ames v. Johns. (N. Y.) 215, s. c. 3 Am. Dec. First Div. St. Paul, etc., R. Co., 12 310; Lawrence v. Minturn, 17 How. Minn. 412. As to when joint owners (U. S.) 100; Madison, etc., R. Co. may maintain a joint action, see Day v. Whitesel, 11 Ind. 55; Pennsyl- V. Ridley, 16 Vt. 48; Missouri Pac. R. vania Co. v. Poor, 103 Ind. 553, s. c. Co.». Rushin,3Tex. App. (Civil Cas.) 3 N. E. R. 2.=)3; Ober n. Indianapolis, 385; MetcalfetJ. London, etc., R. Co., 4 etc., R. Co., 13 Mo. App. 81; Gvvyn v. C. B. N. S. 307, and compare Missouri Richmond, etc., R. Co., 85 N. Car. 420, Pac. R. Co. V. Smith, 84 Tex. 348, s. c. s. o. 39 Am. R. 708, 6 Am. & Eng. R. 19 S. W. R. .509. See, also. Wood v. Cas. 452 ; Dyer v. Great Northern R. Erie R. Co., 72 N. Y. 196; aK«e, §1660. Co., 51 Minn. .345, s. c. .53 N. W. R. ' Southern Exp. Co. «. Caperton, 44 714; Robinson v. Memphis, etc., R. § 1692 ACTIONS AGAINST RAILROAD COMPANIES. 2695 But, if he has no property in the goods, either general or special and incurs no risk, he is not, ordinarily at least, the proper plaintiff.' If the consignor is the real owner, and especially if he makes the contract for himself, he is the proper plaintiff,^ and the better rule seems to be that he may also maintain an action upon the contract in his own name if the contract is directly with him, although he has not, in reality, retained any property in the goods;' but in the latter case, if Co., 9 Fed. E. 129; Thompson v. Fargo, 49 N. Y. 188 ; Bonner v. Marsh, lOSmedes & M. (Miss.) 376; Arnold u. Prout, 51 N. H. 587, 589; Browne on Carriers, § 596. 'Ogden V. Coddington, 2 E. D. Smith (N. Y.) 317; Alabama, etc., E. Co. V. Mount Vernon, etc., Co., 84 Ala. 173; Coombs v. Bristol, etc., Co., 3 Hurlst. & N. 510; Coats i). Chap- lin, L. E. 3 Q. B. 483; Swain v. Shep- herd, 1 Moody & E. 223 ; Hutchinson on Carriers, (2d ed.) § 736. But con- signee may sue when he is the party to the contract. Mead v. Eailway Co., 18 Wkly. E. 735. ' Finn v. Western E. Co., 112 Mass. 524; Coombs v. Bristol, etc., R. Co., 3 H. & N. 510; Hoare v. Great Western R. Co., 25 W. R. 631; Bernstine v. Express Co., 40 Ohto St. 451 ; Wilson V. Wilson, 26 Pa. St. 393 ; Hays v. Stone, 7 Hill (N. Y.) 128 ; Turney v. Wilson, 7 Yerger (Tenn.) 340, 27 Am. Dec. 515; Hand v. Baynes, 4 Whart. (Pa.) 204, 33 Am. Dec. 54; Swain ti. Shepherd, 1 Moody & E. 223; The Merrimack, 8 Cranch (U. S.) 317; Krulder v. Ellison, 47 N.Y. 36 ; O'Neill V. New York, etc., E. Co., 60 N. Y. 138; Brill v. Grand Trunk R. Co., 20 U. C. C. P. 440; Western, etc., R. Co. V. Kelly, 1 Head (Tenn.) 158; Penn- sylvania Co. V. Clark, 2 Ind. App. 146, s. c. 27 N. E. E. 586; Spence & Neff V. Norfolk, etc., E. Co., (Va.) 29 L. E. A. 578 ; Hance v. Wabash, etc., E. Co., 1 Mo. App. E. 719. ^ Blanchard v. Page, 8 Gray (Mass.) 281; Finn v. Western E. Co., 112 Mass. 524; Hooper v. Chicago, etc., E. Co., 27 Wis. 81; Atchison v. Chi- cago, etc., Co., 80 Mo. 213; Eeynolds V. Chicago, etc., Co., 85 Mo. 90; Mis- souri Pac. E. Co. V. Smith, 84 Tex. 348, s. c. 19 S. W. E. 509, 510 ; note to Swift V. Pacific Mail, etc., Co., 30 Am. & Eng. E. Cas. 105 ; note to Eamsey, etc., Co. V. Kelsea, (55 N. J. L. 320) 22 L. E. A. 415, 428; Illinois, etc., E. Co. V. Schwartz, 13 HI. App. 490; Chi- cago, etc., E. Co. V. Shea, 66 111. 471 ; Ohio, etc., E. Co. v. Emrich, 24 Illi App. 245; Cantwell v. Pacific Exp. Co., 58 Ark. 487, s. c. 25 S. W. E.503; Dunlop V. Lambert, 6 CI. & Fin. 600. Contra, Blum, Frank & Co. v. The Caddo, 1 Woods (U. S. C. 0.) 64; Dawes v. Peck, 8 Term R. 330 ; Green V. Clark, 12 N. Y. 343 ; Krulder i). Elli- son, 47 N. Y. 36 ; Griffith v. Ingledew, 6 Serg. & E. 429, (but see strong dis- senting opinion of Gibson, J.) ; Penn- sylvania Co. V. Holderman, 69 Ind. 18 ; Sargent v. Morris, 3 Barn. & Aid. 277. See, also, Wetzel v. Power, 5 Mont. 214. InShellenbergB. Fremont, etc., R. Co., 45 Neb. 487, s. c. 63 N. W. R. 859, it is held that the company is liable for conversion if it refuses to surrender the goods to the real owner, although he is not a party to the con- tract. 2696 CARRIERS. § 1693 the property in the goods has passed to the consignee, the re- covery by the consignor would be for the benefit of the con- signee.' The question as to the proper party defendant can seldom arise, except where there are connecting carriers, and that subject has already been fully considered." § 1693. Actions against common carriers — Form of action. — The abolition of forms of action in the code states and the modification of the strict common law rules in most of the other states have rendered the old rules and distinctions be- tween the different forms of action of comparatively little importance. But the inherent distinctions in matters of sub- stance are still recognized, and there still remains, in many cases, the right to make an election of remedies, which, where once exercised, may have an important influence upon the right to recover or the amount of the recovery. As a general rule, where there is a breach both of contract and of duty im- posed by law, as in case of loss or injury by a common car- rier, the plaintiff may elect to sue either in contract or in tort.' ' Ohio, etc., R. Co. v. Emrich, 24 Jersey, etc., Co. v. Merchants' Bank, 111. App. 245; Illinois, etc., R. Co. v. 6 How. (U. S.) 344; Illinois Cent. R. Schwartz, 13 111. App. 490; Missouri, Co. v. Miller, 32 111. App. 259. As to Pac. R. Co. V. Smith, 84 Tex. 348, s. c. the proper parties where loss has been 19 S. W. R. 509; Southern Exp. Co. u. paid by insurance company, see ante. Craft, 49 Miss. 480; Snider v. Adams § 1509. Exp. Co., 77 Mo. 523, s. c. 16 Am. & 'Ante, chapters lviii, lix. See, also, Eng. R. Cas. 261. As a general rule Holsapple v. Rome, etc.,R. Co., 86 N. either the general owner of the goods Y. 275, s. c. 3 Am. & Eng. R. Cas. or one who has a special property in 487; Baker v. Michigan, etc., R. Co., them may sue, but a recovery by one 42 111. 73. will usually bar a subsequent action 'Baltimore, etc., R. Co. v. Pum- by the other. Denver, etc., R. Co. v. phrey, 59 Md. 390, s. c. 9 Am. & Eng. Frame, 6 Colo. 382; Green «. Clark, R. Cas. 331; Nevin ii. Pullman Palace , 13 Barb. 57 ; Green v. Clarke, 12 N. Y. Car Co., 106 111. 222, s. c. 11 Am. & 343; Elkins v. Boston, etc., R. Co., 19 Eng. R. Cas. 92, and note; Catlin v. N. H. 337; Owners of Steamboat Adirondack Co., 11 Ab. N. Cas. (N.Y.) Farmer v. McCraw, 26 Ala. 189 ; Hous- 377 ; Central Trust Co. v. East Tenn., ton, etc., R. Co. u. Stewart, 1 Tex. etc., R. Co., 70 Fed. R. 764; Emigh ». App. (Civ. -Cas.) 718; Freeman v. Pittsburgh, etc., R. Co., 4 Bias. (U. S. Birch, 3 Q. B. 492, note; Swift v. C. C.)114; Orange Bank «. Brown, 3 Pacific Mail, etc., Co., 106 N. Y. 206, Wend. (N. Y.) 158; St. Louis, etc., R. s. c. 30 Am. & Eng. R. Cas. 105 ; New Co. v. Heath, 41 Ark. 476 ; Mississippi § 1693 ACTIONS AGAINST RAILKOAD COMPANIES. 2697 But it has been held in Indiana that where the plaintiff elects to sue in tort, or for a breach of the duty imposed by law, he can not recover if the evidence shows a special contract.' This may be correct where the plaintiff sues on an implied contract, but where he sues in tort for negligence, it seems to us that it can not be good law, for it would do away with the doctrine of election of remedies.^ But the election of the plaintiff to sue in tort does not prevent the carrier from setting up a spe- cial contract as a defense, if it is not invalid and by its terms relieves the carrier from liability.' Generally the rules of law and the measure of damages will be the same in either form of action,' but this is not always true in all respects. In some jurisdictions, if the contract is a joint one by several defend- ants they must all be joined in an action on the contract, while if sued in tort, any one or more of them may be sued and the plaintiff will not be defeated because he fails to join all who are liable or fails to make out a case against all whom he has joined as defendants. ° So, in some cases, punitive or exem- Cent. E. Co. v. Fort,44 Miss. 423 ;Peiiii- sylvania R. Co. v. Peoples, 31 Ohio St. 537 ;Whittentoii, etc.; Co. u. Memphis, etc., Packet Co., 21 Fed. R. 896; Tat- tan V. Great Western R. Co., 2 Ell. & Ell. 844; 1 Elliott's Gen. Pr. 300; Pomeroy's Rem. & Remed. Rts., § 570 ; Bliss on Code PL, § 14. As shown by these authorities, the common law form of action on the contract was assumpsit and in tort it was usually case. 'Lake Shore, etc., R. Co. ■». Ben- nett, 89 Ind. 457 ; Hall v. Pennsyl- vania Co., 90 Ind. 459. The court re- garded this as a fatal variance. See, also, Snow v. Indiana, etc., R. Co., 109 Ind. 422, s. c. 9 N. E. R. 702; In- dianapolis, etc., R. Co. V. Forsythe, 4 Ind. App. 326, s. c. 29 N. E. R. 1138 ; Indianapolis, etc., R. Co. u. Remny, 13 Ind. 518 ; Kimball v. Railroad Co., 26 Vt. 247; Chicago, etc., R. Co. v. Hale, 2 111. App. 150; Camp v. Hart- ford, etc., R. Co., 43 Conn. 333, 340; Boylan v. Hot Springs R. Co., 132 U. S. 146, s. c. 10 Sup. Ct. R. 50. ^ See Saltonstall v. Stockton, Tan- ey's Dec. 11; Clark v. St. Louis, etc., R. Co., 64 Mo. 440; Arnold w. Rail- road Co., 83 111. 273; Wabash, etc., R. Co. V. Pratt, 15 111. App. 177 ; Clark V. Richards, 1 Conn. 53, 59, and au- thorities cited in the first note to this section. See, also. Central Trust Co. w. East Tenn., etc., R. Co., 70 Fed. R. 764, 767. 3 Clark v. St. Louis, etc., R. Co., 64 Mo. 440; Oxley v. St. Louis, etc., R. Co., 65 Mo. 629; Boaz v. Central, etc., R. Co., 87 Ga. 463, s. c. 13 S. E. R. 711. * Baltimore, etc., R. Co. a. Pum- phrey, 59 Md. 390, s. c. 9 Am. & Eng. R. Cas. 331 ; St. Louis, etc., R. Co. v. Heath, 41 Ark. 476, s. c. 18 Am. & Eng. R. Cas. 557. ^Frink v. Potter, 17 111. 406; Breth- 2698 CARRIERS. § 1694 plary damages may be recovered in tort, while only compensa- tory damages can be recovered in an action ex contractu} And another advantage gained by suing in case at common law is that it may not be necessary to state the facts with as much particularity as in assumpsit, and a variance is less likely to be fatal.' On the other hand, the statute of limitations may bar an action in tort when it would not bar an action in contract,' and it may be desirable to join the common counts in assump- sit* or, in the absence of a statute, the cause of action in tort will not survive, while it may do so in contract.' In a major- ity of cases it will make no difference whether the action is for breach of contract or for breach of the duty imposed by law; but it will frequently be found, if there is any choice, that an action for breach of duty is preferable, especially if the duty is greater and broader than the contract. ° § 1694. Actions against common carriers — Pleading. — In order to determine whether the action is brought on the con- tract or in tort the courts will look to the nature of the cause of action stated in the complaint or declaration, and if no special contract is set out they will generally construe the pleading as founded on the tort.' Counts in tort and counts in erton v. Wood, 3 Bred. & B. .54; Pozzi Wend (N. Y.) 534; Chitty PL, 312 et V. Shipton, 8 Ad. & E. 963; Ansell v. seq. Waterhouse, 6 M. & S. 38.5, s. c. 2 'The period of limitation, under Chitty 1 ; Smith v. Seward, 3 Pa. St. most of the statutes, is shorter in ac- 342; Marshall v. York, etc., R. Co., 11 tions for tort than in actions on con- Com. B. 6.55, 7 Eng. L. & Eq. 519. tract. See, also, Holsapple v. Rome, etc., R. * Hutchinson on Carriers (2d ed.), Co., 86 N. Y. 275. § 743. ' New Orleans, etc., R. Co. v. Hurst, ^ Hutchinson on Carriers (2d ed.), 36 Miss. 660; Walsh v. Chicago, etc., §743. R. Co., 42 Wis. 23; Hamlin v. Great ^Thus, if there is a special contract Northern R. Co., 1 H. & N. 408. See, limiting the duty and liability of the also, Baylis v. Lintott, L. R. 8 C. P. carrier, it is generally better to put 345 ; Wyld v. Pickford, 8 M. & W. the burden upon the carrier to show 443, as to the advantage gained by it, unless, as seems to be the case in suing in tort. Indiana, the existence of such a con- ^Wyld'B. Pickford, 8 M. & W. 443; tract would be considered as a van- Weed V. Saratoga, etc., R. Co., 19 ance. 'Heirn v. McCaughan, 32 Miss. 17; § 1694 ACTIONS AGAINST RAILROAD COMPANIES. 2699 contract can not be joined in the same action.' If the action is brought on a special contract of affreightment the contract should be set out or stated correctly, for if a different contract is proved the variance may be fatal.* Thus if the complaint counts upon the breach of an oral contract, and it appears that the goods were shipped under a written contract differing from the alleged oral contract, there can be no recovery in such ac- tion.' But it has been held that a complaint averring that the defendant, for a valuable consideration, undertook to trans- port the plaintiff's goods from one place to another on its road and deliver them to the plaintiff within a reasonable time, and that it failed to do so within a reasonable time, is sufficient as against a general demurrer without alleging what was a reasonable time.' It has been held that where the action is founded on a special contract and a breach thereof, and resulting damage to the plaintiff, it is unnecessary to al- lege that the defendant is a common carrier;' but where the action is tx delicto for breach of duty it is generally necessary to aver that the defendant is a common carrier or facts equiv- New Orleans, etc., B. Co. u. Hurst, 36 where a written contract is the foun- Miss. 660; Atlantic R. Co. v. Laird, 58 dation of the action it must he set out Fed. R. 760; Heil v. St. Louis, etc., in full either in the body of the com- E. Co., 16 Mo. App. 363; Frink v. plaint or as an exhibit. See Bliss on Potter, 17111. 406; CreginiJ. Brooklyn, Code PI., § 812; Clark v. St. Louis, etc., R. Co., 75 N. Y. 192. But see etc., R. Co., 64 Mo. 440; Indianapolis, School Dist. V. Boston, etc., R. Co., etc., R. Co. v. Remny, 13 Ind. 518. 102 Mass. 552. ^ Waters v. Richmond, etc., R. Co., 1 Norfolk, etc., R. Co. v. Wysor, 82 110 N. Car. 338, s. c. 16 L. R. A. 834; Va. 250; Bliss on Code PI., § 112, ef Pennsylvania Co. v. Holderman, 69 seq. Conira, Central Vermont R. Co. Ind. 18; Snow v. Indiana, etc., R. V. Soper, 59 Fed. R. 879. Co., 109 Ind. 422, s. c. 9 N. E. R. 702. ^1 Chitty PI., 312, et seq.; Hughes v. But see Guillaume v. General Transp. Great Western R. Co., 14 Com. B. 637 ; Co., 100 N. Y. 491. Weed V. Saratoga, etc., R. Co., 19 * Palmer v. Atchison, etc., R. Co., Wend. (N. Y.) 5.34; Atlanta, etc., R. 101 Cal, 187, s. c. 61 Am. & Eng. R. Co. ». Texas, etc., Co., 81 Ga. 602, s. c. Cas. 235. But compare Freeman v. 9 S. E. R. 600; Latham v. Rutley, 2 Louisville, etc., R. Co., 32 Fla. 420, Barn. & C. 20; Shaw v. York, etc., R. s. c. 13 So. R. 893 , Jeffersonville, etc., Co., 13 Q. B. 347 ; Fairchild v. Slocum, R. Co. v. Gent, 35 Ind. 39. 19 Wend. (N, Y.) 329. But see Hill u. = Dunbar ti. Port Royal, etc., R. Co., Georgia, etc., R. Co., 43 S. Car. 461, s. 36 So. Car. 110, s. c. 15 S. E. R. 357. c. 21 S. E. R. 337. In most jurisdictions, 2700 CARRIERS. § 1694 alent thereto.' Facts must be alleged, where the action sounds in tort, sufficient to show the duty and the breach thereof.'' The plaintiff's right to maintain the action, as owner or other- wise, must be shown,' and so, generally, must delivery to the carrier if the action is for loss or injury to the goods.* The recovery will be limited to the issues, and it has been held that where the complaint counts entirely upon a non-delivery of the goods there can be no recovery thereunder for injury to the goods where the proof shows that they were delivered by the carrier. ° At common law, whether the action was in as- sumpsit or in tort, it was generally sufficient for the carrier to plead the general issue,' and a general denial will often be suf- ficient in the code states, but as "new matter" must be specially pleaded under the codes it will sometimes be neces- sary, or at least advisable, to answer specially, as, for instance, in some cases where there is a contract limiting the liability of the carrier.' ^Bristol V. Rensselaer, etc., R. Co., 9 Barb. (N. Y.) 158; Marshall v. York, etc., R. Co., 11 Com.B. 655; To- ledo, etc., R. Co. V. Roberts, 71 111. 540 ; Baltimore, etc., R. Co. v. Morehead, 5 W. Va. 293; Southern Exp. Co. v. McVeigh, 20 Gratt. (Va.) 264; Pozzi V. Shipton, 8 Ad. & El. 963. ^Baltimore, etc., R. Co. v. Wilson, 31 Ohio St. 5.55. As to the sufficiency of allegations of negligence, see Ruben V. Ludgate, etc., Co., 49 Hun 608, s. c. 17 N.Y. S. R. 17, and compare Bowers u. Richmond, etc., R. Co., 107 X. Car. 721, s. c. 12 S. E. R. 452. 'Pennsylvania Co. v. Holderman, 69 Ind. 18; Pennsylvania Co. v. Poor, 103 Ind. 5.53, s. c. 3 N. E. R. 253; Montgomery, etc., R. Co. c. Edmonds, 41 Ala. 667. 'Jordan v. Hazard, 10 Ala. 221; Missouri Pac. R. Co. v. Douglas, 2 Tex. App. (Civ. Cas.) 32, s. c. 16 Am. 6 Eng. R. Cas. 98. See, also, Mc- Fadden v. Missouri Pac. R. Co., 92 Mo. 343, 8. c. 4 S. W. R. 689. 5 South & N. Ala. R. Co. v. Wilson, 78 Ala. 587, s. c. 27 Am. & Eng. R. Cas. 41 ; Alabama, etc., R. Co. v. Grabfelder, 83 Ala. 200, s. c. 3 So. R. 4.32; Nudd v. Wells, 11 Wis. 407. ^ Hutchinson on Carriers, (2nd ed.) §758; Illinois Cent. R. Co. ■». John- son, 34 111. 389; Ortt u. Minneapolis, etc., R. Co., 36 Minn. 396, s. c. 31 N. W. R. 519; Brown v. Dunlap, 3 So. Car. 101; St. Louis, etc., R. Co. v. Knight, 122 U. S. 79, s. c. 7 Sup. Ct. R. 1132. A mere denial by the carrier that it ever received the goods has been held insufficient to require the plaintiff to show a non-delivery to the consignee. Hot Springs, etc., R. Co. V. Hudgins, 42 Ark. 485, s. c. 18 Am. & Eng. R. Cas. 643. ' See Missouri Pac. R. Co. t). Wichita, etc., Co., 55 Kan. 525, s. c. 40 Pac. R. 899; Atchison, etc., R. Co. v. Bryan, (Tex. Civ. App.) 28 S. W. R. 98; Atchison, etc., R. Co. v. Ditmars, (Kan.) 43 Pac. R. 833; ante, § 1438. § 1695 ACTIONS AGAINST RAILROAD COMPANIES. 2701 § 1695. Actions against common carriers — Evidence. — No matter whether the plaintiff sues on the contract or upon the breach of duty, in order to recover damages for loss or injury to his goods by the carrier, he must prove, in general, a deliv- ery to the carrier, an undertaking or contract, on its part either express or implied, to carry the goods, and its failure to perform the same according to its undertaking or duty.' In other words, he must show a duty owing to him by the defendant, which arises either out of contract or is imposed by law, a breach of that duty by the defendant, and damage caused thereby to himself. We have elsewhere fully considered what is sufficient evidence of the delivery, what evidence is admissible to prove the contract, what must be shown where there are connecting carriers, what presumptions arise in such cases, and upon whom rests the burden of proof, so that little remains to be said upon the subject of the plaintiff's evidence. The evidence must be responsive to the issues,^ and the general rules gov- erning the admissibility of evidence are substantially the same as in other cases." As we have elsewhere shown, the carrier may defend by showing that the loss or injury was caused by 1 Angell on Carriers, (5th ed. ) § 461 ; Conn. 369, s. c. 22 Atl. R. 953 ; Spur- Hutchinson on Carriers, (2nd ed.) lock v. Missouri Pac. E. Co., 93 Mo. §759. Where the action is for breach 530, s. c. 6 S. W. R. 349; Missouri of the common law duty, it must be Pac. R. Co. v. Barnes, 2 Tex. App. shown that the defendant is a com- (Civ. Cas.) 507; Wabash, etc., R. Co. mon carrier. Ringgold v. Haven, 1 v. Jaggerman, 115 111. 407, s. c. 4 N. Cal. 108. See, generally, Missouri E. R. 641. Pac. R. Co. V. Douglas, 2 Tex. App. ^ As to opinion evidence, see, Louis- (Civ. Cas.) 32, s. c. 16 Am. & Eng. R. ville, etc., R. Co. v. Natchez, etc., R. Cas. 98; Houston, etc., R. Co.u. Mc- Co., 67 Miss. 399, s. c. 7 So. R. 350. Glosson, 1 Tex. App. (Civ. Cas.) 89; As to when admissions and declara- Northwestern, etc.,Co. v. Burlington , tions of agents and employes are ad- etc, R. Co., 20 Fed. R. 712 (action for missible against the carrier, see, failing to receive and carry); Little Union R., etc., Co. i;. Riegel, 73 Pa. Rock, etc., R. Co. v. Conatser, (Ark.) St. 72; Green v. Boston, etc., R. Co., 33 S. W. R. 1057, (same); Corso t;. 128 Mass. 221, s. c. 35 Am. R. 370; New Orleans, etc., R. Co., (La. Ann.) Bennett v. Northern Pac. R. Co., 12 20 So. R. 752. Ore. 49, s. c. 6 Pac. R. 160; Queen v. ^ Chicago, etc., R. Co. v. Hoeffner, Peters, 16 New Bruns. 77, and com- 44 111. App. 137; Kyle v. Buffalo, etc., pare Bordentown, etc., Co. v. Flana- R. Co., 16 U. C. C.P. 76. See, also, gan, 41 N. J. L. 115. New England, etc., Co. v. Starin, 60 2702 CAEEiERS. § 1696 the act of God, the public enemy, public authority, the fault of the plaintiff, or the inherent nature of the goods. So, it may show, where there is a special contract exempting it from liability for loss or injury for certain causes, that the injury or loss was the result of one of the causes for which it is not re- sponsible under its contract. Evidence that the conductor in charge of a train at the time goods were lost was skillful and competent,' or that goods lost from the carrier's depot were taken care of just as other goods of the same kind had always been taken care of by it, and that none had ever before been lost,^ is inadmissible. But evidence that there was not room in the company's warehouse to store the plaintiff's goods at the particular time, that the warehouse was sufficient for the company's ordinary business, and that the defendant immedi- ately notified the plaintiff to that effect, was held admissible in a recent case, in an action against the carrier for negligence in failing to safely store the goods.' § 1696. Actions for injuries to passengers. — In actions for injuries to passengers, the gist of the action is the same as in actions against common carriers for loss or injury to freight, that is, a breach of duty owing to the plaintiff by the defend- ant, and, as it may arise either out of the contract or be im- posed by law on account of the relation of carrier and passen- ger, there may be the same election to sue either in contract or in tort. Ordinarily, however, such actions are founded on the tort or breach of duty imposed by law. In order to recover for a breach of the high duty due a passenger, the plaintiff must aver and prove the existence of the duty, that is, the relation of carrier and passenger, the negligence or breach of duty on the part of the defendant, and the resulting injury and dam- ages to him. In many jurisdictions he must also allege and prove that he was free from contributory negligence. A gen- eral allegation of damages may permit proof of such as are 'Montgomery, etc., R. Co. v. Ed- » Stowe ». New York, etc., R. Co., monds, 41 Ala. 667. 113 Mass. 521. ^ Lane ?;. Boston, etc., R. Co., 112 Mass. 4.55, § 1696 ACTIONS AGAINST RAILROAD COMPANIES. 2703 the usual and natural consequence of wrong complained of, or, in other words, such as naturally and proximately result there- from; but in order to recover special damages he must allege and prove them.' He can only recover secundum allegata et probata, and, while in most jurisdictions negligence may be averred somewhat generally,^ he can not charge negligence in one respect and recover for negligence in another and entirely different respect.^ Unless the complaint shows that the pas- senger agreed to assume the risk, or that the liability of the company is limited by special contract, the carrier, if it relies upon such an agreement, must specially plead it.' So, if it relies upon a release by the plaintiff.' It has also been held that if the plaintiff has violated the rules of the carrier that is a matter of defense to be asserted by it.° As carriers of pas- ' Laingu. Colder, 8 Pa. St. 479 ; Hun- ter ». Stewart, *47 Me. 419; Walker ■«. Erie E. Co., 63 Barb. (N. Y.) 260; Kinney v. Crocker, 18 Wis. 74 ; Bald- win V. Western E. Co., 4 Gray (Mass.) 333; Smith v. St. Paul, etc., E. Co., 30 Minn. 169, s. c. 14 N. W. E. 797, 9 Am. & Eng. E. Cas. 262, and note; 1 Suth. on Dam., §§ 419, 421. In Gulf, etc., E. Co. V. Warlick, (Ind. Ter.) 35 S. W. E. 235, it was held that evidence of permanent injuries was not ad- missible when not alleged. ' See, for examples of general aver- ments held sufficient in actions by passengers, Eichmond City E. Co. v. Scott, 86 Va. 902, s. c. 11 S. E. E. 404; Carmanty v. Mexican, etc., E. Co., 5 La. Ann. 703; Gulf, etc., E. Co. v. Smith, 74 Tex. 276, s. c. 11 S. W. E. 1104; Pittsburgh, etc., E. Co. B.Theo- bald, 51 Ind. 246; Chattanooga, etc., E. Co. V. Huggins, 89 Ga. 494, s. c. 15 S. E. E. 848; Coudy v. St. Louis, etc., E. Co., 85 Mo. 79, s. c. 27 Am. & Eng. E. Cas. 282; Winter v. Central Iowa E. Co., 80 Iowa 443, s. c. 45 N. W. E. 737. 'Mayor v. Humphries, 1 C. & P. 251; Price ». St. Louis, etc., E. Co., 72 Mo. 414, s. c. 3 Am. & Eng. E. Cas. 365 ; Breese v. Trenton E. Co., 52 N. J. L. 250; Cincinnati, etc., E. Co.t). Mc- Clain, (Ind.) 44 N. E. E. 306; Wald- hier v. Hannibal, etc., E. Co., 71 Mo. 514; Toledo, etc., E. Co. v. Beggs, 85 111. 80. See, also, Birmingham, etc., E. Co. V. Clay, (Ala.) 19 So. E. 309; a7ite, § 1628, p. 2545, note 2; Singleton V. Pacific E. Co., 41 Mo. 465; Mem- phis, etc., E. Co. V. Chastine, 54 Miss. 503 ; South & N. Ala. E. Co. v. Schauf- ler, 75 Ala. 136 ; North Birmingham St. E. Co. V. Calderwood, 89 Ala. 247, s. c. 2 Am. Neg. Cas. 43; Gulf, etc., E. Co. V. Scott, (Tex. Civ. App.) 27 S. W. E. 827; McManamee v. Missouri Pac. E. Co., (Mo.) 37 S. W. E. 119. * Citizens' St. E. Co. v. Twiname, 111 Ind. 587, s. c. 13 N. E. E. 55; Louisville, etc., E. Co. v. Orr, 84 Ind. 50. 5 Horton v. Horton, 83 Hun 213, s. c. 31 N. Y. Supp. 588; Johnson v. Kerr, 1 Serg. & E. (Pa.) 25 ; Corbett V. Lucas, 4 McCord 323. * Whitehead v. St. Louis, etc., E. Co., 99 Mo. 263, s. c. 11 S. W. E. 751; Hicks V. Hannibal, etc., E. Co., 68 Mo. 329. 2704 CARRIERS. §1696 sengers are not insurers, like common carriers of goods, the plaintiff must show some negligence, or willfulness in a proper case, on the part of the carrier or its employes, which proxi- mately caused his injury;' but, as we have elsewhere shown, a presumption of negligence on its part frequently arises against it in favor of a passenger sufficient to make a prima facie case so far as the negligence of the defendant is concerned, upon proof of the happening of an accident (so-called) under cer- tain circumstances, and, owing to the high duty which a car- rier owes to its passengers, slight evidence of negligence may often be sufficient. But a mere scintilla of evidence, conjec- ture or surmise that it may have been negligent will not justify a verdict against it.* In many jurisdictions, as we have said, 'Pennsylvania E. Co. v. MacKin- ney, 124 Pa. St. 462, s. c. 17 Atl. E. 14 (passenger struck by missile) ; Wa- bash, etc., E. Co. V. Koenigsam, 13 111. App. 505 (bridge down owing to unusual rain, and no evidence of neg- ligence); Henry B. St. Louis, etc., E. Co., 76 ilo. 288 (not proximate cause) ; Sawyers. Hannibal, etc., E. Co., 37 Mo. 240 (bridge destroyed by public enemy) ; Sickles v. Missouri, etc., Co., (Tex. Civ. App.) 35 S. W. E. 493 (fail- ure to heat car); Chicago, etc., E. Co. V. Felton, 125 111. 458, s. c. 17 N. E. E. 765; Moore v. Edison, etc., Co., 43 La. Ann. 792, s. c. 9 So. E. 433; St. Louis, etc., E. Co. v. Moore, 14 111. App. 510 (hidden defect in material) ; Pershing v. Chicago, etc., E. Co., 71 Iowa 561, s. c. 32 N. W. E. 488 (same) ; Libby v. Maine, etc., E. Co., 85 Me. .34, s. c. 26 Atl. E. 943, 58 Am. & Eng. E. Cas. 81 (extraordinary flood) ; Sul- livan ti. JeSerson, etc., E. Co., (Mo.) 34 S. W. E. 566 (passenger injured by match lighted by another passenger) ; Morris V. NewYork, etc., E. Co., 106 X. Y. 678, s. c. 13 X. E. E. 455 (fall of par- cel in car) ; Gulf, etc., E. Co. v. War- lick, (Ind. Ter.) 35 S. W. E. 235 (platform) ; Ohio, etc., E. Co. v. Al- lender, 59 111. App. 620 (ice on plat- form) ; Davis v. Chicago, etc., E. O)., (Wis.) 67 X. W. E. 16, 1132; Galves- ton, etc., E. Co. V. Long, (Tex. Civ. App.) 36 S. W. E. 485 (injury of one passenger by another) ; note to In- galls V. Bills, 43 Am. Dec. 346; note in 2 L. E. A. 252. ^Toomey v. London, etc., E. Co., 3 Com. B. X. S. 146; Cotton v. Wood, 8 Com. B.N. S.568; Sterna. Michigan E. Co., 76 Mich. 591 ; Curtis v. Eoches- ter, etc., E. Co., 18 X.Y. 534; Edger- ton V. New York, etc., E. Co., 39 X. Y. 227 ; LeBarron v. East Boston Ferry Co., 11 Allen (Mass.) 312; Joyu.Win- nisimmetCo., 114 Mass. 63; Stagerc. Eidge, etc., Co., 119 Pa. St. 70, s. c. 12 Atl. E. 821; Sherman r. Menominee, etc., Co., 77 Wis. 14, s. c.45 X. W. E. 1079 ; Babcock r. Fitchburg E. Co., 140 N.Y.308, s. c. 35 X, E. E. 596. See, also, Searles v. Manhattan E. Co., 101 X. Y. 661 ; Toledo, etc., E. Co. v. Bran- nagan, 75 Ind. 490. It is not liable for a pure accident. Hard wick r. Georgia, etc., E. Co., 85 Ga. 507, s. c. 11 S. E. E. 832; J^wis v. Flint, etc., E. Co., 54 Mich. 55, s. c. 19 N. W. E. 744. § 1697 ACTIONS AGAINST RAILKOAD COMPANIES. 2705 the burden is upon the plaintiff to prove his own freedom from contributory negligence, as well as the negligence of the de- fendant, and in all, he will be defeated, where negligence only is charged, if it is shown that his own negligence proximately contributed to his injury. It has also been held that his own fraud may defeat a recovery, as, for instance, where he rides upon another's non-transferable ticket or induces the conductor to carry him without paying any fare, in known violation of the rules of the company.' §1697. Actions for injuries to employes. — In an action by an employe against a railroad company for damages for personal injuries claimed to have been caused by its negligence, he must allege and prove such negligence as the proximate cause of his injury,' and, in many jurisdictions the burden is also upon him to allege and prove freedom from contributory negligence on his part.' The fact that an accident occurred, and that it 'WayB. Chicago, etc., E. Co., 64 Iowa 48, s. c. 19 N. W. R. 828, 52 Am. R. 431 ; Toledo, etc., R. Co. v. Brooks, 81 111.245, 292; Toledo, etc., R. Co. v. Beggs, 85 111. 80; Brevig v. Chicago, etc., R. Co., (Minn.) 66 N. W. R. 401 ; Janny v. Great Northern R. Co., (Minn.) 65 N. W. R. 450. * Indianapolis, etc., R. Co. d. Love, 10 Ind. 554; Louisville, etc., R. Co. v. Orr, 84 Ind. 50, s. c. 8 Am. & Eng. R. Cas. 94; Henrys. Lake shore, etc., R. Co., 49 Mich. 495. s. c. 13 N. W. R. 832; Philadelphia, etc., R. Co. v. Steb- bing, 62 Md. 504, s. c. 19 Am. & Eng. R. Cas. 36; Hayes v. Mich. Cent. R. Co., Ill U. S. 228; Johnson u. Chesa- peake, etc., R. Co., 36 W. Va. 73, s. c. 14 S. E. R. 432; Hudson v. Charles- ton, etc., R. Co., 104 N. Car. 491, s. c. 10 S. E. R. 669, 41 Am. &Eng. R. Cas. 348; Murray •«. Denver, etc., R. Co., 11 Colo. 124, s. c. 17 Pac. R. 484; Fraker v. St. Paul, etc., R. Co., 32 Minn. 54, s. c. 19 N. W. R. 349; Han- rathy v. Northern, etc., R. Co., 46 Md. 280; Sappenfleld v. Main St., etc., R. Co., 91 Cal. 48, s. c. 27 Pac. R. 590; East Tenn., etc., R. Co. v. Stewart, 13 Lea (Tenn.) 432; Crew v. St. Louis, etc., R. Co., 20 Fed. R. 87; Texas, etc., R. Co. v. Crowder, 76 Tex. 499, s. c. 13 S. W. R. 381; Gulf, etc., R. Co. V. Knott, (Tex. Civ. App.) 36 S. W. R. 491; Alabama, etc., R. Co. i). Bailey, (Ala.) 20 So. R. 313; Dowell V. Burlington, etc., R. Co.,62 Iowa, 629, s. c. 17 N. W. R. 901; Wheelan v. Chicago, etc., R. Co., 85 Iowa, 167, s. c. 52 N. W. R. 119, 49 Am. & Eng. R. Cas. 693; Patterson's Ry. Ace. Law, 483; note in 8 L. R. A. 636; Beach on Contrib. Neg., §32, note on page 41. The company is not liable for a pure accident. Wabash, etc., R. Co. v. Locke, 112 Ind. 404, s. c. 14 N. E. R. 391 ; Armour u. Ryan, 61 111. App. 314; Handelun v. Burlington, etc., R. Co., 72 Iowa 709, s. c. 32 N. W. R. 4. ' A general averment to this effect is held sufficient, but if the specific aver- ments show that he was guilty of con- 2706 CARRIEKS. §1697 was possible to prevent it, if the company had anticipated it, is not the legal test of negligence on the part of the company,' and, as a general rule, no presumption of negligence on the part of the company arises in his favor; such as often arises where a passenger is injured, from the mere happening of an accident and injury to the employe.^ Negligence may be pleaded somewhat generally,' and a complaint is not bad as against a demurrer, because it alleges that the defendant, or the defendant by its servants and agents, performed the negligent act complained of, without stating the name of the servant or agent.* But the complaint should show in what respect the tributory negligence they will control. Spencer ■;;. Ohio, etc., E. Co., LSOInd. 181, s. c. 29 N. E. K. 915 ; Stewart v. Pennsylvania Co., 130 Ind. 242, s. c. 'See, for instance, Condon v. Mis- souri Pac. R. Co., 78 Mo. 567, s. c. 17 Am. & Eng. E. Cas. 583; Carey v. Chicago, etc., R. Co., 67 Wis. 608, s. 29 N. E. R. 916; Ivens v. Cincinnati, c. 31 N. W. R. 163; Harper v. Nor- etc, R. Co., 103 Ind. 27. ' Augerstein v. Jones, 139 Pa. St. 183, folk, etc., R. Co., 36 Fed. R. 102; Georgia Pac. E. Co. v. Davis, 92 Ala. s. c. 21 Atl. E. 24; Beatty ». Central, 300, s. c. 9 So. R. 252; Johnstons. etc., R. Co., 58 Iowa 242, s. c. 12 N. W. R. 332, 8 Am. & Eng. R. Cas. 210; Chicago, etc., E. Co. v. Stumps, 55 111. 367; Muirhead v. Hannibal, etc., R. Co., 19 Mo. App. 634; Chicago, etc., E. Co. !). Armstrong, 62 111. App. 228. ^DeVau v. Pennsylvania, etc., E. Co., 1.30 N. Y. 632, s. c. 28 N. E. R. 532; Wabash, etc., R. Co. «. Locke, 112 Ind. 404, s. c. 14 N. E. R. 391; Canadian Pac. R. Co., 50 Fed. R. 886; Wilson V. Denver, etc., R. Co., 7 Colo. 101, s. c. 2 Pac. R. 1 ; Cleveland, etc., R. Co. u. Wynant, 100 Ind. 160. In an action for damages for injury caused by a fellow-servant on the ground that the company knew that he was incompetent it is not necessary to name the particular otScers having notice thereof. Lake Shore, etc., R. Bohn V. Chicago, etc., R. Co., 106 Mo. Co. v. Stupak, 123 Ind. 210, s. c. 23 N. 429, s. c. 17 S. W. R. 580; Kincaid v. E. R. 246. Nor to set out the particu- Oregon, etc., R. Co., 22 Ore. 35, s. c. lars constituting the incompetency. 29 Pac. E. 3, 53 Am. & Eng. E. Cas. Johnston v. Canadian Pac. R. Co., 50 218; Puffer v. Chicago, etc., E. Co., Fed. E. 886. (Minn.) 68 N. W. E. 39; Joliet Steel Co. V. Shields, 146 111. 603, s. c. 34 N. Ohio, etc., E. Co. cCollam, 73 Ind. 261, s. c. 38 Am. E. 134; Wabash E. E. E. 1108; Short v. New Orleans, Co. v. Savage, 110 Ind. 156; Louis- etc, E. Co., 69 Miss. 848, s. c. 13 So. E. 826; Brymer v. Southern Pac. E. Co., 90 Cal. 496, s. c. 27 Pac. E. 371 ; Minty v. Union Pac. E. Co., 2 Idaho 437, s. c. 21 Pac. E. 660; Henry v. Brackenridge, etc., Co., (La.) 20 So. R. 221; Donovan v. Hartford St. R, ville, etc., R. Co. ». Kendall, 138 Ind. 313, s. c. 36 N. E. R. 415; Cramer v. Union Pac. R. Co., 3 Utah 504, s. c. 24 Pac. R. 911; Lessard ». Northern Pac. R. Co., 81 Wis. 189, s. c. 51 N. W. R. 321. See Wild v. Oregon, etc., R. Co., 21 Ore. 159, s. c. 27 Pac. R. Co., 65 Conn. 201, s. c. 32 Atl. R. 350. 954. But see Burns v. Chicago, etc., § 1697 ACTIONS AGAINST RAILROAD COMPANIES. 2707 defendant was negligent/ and the plaintiff's evidence and right to recover will usually be limited to the negligence charged in his complaint.^ Thus, where the complaint counts upon neg- ligence in allowing the track to become defective, evidence is usually inadmissible to show negligence in the management of the train or the incompetency of a fellow-servant, and there can be no recovery upon the latter ground.' So, if the com- plaint merely charges that the negligence was that of an em- ploye of the company, it should show that he was such an em- ploye, or that his duties were such, as that his negligence in R. Co., 69 Iowa 450, s. c. 30 N. W. E. 25; Southern R. Co. ■«. Cunningham, (Ala.) 20 So. E. 639. A motion to make more specific might be proper in some cases of this kind. ^Knahlta v. Oregon, etc., E. Co., 21 Ore. 136, s. c. 27 Pac. E. 91 ; Omaha, etc., E. Co. u. Wright, 47 Neb. 886, 66 N. W. R. 842 ; Batterson v. Chicago, etc., E. Co., 49 Mich. 184, s. c. 13 N. W. R. 508. ^Harty v. St. Louis, etc., E. Co., 95 Mo. 368, s. c. 8 S. W. R. 562; Ely v. Railroad Co., 77 Mo. 34; Mueller v. Lake Shore, etc., E. Co., (Mich.) 63 N. W. E. 416; Eckles v. Norfolk, etc., E. Co., (Va.) 25 S. E. E, 545; Mitch- ell V. Prange, (Mich.) 67 N. W. E. 1096 ; Florida Cent. E. Co. v. Will- iams, (Fla.) 20So. R. 558; Thomas u. Louisville, etc., E. Co., (Ky.) 35 S. W. E. 910 ; Wilkinson v. Pensacola, etc., R. Co., 35 Fla. 83, 17 So. R. 71 ; ante, § 1696 p. 2703, note 3. If there is no right to recover on one charge of negligence, error in submitting that question to the jury is not cured because they might have found negligence in an- other respect also charged. Northern Pac. R. Co. V. Charless, 162 U. S. 359, s. c. 16 Sup. Ct. R. 848. So, where a com- plaint is based upon the theory that it takes several defects or acts of negli- gence to make the cause of action re- lied on, it may be necessary to prove all in order to entitle the plaintiff to recover thereunder. Terre Haute, etc., R. Co. V. McCorkle, 140 Ind. 613, s. c. 40 N. E. R. 62; Wormsdorf v. Detroit, etc., R. Co., 75 Mich. 472, s. c. 42 N. W. R. 1000, 40 Am. & Eng. R. Cas. 271. ^ Chicago, etc., R. Co. v. Swett, 45 111. 197. See, also, De Bolt v. Kansas City, etc., R. Co., 123 Mo. 496, s. c. 27 S. W. R. 575; Houston, etc., E. Co. V. Farrell, (Tex. Civ. App.) 27 S. W. R. 942. But it has been held that the incompetency of a servant managing machinery may be shown where the complaint charges gross negligence in the operation of such machinery. Wood v. Heiges, (Md.) 34 Atl. R. 872. One can not sue as an employe and recover as a passenger. Evansville, etc., R. Co. v. Barnes, 137 Ind. 306, s. c. 36 N. E. R. 1092. See, also, Mexican, etc., E. Co. v. Crum, 6 Tex. Civ. App. 702, 25 S. W. E. 1126; Galveston, etc., R. Co. v. Herring, (Tex. Civ. App.) 36 S. W. R. 129; Becker v. Baumgartner, 5 Ind. App. 576, s. c. 32 N. E. R. 786; Chicago, etc., R. Co. V. Mehlsack, 44 111. App. 124. But compare McCaslin v. Lake Shore, etc., R. Co., 93 Mich. 553, s. c. 53 N. W. R. 724 ; Georgia, etc., R. Co. v. Miller, 90 Ga. 571, s. c. 16 S. E. R. 939 ; New York, etc., R. Co. v. Green, (Tex. Civ. App.) 36 S. W. R. 812. 2708 CAKKIEKS. §1697 the respect complained of should be deemed to be the negli- gence of the company/ and if it shows on its face that he was a fellow-servant of the plaintiff it may be held bad on demur- rer/ It is frequently necessary where the injury is caused by some defect in machinery, appliances, or the like, to aver that the defendant had knowledge thereof, or to state facts showing that, in the exercise of ordinary and reasonable care with re- spect to a duty due from it to the plaintiff it ought to have had such knowledge, and the plaintiff did not have knowledge thereof.' It has also been held that if the injury results from an obvious defect and the plaintiff alleges that the company promised to remedy it, but failed to do so, he must also aver that he was injured within such time after the promise as would have been reasonable, under the circumstances, to allow for its performance.* As we have elsewhere shown, evidence of sub- sequent repairs or increased precautions after an accident is inadmissible to show antecedent negligence. ° So, on the 1 Helfrich v. Williams, 84 Ind. 553. See, also, Texas, etc., R. Co. v. Har- rington, 62 Tex. 597, s. c. 21 Am. & Eng. R. Cas.571. *East St. Louis, etc., E. Co. v. Dwyer, 41 111. App. 522; Joliet Steel Co. V. Shields, 134 111. 209, s. c. 25 N. E. R. 569, holding that where the complaint charges negligence of other servants it must allege that they were not fellow-servants. ^Bogenschutz v. Smith, 84 Ky. 330, s. c. 1 S. W. R. 578; Chicago, etc., R. Co. V. Fry, 131 Ind. 319, s. c. 28 N. E. R. 989; Indiana, etc., R. Co. u. Dailey, 110 Ind. 75, s. c. 10 N. E. R. 631 ; Nor- folk, etc., R. Co. V. Jackson, 85 Va. 489, s. c. 8 S. E. R. 370; Current t). Missouri Pac. R. Co., 86 Mo. 62; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265, s. c. 19 N. E. R. 770; Griffiths tj. London, etc., R. Co., L. R. 13 Q. B. Div. 259, 33 W. R. 35 ; Kloch- inski V. Shores, etc., Co., (Wis.) 67 N. W. R. 934; ante, §1311. But see Warner «. Western R. Co., 94 N. Car. 250, s. c. 25 Am. & Eng. R. Caa. 432; Branch?). Port Royal, etc., R. Co., 35 So. Car. 405, s. c. 14 S. E. R. 808; Chi- cago, etc., R. Co. V. Hines, 132 111. 161, s. c. 23 N. E. R. 1021 ; O'Connor v. Illinois Cent. R. Co., 83 Iowa, 105, s. c. 48 N. W. R. 1002; Cole v. Chicago, etc., E. Co., 67 Wis. 272, s. c. 30 N. W. R. 600. In Mayes v. Chicago, etc., R. Co., 63 Iowa, 562, s. c. 14 N. W. R. 340, it is held that if the company seeks to defend on the ground that the employe remained in its service after knowing of the defects and thus waived its negligence it must plead snch defense affirmatively. Mere knowledge might not necessarily show contributory negligence, but we think it would usually show an assumption of the risk. * Stephenson v. Duncan, 73 Wis. 404, s. c. 41 N. W. R. 337. ^ dnte, §1177; Columbia, etc., R. Co. V. Hawthorne, 144 U. S. 202, s. c. § 1697 ACTIONS AGAINST RAILROAD COMPANIES. 2709 other hand, evidence that the plaintiff was negligent at some other time is inadmissible to show that he was guilty of con- tributory negligence at the time he received the injury of which he complains.' As a general rule at least, the defendant will not be permitted to escape liability in an action for not fur- nishing reasonably safe machinery by showing that it is the custom of other companies to furnish similar unsafe machinery or appliances.^ But, as bearing on the question of negligence, it may show that other well regulated and prudently managed companies use similar machinery or appliances.' The com- pany is not estopped from denying its liability to the employe by proof that it paid his surgeon's bill.* We have elsewhere considered the effect of a release of liability by the employe.* 12 Sup. Ct. R. 591 ; Sappenfield v. Main St., etc., E. Co., 91 Cal. 48, s. c. 27 Pac. R. 590; Shinners v. Proprietors, etc., 154 Mass. 168, s. c. 28 N. E. E. 10; Lang v. Sanger, 76 Wis. 71, s. c. 44 N. W. R. 1095 ; Morse v. Minneap- olis, etc., E. Co., 30 Minn. 465; Atch- ison, etc., E. Co. V. Parker, 55 Fed. R. 595 ; Motey v. Pickle, etc., Co., 74 Fed. E. 155. So, as to similar accidents. Dye V. Delaware, etc., E. Co., 130 N. Y. 671, 8. c. 29 N. E. R. 320, 53 Am. & Eng. R. Cas. 286. See, also, Buckalew V. Tennessee, etc., Co., (Ala.) 20 So. R. 606; Sullivan v. Salt Lake City, (Utah) 44 Pac. R. 1039. ' Atlanta, etc., E. Co. v. Johnson, 66 Ga. 259; Kaillen v. Northwestern, etc., Co., 46 Minn. 187, s. c. 48 N. W. E. 779. See Michigan Cent. R. Co. v. Gilbert, 46 Mich. 176, s. c. 9 N. W. R. 243. So, as to evidence of his habits as to sobriety and carefulness, Illinois Cent. R. Co. v. Borders, 61 111. App. 55. But where negligence in know- ingly retaining an incompetent serv- ant ia charged, his general reputation for incompetency on the road may be • shown. Baltimore, etc., R. Co. v. Henthorne, 73 Fed. R. 634; Lake Shore, etc., R. Co. «. Stupak, 123 Ind. Corp. 172 210, s. c. 23 N. E. R. 246; Texas, etc., R. Co. V. Johnson, (Tex.) 35 S. W. R. 1042. ^Lake Erie, etc., R. Co. v. Mugg, 132 Ind. 168, s. c. 31 N. E. R. 564; Al- len V. Burlington, etc., R. Co., 64 Iowa 94, s. c. 19 N. W. R. 870; Jenkins v. Hooper, etc., Co., (Utah) 44 Pac. R. 829. As to admissibility of custom or usual practice in doing an act, see, Hisaong v. Richmond, etc., E. Co., 91 Ala. 514, s. c. 8 So. E. 776: Whitsett V. Chicago, etc., E. Co., 67 Iowa 150, s. c. 25 N. W. E. 104; Jeffrey v. Keo- kuk, etc., E. Co., 56 Iowa, 546, s. c. 9 N. W. E. 884; Thompson v. Boston, etc., E. Co., 153 Mass. 391, s. c. 26 N. E. E. 1070; Southern Kansas E. Co. V. Eobbins, 43 Kan. 145, s. c. 23 Pac. E. 113, 41 Am. & Eng. E. Cas. 316; Spaulding o. Chicago, etc., E. Co., (Iowa) 67 N. W. R. 227 ; Missouri, etc., R. Co. v. Crane, (Tex. Civ. App.) 35 S. W. R. 797. ' Hollands. Tennessee, etc., R. Co<, 91 Ala, 444, s. c. 8 So. E. 524. See, also, Pennsylvania Co. v. Hankey, 93 111. 580. * Weeks v. New Orleans, etc., R. Co., 32 La. Ann. 615. 5 Ante, §§ 1376, 1377. See, also, as to 2710 CARRIERS. § 1698 § 1698. Pleading ordinances. — It is laid down as a general rule by many courts and text-writers that courts other than the local municipal courts will not take judicial knowledge of ordi- nances and that they must be pleaded in order to be admitted in evidence.' Most of the cases, however, in which the rule was thus stated were actions or prosecutions upon or for the violation of ordinances, or in which they were directly sought to be enforced. In some of the cases it was held that the section of the ordinance involved should be set out in hsec verba, in others that its substance at least must be stated, while in a few others it was held sufficient to refer to the ordinance by its title and date of passage. In many of the states the latter mode of pleading an ordinance is authorized by statute. We think that, while there may not be so much reason for requiring an ordinance to be set out where it is relied upon to charge a rail- road company with negligence, yet it ought to be in some way pleaded and identified. To admit an ordinance in evidence without pleading it would, we think, not only be in violation of the general rule that judicial notice will not be taken of or- dinances and private statutes and that they must be pleaded and proved, but would also violate the elementary rule that the complaint must proceed on a single definite theory and that the evidence must correspond with the allegations and be con- when and how it may be set aside and waukee, 17 Wis. 26 ; State v. Soragan, the necessity of a tender the following 40 Vt. 450 ; Porter c Waring, 69 N.Y. recent cases: Och v. Missouri, etc., 250; Lacker v. Commonwealth, 4 E. Co., 130 Mo. 27, 31 S. W. R. 962; Bush (Ky.) 440; Goodrich >: Brown. Drohant». Lake Shore, etc., R. Co., 162 30 Iowa 291; City of McPherson r. Mass.435,s.c.38N.E.R. 1116; Barker Nichols, 48 Kan. 430, s. c. 29 Pac. R. V. Northern Pac. R. Co., 65 Fed. R. 460, 679 ; Central Sav. Bank v. Mayor, 71 with which compare Stewart v. Chi- Md. 515, s. c. 18 Atl. R. 809, 20 Atl. R. cago, etc., R. Co., 141 Ind. 55, s. c. 40 283; Pomeroy p. Lappeus, 9 Ore. 363; N. E. R. 67. City of Greeley v. Hamman, 12 Colo. 'City Council v. Ashley, etc., Co., 94, s. c. 20 Pac. R. 1; Pittsburgh, etc., 34 S. Car. 541, s. c. 13 S. E. R. 845; R. Co. v. Moore, 33 Ohio St. 384; 1 Keeler v. Milledge, 24 N. J. L. 142; Beach Pub. Corp., §5.32; BlissonCode City of Huntington v. Pease, 56 Ind. PI., §§182, 186, and notes; Maxwell 305; WhitBon v. Franklin, 34 Ind. on Code PI., 89, 738, note; Phillips on 392; City of Winona v. Burke, 23 Code PL, §§340, 378; Horr & Beamia Minn. 254; Inhabitants of Lewiston on Mun. and Police Ord., §174. B. Fairfield, 47 Me. 481 ; Fink v. Mil- § 1698 ACTIONS AGAINST RAILKOAD COMPANIES. 2711 :fined to the point in issue. It is also but just that the defend- ant should have notice of the plaintiff's claim. If no ordi- nance is pleaded in any way the defendant might well assume that the plaintiff relied solely on its breach of a common law duty, and if the plaintiff does rely on an ordinance of which the courts will not take judicial notice it would be unfair to require the defendant to take notice of it unless it is in some way pointed out. So, if the violation of an ordinance is relied upon as negligence per se, or even prima facie evidence of neg- ligence, especially where there is nothing in the case which would constitute negligence in the absence of an ordinance, it is difficult to see why the ordinance is not just as much the foundation of the action as where suit is brought directly for the penalty for its violation. There are authorities holding that it must be pleaded in either case. Thus, in a recent ac- tion for damages to the plaintiff's building by a fire which the defendant had set in a pile of rubbish in close proximity thereto the judgment of the trial court was reversed on appeal because an ordinance prohibiting the setting of fires within the city limits was admitted in evidence without being pleaded.' The court said: "It is true that it was not claimed that the violation of the ordinance was negligence per se, but it was claimed that it was evidence which the jury might take into account as to the negligence of the defendants. The defend- ants were entitled to notice of this claim. "^ This was quoted with approval and followed in a recent case in an action against a street railway company.' Other decisions in similar cases are to the same effect,* and the rule is thus stated by a careful text-writer:' "Although a valid statute or ordinance limiting the rate of speed is admissible in evidence its exist- ence and violation should first be pleaded, and an averment •Richter v. Harper, 95 Mich. 221, 111. 500, s. c. 22 Am. E. 112, 117; Chi- 227, 8. c. 54 N. W. R. 768, 770. cago, etc., R. Co. v. Klauber, 9 111. ^Citing 1 Dill. Mun. Corp., §83. App. 613; Blanchard v. Lake Shore, 'Gardner v. Detroit St. R. Co., 99 etc., R. Co., 126 111.416, 425. See, Mich. 182, 8. c. 4 Am. Neg. Cas. 163, also, Shanfelter v. Mayor, 80 Md. 483, 167. 31 Atl. R. 439. • Illinois Cent. R. Co. v. Godfrey, 71 = Booth on Street Railways, § 359. 2712 CARRIERS. § 169& that the car was running at a high rate of speed, contrary to law or to the provisions of a statute or ordinance, is not an al- legation of the existence of the ordinance." But it has been held, on the other hand, that the averment of the existence of the ordinance is sufficient in such a case without setting out a copy thereof in the complaint,' and in another recent case it is intimated that an allegation that the plaintiff's injury was caused by running a train at a designated speed, in violation of the ordinance of the city, is sufficient, although the point act- ually decided was that it was sufficient after verdict and judg- ment and that the defendant had waived the question by not objecting on that ground at the time the ordinance was offered in evidence.* It is difficult to lay down any general rule which would be applicable in all jurisdictions, but we think that when an ordinance is relied on it should be pleaded in some way, so as to give the defendant notice of the plaintiff's claim and justify the admission of the ordinance as within the theory of the complaint, and that it should at least be identified by its title and date of passage or by pleading its substance or tenor and effect, although it is probably unnecessary in many jurisdictions to set it out in hwc verba.' § 1699 . Inspection and physical examination of party. — It is well settled that, in an action for damages for personal in- juries, the plaintiff may be permitted, while testifying as a witness in his own behalf, to exhibit the injured part to the jury.* It is also held, in some jurisdictions, that the plaintiff •Lake Erie, etc., Co. ■». Hancock, take notice of them and single out the (Ind. App.) 43 N. E. E. 659. Cit- particular one relied on where the ing Madison, etc., R.Co.'P. Taffe, 37 Ind. courts take no judicial notice of them 361 ; St. Louis, etc., E.Co.'y. Mathias,50 and the one relied upon is in no way Ind. 65. See, also, Winter v. Central identified. To allege that the act of lowaE. Co., 80 Iowa 443, s. c. 45 N. the defendant was contrary to the W. E. 737. laws and ordinances of the city is a " St. Louis, etc., E. Co. v. Eggmann, mere conclusion which adds little, if 161 111. 155, 43 N. E. R. 620. anything to the complaint, gives the ' In nearly all cities of any size defendant no notiae of any particular there are hundreds of ordinances, ordinance, and is not equivalent to an many of them, perhaps, on the same averment of the existence and viola- general subject, and it is manifestly tion of any particular ordinance, anjast to require the defendant to * Indiana Car Co. v. Parker, 100 Ind. § 1699 ACTIONS AGAINST RAILROAD COMPANIES. 2713 may be compelled to exhibit it or submit to a surgical exami- nation before trial,' but there are nearly an equal number of authorities to the contrary/ The mere fact that a surgeon examined the plaintiff out of court, and in the absence of the defendant, will not render his evidence inadmissible, if it is otherwise competent.' 181 ; Mulhado v. Brooklyn City R. Co., 30 N. Y. 370 ; Barker v. Town of Perry, 67 Iowa 146, s. c. 25 N. W. R. 100; Hess V. Lowrey, 122 Ind. 225, s. c. 7 L. E. A. 90; Langworthy v. Town- ship of Green, 95 Mich. 93, s. c. 54 N. W. R. 697; Newport News, etc., Co. V. Carroll, (Ky.) 31 S. W. R. 132; Townsend v. Briggs, 99 Cal. 481, s. c. 32 Pac. R. 307. But compare French v. Wilkinson, 93 Mich. 322, s. c. 53 N. W. R. 530. Physician may exhibit plaintiff to jury in testifying as to the nature and effect of the in- jury. Citizens' St. R. Co. ■«. Willoeby , 134 Ind. 563, s. c. 33 N. E. R. 627, 58 Am. & Eng. R. Cas. 485 ; Cunningham V. Union Pac. R. Co., 4 Utah 206, s. c. 7 Pac. R. 795 ; City of Lanark v. Dough- erty, 153 111. 163, s. c. 38 N. E. R. 892. And it has been held that the defend- ant may have an examination of the injured part by experts in open court, where the plaintiff has already ex- hibited it to the jury. Haynes v. Town of Trenton, 123 Mo. 326, s. c. 27 S. W. R. 622. •St. Louis, etc., R. Co. v. Dobbins, 60 Ark. 481, s. c. 30 S. W. R. 887; Sibley v. Smith, 46 Ark. 275 ; Schroed- er V. Chicago, etc., R. Co., 47 Iowa 375; White v. Milwaukee City R. Co., 61 Wis. 536, s. c. 50 Am. R. 154, and note; Alabama, etc., R. Co. v. Hill, 90 Ala. 71, s. c. 9 L. R. A. 442; Atchi- son, etc., R. Co. V. Thul, 29 Kan. 466, s. c. 44 Am. R. 659; Graves v. Battle Creek, 95 Mich. 266, s. c. 54 N. W. R. 757; Hatfield v. St. Paul, etc., R. Co., 33 Minn. 130. See, also, Richmond, etc., R. Co. V. Childress, 82 Ga. 719, s. c. 3 L. R. A. 808; Shepard v. Mis- souri Pac. R. Co., 85 Mo. 629, s. c. 55 Am. R. 390; and articles by Judge Thompson in 25 Cent. L. J. 3. In City of Chadron v. Glover, 43 Neb. 732, s. c. 62 N. W. R. 62, it is said that it has been intimated in several cases in Nebraska that the court has power to order an examination before trial, but has never been expressly decided in that state. 2 Union Pac. R. Co. v. Botsford, 141 U. S. 250, s. c. 11 Sup. Ct. R. 1000; Pennsylvania Co. ». Newmeyer, 129 Ind. 401 ; Peoria, etc., R. Co. v. Rice, 144 111. 227, s. c. 33 N. E. R. 951 ; Mc- Quigan v. Delaware, etc., R. Co., 129 N. Y. 50, s. c. 29 N. E. R. 235; Cole V. Fall Brook, etc., Co., 87 Hun 584, s. c. 34 N. Y. Supp. 572; Newman v. Third Ave. R. Co., 50 N. Y. Super. Ct. 412. In Loyd u. Hannibal, etc., R. Co., 53 Mo. 509, s. c. 4 Am. Neg. Cas. 481, it is said a physical examination of the plaintiff by surgeons during the trial is a proceeding unknown to the law, and that the court has no power to enforce an order therefor. See, also. Southern Bell Tel. Co. v. Lynch, 95 Ga. 529, 20 S. E. R. 500; Lyon v. Manhattan R. Co., 142 N. Y. 298, s. c. 37 N. E. R. 113; Gulf, etc., R. Co. v. Nelson, 5 Texas Civ. App. 387, s. c. 24 S. W. R. 588. ' Louisville, etc., R. Co. v. Falvey, 104 Ind. 409, 417, s. c. 3 N. B. R. 389, 4 N. E. R. 908. 2714 CARRIERS. § 1700 § 1700. Experiments and practical tests— Real evidence. — The clothing of one who is killed by the alleged negligence of a railroad company may, it seems, he exhibited in evidence where it tends to establish such negligence as the cause of his death,' and other "real evidence" such as defective machinery, iron rails, and the like may be introduced and exhibited to the jury in a proper case.^ So, experiments may sometimes be made in court, or evidence of such experiments, or practi- cal tests, outside of court, may be given if they are shown to have been made under the same or precisely similar conditions to those shown to have existed in the case at bar.' Thus, where the question was as to whether a scar upon the bottom flange of a rail was made by a locomotive wheel as the rail lay across the track, and the defendant had exhibited the scarred rail in court, it was held proper for the plaintiff to introduce a similar wheel and section of rail, and, by experi- menting or illustrating with them, to show to the jury that the wheel could not strike the lower flange of the rail as claimed by the defendant.' So, where the point in issue was whether a car moving slowly down an inclined plane with brakes set would, when the brakes were suddenly loosed, jump or spring suddenly forward, it was held error to exclude evidence of the result of an experiment made, at the same place and under the same conditions.^ In another case evidence of an expcri- 'Sennt!. Southern R. Co., 108 Mo. 17 R. I. 763, s. c' 24 Atl. R. 782; 142, 8. c. 18 S. W. R. 1007. But com- Williams v. Taunton, 125 Mass. 34; pare Louisville, etc., R. Co. v. Pear- People v. Levine, 85 Cal. 39; Dryer v. son, 97 Ala. 211, s. c. 12 So. R. 176. Brown, 52 Hun (N. Y.) 321 ; Chicago, ' King V. New York Cent., etc., R. etc., R. Co. v. Legg, 32 111. App. 218; Co., 72 N. Y. 607. Butsee McGrail i;. Smith «. State, 2 Ohio St. 511. Kalamazoo, 94 Mich. .52, s. c. 53 N. * Leonard v. Southern Pac. R. Co., W. R. 955. 21 Ore. 555, s. c. 15 L. R. A. 221, 28 'Leonardo. Southern Pac. R. Co., 21 Pac. 887. See, also, Osborne v. De- Ore. 555, s. c. 15 L. R. A. 221, and note; troit, 32 Fed. R. 36; National Cash, Chicago, etc., R. Co. v. Champion, etc., Co. ■». Blumenthal, 85 Mich. 464; (Ind.) 36 Cent. L. Jour. 280, and note Farmers', etc.. Bank v. Young, 36 Iowa (but see decision in the same case by 44; State v. Linkhaw, 69 N. Car. 214, the appellate court in 9 Ind. App. s. c. 12 Am. R. 645. 510); Lincoln v. Taunton, etc., Co., = Chicago, etc., R. Co. v. Champion, 9 Allen (Mass.) 181 ;3State».Ellwood, (Ind.) 32 N. E. R. 874, 36 Cent. L. §1701 ACTIONS AGAINST RAILROAD COMPANIES. 2715 ment showing that the plaintiff's foot could have been caught in a switch as claimed was held competent,' and in still other cases evidence of experiments was admitted to show how long it would take a team to walk a certain distance between tracks at a crossing/ and in what direction a person would fall whilo standing on the step of a car if it was suddenly started.' But in all such cases, in order to render evidence of the experi- ments admissible they must be made under circumstances ani conditions practically the same as those of the case on trial.* § 1701. Presumptions. — "A presumption, like a fact proved, remains available to the party in whose favor it arises, until overcome by opposing evidence,'" and usually has the force and effect of a prima facie case in so far as it applies.* But presumptions will not always supply proof of substantive facts,' for there must be something upon which to base them, and a presumption can not be based upon a presumption." Jour. 280, and note. (But see decision in the same case by the appellate court in 9 Ind. App. 510.) 'Brooke v. Chicago, etc., R. Co., 81 Iowa504, s. c. 47N. W. R. 74. But compare Klanowski v. Grand Trunk R. Co., 64 Mich. 279, s. c. 31 N. W. R. 275. ^Nosier 1'. Chicago, etc., R. Co., 73 Iowa 268, s. c. 34 N. W. R. 850. 'Gilbert v. Third Ave. R. Co., 22 J. & S. (N. Y.) 270, s. c. 8 N. Y. S. R. 152. 'Lake Erie, etc., R. Co. v. Mugg, 132 Ind. 168, s. c. 31 N. E. R. 564; Commonwealth v. Piper, 120 Mass. 185; Eidt v. Cutter, 127 Mass. 522; State «. Justus, 11 Ore. 178; State v. Fletcher, 24 Ore. 295, s. c. 33 Pac. R. 575, and note to Chicago, etc., R. Co. v. Champion, 36 Cent. L. Jour. 280, 283. See, also. State v. Lindoen, 87 Iowa 702, 8. c. 54 N. W. R. 1076; United States V. Ried, 42 Fed. R. 134; Ulrich V. People, 39 Mich. 245; McKay v. Lasher, 121 N. Y. 477; Sullivan v. Commonwealth, 93 Pa. St. 284 ; Hart ■0. State, 15 Tex. App. 202, 49 Am. R. 189, 191 and note. But compare Illi- nois Cent. R. Co. v. Burns, 32 III. App. 196. 'Bates V. Pricket, 5 Ind. 22. «1 Elliott's Gen. Pr., §127; Mont- gomery V. Wasem, 116 Ind. 343, 355; Cleveland, etc., R. Co. v. Newell, 104 Ind. 264. A presumption of law, in- deed, usually requires a particular in- ference or conclusion from a particu- lar state of facts, and is binding upon both court and jury. Best's Princ. of Ev., §§ 42, 304; Justice v. Lang, 52 N. Y. 323. 'United States u. Ross, 92 U. S. 281. 'Manning v. Insurance Co., 100 U. S. 693, 698 ; 1 ElHott's Gen. Pr., § 127. See, also, Philadelphia, etc., R. Co. v. Henrice, 92 Pa. St. 431, e. c. 4 Am. & Eng. R. Cas. 544. 2716 CARRIEKS. § 1701 The burden of proof is frequently shifted by reason of some presumption, and presumptions may, as we have said, make out a prima facie case either for the plaintiff or for the defend- ant. Indeed, in many cases, especially in railroad litigation, the contest is largely a battle of presumptions.' We have elsewhere called attention to many of the most important pre- sumptions that arise in railroad litigation. Thus, we have considered the presumption as to the authority of agents or employes acting for the company,^ the presumption that a cor- poration has power to hold land conveyed to it,' the presump- tion of payment,* the presumption that a person approaching or on a railroad track is in full possession of his senses and will take care of himself;' the presumption that one injured at a crossing where he could have seen and heard an approach- ing train, either did not look, or, if he did look, did not heed what he saw;' the presumption where a fire is set by a locomo- tive;' the presumption of competency of an employe;' the pre- sumption as to loss or injury where there are connecting car- riers;' the presumption from loss or injury to freight,'" or live stock ;" the presumption that persons on passenger trains are passengers,'^ and the presumption from collisions," derailment," or other accidents." It has also been held that where it is ad- mitted that a certain cocnpany owns a railroad, the presump- ' Louisville, etc., R. Co. v. Thomp- etc., E. Co., 37 Kan. 212, s. c. 34 Am. son, 107 Ind. 442. & Eng. R. Cas. 382. ' See ante, §§ 220, et seq. 297, 303, » See ante, § 423. 1255, 1265,1406, et seq. A presump- * See ante, § 1007. tion, it has been held, may also arise 'See aiuc, §§ 1153, 1253, 1257. from the' uniform and acts of one in ^SeermtK, §§1163, 1165. the capacity of a particular employe ' See ante, § 1242. that he is employed by the company * See ante, §§ 1285, 1292. See, also, in the capacity in which he acts. Mobile, etc., R. Co. v. Godfrey, 155 Hughes V. New York, etc., R. Co., 36 111. 78, s. c. 39 N. E. R. 590. N. Y. Super. Ct. (4 J. & S.) 222; » See ante, § 1450. Hoffman v. New York, etc., R. Co., "Seean«e, §1516. 12 J. & S. (N. Y.) 1; Larapkins ?). " See anJe, § 1548 e« seg. Vicksburg, etc., R. Co., 42 La. Ann. " See ante, § 1578. 997, s. c. 8 So. R. 530, 47 Am. & Eng. '3 ggg „„j^^ § ^ggg R. Caa. 022; Baltimore, etc., R. Co. " See (oUp, § 1634. V. Kane, 69 Md. 11, s. c. 13 Atl. R. "sgee fintr, §§ 1644, 1697. See, also, 387. But see Sachrowitz v. Atchison, as to the conclusive presumption from § 1701 ACTIONS AGAINST KAILKOAD COMPANIES. 2717 tion arises, in the absence of anything to the contrary, that it is operated by such company,' and that an engine bearing the initials of a certain company is owned and operated by it;" but the use of a railway track in a city by a switch engine raises no presumption that the owner of the engine owns and oper- ates the track and sidings.' The presumption, in the absence of anything to the contrary, is that the company and its em- ployes did their duty and complied with the law.* In some jurisdictions a presumption based on the instinct of self-pres- ervation is indulged, and it is held that this presumption that one will exercise at least ordinary and reasonable care to avoid danger to himself is sufficient, in the absence of anything to the contrary, to cast the burden on the defendant to prove con- tributory negligence,' and that it may even be presumed that physical facts and the operation of the laws of nature. Post, § 1703. 'Peabody v. Oregon, etc., R. Co., 21 Ore. 121, s. c. 26 Pac. E. 1053; Walsh V. Missouri Pac. R. Co., 102 Mo. 582, s. c. 14 S. W. R. 873, 15 S. W. B. 757; Ferguson v. Wisconsin, etc., R. Co., 63 Wis. 145, s. c. 23 N.W. R. 123, 19 Am. & Eng. R. Cas. 285. See, also, Blair v. St. Louis, etc., R. Co., 27 Fed. R. 176 ; Ayles v. South- eastern R. Co., L. R. 3 Exch. 146. ' Ryan v. Baltimore, etc., R. Co., 60 111. App. 612. 3 Calhoun v. Gulf, etc., R. Co., 84 Tex. 226, s. c. 19 S. W. R. 341. ^ Joyner v. South Carolina R. Co., 26 8. Car. 49, s. c. 1 S. E. R. 52; Jew- ett V. Kansas City, etc., E. Co., 50 Mo. App. 547; Reynolds v. Chicago, etc., R. Co., 85 Mo. 90; Rafferty v. Missouri Pac. R. Co., 91 Mo. 33, s. c. 3 S. W. R. 393; Uline v. New York, etc., R. Co., 101 N. Y. 98, s. e. 4 N. E. R. 536 ; ante, § 1299, and many other sections, stating that the burden of proof is upon the plaintiff, for the reason th?,! negligence will not be presumed. As to the right of an em- ploye, a stranger or a passenger, to rely on this presumption, see ante, §§1153,1315, 1628; Lake Erie, etc., E. Co. V. Brafford, (Ind. App.) 43 N. E. E. 882. That one is found dead under a railroad car raises no pre- sumption that he was killed by the negligence of the company. Spears V. Chicago, etc., E. Co., 43 Neb. 720, s. c. 62 N. W. R. 68; St. Louis, etc., R. Co. V. Parks, 60 Ark. 187, s. c. 29 S. W. R. 464 ; Johnston v. East Tenn., etc., R. Co., (Ky.) 30 S. W. E. 415. 'Cleveland, etc., R. Co. v. Rowan, 66 Pa. St. 393 ; Lyman v. Boston, etc., R. Co., 66 N. H. 200, s. c. 11 L. R. A. 364; Thomas v. Delaware, etc., R. Co., 8 Fed. R. 729; Parsons v. Mis- souri Pac. R. Co., 94 Mo. 286, s. c. 6 S. W. R. 464; Flynn v. Kansas City, etc., R. Co., 78 Mo. 195, s. c. 18 Am. & Eng. R. Cas. 23; Adama v. Iron Cliffs Co., 78 Mich. 271, s. c. 44 N. W. R. 270; Railroad Co. v. Glad- mon, 15 Wall. (U. S.) 401 ; Continen- tal, etc., Co. V. Stead, 95 U. S. 161; Northern Cent. R. Co. v. State, 29 Md. 420; Lehigh Valley R. Co. v. Hall, 61 Pa. St. 361; Weiss v. Penn- 2718 CARRIERS. §1701 a traveler, who was injured at a crossing, stopped, looked and listened.' But even where this is held, it is also held that if the train by which he was injured was plainly visible from a point at which it was his duty to stop, look and listen, the presump- tion that he exercised due care is overcome.* In most of those jurisdictions in which it is held that the burden is upon the plaintiff to allege and prove freedom from contributory negli- gence, no such presumption is indulged.' Thus, where one is killed at a crossing, or the like, and there is no evidence as to what he was doing at the time, so as to show freedom from con- tributory negligence, it is held that his administrator can not recover, because there is a total failure of proof of an essential element of his case, and that it should be taken from the jury.* sylvania R. Co., 79 Pa. St. 387; Thompson v. Central B., etc., Co., 54 Ga. 509 (but see Prather v. Richmond, etc., R. Co., 80 Ga. 427) ; Baltimore, etc., R. Co. V. McKenzie, 81 Va. 71, 8. c. 24 Am. & Eng. R. Cas. 395. See ante, § 1163. ' Pennsylvania R. Co. v. Weber, 76 Pa. St. 1.57; Chicago, etc., R. Co. v. Hinds, (Kan.) 44 Pac. R. 993. See, also, Whitford v. Southbridge, 119 Mass. 564; McBride c. Northern Pac. R. Co., 19 Ore. 64, s. c. 23 Pac. R. 814. ^Sullivan u. New York, etc., R. Co., (Pa. St.) 34 Atl. R. 798; Seamans v. Delaware, etc., R. Co., (Pa. St.) 34 Atl. R. 568; Wilcox v. Rome, etc., R. Co., 39 N. Y. 3.58, s. c. 100 Am. Dec. 440. See, also, Philadelphia, etc., R. Co. V. Stebbing, 62 Md. .504, s. c. 19 Am. & Eng. R. Cas. 36; Dunlavy v. Chicago, etc., R. Co., 66 Iowa 435, s. c. 23 N. W. R. 911. 'Toledo, etc., R. Co. v. Brannagan, 75 Ind. 490; Indiana, etc., R. Co. v. Greene, 106 Ind. 279, s. c. 6 N. E. R. 603 ; Cordell v. New York, etc., R. Co., 75 N. Y. 330; Wiwirowski v. Lake Shore, etc., R. Co., 124 N. Y. 420; Rodrian v. New York, etc., R. Co., 125 N. Y. 526; Warner e. New York, etc., R. Co., 44 N. Y. 465; Chase v. Maine Cent. R. Co., 77 Me. 62, s. c. 19 Am. & Eng. R. Cas. 356; Hinckley V. Cape Cod R. Co., 120 Mass. 257; Wharton onNeg., §421; Patterson's Ry. Ace. Law, 443; Beach on Con- trib. Neg., § 419, et seq. That the pre- sumption is against the plaintiff, see Hathaway v. Toledo, etc., R. Co., 46 Ind. 25; Engrer v. Ohio, etc., R. Co., 142 Ind. 618, 42 N. E. R. 217, 219; Cincinnati, etc., R. Co. v. Duncan, 143 Ind. 524, 42 N. E. R. 37 ; Cincin- nati, etc., R. Co. V. Butler, 103 Ind. 31, 8. c. 2 N. E. R. 138. See ante, §1163. * Kauffman v. Cleveland, etc., R. Co., (Ind.) 43 N. E. R. 446; Toledo, etc., R. Co. V. Brannagan, 75 Ind. 490; Tyndale v. Old Colony R. Co., 1.56 Mass. 503, s. c. 31 N. E. R. 655; Corcoran v. Boston, etc.. R. Co., 133 Mass. .507, 8. c. 12 Am. & Eng. R. Cas. 226; Riley v. Connecticut PJver R. Co., 135 Mass. 292; Bond r. Smith, 113 N. Y. 378; Wiwirowski v. Lake Shore, etc., R. Co., 124 N. Y. 420; Reynolds v. New York Central, etc., R. Co., .58 N. Y. 248. Contra, Longe- § 1702 ACTIONS AGAINST KAILBOAD COMPANIES. 2719 As we have elsewhere said,' we think this is the better better rule. An examination of the reported cases will show that in a large majority of them, especially in crossing cases, the plaintiff was guilty of contributory negligence, and it is a well-known fact that most men fail to exercise reasonable care in some matter and take risks that they could easily avoid by the exercise of such care, and which they know that they are negligent in taking, nearly every day. The instinct of self-pres- ervation exerts little, if any, influence until the danger is per- ceived to be imminent. Thousands cross railroad tracks in safety where one is injured. It is almost impossible, under ordinary circumstances, for a traveler to be injured at a cross- ing if he exercises due care, and this is true in a majority of cases wherever he has means of knowing the danger and full control over his own actions. These considerations, and the fact that an individual can control his own actions so much more readily than a locomotive can be controlled, lead us to the conclusion that, on principle, the presumption ought to be against rather than in favor of one who is injured at a cross- ing, or the like, and that, in any event, no presumption of freedom from contributory negligence based solely on the in- stinct of self-preservation should be indulged in his favor. To indulge such a presumption upon that basis seems to us very much like basing a presumption upon a presumption, and a very weak one at that." § 1702. Withdrawing the case from the Jury. — It is fre- quently of the utmost importance to railroad companies which are defendants in damage cases to get them taken away from the jury, if possible, and, it is, perhaps, equally important for the plaintiff in most of such cases to have them left to the jury. Decker u. Pennsylvania R. Co., 105 W. R. 1044; and see Johnson ». Hud- Pa. St. 328; Phillips v. Milwaukee, son Eiver R. Co., 20 N. Y. 65. etc., R. Co., 77 Wis. 349, s. c. 9 L. R. ^ Ante, §§ 1163, 1165. A. 521 ; and see Illinois Cent. R. Co. ' See a strong presentation of this V. Nowicki, 148 111. 29, s. c. 35 N. E. view in Beach on Contrib. Nag., R. 358 ; Hendrickson v. Great North- §§ 419, 420, 423. em R. Co., 49 Minn. 245, s. c. 51 N. 2720 CARRIERS. §1702 although there may be exceptionally strong cases, of course, which the plaintiff may desire to have taken from the jury. Where the facts are undisputed and but one reasonable infer- ence can legitimately be drawn from them, the question be- comes one of law and the case may be taken away from the jury.' So, it is held in most jurisdictions that if the evidence is so conclusive that the court would, under the law, be com- pelled to set aside a verdict returned in opposition to it, the case should be withdrawn from the jury upon proper applica- tion." A mere scintilla of evidence is not sufficient to require the case to be submitted to the jury,' and if the plaintiff ' Hathaway v. East Tenn., etc., R. Co., 29 Fed. R. 489 ; Purcell v. English, 86 Ind. 34, s. c. 44 Am. R. 2.55; Good- lett V. Louisville, etc., R. Co., 122 U. S. 391; Williams v. Guile, 117 N. Y. 343, s. c. 6 L. R. A. 366 ; Faris v. Ho- berg, 134 Ind. 269, s. c. 33 N. E. R. 1028; Oleson u. Lake Shore, etc., R. 1)0., 143 Ind. 405, 42 N. E. R. 736, (citing 2 ElHott's Gen. Pr., § 889) ; Johnson's Admr. v. Chesapeake, etc., R. Co., 91 Va. 171, s. c. 21 S. E. R. 238; Toomey V. London, etc., R. Co., 3 C. B. N. S. 146; People v. People's Ins. Exch., 126 111. 466, s. c. 2 L. R. A. 340, and note; McMurtry v. Louisville, etc., R. Co., 67 Miss. 601, s. c. 4 Am. Neg. Cas. 308. * Randall v. Baltimore, etc., R. Co., 109 U. S. 478, s. c. 3 Sup. Ct. R. 322; Schofleld V. Chicago, etc., R. Co., 114 U. S. 615, 5 Sup, Ct. R. 1125 ; Elliott v. Chicago, etc., R. Co., 150 U. S. 245, s. c. 14 Sup. Ct. R. 85; Bagley v. Cleve- land, etc., Co., 21 Fed. R. 159; Pleas- antsB Fant,22Wall. (U. S.) 116;Horn V. Baltimore, etc., R. Co., 54 Fed. R. .301 ; Linkauf v. Lombard, 137 N. Y. 417, s. c. 33 Am. St. R. 743, 749 ; Glass- cock V. Cent. Pac. R. Co., 73 Cal. 137; Chicago, etc., R. Co. v. Landauer, 36 Neb. 642, s. c. 54 N. W. R. 976 ; O'Mal- ley V. Missouri Pac. R. Co., 113 Mo. 319, 8. u. 20 S. W. R. 1079; Hemmena V. Nelson, 138 N. Y. 517, 529; Myn- ning V. Detroit, etc.,R. Co., 64 Mich. 93, s. c. 8 Am. St. R. 804; Lutz v. At- lantic, etc., R. Co., (N. Mex.) 16 L. R. A. 819; Grube v. Missouri Pac. R. Co., 98 Mo. 330, 4 L. R. A. 776, and note ; Beckman v. Consolidation Coal Co., 90 la. 252, s. c. 57 N. W. R. 889; Fronky v. Pennsylvania R. Co., (Pa.) 2 Atl. R.536;McEwen^.Hoopes,(Pa.) 34 Atl. R. 623; Allyn v. Boston, etc., R. Co., 105 Mass. 77; Overby v. Ches- apeake, etc., R. Co., 37 W. Va. 524, s. c. 16 S. E. R. 813; Aycrigg's Exrs. V. New York, etc., R. Co., 30 N. J. L. 460; Oleson u. Lake Shore, etc., R. Co., 143 Ind. 405, 42 N. E. R. 736, citing 2 Elliott's Gen. Pr., § 889. "It would be an idle proceeding to submit the evidence to the jury when they could justly find in only one way." North Penn. R. Co. v. Commercial Nat. Bank, 123 U. S. 727, s. c. 8 Sup. Ct. R. 266; ante, § 1179. 'Hathaway v. East Tenn., etc., Co., 29 Fed. R. 489; Hauser d. Central R. Co., 147 Pa. St. 440, b. c. 23 Atl. R. 766; Sunnyside, etc., Co. v. Eeitz, (Ind.) 43 N. E. R. 46; Connors. Giles, 76 Me. 132; Cincinnati, etc., R. Co. v. Wood, 82 Ind. 593 ; Meyer v. Manhat- tan, etc., Co., (Ind.) 43 N. E. R. 448, § 1702 ACTIONS AGAINST RAILROAD COMPANIES. 2721 fails to prove the cause of action stated in his complaint,' or a single vital and essential element thereof/ the case should be taken from the jury upon the application of the defendant. But if the facts are disputed and the evidence conflicting, or if more than one reasonable inference can legitimately be drawn therefrom, the case must usually be left to the jury.' As shown in the preceding section, however, presumptions may make a (citing 2 Elliott's Gen. Pr., §§ 854, 887, 889) ; Culhane v. New York Cent., etc., R. Co., 60 N. Y. 133; Linkauf v. Lombard, 137 N. Y. 417, s. c. 33 N. E. R. 743, 748, 749. The cases cited in the last preceding note also affirm this doctrine. See, also, Lake Erie, etc., R. Co. V. Stick, 143 Ind. 449, s. c. 41 N. E. R. 365; Cleveland, etc., R. Co. V. Wynant, 134 Ind. 681, s. c. 34 N. E. R. 569; Hudson v. Rome, etc., R. Co., 145 N. Y. 408, s. c. 40 N. E. R. 8; Babcock o. Fitchburg, etc., R. Co., 140 N. Y. 308, s. c. 35 N. E. R. 596. ' Palmer v. Chicago, etc., R. Co., 112 Ind. 250; Marcum v. Smith, 26 Mo. App. 460; 2 Elliott's Gen. Pr., §§ 854, 889; Waldhier v. Hannibal, etc., R. Co., 71 Mo. 514; Memphis, etc., R. Co. V. Chastine, 54 Miss. 503; Louis- ville, etc., R. Co. V. Dancy, 97 Ala. 338, s. c. 11 So. R. 796; Cotter v. Ala- bama, etc., R. Co., 61 Fed. R. 747. '2 Elliott's Gen. Pr., § 889; Cordell V. New York, etc., R. Co., 75 N. Y. 330; Meyer v. Manhattan, etc., Co., (Ind.) 43 N. E. R. 448; Harrigan v. Chicago, etc., R. Co., 53 111. App. 344. See, also, Hinckley v. Cape Cod R. Co., 120 Mass. 257; City of Hunting- burg V. First, (Ind. App. Ct.) 43 N. E. R. 17, 19; Rush v. Coal, etc., Mining Co., 131 Ind. 135, s. c. SON. E.R.904; City of Bedford v. Neal, 143 Ind. 425, s. c. 41 N. E. R. 1029, 1031 ; Toledo, etc., R. Co. V. Brannegan, 75 Ind. 490 ; Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681 ; Terre Haute, etc., R. Co. v. McCorkle, 140 Ind. 613, 623; Stager «. Bridge Ave., etc., R. Co., 119 Pa. St. 70, s. c. 12 Atl. R. 821 ; Gores v. Grafi, 77 Wis. 174, s. c. 46 N. W. R. 48. ' Gardner v. Michigan Cent. R. Co., 150 U. S. 349, s. c. 14 Sup. Ct. R. 140; Kansas City, etc., R. Co. v. Kirksey, 60 Fed. R. 999, 1002; Railroad Co. ij. Stout, 17 Wall. (U. S.) 657; Beatty v. Mutual, etc., Assn., 75 Fed. R. 65, 68, and authorities there cited ; Johnson v. Missouri Pac. R. Co., 18 Neb. 690, s. c. 26 N. W. R. 347; Pull- man, etc., Co. V. Laack, 143 111. 242, 8. c. 32 N. E. R. 285, 18 L. R. A. 215; Neubacher u. Indianapolis, etc., R. Co., 134 Ind. 25, s. c. 33 N. E. R. 25; Richmond, etc., R. Co. v. Powers, 149 U. S. 43, s. c. 13 Sup. Ct. R. 748; Anderson v. North Pac. R. Co., 21 Ore. 281; Evans v. Lake Shore, etc., R. Co., 88 Mich. 442; Illinois Cent. R. Co. V. Turner, 71 Miss. 402, s. c. 14 So. R. 450; Hangen v. Chicago, etc., R. Co., 3 So. Dak. 394, s. c. 53 N. W. R. 769; Bates v. Fremont, etc., R. Co., (S. Dak.) 61 Am. & Eng. R. Cas. 392; Central R. Co. v. Moore, 24 N. J. L. 824; Avinger v. South Car. R. Co., 29 S. Car. 265, s. c. 13 Am. St. R. 716; Smith v. Easton, etc., Co., 167 Pa. St. 209, s. c. 31 Atl. R. 557; Bar- ter V. Atchison, etc., R. Co., 55 Kan. 250, s. c. 38 Pac. R. 778; O'Brien v. Chicago, etc., R. Co., (Wis.) 66 N. W. R. 363. 2722 CARRIERS. §1702 prima facie case, and when they do, unless there is evidence to the contrary, they will justify the withdrawal of the case from the jury.' Thus, where the plaintiff has the burden of proving that his own negligence did not proximately contribute to his injury the case should be taken from the jury if he fails to in- troduce evidence to overcome the presumption. A case may be withdrawn from the jury by demurrer to the evidence,* com- pulsory nonsuit,' or a peremptory instruction directing a ver- dict.* The practice of demurring to the evidence does not seem to obtain in all jurisdictions, nor does that of moving for a nonsuit, but it is believed that a peremptory instruction may be requested and a verdict directed, in a proper case, in all ju- risdictions. This is the most common mode of withdrawing a case from the jury, and it is error for the court to refuse to direct a verdict upon proper application when it is its duty to do so under the rules already stated. ° The motion may be 'Talkington v. Parish, 89 Ind. 202; De Wald v. Kansas City, etc., Co., 44 Kan. 586, s. o. 24 Pac. E. 1101; Ohio, etc., R. Co. V. Dunn, 138 Ind. 18, s. c. 36 N. E. R. 702. ^ As to the rules and practice on de- murrer to the evidence, see 2 Elliott's Gen. Pr., §§ 855-871 ; 2 Tidd's Pr., 865 ; Summers v. Louisville, etc., R., (Tenn.) 35 S. W. R. 210; Illinois Cent. R. Co. v. Brown, (Tenn.) 35 S. W. R. 560,(both cases citing 2 Elliott's Gen. Pr., §§855,856) ; Suydam v. Wil- liamson, 20 How. (IJ. S.) 427; Joliet, etc., R. Co. 1.'. Veile, 140 111. 59, s. c. 29 N. E. R. 706; Hopkins v. Nashvile, etc., R. Co., (Tenn.) s. c. 34 S. W. R. 1029; Pennsylvania Co. v. Stegemeier, 118 Ind. 305, s. c. 10 Am. St. R. 136, and note; Lake Shore, etc., R. Co. v. Foster, 104 Ind. 293; Chicago, etc., R. Co. V. Williams, 131 Ind. 30. ' As to the practice on motion for nonsuit, see 2 Elliott's Gen. Pr., §§ 876-882; Gould on Pleading, (Heard's ed.) 557; note to French v. Smith, 24 Am. Dec. 622; Fagundes v. Central Pac. R. Co., 79 Cal. 97, s. c. 3 L. R. A. 824; Quinlan v. Welch, 141 N.Y. 158, s. c. 36 N. E. R. 12 ; McNally V. Phoenix Ins. Co., 137 N. Y. 389, s. c. 33 N. E. R. 475; Rochat v. North Hudson, etc., R. Co., 49 N. J. L. 445, s. c. 9 Atl. R. 688, 10 Atl. R. 710. As shown in the text-book first cited this practice does not prevail in all juris- dictions, and even where it does it dif- fers largely in detail and sometimes in effect. '"This practice," says Mr. Justice Swayue, "is a wise one. It saves time and costs. It gives the certainty of applied science to the results of ju- dicial investigations. It draws clearly the line which separates the proviace of the judge and jury, and fixes where it belongs the responsibility which should be assumed by the courts.'' Merchants' Bank v. State Bank, 10 Wall. (U. S.) 604, 637. = 2 Elliott's Gen. Pr., § 887; Carroll V. Interstate, etc., Co., 107 Mo. 653, s. c. 17 S. W. R. 889 ; Mynning v. De- troit, etc., R. Co., 64 Mich. 93, s. c. 8 § 1703 ACTIONS AGAINST RAILROAD COMPANIES. 2723 made by the defendant either at the close of the plaintiff's evi- dence or after the evidence on both sides has been heard.' But if the defendant makes his motion at the close of the plaintiff's case, and subsequently introduces evidence in his own behalf, he will, according to the weight of authority and the better reason, be deemed to have waived his motion, and any excep- tion he may have taken to the ruling of the court thereon, unless he thereafter renews it.^ The plaintiff can not, of course, successfully move to direct a verdict until after the defendant has introduced his evidence.' § 1703. Physical facts. — It is an old saying that "actions speak louder than words," and so there are sometimes physical facts present in a case sufficient in strength to overcome the evidence of witnesses. Well established laws of nature and similar well-known scientific and physical facts of which the courts will take judicial knowledge may not only justify a trial court in directing a verdict or in setting aside a verdict and granting a new trial, but may also be sufficient to cause the appellate court to reverse the action of the trial court where it fails to give effect to such facts by directing a verdict or grant- ing a new trial. Notwithstanding the general rule, which pre- vails in most jurisdictions, that the court, on appeal, will not weigh the evidence, neither the appellate court nor the trial court should stultify itself by allowing a verdict to stand, al- Am. St. E. 804; Baltimore, etc., R. S. 202, s. c. 12 Sup. Ct. E. 591; North- Co. u. Strieker, 51 Md. 47; Atchison, ern, etc., R. Co. c. Mares, 123 U.S. etc., R. Co. V. Loree, 4 Neb. 446 ; Wil- 710, s. c. 8 Sup. Ct. E. 321 ; Northern son V. Groelle, 83 Wis. 530, s. c. 53 Pac. E. Co. v. Charless, 51 Fed. R. N. W. E. 900, and cases cited in the 562; Joliet, etc.R. Co. v. Shields, 134 first two notes to this section. 111. 209, s. c. 25 N. E. R. 569; Chi- '2 Elliott's Gen. Pr., § 888, and nu- cago, etc., R. Co. v. Van Vleck, 143 merous authorities there cited ; note 111. 480, s. c. 32 N. E. R. 262. But see to People V. People's Ins. Exch., 2 L. Weber v. Kansas City, etc., R. Co., R. A. 340; Wilsey v. Louisville, etc., 100 Mo. 194, s. c. 18 Am. St. R. 541; R. Co., 83 Ky. 511 ; Bartelott v. Inter- Rochat v. North Hudson, etc., R. Co., national Bank, 119 111. 259. 49 N. J. L. 445, s. c. 9 Atl. R. 688; ''Poling V. Ohio River R. Co., 38 W. Wadlington v. Newport News, etc., E. Va. 645, s. c. 18S. E. R. 782; Colum- Co., (Ky.) 20 S. W. R. 783. bia, etc., R. Co. v. Hawthorne, 144 U. ^ Kingsford v. Hood, 105 Mass. 495. 2724 CARRIERS. § 1703 though there may be evidence tending to support it, where the physical facts are such as to demonstrate that such evidence is untrue and the verdict unjust and unsupported in law and in fact. In a recent case the plaintiff testified that he stopped and looked and listened when about six feet from a railroad crossing and saw no engine, and that as soon as he stepped inside the first rail of the track an engine noiselessly ap- proached and struck him; that his sense of hearing was per- fect, and that there was nothing to obstruct sound or prevent him from hearing. There was also undisputed evidence that the engine and tender weighed eighty tons, had fourteen wheels and was running at the rate of at least twenty-five miles an hour. The supreme court held that it was a physical impossibility that the engine could move at that rate without making any noise, and that the plaintiff must have heard it if he had looked and listened, as he testified that he did, and the judgment of the trial court on the verdict for the plaintiff was reversed.' In another recent case the appellate court said that while it had no power to weigh the evidence, yet "where the evidence which appears to be in conflict is nothing more than a mere scintilla, or where it is met by well known and scientific facts, about which there is no dispute, this court will still exercise jurisdic- tion to review and reverse.'" So, where it was necessary to assume, in order to support the verdict, that the plaintiff was 'Lake Erie, etc., R. Co. v. Stick, buked those who have not the courage 143 Ind. 449, s. c. 41 N. E. E. 365. The to promptly set aside unjust verdicts, court said that, excluding all evidence See, also, Miller v. Terre Haute, etc., except that of the plaintiff as to the R. Co., 44 N. E. R. 257; Oleson ?. exercise of due care on his part, and Lake Shore, etc., R. Co., 143 Ind. 405, "considering alone his testimony on s. c. 42 N. E. R. 736; Mann v. Belt that point, and the matters of general R., etc., Co., 128 Ind. 138, 144, s. c. notoriety and every day observation, 26 N. E. R. 819. and our knowledge of the laws of na- ^ Hudson v. Rome, etc., R. Co., 145 ture, we must and do know that the N. Y. 408, s. c. 40 N. E. R. 8. In engine going at the rate of speed of this case it was held that a crown from twenty-five to thirty-five miles sheet could not have been stretched an hour, the appellee must have heard from ten to fourteen inches without a and did hear it." The court also laid crack or flaw, while it was cool and down the rules that should govern trial under water, judges in such cases and severely re- § 1703 ACTIONS AGAINST RAILROAD COMPANIES. 2725 fully nine feet high the appellate court reversed the judgment and granted a new trial.' In another case a verdict was set aside because the court knew that if the plaintiff had been ex- ercising ordinary care and occupying the position he claimed he was occupying, he could not have been injured in the man- ner in which the undisputed evidence showed that he was in- jured.^ And in many other cases verdicts have been set aside because they could only be supported by assuming or believing something contrary to human experience or the laws of nature.' There are many facts of which courts ex officio take notice, and neither averment nor proof will prevail against matters which are judicially known to the court.' The courts will not allow the verdicts of juries to stand when they rest on evidence which the courts judicially know to be incredible. ' Hunter v. New York, etc., R. Co., 116 N. Y. 615, s. c. 23 N. E. R. 9. ^Brennanj). Brooklyn Heights, etc., E. Co.,33N. Y. Supp. 852. ^See Johns v. Northwestern, etc., Assc, 90 Wis. 332, s. c. 63 N. W. R. 276; 2 Best on Ev., 1096; Cauley v. Pittsburgh, etc., R. Co., 98 Pa. St. 498 ; San Antonio, etc., R. Co. v, Choate, (Texas Civ. App.) 35 S. W. R. 180. * Jones V. United States, 137 U. S. 202, B. c. 11 Sup. Ct. R. 80; Jameson V. Indiana, etc., Co., 128 Ind. 555; Nagel V. Missouri, etc., R. Co., 75 Mo, 665 ; Udderzook's Case, 76 Pa. St. 340 ; Garth ■;;. Caldwell, 72 Mo. 622; State V. Hayes, 78 Mo. 307; Lanigan v. New York, etc., R. Co., 71 N, Y. 29; Frese V. State, 23 Fla. 267. END OF VOLUME IV. Corp. 173 INDEX. [iJe/erences are to Sections.'] Vol. I, §§ XSSI, Vol. II, §§ 3SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. A ABANDONED EOAD, subject to levy on execution, 520, n. ABANDONED STATION, mandamus to compel restoration of, 641. ABANDONMENT, of shares by stockholder, effect, 151, n. of corporate subscription, 177. to lessee is ground for quo warranto, when, 448. of condemnation proceedings, 1033. of condemnation proceedings, evidence of, 1033. effect on duty to fence, 1193. of animals by their owner, 1210. ABANDONMENT OF LOCATION, evidence of, 122. effect of, 931. what amounts to, 931. by failure to construct, 931. sale to another company is not, 931. determined by circumstances of case, 931. for non-user of franchises, 931. estoppel of company to deny, 931. when question for a jury, 931, n. how failure to run passenger trains affects question of, 931, n. ABANDONMENT OF EOAD, cause for forfeiture, 49. effect on subscriptions, 123. mandamus to prevent, 638. ABATEMENT, of suits on dissolution of corporation, 612. (2727) 2728 INDEX. [Beferences are to Sections."] Vol. I, ^l-SSl, Vol. 11, ^322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. ABSOLUTE LIABILITY, for animals killed, 724. where animals are injured, statute unconstitutional, 1183. can not be imposed for injuries to stock, 1213. for damages caused by fire, 1222. constitutionality of statutes imposing for fires, 1223. insurable interest where it is imposed, 1223. none where fires set to burn off right of way, 1227. for fires, contributory negligence immaterial, 1238. sufficiency of complaint to enforce, 1241. ABUSE OF DISCRETION, in matter of declaring dividends, 314. by directors, when courts will correct, 343. See Discretion. ABUSE OF FRANCHISE, effect of, 48. ABUSE OF POWERS, stopping trains for five days, 51. as ground for appointment of a receiver, 538, n. ABUTMENTS, implied power to condemn land for, 42. at highway crossings, 1105. must not obstruct highway, 1109. mandamus to compel construction of, 1111. compensation for erecting at railway crossings, 1127. negligence in constructing those to bridges, 1263. See Bridges. ABUTTING OWNERS, not entitled to compensation for electric railways, 8, 1088. when may enjoin company from occupying street or highway, 630. when may be restrained from interfering with road, 632. when entitled to remedy by injunction, 1049, n. consenting to use of streets, 1078. rights in streets, 1085. have easement of access, 1085. rights as freeholders, 1085. right to easement of light and air, 1086. recovering damages for negligence in operating road, 1085. compensation for interference with easement of access, 1087. no damages recoverable for construction of street railway, 1088, 1135. rights where railroad is constructed in narrow street, 1089. when may maintain action of ejectment, 1096. INDEX. 2729 [ije/erences are to Sections.] Vol. I, §§ 1-3S1, Vol. 11, §§ 38^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. ABUTTING OWNERS— Core«inMe5. must not willfully injure passengers, 1638. illustrative cases of liability for assaults of, 1638. BRANCH LINES OR ROADS, termini need not be stated in charter, 36. implied authority to construct, 41. condemning land for, 42. what are, 42, n. when company can not construct, 374. when included in mortgage, 497. when receiver will not be appointed for, 555. public aid to, 826. municipalities taking stock in, 826. location of, 923. direction in which they may be built, 923. constructing other branch from, 923. may cross railroad, 923, n. property may be condemned for, 960. as public highways, 961. BREACH OF CONDITION, efiect on land grants, 801. BREACH OF CONTRACT, in reference to right of way, damages for, 935, n. injunction to prevent, 936. remedies for, 1062. to give passes, 1611. failure to furnish sleeping car berth, 1620. BREACH OF DUTY, negligence arises out of, 1367. must be shown in negligence cases, 1369. by carrier while acting as warehouseman, 1463. BREACHY ANIMALS, company not required to fence against, 1184. BREAKAGE, stipulating against liability from loss by, 1513. INDEX. 2761 {References are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, §§ S£^-918, Vol. HI, ^1919-1390, Vol. IV, §§ 1391-1703. BREAKING BULK, when will be compelled, 1395. right of railroad companies to compel, 1395. BRIBERY, effect of in election to grant public aid, 849. BRIDGE COMPANIES, as common carriers, 1400. furnishing terminal facilities, 1400, n. BRIDGEMEN, as fellow-servants, 1332. BRIDGES, franchises for, 32, n. railroad's implied power to erect, 41. condemning land for abutments and approaches, 42. across highways, 43. duty of new company to maintain and repair, 532. when mandamus will lie to compel construction of, 639, 1111. damages caused by construction, 977. damages for negligence in constructing, 977. liability for negligently constructing, 1005. right of company to construct in street, 1091. duty to build over the track, 1107. where highway is carried over track, 1110. duty to protect from animals, 1196. animal injured on, in fleeing from train, 1207. negligence in constructing, 1263. as a part of working place, 1271. duty of passenger carrier concerning, 1586. duty to passengers in respect to, 1629. presumption of negligence from giving way of, 1644, n. BROKEN RAIL, derailment caused by, 1634. BROKER, municipal aid bonds may be sold through, 879, n. BUFFERS, rule where they are of unequal height, 1279. BUILDINGS, taking under power of eminent domain, 973. cost of removing in condemnation proceedings, 996. 2762 INDEX. [References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 3SS-9i8, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. BUILDINGS— Continued. compensation for those taken by railroad crossing, 1127. when personal property, 1233. on right of way, destruction by fire, 1235. erecting near right of way, 1238. measure of damages where destroyed or injured by fire, 1239. BULK, right to compel breaking of, 1395. BULLETINS, when required at stations, 722. BUMPERS, assuming risks of, 1296. duty to supply safe ones, 1296. BURDEN OF PROOF, on company to show performance of conditions to subscriptions, 116, n. to show that contract is illegal or ultra vires, 340, n. to show jurisdiction in removal of causes, 655, n. to show relinquishment of power of taxation, 746. to show necessity for taking property, 973. to sRow extra work, 1060, n. to show effort to agree, 1119. to show contributory negligence, 1163. to show knowledge of defective fences, 1185. in action for injuries to animals, 1213, 1214. in fire cases, 1222, 1242. defense of contributory negligence not defeated by changing, 1238. statutes changing in fire cases, 1242. where incompetency of fellow-servant is alleged, 1286. to show employer's breach of duty, 1309. with respect to contributory negligence, 1313, 1696. under employer's liability acts, 1349, 1353. to show that release is fraudulent, 1377. to show delivery, 1413. to rebut presumption that goods were in good order, 1420. to show emergency for deviation from route, 1440. to show that act of God caused loss, 1457. to show loss by public enemies, 1458. to show negligence of carrier, 1463. on shipper to show unjust discrimination, 1467, n. on carrier to show excuse for failure to furnish cars, 1477. on plaintiff to show offer of goods, 1477. to show reasonableness of time stipulation as to presenting claims, 1512. INDEX. 2763 [^References are to /Sectiojjs.] Vol. I, §§ i-SSl, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. BUEDEN OF VSiOOY— Continued. in reference to contracts limiting liability, 1516. to show negligence as to loss of freight, 1516. to show negligence injuring live stock, 1548. where property is lost on sleeping car, 1623. in action for injuries to passengers, 1644. presumption of negligence shifting, 1644, 1701. BURGLARY, breaking into depot, station-house or car is, 732. what necessary to constitute, 732. BUSINESS, conditions precedent to corporation doing, 19, n. corporation doing foreign, 22. appointing agent as condition to do in foreign state, 24. restrictions upon foreign corporations doing, 30. what constitutes, 30. suspension of as cause for forfeiture, 49. when regarded commenced by corporation, 51. stating in notice of stockholders' meeting, 164. what may be transacted at particular stockholders' meeting, 165. suspension of does not work dissolution, 606. taxation on basis of amount done, 738. basing taxation on amount of, 758, n. employe can not control methods of employer's, 1289. assuming risks from employer's methods of, 1297. effect of unusual press of, 1473, 1691. power to make rules and regulations governing, 1576. passenger seeking to deprive carrier of, 1577. interchange of, 1685. See Press op Business ; Rush of Business. BY-LAWS, corporation adopting, 19. controlling payment of dividends, 83, n. can not prevent transfer of stock, 92. creating lien on stock, 99. requiring cash deposit on subscription, 106, n. creating right to forfeit stock, 149, n. providing method of sale of stock on forfeiture, 152. restricting or enlarging right to vote, 156. defining quorum of stockholders, 161. regulating right to vote by proxy, 162. power of stockholders to make, 163. when may be made by directors, 163, n., 194. 2764 INDEX. [iJe/erenccs are to Sections. 2 Vol. I, ^U-SSl, Vol.11, §§522-915, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. BY-LAWS— Continued,. when stockholder is chargeable with constructive notice of, 171. for what purposes may be passed, 191. can not be inconsistent with charter, 191. power to make, 191. who are affected by corporate, 192. limits of power to make, 192. reasonableness a question for the court, 193. when part void and part valid, 193. how rights are affected by repeal of, 193. power to make resides with stockholders, 194. formalities of enactment, 195. proof of, 195. when take effect, 195. amendment of, 196. repeal of, 196. enforcement of, 197. rules and regulations are in England, 198. distinguished from rules and regulations, 199. corporate liability can not be changed by, when, 213, n. fixing compensation of officers, 230. requiring bonds of officers, 232. providing for removal of directors, 271. providing for compensation of directors, 272. defining president's powers, 284. fixing powers of treasurer, 292. effect of acts performed in violation of, 373. G CABLE RAILROADS, definition of, 9. classed as street railways, 9. are not additional burden to street, 9, 1088. CALCULATION OF CHANCES, as contributory negligence, 1095. negligence where traveler proceeds upon, 1165. in crossing railway track, 1168. CALLS AND ASSESSMENTS, stock forfeited for non-payment of, 91. on stock, 133. when must be paid, 133. INDEX. 2765 [^References are to Sections.] Vol. I, ^1-SSl, Vol. 11, ^3n-918, Vol. Ill, ^919-1890, Vol. IV, ^^1391-1703. CALLS AND ASSESSMENTS— CoBtinMeti. nature and effect of, 134. directors may make, 135. directors must act as a body in making, 136. discretion of board in making, 137. charters and statutory limitations upon discretion in making, 138. periodical installments, 138. must affect all alike, 139. subscription payable on demand, 140. requisites of notice, 141. constructive notice of, 142. waiver by stockholder of notice and formalities of, 143. demand and suit for, 144. assignment of, right to collect, 145. when courts may compel call and payment, 146. extent of stockholder's liability for, 147. agreements as affecting liability, 147. construction of charter and statutory provisions regarding, 148. remedies where stockholder fails to pay, 149. cumulative remedies, 150. election as to remedy to enforce, 150. efiect of forfeiture of stock, 151. statutory method of forfeiture must be pursued, 152. notice of forfeiture, 153. defeating and annulling forfeiture of stock on, 154. offering to pay in suit for injunction, 154, n. money refunded for may be recovered when, 176. duty of life tenant to pay, 308. CANAL, franchise for, 32, n. building railroad across, 966. assessing damages to land divided by, 992. CANAL BASIN, no implied power to build, 374. CANAL BOATS, when not covered by general mortgage, 495. CANCELLATION, setting aside that of subscription, 176. CANYON, location of road in, 922, 2766 INDEX. [Beferences are to Sections. 1 Vol. I, §§ 1-Sn, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CAPITAL STOCK, stating amount in articles of incorporation, 18, 36. amount to be subscribed before organization, 18. certain amount per mile, 36. increasing under statutory authority, 46. effect of failure to pay, 51. not synonymous with capital, 76. can not exceed certain amount, 76. definition of, 76. increase and reduction of, 87. subscription in excess of authorized invalid, 112. change in releasing subscriber to stock, 122. how payable, 133. effect of irregularity in increasing, 155. power of stockholders to increase or decrease, 163. trust fund for creditors, 175, 600. when directors may or may not increase, 236, 252. stockholders proper parties to increase, 250, n. must not be consumed by dividends, 315. enjoining payment of dividend out of, 317. distribution of property on reduction of, 320. increasing and taking up bonds in payment for shares, 483. taxation of, 738. rights of remainderman on increase of, 307. OAK, See Caks. CAB SERVICE ASSOCIATIONS, nature and objects of, 1568. collecting demurrage through, 1568. CAB TBUST CEBTIFICATES, priority of mortgage over, 500, n. CARE, degree required of gratuitous bailee, 1389. degree of required from street railway companies, 1402. required on part of railway at private crossings, 1150. traveler relying on company using, 1156. degree of required in operation of trains, 1589. degree of owing to person riding on pass, 1606. degree of due to passengers on freight or mixed trains, 1629. See Degree op Care ; Negligence. INDEX. 2767 l^Beferences are to Sections.'] Vol. I, §§ 1-SZl, Vol. II, §§ SeS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-170S. CARRIAGE OF GOODS, implied authority to charge tolls for, 41. authority of receiver to contract for, 567, n. mandamus to compel, 640. See Common Caheibrs. CARRIER, liability of lessee as, 471. See Common Carhibrs; Railroad as Carriers; Common Law Duties op Common Carriers; Initial Carrier; Freight Charges; Contracts Limiting Liability. CARRIERS BY WATER, right to charge demurrage, 1567. CARRIERS OF LIVE STOCK, railroad companies are common carriers of live stock, 1545. no liability for injuries arising from inherent nature of live stock, 1546. duty to receive and carry live stock, 1547. liability for negligence, 1548. burden of proof to show negligence, 1548. rule where owner accompanies the stock, 1549. contributory negligence of owner, 1550. cars and appliances, 1551. terminal charges, 1551. loading and unloading, 1552, 1554. duty to feed, water and care for stock, 1553, 1554. statutory regulations, 1554. liability for delay, 1555. liability for misdelivery, 1556. liability for loss or failure to deliver, 1556. limiting liability, 1557. See Live Stock. CARRIERS OF PASSENGERS, general doctrine, 1573. when railroad companies are not, 1573. the duty to carry, 1574. refusal to carry, extraordinary press of business, 1575. refusal to carry, disregard of rules and regulations, 1576. improper or unfit persons, 1577. who are passengers, 1578. when relation of passenger and carrier begins, 1579. authority of subordinate employes to create relation of carrier and pas- senger, 1580. trespassers and intruders, 1581. 2768 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, ^S2S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CARRIERS OF PASSENGERS— CoreJi)i«eci. taking passage on freight trains, hand-cars and the like, 1582. nature of liability of, 1583. accidents, 1584. high degree of care required of, 1585. duty as to road-bed and tracks, 1586. duty as to engines, cars, equipments and appliances, 1587. are not insurers, 1587. duty to make inspections and tests, 1587. duty to provide and equip trains with modern and improved appliances, 1588. care required in operation of trains, 1589. negligence in maintaining depot or station buildings, 1590. duty to protect passengers from injury by third persons, 1591. termination of relation of carrier and passenger, 1592. can not exact unreasonable fares, 1593. construing tickets strongly against, 1598. duty to person riding on pass, 1606. validity of stipulation in pass against liability for negligence, 1608. interstate commerce law regulating giving of passes, 1612. duty to awaken passengers, 1621. right to eject passengers, 1637. liability for willful acts of employes, 1638. when have burden to disprove negligence, 1644. can not contract for exemption from negligence, 1645. when may make special rates, 1687, n. See Passengbbs ; Injuries to Passengers. CARS. personalty or realty, 31. rules regulating use of by passengers, 200. contract of station agent to furnish, 303. attaching those in control of receiver, 570, n. when may be attached, 624. compelling company to heat, 668, 724, n. indictment for leaving in public highway, 718. requiring automatic couplers on, 724. penal offense to climb on, 729. shooting or throwing missiles at, 731. crime to break into, 732. where may be taxed, 755, n. how construction contracts affected by failure to furnish, 1062. when lien for construction does not extend to, 1069. when may be stopped in street, 1076. running on track of another company, 1084. obstructing streets by, 1090. INDEX. 2769 [Meferences are to Sections. '\ Vol. I, §§ 1-3S1, Vol. II, §§ 3n-91S, Vol. Ill, §§ 919-1300, Vol. IV, §§ 1S91-170S. CARS — Continued. duty to carry light on, 1159. backing and "kicking" over crossings, 1162. passing over, under or between, 1169. negligence in svpitching off burning car, 1225. trespassers on, 1255. when "staking" is not negligence, 1258. not regarded as dangerous machines, 1260. looking for children about, 1260. duty to children with reference to, 1260. negligence in child crawling under, 1261. leaving in highway, 1264, n. brakeman standing on under low bridge, 1271, n. duty to inspect, 1278. using those whose buffers are of unequal heights, 1279. duty to inspect foreign, 1279. assumption of risk in coupling, 1296. negligence in loading, 1301. held to be machinery, 1338. meaning within employers' liability acts, 1354. duty to transport those of other companies, 1394. transfer of goods from those of one company to those of another, 1395. transfer of from line to line, 1395, n. duty and liability of switching companies with reference to, 1398. sufficiency of delivery to connecting carriers, 1412. liability for furnishing unsuitable, 1448, n., 1478, 1618. duty to furnish, 1470, 1551. negligence in not adopting proper standard of, 1472. express contract to furnish, 1473. damages caused by delay in furnishing, 1474. duty to provide for perishable property, 1475. offer of goods where there is failure to furnish, 1476. when there must be a reasonable demand for, 1476, 1691. effect of inability to furnish, 1477. burden on carrier to prove an excuse for failure to furnish, 1477. duty of carrier to use proper ones, 1478. selection of by shipper, 1480. consignees unloading, 1521. when delivery upon side track is sufficient, 1521. injury to live stock by defective, 1548. duty to furnish in which to carry live stock, 1551. effect where shipper selects his own, 1551. duty to furnish on reasonable notice, 1551. right to charge demurrage for use of, 1566. effect of delay in unloading, 1567. 2770 INDKX. [Beferences are to Sections."] Vol. I, §§ 1-SSl, Vol. II, ^ 3-^2-918, Vol. HI, §§ 919-1390, Vol. IV, §§ 1391-170S. CARS — Continued. duty owing to passengers in respect to, 1585. duty of passenger carrier as to, 1587. duty to properly couple owing to passengers, 1589. negligence to leave in a dangerous position, 1589. liability for furnishing unsafe or defective, 1618. duty to provide means of reaching, 1628. duty to equip with air brakes, 1629. no duty to furnish brakeman for each one, 1629. passenger going from one to another, 1630. negligence for passenger to ride on top of, 1632. negligence in assuming dangerous position in, 1633. placing on switches so as to obstruct main track, 1636. passenger injured by closing door of, 1639. press of business as excuse for failure to furnish cars, 1691. CAETAGE, delivery where it has been paid, 1518. effect where carrier pays, 1566. constituting undue preference, 1678. furnishing as violation of interstate commerce act, 1682. CARTERS, discrimination against, 1678, n. CASH, when stock must be paid for in, 110. when subscription becomes payable in, 116. CASH DEPOSIT, how may be made on stock, 106. when required to complete subscription to stock, 106. CASUALTIES, injuries to fences by, 1185. See AcciDBNT. CATALOGUE, of salesman as baggage, 1647, n. CATTLE, transporting diseased, 1669, n. See Live Stock ; Animals. CATTLE CHUTES, duty to furnish, 1551. INDEX. 2771 [References are to Sections."] Vol. I, §§ 1-SSl, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. CATTLE-GUARDS, enforcing construction of by suit for specific performance, 416, 936. when lessee must maintain, 461, n., 1208. mandamus to compel construction of, 638. requiring company to construct, 724. agreement to put in running with land, 936, n. agreement to maintain as a condition subsequent, 941. damage to crops by failure to erect, 996, n. no extra pay for building, 1060. laws passed after road built applicable, ] 102. cost as element of damage where street is opened, 1103. how to locate at oblique approaches to highways, 1197. definition of, 1198. where must be maintained, 1198. statutes requiring maintenance, 1198. as part of fence, 1198. in cities, towns and villages, 1198. at margin of highways, 1198. between fenced and unfenced track, 1198. not required at private crossings, 1198. what are sufficient, 1198. evidence as to sufficiency, 1198. duty to repair, 1198. effect where obstructed by snow, 1198. brakemen assuming risk of danger from, 1296. CAUSA MORTIS, gift of corporate stock, 96, n. CAUSES, removal to federal courts, 23. See Removal of Causes. CAUSES FOR FORFEITURE, of charter, 47. of corporate franchise, 48. failure to run trains, 49. failure to keep principal office in state, 49. stopping trains for five days, 51, n. CAUSES OF ACTION, misjoinder of, 1215. CEMETERIES, liable for local assessments, 784. when railroad can not be located through, 924. when can not be condemned, 969. 2772 INDEX. {Beferences are to Sections.] Vol. I, §§ 1-3^1, Vol. II, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CERTAINTY, in petition for condemnation of real estate, 1029. CERTIFICATE, tender back on rescisBion, 132. scrip, when redeemable, 319. of consolidation, 326, n. See Engineer's Estimates. CERTIFICATES OF COMMISSIONERS, that rates are reasonable, effect of, 688. CERTIFICATES OF INCORPORATION, evidence of corporate existence, 18. when and by whom granted, 36. See Charter. CERTIFICATES OF RECEIVERS, See Receivers' Certificates. CERTIFICATES OF STOCK, essentials of, 78. effect of possession of, 78. how transferred, 78. when evidence of ownership, 78. how far negotiable, 79. what notice they give, 79, n. new in place of lost, 80. surrender of on transfer, 80, 97. assignment of on transfer, 97. issue of new after transfer, 97. corporation insisting upon surrender of old, 98. effect of accepting and holding, 108. when do not determine right to vote stock, 157. stockholders' right to demand, 157. when scrip certificates resemble, 319. CERTIFICATES TO BONDS, conclusiveness of, 900. CERTIORARI, to review proceedings of railroad commissioners, 704. testing validity of public aid by, 872. as remedy in appropriation cases, 1016, 1054. as remedy for landowner in appropriation cases, 1049. who may apply for writ of, 1054, n. INDEX. 2773 l^Beferences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ 32:2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 CERTIORARI— C'oreiJKMeci. affidavits and counter-affidavits in application for, 1054, n. only questions of law considered on, 1054, n. to review street opening proceedings, 1100. injunction denied where there is remedy' by, 1125. CESTUI QUE TRUST, compensation to in condemnation proceedings, 1003. bound by judgment against trustee, 1003, n. as party to condemnation proceedings, 1025, n. CHAIR OAR, extra compensation for seat in, 200. compensation for riding in, 1626. See Sleeping 0.a.b Comp.\nies. CHALLENGE TO THE ARRAY, of jurors in condemnation cases, 1017. CHANGE OF CONSIGNMENT, by shipper, effect of, 1431. CHANGE OF GRADE, abutter not entitled to compensation for, 1091. at crossings, liability for, 1113. at railroad crossings, 1122. effect on private crossings, 1148. CHANGE OF LOCATION, when authorized, 929. after first location finally completed, 930. after condemnation proceedings begun, 930. damages where there is, 930. causes for, 930. by purchasing right of way, 930. right of landowner to petition for, 930. compensation and damages for, 1004, n. CHANGE OF MUNICIPALITY, effect on public aid, 8-53. CHANGE OP ROUTE, effect on subscriptions, 116. when may be made under land grants, 796. rule where authorized by special charter, 930. legislature authorizing, 930. effect on compensation and damages, 999. Corp. 176 2774 INDEX. [References are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1S90, Vol. IV, §§ 1S91-1703. CHANGE OF A'ENUE, affidavit of secretary in support of, 615, n. CHANGING NAME OF CORPORATION, immaterial amendment, 45, n. CHARGES, when privilege of regulating passes on foreclosure sale, 525, n. power of railroad commissioners to regulate, 689. test of reasonableness, 692. carrier can not make unreasonable, 693. rights and liabilities of connecting carriers as to, 1451. See Freight Charges ; Dejiurragb ; Intbrstate Commerce. CHARITABLE INSTITUTIONS, liable for local assessments, 784. CHARITABLE PURPOSES, property used for exempt from taxation, 781. CHARTER, acceptance of, 17, 34. can not be accepted conditionally, 17. accepting in jurisdiction granting, 17. state withdrawing before acceptance, 17. takes effect upon acceptance, 17. amending in different states, 27. legislative act recognizing corporation is not, 29. special charters and general laws, 34. what constitutes charter, 34, n. conferred by general laws, 34, n. complying with terms upon which charter is granted, 36. particular corporation must be authorized, 37. construction of charter, 38. general rules of construing charter, 38, 919. granting monopolies, 39. perpetual, 39. practical construction of, 40. to build and operate a railroad, 41. what powers included in, 42. amendment of, 43. reserving power to amend, 43. is contract, 43. reserving right to amend or repeal, 43, 56, 770. • INDEX. 2775 \_Beferences are to Sections.^ Vol. I, §§ 1-SSl, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CHARTER- ContUmed. altering street railways, 43. taking subject to future legislation, 43, n. police regulations, 44. material and immaterial amendments to, 45. material amendments, 45. consent of stockholders to amendment, 45. statute authorizing amendment, 46. forfeiture of, 47. judicial determination of forfeiture, 47, 48. causes for forfeiture, 48, 49, 51. implied condition of forfeiture, 48. illustrative cases of forfeiture, 49. duty to declare forfeiture of, 50. waiving forfeiture of, 52. proceedings to forfeit, 53. quo warranto to forfeit, 53. parties to suit to forfeit, 53. forfeiture of in court of law, 54. collateral proceedings against, 53, 55. pleadings in suit to forfeit, 55. judgment in suit to forfeit, 55. repeal of, 56. repeal by exercise of conditional power, 57. repeal where power not reserved, 58. effect of repeal of, 59, 611. repeal of by general laws, 60. subject to general laws, 61. expiration of, 62. distinguished from franchise, 64. supplement to is mere license, 69. giving lien on stock, 99. requiring subscriptions to be made in specified manner, 103. altering route fixed by, 122. authorizing change of route and termini, 122. limiting power to make calls and assessments, 138. construction of provision in regarding calls and assessments, 148. providing remedy for enforcing calls and assessments, 149, n. providing for forfeiture of stock, 150. power of stockholders to amend, 163. when single stockholder may prevent amendment of, 163. conferring power to make by-laws, 191. by-laws must not contravene, 191. prescribing how agents shall be appointed, 204. powers conferred upon officers and agents by, 213. 2776 iKDKX. {^References are tn Sections.^ Vol. I, §§ 1-S21, Vol.11, ^3S-2-918, Vol. Ill, §§ 019-1390,Vol. IV, §§ l.Uil-1703 CHARTER— Oo)iii«Me(Z. fixing number of directors, 239. stockholders proper parties to amend, 250, n. when directors may accept amendment to, 252. conferring power to consolidate, 322. how changes in affect contracts, 344. effect where it prescribes mode of contracting, 345. must be followed in making contracts, 349. conferring authority to purchase connecting lines, 619. forfeiture of for attempted transfer of road, 519. power to dispose of, 519, n. authorizing mortgage with power of sale, 521. receiver where it has been repealed, 550, n. dissolution by repeal of, 606. surrender of on voluntary dissolution, 608. quo toarranto to declare forfeiture of, 609. protection secured by, 657. defense to action to forfeit, 696. as contract between corporation and state, 769. effect of reserving power to alter, 770. when may be amended or repealed, 770. conferring power to grant public aid, 836. rule for construction of, 919. effect of maps and plans referred to in, 919, n. giving right to acquire land for right of way, 938. fixing width of right of way, 973. effect of entry under a void one, 998. granting use of streets, 1076. subject to police power and power of eminent domain, 1098. imposing duty to restore highways, 1105. taken subject to changes by law, 1223. CHARTER FRANCHISE, distinguished from license, 69. CHARTER PROVISIONS, contracting parties bound to take notice of, 350. CHATTEL MORTGAGE, when railroad mortgage need not be recorded as, 494. when receiver may avoid, 537, n. CHECK, payment of subscription by, 106, 110. carrier accepting consignee's, 1530. See B,\ooAGE Checks. INDEX. 2777 [Beferences are to Sections. ~\ Vol. I, §§ 1-3S1, Vol. II, §§ 32£-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CHIEF OFFICER, service of process where he is absent, 622. CHILDREN, duty of street railway company to, 1094. age at which accountable for negligence, 1172. injuries at crossings, 1172. duty to fence against those non sui juris, 1190. when no presumption that they will step from track, 1253, 1757. contributory negligence of parents, 1255. trespasses by, 1255. liability to those who are trespassers, 1259. injured on turntables, 1259. duty to those who are trespassers, 1259. duty to those who are licensees, 1259. contributory negligence on part of, 1259, 1261. inviting or alluring into place of danger, 1259. illustrative cases of injuries to trespassing, 1260. conflicting cases of injuries to trespassing, 1260. duty to in reference to cars, 1260. injured by hand-car, 1260. injured by exploding torpedo, 1260. injured by defective gate in stock yards, 1260. age as affecting negligence of, 1261. effect where non sui juris, 1261. when become sui juris, 1261. seven years old may be guilty of contributory negligence, 1261. presumption as to discretion of, 1261. illustrative cases of contributory negligence of, 1261. negligence in crawling under cars, 1261. negligence in standing on track, 1261. imputing parent's negligence to, 1262. imputing custodian's negligence to, 1262. degree of watchfulness required over, 1262. duty to warn of dangers, 1283. as heirs at law, 1361. rights where father killed by negligence, 1363. who may maintain action for death of, 1368. accepting benefits in relief association, effect, 1387. CHOSES IN ACTION, must be enumerated to be covered by chattel mortgage, 495. effect of dissolution on, 611. disposition of on dissolution, 613. 2778 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CHURCHES, liable for local assessments, 784. when railroad can not be located through, 924. when can not be condemned, 969. CHUTE, injuries on at stock pens, 1404. CINDERS, compensation for damages by, 978. CITY, enjoining laying of tracks in its streets, 630. power to restore streets and recover expense from company, 639. lighting tracks in, 668. regulating speed of trains, 668. may grant public aid, 847. duties at crossings in greater than in country, 1161. fences in, 1195. cattle-guards in, 1198. lookout for trespassers in, 1257. discrimination against, 1676. See Municipal Corporations. CITY FIREMEN, when licensees, 1248. CIRCUMSTANCES, when may be considered in construing deed to railway company, 419. negligence may be inferred from, 1309, 1644. implying acceptance of passenger from, 1578. affecting question of undue preferences, 1676. CIRCUMSTANTIAL EVIDENCE, in cases of injuries to animals, 1214. of setting of fires, 1243. to prove negligence, 1244. CITIZEN, railway company not always a, 21. when railway company is of two states, 23. railroad is of state chartering it, 29. right of private to be relator in suit for mandamus, 643. CITIZENSHIP, where that of corporation is, 23. of railroad in more than one state, 26. INDEX. 2779 [References are to Sections.'] Vol. I, §§ 1-S21, Vol. 11, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CITIZENSHIP— Continued. concurrent legislation affecting, 26. consolidation affecting, 26. efiect of license on, 29. as affected by lease, 29. as affected by authority to condemn land, 29. as affecting right to remove causes to federal court, 645. diverse as ground for removal of causes, 649. CIVIL ACTIONS, actions for enforcement of statutory penalties are, 712. to recover penalties, 713. proceedings in appropriation case are not, 1010. CIVIL ENGINEER, not entitled to enforce personal liability of stockholders, 186. authority to employ agents, 220. See Enginber's Certificates. CIVIL PRACTICE, proceedings by quo warranto governed by rules of, 644. CLAIM OF OWNERSHIP, as affecting title by adverse possession, 948. CLAIMS, when directors may purchase those against corporation, 275. sale on foreclosure subject to, 515. ^ liability of receiver on those arising from operation of the road, 580. CLAIMS FOR INJURY TO FREIGHT, stipulations as to manner and time of presenting, 1512. when must be presented in writing, 1512. burden of proof to show reasonableness of time for presenting, 1512. presentment as condition precedent to right of action, 1512. effect of failure to present within time stipulated, 1512. waiver of stipulation as to time and manner of presenting, 1514. ' delay in presenting caused by act of the carrier, 1514. CLASSIFICATION, of railroad property for taxation, 740. of freight, effect of unreasonable, 1678. CLIMBING ON CARS, as penal offense, 729. 2780 INDEX. IBeferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170S. CLOTHING, as baggage, 1647. introducing that of injured party in evidence, 1700. COAL, railway company no power to deal in, 374. giving group rates on, 1683. COAL CHUTE, action for damages for injury caused by, 631. COAL TRAIN, when person on is a passenger, 1582. "0. O. D.," meaning of, 1425. duty of carrier where goods are so marked, 1530. CO-EMPLOYES, presumption as to employment of competent, 1292. duty to object to incompetency of, 1292. duty to employ competent, 1284. effect of concurrent negligence of, 1306. See Fellow-Sbrvants. COLD, duty to protect freight from, 1478. COLLATERAL ACTION, raising grounds for forfeiture in, 47. COLLATERAL ATTACK, on corporate existence, 18, n. on defective corporate organization, 20. on consolidation, 323, 329, n. on appointment of receiver, 564. on void order of court, 575. on report of master on receivers' accounts, 583. on organization of corporation, 629. on petition for railway aid, 858. on railway aid proceedings, 865. when injunction amounts to, 872. because of irregularity in condemnation cases, 1018. prevails against void proceedings, 1020. on condemnation proceedings where there was no eflort to agree, 1027. INDEX. 2781 [Meferences are to Sections. 1 Vol. I, §§ 1-sn, Vol. 11, §§ sn-918, Voi. in, §§ 919-1390, voi. iv, §§ 1391-1703. COLLATERAL PROCEEDINGS, attempting to declare forfeiture of charter in, 52. in forfeiture of corporate charter, 55. COLLATERAL SECURITY, shares of stock put up as, 92. authority of receiver to pledge, 567. effect of assignment of bill of lading as, 1541. COLLEGES, condemning property of, 964. COLLISIONS, bringing joint action against two companies for injuries caused by, 617, n., 1132, 1635. at railway crossings, 1132. fact of raising presumption of negligence, 1132, 1635. rights of employes and passengers injured in at crossings, 1132. duty of company and traveler to avoid, 1153. with street cars, 1178. because of failure to perform duty to fence, 1191, 1192. with animals on track, 1204. actual collision with animals, 1207. mere proof of does not establish negligence, 1300. injuries to employes by, 1300. duty to stop to avoid, 1589. recovery against two companies for, 1635. contribution among companies causing, 1635, n. See Injuries at Crossings. COLLUSION, in foreclosure sale, effect, 529. discharge of receiver appointed by, 548, 586. removing receiver appointed by, 561, n. effect of in attempting removal of causes, 647. remanding causes from federal court on account of, 655. COLOR BLINDNESS, effect where employe has, 724. COLORABLE SUBSCRIPTIONS, when disregarded. 111, n. COLORED PASSENGER, separate cars for, 200. separate accommodations for, 1665. 2782 INDEX. [Beferenees are to Sections.'] Vol. I, §§ 1-sn, Vol. II, §§ sn-ns, Vol. m, §§ 919-1390, Vol. iv §§ 1391-170S. COMBINATIONS, to prevent voting at meeting of stockholders, 174. to elect board of directors, when lawful, 174. mortgage trustee can not make with bondholders, 535. when those by employes not unlawful, 633. federal power to suppress, 1674. when unlawful, 1674, 1675. COMBUSTIBLE MATERIALS, compelling company to clear from tracks, 668. duty to clear right of way of, 1226. negligence per se in allowing accumulation of, 1226. statutes requiring removal from right of way, 1226. fires set. to remove, 1227. landowner not bound to remove, 1238. See Fires Set by Railway Company. COMITY, permitting corporations to do foreign business, 22. in matter of appointing receivers, 555. allowing receivers to sue in other jurisdictions, 570. in reference to penal statutes, 710. COMMERCE, what power to regulate includes, 725. what it means, 1663. how far states have power to regulate, 1665. railroads essential to, 1675. See Interstate Commerce. COMMERCE AND MANTTFACTURES, federal power over, 1674. COMMERCE CLAUSE, how that of federal constitution affects power of the states, 658. COMMERCIAL PAPER, interest coupons are, when, 486. receiver's certificates are not, 594. railway aid bonds as, 882. bills of lading not negotiable as, 1415, 1428. railroad ticket not negotiable as, 1593. COMMERCIAL TRAVELERS, carrying merchandise as baggage, 1649. INDEX. 2783 [References are to Sections.'] Vol. I, %%1-Sn, Vol. II, §§ Sn-918, Vol. Ill, §§ 919-1S90, Vol. IV, §§ 1391-170S. COMMISSION, promoter must turn over to corporation, 11. right of receiver to, 584. See Interstate Commerce Commission; State Railroad Commissioners. COMMISSIONEES, governing railroads by, 674. making railway aid subscription, 862. delegating power of eminent domain to, 952. acting in condemnation proceedings, 970. appointing to assess benefits and damages, 1015. mandamus to compel appointment of, 1016. stockholders acting as, 1017. should be disinterested, 1017. oath to be taken by, 1018. summoning in appropriation cases, ]024. meeting in appropriation cases, 103-t. determining open and close in appropriation cases, 1035. power to act upon their own knowledge, 1039. right to hear witnesses, 1039, n. when must view premises, 1040. report of in condemnation cases, 1041. setting aside report of for fraud or misconduct, 1041. report of must be in writing, 1041. compensation of, 1041, n. time in which to make report, 1043. their affidavits admissible to impeach their report, 1044. submitting report to court for review and correction, 1045. misconduct of in appropriation cases, 1046. to fix damages caused by railroad crossing, 1119. power to locate crossing, 1119. slightly changing point of crossing, 1120. See State Eailroad Commissioners ; Report of Coji.missionbrs. COMMITTEE, when directors may delegate duties to, 257. COMMON AGENT, liability of connecting carriers for defaults of, 1447. COMMON CARRIERS, individuals may be, 1, n. how far street railways are, 6, 1402. railroads declared to be, 33, 1454, n. not required to deliver goods beyond their lines, 303, 1433. when exempt from garnishment, 624. 2784 INDEX. [Meferenceti are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. COMMON CARRIERS— Com«i)M(e5, 1336. in cases of injuries causing death, 1360. prohibiting carriage of diseased cattle, l.'J47. statute requiring feeding and watering of live stock, 1554. validity of the interstate commerce act, 1666. See Employees' Liability Acts. CONSTITUTIONAL RIGHTS, when may be waived, 1008. CONSTRUCTION, of statutes authorizing condemnation i)roceeilings is strict, 6, n. of corporate charter, 38. giving practical to railway grants, 40. INDEX. 2807 [Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ S^Z-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170.3. CONSTRUCTION— Continued. of contract of subscription, 104. of conditional subscriptions, 117. general rule for construing subscriptions, 126. charter and statutory provisions regarding assessments, 148. of deeds to railroad companies, 415. of statutes authorizing railway leases, 433, 435. of leases, 449. of contract authorizing the use of tracks, 453. of statutes authorizing appointment of receivers, 538. of penal statutes, 710. of statutes creating exemption from taxation, 750. of land grants, 794. of land grants, illustrative cases, 795. of statutes authorizing aid to railroads, 831, 835. of statute granting right to condemn, 955. of grant to use streets, 1080. of statute imposing duty to fence, 1181. of employers' liability acts, 1337, 1338, 1342. of statutes giving right of action for death, 1361. of the interstate commerce act, 1667. See Statutoky Construction ; Liberal Construction ; Strict Construction. CONSTRUCTION COMPANY, stockholder interested in, contract with corporation, 169. power to take stock in railway company, 107. right to condemn can not be delegated to, 959. CONSTRUCTION CONTRACT, president not authorized to make, 285. to whom may be let, 1058. attacking for fraud, 1058. president becoming interested in, 1058. when against public policy, 1058. assignment of, 1058. with receivers, 1058. rules for construing, 1058. when railway company may terminate, 1058, n. effect of insolvency of surety on, 1058. effect of failure of company to appoint engineer, 1059, n. hardship as affecting, 1060, n. recovering on quantum meruit, 1060, n. remedy for breach of, 1062. equity will not decree specific performance of, 1062. when contractor may abandon, 1062. company preventing completion, 1062. 2808 INDEX. [References are to Sections.'] Vol. 7, §§ 1-S21, Vol. II, §§ 33S-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1891-1703. CONSTRUCTION CONTRACT— ContinMed. effect of delay caused by the company, 1062. effect of failure to make preliminary surveys, 1062. effect of failure to secure right of way, 1062. how affected by failure to furilish cars, 1062. waiver of right to terminate, 1062. CONSTRUCTION OF CHARTER, rules for, 919. CONSTRUCTION OF CONTRACTS, construing bills of lading, 1424. particular words and phrases in bills of lading, 1425. of those limiting liability, 1505. See Contracts. CONSTRUCTION OF CROSSING, duty in reference to, 1102. enjoining, 1125. sufficiency of private crossing, 1144. enforcing construction of private crossings, 1145. CONSTRUCTION OF ROAD, within prescribed time, 47. when a condition precedent to payment of subscription, 121. duty to construct, 1056. authority and care required in, 1056. consequential damages, 1057. construction contracts, 1058. liability for injuries caused by, 1057. engineers' estimates and certificates, 1059. extra work, 1060. subcontractors, 1061. remedy for breach of contract, 1062. appointing receiver to complete, 1062. who liable for negligent running of train in, 1063. liability for injuries caused by blasting in, 1063. when company liable for dangerous work, 1063. hability of company for negligence of contractor or servants, 1063. liability of contractor, 1064. joint liability, 1064. rights of laborers, 1065. mechanics' liens, 1066. statutes authorizing lien, 1067. for what lien may be obtained, 1068. upon what lien may be acquired, 1069. INDEX. 2809 [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 33S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CONSTRUCTION OF ROAD— Continued. who may acquire lien for, 1070. mode of acquiring lien, 1071. priority of liens, 1071. assignability of lien, 1073. enforcement of lien, 1074. waiver of lien, 1075. CONSTRUCTION TRAINS, injuries to animals by, 1208. when person on is a passenger, 1582. assumption of risks in riding on, 1629, n. CONSTRUCTIVE ACCEPTANCE, of baggage, 1653. CONSTRUCTIVE DELIVERY, to connecting carrier, 1412. connecting carrier's liability commencing with, 1443. CONSTRUCTIVE NOTICE, to purchaser of corporate stock, 94. of lien on corporate stock, 99. of calls and assessments, 142. in appropriation cases, 1019. is due process of law, 1019. of street opening proceedings, 1100. of defects in fences, 1185. of delivery, 1410. CONTAGIOUS DISEASE, no obligation to carry passengers who have, 1393, n. refusing to carry passenger who has, 1577. contracting on sleeping car, liability, 1618. ejection of passenger who has, 1637. CONTEMPORANEOUS CONSTRUCTION, effect of, 40. CONTEMPT OF COURT, suing receiver without leave of court, 572. interfering with receiver, 575. employes interfering with receivers guilty of, 575. when strikers may be punished for, 633. interfering with road in hands of receiver is, 633. in refusing to obey writ of mandamus, 918. 2810 INDEX. [^Beferences are to Sections. '\ Vol. I, §§ 1-3S1, Vol. II, §§ 3n-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CONTINGENCIES, affecting damages in death cases, 1378. CONTINUING DUTY, duty to restore highway crossing is, 1111. to keep highway crossings in repair, 1112. CONTINUOUS LINES, consolidation of, 323. what are, 447, n. mandamus to compel operation of road as, 638. what is within interstate commerce act, 1667. through rate over, 1686. See CoNNBCTiNG Caerieks. CONTINUOUS TEIP, when passenger must make, 200, 1595. CONTRACT EIGHTS, not to be impaired, 832. illustrative cases of impairment of, 833. constitutional amendments do not affect, 833. CONTRACTORS, not bound to sound whistle, 1, n. when not entitled to priority over mortgage, 500. condemning property in company's name, 959. when right to condemn can not be delegated to, 959. when company not bound by acts of, 959. can not prosecute condemnation proceedings, 1025. right to damages for obstruction of work, 1058. terminating construction contract on account of negligence of, 1058. notice to of taking of measurements, 1059. recovering for changes, 1060. when entitled to pay for extra work, 1060. relation of subcontractor to, 1061 . when may abandon work and recover, 1062. when entitled to recover for loss of profits, 1062. damages where company delays, 1062. when may recover on quantum meruit, 1062, n. liability of company for negligence of, 1063. effect of negligence in selecting, 1063. effect where company pays employes of, 1063. when company liable for trespass of, 1063. when liable for negligence in running train, 1063. when liable for nuisance, 1063. INDEX. 2811 [^Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CONTRACTORS— Contfoaed. liability of company for negligence in selecting, 1063. bear relation of master to servants, 1064. liability of, 1064. when jointly liable with company, 1064. statutes protecting employes of, 1065. giving bond to secure laborers, 1065. can not obtain lien as laborer, 1070. creditor of not entitled to lien, 1070. no duty to fence, 1186. when liable for injuries to animals, 1208. CONTRACTS, rescinding when made with promoter, 12. personal liability of promoter on, 13, promoters fixing own liability by, 13, n. when promoters' bind corporation, 14. ratifying promoters', 14. railroad making as individual, 21. of corporation extending into more than one state, 27. incidents to power to make, 42. implied authority to make, 42. corporate charters are, 43. when corporate charters are not, 56. in reference to transfer of stock, void, when, 95. to subscribe for stock, enforcing, 102. interpreting contract of subscription, 126. of subscription secured by fraud, effect, 127, n. stockholder may make with corporation, 169. power to make rests with directors, 170. by-law impairing obligation of is void, 193. by agents, 216. corporation ratifying when made by agent, 227. what ones may be ratified, 228. directors proper parties to make, 250. when those with directors voidable, 275. validity of between corporation and a director, 276. personal liability of directors on, 279. when president may make, 285. ratification of president's unauthorized, 289, n. power of secretary in reference to, 295. when conductor may make, 302. liability on after consolidation, 333. where consolidated corporation may make, 339. power to make, 340. 2812 INDEX. [References are to Sections.'] Vol. I, §§ 1-S21, Vol. II, §§ Sn-918, Vol. HI, §§ 919-1390, Vol. IV, §§ 1391-1703. CONTRACTS— Continued. mode in which corporations may make, 340. scope of corporate power, 341. general power to make, 342. as to location oi depot, 342. to let other company use track, 342. courts controlling power to make, 343. effect of changes in charter on, 344. formal requisites of, 345. when must be made under seal, 345. effect of formal defects in, 346. who may exercise power to make, 347. by interested persons, 348. between companies with same officers, 348. mode prescribed must be pursued, 349. inferring from corporate acts, 349. parties bound to take notice of charter provisions, 350. unauthorized ones, 351 . effect of notice of power of corporation to make, 351. effect of notice of facts in reference to, 351. estoppel by, 352. ratification of unauthorized, 353. rights of the public and of creditors, 353. when unauthorized ones can not be ratified, 353. in conjunction with other parties, 354. pledge of corporate securities, 355. between connecting lines, 356. permitting use of part of road, 357. regarding terminal facilities, 358. to surrender trafiic to competing line, 359. rule for construction of, 359, n. with municipal corporations for terminal facilities, 360. in reference to use of tracks constructed under grant from municipal corporation, 361. for location of stations, 362. in reference to location of tracks, switches and the like, 363. illustrative cases of those that may be made by railroad companies, 364. pooling, 365. when pooKng are legal, 366. pooling contracts closely scrutinized, 367. definition of ultra vires, 368. defense of ultra vires, 368. effect of those which are ultra vires, 369. executed in wrong mode are ultra vires, when, 369. when are void, 369. INDEX. 2813 [^Beferences are to Sections.l Vol. I, §§ 1-SSl, Vol. II, §§ S22-918, Vol. Ill, §§ 919-1S90, Vol. IV, §§ lS91-170.h CONTRACTS— Continued. what ones are ultra vires, 370. estoppel by those ultra vires, 371. retaining benefit under ultra vires, effect, 371. ultra vires, executed and executory, 372. when may be set aside as ultra vires, 372. cases holding contracts ultra vires discriminated, 373. illustrative cases of ultra vires, 374. rule where statute prescribes consequences of ult7-a vires, 376. injunction as remedy in ultra vires contracts, 376. laches preventing relief on ultra vires, 377. who may contest ultra vires, 378. how creditors affected by ultra vires, 379. non-assenting stockholder assailing ultra vires, 380. prohibited ones, 381. illegal ones, 382. illegal and ultra vires discriminated, 383. classes of illegal ones, 384. void because against public policy, 385. when those as to location of stations and tracks are illegal , 386. general conclusion as to those void against public policy, 387. rule for determining whether against public policy, 387. illustrative cases of those void as against public policy, 388. law essential part of, 403. formal execution of those relating to real estate, 410. effect of those executed under corporate seal, 411. power to make does not authorize leases, 434. validity of as to use of part of road, 440. dependent and independent ones connected with leases, 450. to permit use of track not necessarily a lease, 451. construction and effect of those granting right to use track, 453. lessee not liable for lessor's, 462. lessee's, 475. of bondholders as to rights in reference to suits, 509. when purchaser at foreclosure sale bound by those of old company, 526. when new company liable on after sale and foreclosure, 526. of receivers, 567. power of equity to annul receiver's, 567. court sanctioning those made by receiver, 567. receiver not personally liable on, 576, n. receiver personally liable on unauthorized, 576, n. suing receivers on without leave of court, 573. liability of receivers on, 579. duty of receiver to perform those of the company, 579. how affected by dissolution, 611, n. 2814 INDEX. [Meferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ Sg^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CONTRACTS— Co«JinMed. right of corporation to bring action at law on, 615. when party to estopped to deny corporate existence, 619. when mandamus will not He to enforce, 642. orders of railroad commissioners are not, 687. obligation of can not be impaired, 687. impairing obligation by taxation, 768. when exemption from taxation is, 770. when can not be impaired by constitutional provisions, 819. impairment by amending constitution, 832. created by grant of public aid, 832. vote in favor of public aid does not constitute, 861. when created by grant of public aid, 863. enforcing in reference to railway aid, 863. specific performance of, 935. restraining violation of, 936. power of eminent domain cannot be surrendered by, 950, 963. eminent domain can not be surrendered by, 963. when award of damages is not, 1053. to whom construction contract may be let, 1058. how construction contracts construed, 1058. effect of practical construction by parties, 1058, n. waiving mechanic's lien by, 1075. ordinances becoming, 1079. charters are, 1098. railroad crossings secured by, 1117. enforcing one as to railway crossings, 1118. as to expense of keeping watchmen at railroad crossings, 1129. duty to stop at crossings imposed by, 1130. as to priority of passage at railway crossings, 1130. regulating repairs of railway crossings, 1134. private crossings secured by, 1141. to erect fences, 1188. for performance of statutory duty, 1190. in reference to locating buildings on right of way, 1235. limiting liability for damage by fire, 1236. basis of employer's duty, 1267. employers' liability acts abridging right of, 1334. waiving right of action, validity, 1358. against future negligence, 1376. validity of one against future negligence, 1390. common carrier becoming private carrier by, 1396. requiring shipper to load freight, 1405. bills of lading as, 1415. when that in bill of lading not variable by parol, 1423. INDEX. 2815 [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ SS^-918, Vol. in, §§ 919-1S90, Vol. IV, §§ 1391-170S. CONTRACTS— CoraJinttfid. presumption that bill of lading expresses, 1423. creating extra-terminal liability, 1433, 1434. what constitutes for extra-terminal liability, 1435.. illustrative cases of those creating extra-terminal liability, 1436. excluding extra-terminal liability, 1438. against loss by mobs, 1460. carrier enlarging liability by, 1456. making common carrier liable as warehouseman merely, 1464. how law of place of making affects, 1494. parties naming law that governs, 1494. validity of one fixing value of goods shipped, 1510. fixing freight rate by, 1560. abandoning on account of accident, 1562. validity of one to pay rebates, 1565. ticket as evidence of, 1593. to give passes, 1611. against liability for negligence, 1627. baggage checks as evidence of, 1658. power of states to regulate right to make, 1670. in reference to interchange of freight, 1685. electing to sue on, 1609. CONTRACTS LIMITING LIABILITY, the English rule, 1495. conflict among the American decisions, 1496. when there must be an express contract, 1496. no right to contract against liability for negligence in most jurisdic- tions, 1497. right to contract against liability for negligence in some jurisdic- tions, 1498. right to limit liability prohibited by statute in some states, 1499. right to limit liability by special contract in most jurisdictions, 1.500. must be reasonable, 1500. must be based on consideration, 1500, 1504. nature of special contract required, 1501. limitation in receipt or bill of lading, 1502. parol limitation, 1503. lower rate as consideration for, 1504. construction of, 1505. conflict of laws, 1506. rule where repugnant to policy of the law of the forum, 1506. power of agent to agree to limitation, 1507. stipulation exempting carrier from liability for loss by Are, 1508. stipulations as to insurance, 1509. 2816 INDEX. [^Beferences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ S.12-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-1703. CONTRACTS LIMITING LIABILITY— ConJinMed. stipulation as to value and amount of damages, 1510. stipulation exempting carrier from liability in case of live stock, 1511. stipulations as to manner and time of presenting claims, 1512. miscellaneous stipulations, 1513. waiver of stipulation limiting liability or fixing time and manner of presenting claims, 1514. beneiit of exemption lost by deviation, 1515. burden of proof, 1516. in reference to carriage of live stock, 1557. by sleeping car companies, 1627. eflect on injuries to passengers, 1645. must be specially pleaded, 1696. CONTRACTS OF SUBSCRIPTION, construction of, 104. construction of for court, 104. are several, 105. CONTRIBUTION, among stockholders, 183. in favor of stockholders, 185. on reclamation of dividends, 315. for repairs made at railway crossing, 1134. among connecting carriers, 1452. among companies causing collision, 1635, n. CONTRIBUTORY NEGLIGENCE, freedom from on indictment for causing death, 716. effect where plaintiff guilty of, 1095. in calculation of chances, 1095. of traveler at crossing, 1115, 1163. on part of shipper, effect of, 1516. in use of private crossing, 1151. where there is breach of statutory duty, 1155. where there was flagman at crossing, 1157. in attempting to cross, 1157. where there was flying switch, 1162. when a question of law, 1163. when presumption that there is none, 1163, 1701. who has burden of proving, 1163. when a question of fact, 1163. when a mixed question of law and fact, 1163. illustrative cases of at crossings, 1164. rapid driving where view of crossing obstructed, 3164. in approaching crossing with eyes and ears covered, 1164. INDEX. 2817 IBeferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. 11, §§ 3SS-91S, Vol. Ill, §§ 919-1.390, Vol. IV, §§ 1391-1703. CONTRIBUTORY NEGLIGENCE - Continued. traveler approaching crossing with mind absorbed, 1164. in crossing track immediately behind train, 1164. in failing to stop before crossing tracli, 1167. in passing under, over or between cars, 1169. when a question of law, 1169. in failing to use ordinary prudence, 1171. on part of children and infirm persons, 1172. intoxication as element of, 1172. rule where person acts in sudden peril, 1173. does not apply where there was willfulness, 1175, 1251, 1254, 1642. where person is injured at defective crossing, 1176. that of street car driver not imputed to passengers, 1178. when there is not in allowing animals to run at large, 1180. where landowner knows of defective fence, 1185. of owner of animals, 1206. when animals are injured, 1209. in allowing animals to run at large, 1209. turning stock into field defectively fenced, 1209. in abandoning animals, 1210. where there is breach of statutory duty, 1214. freedom from as part of case where animals are injured, 1214. violation of ordinance not conclusive proof of, 1214. in exposing property to fire, 1235, n. where property is destroyed by fire, 1238. defense of not defeated by changing burden of proof, 1238. none in failing to put out fire breaks, 1238. submitting question of to jury in fire casej, 1238. by trespassing, 1254. on part of parent, 1255. in trespassing on railway track, 1257. on part of children, 1259, 1261. when child seven years old guilty of, 1261. illustrative cases of children's, 1261. imputing that of parents to children, 1262. where horses are frightened, 1264. when mere knowledge does not amount to, 1271, 1345. in brakeman standing on top of car, 1271, n. in failing to conform to schedules, 1281. where employe fails to remedy defects, 1293. of engineers, 1297, n. in cases of collisions, 1300. on part of employe in going outside scope of employment, 1303. on part of employes, 1313. burden of proof with respect to, 1313. 2818 INDEX. [Beferences are to Sections.} Vol. I, §§ 1-SSl, Vol. 11, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170.3. CONTRIBUTORY NEGLIGENCE— Contwraed. in disobeying rules or orders, 1313. in failing to guard against dangers, 1313. in leaving line of dut}', 1313. directing a verdict where there was, 1313. illustrative cases of on part of employes, 1314. employe acting upon assurance of employer, 1314. effect where employe acts in an emergency, 1314. effect of inconsistent orders, 1314, n. violation of statutory duty as, 1315. effect of employers' liability acts, 1344. knowledge of defects as, 1345, n. effect on presumption of negligence, 1350. how employers' liability acts affect, 1357. in injuries causing death, 1374. relying on in actions for injuries causing death, 1374. effect of, 1374, n. as applied to street railway companies, 1402, n. where there is loss by the public enemies, 1458. where live stock is injured, 1548. of owner where live stock is injured, 1550. in riding in dangerous place, 1581, n. of persons riding on pass, 1609, n. of passenger on sleeping car, 1622. in loss of property on sleeping car, 1624. in assuming place of danger, 1628. when passenger not guilty of in alighting from train, 1628, 1628, n. when standing on platform of car is or not, 1630. to ride on pilot or cow catcher, 1632. in standing up in passenger car, 1633. none in leaping from train to avoid collision, 1635, n. effect of in action for injuries to passengers, 1642. of passenger as to loss of baggage, 1654. in failing to read baggage check, 1655, n. burden of showing freedom from, 1696. when plaintiff must prove freedom from, 1696. no presumption of freedom from, 1701. CONVENIENCE, ^ as an element in determining grade crossing, 1123. CONVERSION, appointing receiver when officers guilty of, 547. authority of receiver to sue for, 568. by the carrier, trover will lie for, 1519, n. INDEX. 2819 [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CONVERSION— CoK«Mraed. when misdelivery of goods by carrier amounts to, 1526. when carrier liable for, 1692, n. CONVERTIBLE BONDS, when may be issued, 483. can not ordinarily be sold at a discount, 483. effect of consolidation on, 483. negotiabiUty of, 484. CONVEYANCE, mode of execution, 410. construction of that to railroad company, 934. grantee essential to, 933. validity of that executed before organization of company, 933. effect of one by husband only, 934. of right of way, effect of, 937. conditions subsequent in, 941. when making and recording plat amounts to, 947. how affects right to compensation and damages, 1025. how conveyance of right of way affects right to private crossings, 1138. CORAM NON JUDICE, proceedings are where there is no jurisdiction, 1014. CORPORATE ACTS, jurisdiction where performed, 24. when are void, 164. inferring contracts from, 349. CORPORATE BOOKS, transfer of shares on, 78. as evidence of stockholders' right to vote, 157. stockholder not chargeable with knowledge of entries in, 171. mandamus to secure right to inspect, 172. right of stockholders to inspect, 172. right of director to inspect, 271, n. CORPORATE BUSINESS, appointing receiver to continue, 545. CORPORATE CHARTER, construction of, 38. is contract, 43. power of legislature to repeal, 57. See Charter. 2820 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1300, Vol. IV, §§ 1391-1703. CORPORATE CONTRACTS, stockholder not chargeable with knowledge of, 171. mode of executing, 410. See Contracts. CORPORATE CREDITOR, can not institute forfeiture proceedings, 48, n. setting aside sale of stock to the corporation, 95. money paid on stock trust fund for, 110. not affected by invalid conditions in subscriptions, 112. secret agreements as to subscriptions amount to fraud against, when, 131. when may have forfeiture of stock annulled, 154. equity interfering in behalf of, 176. suing for unpaid calls, 182. property trust fund for on dissolution of corporation, 613. See Cebditoes. CORPORATE DEBTS, making calls to pay, 146. enforcing unpaid subscriptions to pay, 179, 183. when directors personally liable for, 282. CORPORATE ELECTION, when stockholder may enjoin holding of, 634. CORPORATE EXISTENCE, admission of, 53, n. duration, 62. terminates on sale of franchises, 75. effect on right to hold real estate, 400. grantor of real estate estopped to deny, 408. when admitted by pleading general issue, 616. effect of failure to allege, 616. effect of verified plea denying, 616, n. estoppel to deny, 619. estoppel to question by issuing aid bonds, 898. raising question of in condemnation proceedings, 957. how appointment of receiver affects question of, 958. CORPORATE FRANCHISE, transfer of, 37. construction of, 38. subject to forfeiture, 48. causes for forfeiture, 48. abuse of, 48. INDEX. 2821 [^References are to Sections. 1 roll, m-321, Vol. 11, USSZ-918, Vol. HI, ^^919-1390, Vol. IV, ^ 1391-1703. CORPORATE FRANCHISE— ConKwed. quo warranto to question, 53. when abuse of is not ground for repeal, 58. definition of, 63. grant of, 65. nature of, 67. distinguished from corporate rights, 68. judicial sale of, 72. taking under power of eminent domain, 967. distinguished from franchise or license to use streets, 1077. See Franohisks. CORPORATE FUNDS, restraining unauthorized use of, 27. liability of treasurer for loss of, 294. treasurer has care of, 294. power to donate to concerts, etc., 374. using for lobbying purposes, 374. right of stockholders to enjoin diversion of, 634. CORPORATE GRANT, giving practical coistruction to, 40. CORPORATE IMMUNITIES, distinguished from franchises, 63. CORPORATE NAME, stating in articles of association, 18. stating in charter, 36. exclusive use of, 36, n. effect of unauthorized attempt to change, 51. CORPORATE OFFICERS, subscribing for stock, 107. compensation of, 230. care required of, 233. guilty of crimes, 709. duties in reference to taxation, 742. distinguished from agents and servants, 1266. CORPORATE ORGANIZATION, perfecting, 19. waiving defective, 20. CoEP. 179 2822 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§5«-9-ZS, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CORPORATE POWERS, acceptance of, 16, n. unauthorized assumption of, 20. user of as evidence of corporate existence, 18. directors usually exercise, 235. scope of in reference to contracts, 341. effect of contracts beyond, 370. grants of to be strictly construed, 906. rule for construing grants of, 955, n. CORPORATE PRIVILEGES, authority to dispose of, 71. CORPORATE PROFITS, when creditors may reach, 309, n. CORPORATE PROPERTY, transfer of does not transfer corporate franchise, 37. effect of repeal of charter on, 59. effect of sale of on franchise, 51, n. limitation of right to sell, 70. sequestration of, 73. power of sequestrator to sell, 73, n. may exceed amount of capital stock, 76. distinguished from capital stock, 76. right of stockholders to purchase, 169, n. by-laws regulating management of , 191. stockholders, not co-owners of, 237. directors can not dispose of, when, 252. directors can not give it away, 274. purchase of by directors, 276 n. power of directors to sell, 285. unauthorized sale of by superintendent, 297. taxation of, 738. CORPORATE RECORDS, need not show acceptance of charter, 17. right of stockholders to vote determined from, 157. right of shareholder to inspect, 265. as evidence of directors' proceedings, 266. proving contents of lost, 267. CORPORATE REPRESENTATIVES, appointment of, 203. railroad companies act through, 203. statutory privileges bestowed on, 205. INDEX. 2823 {^References are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 33S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CORPORATE REPRESENTATIVES— ComSiTOed. officers generally, 206. qualification of officers, 207. election of officers, 208. agents, generally, 209. proof of the existence of the relation of principal and agent, 210. proof of authority, 211. agency inferred, 212. powers, duties and authority of officers and agents generally, 213. authority of agent, 214. line of duty, 214. scope of authority, 215. general doctrine as to contracts by, 216. declarations and admissions of agents, 217. declarations must relate to transaction or event in controversy, 219. exercise of authority by agents, 220. illustrative cases of scope of authority, 221. physicians and surgeons, 222. authority to employ surgeons, 222. delegation of power to by directors, 224. employment of subagents and servants, 225. notice to agents or officers, 226. ratification of their acts, 227. acts that may be ratified, 228. compensation of officers, 230. individual liability of for their torts, 231. bonds of officers and agents, 232. distinguished from agents and servants, 1266. CORPORATE RIGHTS, distinguished from corporate franchise, 68. authority to dispose of, 71. are subject to the police power, 663. CORPORATE SEAL, making by-laws under, 195. enacting rules and regulations under, 198. contracts executed under, evidence, 411. by whom must be affixed, 411. as evidence of authoritative execution of mortgage, 491. answer in garnishment under, 625. effect of absence from municipal aid bonds, 881. CORPORATE SECURITIES, pledge of, 355. See Bonds ; Mortgages. 2824 INDEX. [References are to SecUonf.} Vol. I, §§ 1-3S1, Vol. II, §§ S2S-918, Vol. Ill, §§ 9J9-1.W0, Vol. IV, §§ 1391-llOi. CORPORATION, may operate railroad, 1. buying property from a promoter, 12. when bound by contract of promoter, 14. ratifying promoters' contracts, 14. legislative authority essential to creation of, 15. definition of, 15. effect of acting as without authority, 15. creation by special charter, 16. words sufficient to create, 16. when existence begins, 16. accepting charter, 17. creation under general laws, 18. filing of proper articles brings into existence, 18. evidence of its existence, 18. complying with statute in organizing, 18, n. confining to jurisdiction creating, 22. doing foreign business, 22. citizenship, 23. removing causes, 23. adoption by foreign state, 23. residence of, 24. acting by agent in foreign state, 24. formed by federal authority, 25. relation to incorporating state, 26, n. amending its charter, 27. result of consolidations, 28. complying with terms upon which charter is granted, 36. term of existence, 36. when completely organized, 36. particular one must be authorized, when, 37. charter strictly construed against, 38. power to take and convey lands, 42. subject to police power, 44. duration of its existence, 62. franchise of being a, 68. franchise of being can not be sold, 72. franchises of subject to power of eminent domain, 74. lien upon stock, 79. guaranteeing bonds of another company, 86. liability for permitting stock to be wrongfully transferred, 92. liable for permitting trust stock to be wrongfully transferred, 94. right to buy and sell stock, 95. when may invest in stock of another corporation, 95. waiving registration of stock, 98. INDEX. 2825 [^References are to Sections.'] Vol. I, §§ l-SSl, Vol. II, §§ SSS-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-l~n.3. COEPOR ATION— Continued. refusing to register transfer of stock, 98. lien of on stock, 99. waiving lien on stock, 101, n. ratifying preliminary contract to take stock, 102. waiving right to avoid subscription, 106. can not subscribe for its own stock, 107. subscribing for other corporate stock, 107. selling stock for less than par value, 110. adopting subscription taken without authority, 128. chargeable with frauds and representations of agents, when, 128. declaring forfeiture of stock, 149. levying execution on stock, 149, n. eflect of forfeiture of stock by, 151. when may set aside forfeiture of stock, 154, n. may be compelled to make registry of stock, 157, n. right to vote as stockholders, 159. when may acquire stock in other corporations, 159. when single individual may form, 161. power of stockholders to dissolve, 163. stockholder acting as agent for, 170. as party to creditor's bill, 182, n. effect of refusing to bring suit, 165. making it a defendant to a suit which it refuses to bring, 165. may contract with stockholder, 169. permitting stockholders to inspect books, 172. exhausting remedy against before reaching unpaid subscriptions, 179, n. how judgment against affects stockholders, 180. can not enforce statutory liability against stockholders, 187. judgment and execution against, 188. power to make by-laws, 191. when bound by acts of agents, 212, 213. when bound by declarations and admissions of agents, 217. notice to through agents and officers, 226. what constitutes ratification by, 229. right to require bonds of officers, 232. when governing board is, 236. board of directors represents, 237. when bound by admissions and declarations of directors, 269. directors dealing with, 276. when president has authority to act for, 283. when not bound by president's acts, 288. president dealing with, 290. authority of treasurer to bind it, 292. 2826 INDEX. [References are to Sections.'] Vol. I, §§ 1-3S1, Vol.11, ^ 32^-918, Vol. Ill, §§ 919'lS90,Yol. IV, §§ 1391-170S. CORPO RATION— Continued. when bound by superintendent's acts, 297. to whom it should pay dividends, 306. liability for allowing life tenant to transfer stock, 308. when may reclaim dividends, 309. how stock dividend affects solvency of, 320. when not changed by consolidation, 324, n. dissolution by consolidation, 335. general power to contract, 340. limit of its power to contract, 341. person contracting with bound to know powers of, when, 344. contracting with each other where directors are .same, 348. following prescribed mode for making contracts, 349. when estopped by its contracts, 352, n. what powers it may exercise, 370, n. injunction against to prevent making of ultra vires contract, 376. eflect of making contract against public policy, 385. power to acquire and hold real estate, 391, 392. effect of conveyance of real estate which it is not authorized to hold, 397. by what offlcgrs it may execute conveyance of retil estate, 414. general power to convey real estate, 424. trustees represent, 514, n. may be purchaser at foreclosure sale, 521. when not destroyed by foreclosure sale of property, o2."i. constituting purchasers at foreclosure sale a, 531. liability of that formed by purchasers at foreclosure; sale, 532. courts reorganizing, 536. appointing receiver upon application of, 551. may be receiver for another corporation, 561. dissolution of not effected by appointment of receiver, 563. right to sue suspended by appointment of receiver, 568. liability of during receivership, 581. liability of acts of receiver, 581. existing without property, 601. when it is deemed insolvent, 601. assignments by, 602. preferences to creditors by, 603. loans to by directors, 604. preferring stockholders and officers, 604. voluntary dissolution of, 608. dissolving in one state, 610. qualified existence after dissolution, 612. right to sue for and recover damages, 616. power to sue, 615. INDEX. 2827 [Beferences are to Sections.'^ Vol. I, §§ 1-SSl, Vol. II, §§ 3gS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CORPORATION— ContiTOted. suing and being saed as an individual, 615, n. actions and suits against, 617. liability to suits similar to that of individual, 617, n. power over litigation, 618. power to compromise and arbitrate suits, 618. as party defendant to suit by stockholder, 620. venue of actions against, 623. when existence of can not be collaterally attacked, 629. citizen of state incorporating it, 649. adoption so, as to make it a domestic corporation, 649. a "person" within the constitution, 660, 709. entitled to constitutional protection, 661. when indictment lies against, 709. amenable to penal statutes, 709. methods of taxing, 738, 741. duty as to returning property for taxation, 742. foreign state levying excise tax on, 762, n. fees for right to be are not taxes, 766. as persons, 773. taxation of those deriving rights from the United States, 778. rule as to public aid where it is both public and private, 814. right to take private property for public use, 953. condemning property of, 964. what estate it secures by condemnation, 970. stockholders acting as appraisers and commissioners, 1017. paying costs and expenses in appropriation cases, 1031. when may have lien on road, 1070. municipal corporations no inherent power to create, 1076. existence not terminated by appointment of receiver, 1208. interstate commerce commission is not, 1672. ■ See Actions by and Against Coepobations. CORPORATION DE JURE, evidence of existence of, 36. COSTS, exact amount need not be stated in decree, 515, n. receiver not personally liable for, 576. as affecting removal of causes, 651. before state railroad commissioners, 695. in appropriation cases, 1031. as affecting right to grade crossings, 1122. as an element in determining whether crossing shall be at grade, 1123. of keeping watchmen at railway crossings, 1129. 2828 INDEX. [Beferences are to Sections.] Vol. I, §§ I-SISI, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. COUNSEL, power of president to employ, 285. authority of receiver to employ and pay, 566. See Attorneys. COUNTER AFFIDAVITS, as to necessity for a receiver, 558, n. where writ of certiorari is asked, 1054, n. COUNTER CLAIM, against claim for dividends, 310. how affects right to remove to federal court, 648. See Set-Off. COUNTERFEIT MONEY, fare can not be paid in, 1603, n. COUNTY, naming each one through which road passes, 18, 36. where railroad mortgage must be recorded, 494, n. in which railroad company may be sued, 623, n., 1691, n. assessing railroad property by, 737, n. can not aid road outside of county, 835. a portion, of granting public aid, 846. may grant public aid, 847. owning and voting stock, 873. filing map of proposed route in each county where road is, 927. assessing damages to land in two counties, 992. in which to commence appropriation proceedings, 1014. competency of resident of as a juror, 1017, n. filing notice of lien in different counties, 1071. COUNTY COMMISSIONERS, consenting to highway crossings, 1101, n. COUNTY SEAT, validity of statute compelling trains to stop at, 668. COUNTY TOWNS, mandamus to compel trains to stop at, 638. COUPLERS, requiring automatic, 754. using those of unequal heights, 1296. assuming risks of, 1296. duty to supply safe ones, 1296. inspection of, 1635. INDEX. 2829 \_Beferences are to Sections.'] Vol. I, §§ 1-S^l, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. COUPLING CARS, assumption of risks in, 1296. ' disobeying rules in, 1314, n. watchman doing under direction of conductor, 1342. duty to passengers in respect to, 1589. COUPON TICKETS, nature of contract contained in, 1596. effect wliere coupons are detached by accident, 1597. how to detach from mileage ticket, 1600. conductor refusing to accept detached, 1600. COUPONS, how unpaid affect negotiability of bonds, 484. when days of grace allowed on, 484, n. what form they should be in, 485, n. right of detached to participate in mortgage security, 486. priority among interest coupons, 487. COURSE OF ROAD, changing is material amendment, 45, n. COURT, power to sell entire road, 27. duty to declare forfeiture of railway charter, 50. construing contract of subscription, 104. may direct receiver how to vote stock, 158. determines reasonableness of corporate by-laws, 193. when will control corporate power to contract, 343. power to decree sale of road in more than one state, 515. reorganization by, 536. discretion in appointing receivers, 540. power of to direct application of corporate revenues, 549. what may appoint receivers, 552. recognizing receivers of other jurisdictions, 555. first acquiring jurisdiction retains it, 553. receiver an officer of, 561. controlling receivers, 566. advising receiver as to expenditures, 566. giving receivers authority to sue, 568. granting leave to sue its receivers, 572. giving protection to receivers, 575. duty of receivers to account to, 583. power to remove and discharge receivers, 586. power to authorize issuing of receivers' certificates, 589. railroad commission is not, 675. 2830 INDEX. [References are to Sections.'] Vol. 7, m-Sn, Vol. II, §§ 323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. COURT— Continued. railroad commission held to be, 685, n. ■will not fix rates, 691. no power to levy taxes, 736. when may determine question of public use, 954, n. appointing appraisers to assess benefits and damages, 1015. notice of time of holding, 1034. discretion as to ordering view, 1040. approving report of commissioners, 1041. can not be deprived of jurisdiction by contract, 1059. looks with favor upon agreements securing railway crossings, 1117. when due care a question for, 1163. when contributory negligence a question for, 1163. directing a verdict in crossing cases, 1179. when may determine places where fences required, 1202. determining that child is guilty of contributory negligence, 1261. reasonableness of freight charges a question for, 1560. when must withdraw case from the jury, 1702. COURT COMMISSIONER, no authority to appoint receiver, 552. COURT OF ERROR, appeal to in appropriation cases, 1053. COVENANTS, what ones run with the land, 420, 945. how those in leases are enforced, 450. how those in lease affected by dissolution, 611, n. construing conditions as, 939. what ones do and do not run with the land, 945, 946. distinguished from conditions, 945. company bound by those in deeds, 945. notice of, 945. definition of one running with the land, 945, n. illustrative cases of, 946. subject to eminent domain power, 963. to give passes, 1611. COW-CATCHER, contributory negligence to ride on, 1632. CREDIT, power to lend to another corporation, 481. INDEX. 2831 {^Beferences are to Sections.'] . Vol. I, §§ 1-3S1, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CREDITORS, distribution to by sequestrator, 73. holders of preferred stock are not, 83. rights of in reference to watered stock, 90. right to compel payment of par value for stock, 90. settling with by issuing stock at reduced value, 90, n. asking rescission of sale of stock for overvalued property, 91. must affirm or rescind in toto, 91. when may attack sale of stock for less than par value, 110. payment for stock as against, 110, n. voting stock held as collateral, 157, n. setting aside sale of corporate property for fraud, 169, n. capital stock is trust fund for, 175, n. when may enforce unpaid subscriptions, 179. single one can not collect unpaid subscriptions for himself alone, 182. effect where they are stockholders, 183. when may sue single stockholder, 183, n. compromising with stockholders, 183, n. receiver represents, 184. may compel receiver to collect unpaid subscriptions, 184. maintaining action to enforce statutory liability against stockholders, 187. priority among those of a corporation, 189. when directors have same rights as, 276. when have a right to claim dividends, 309. reaching dividends paid by insolvent corporation, 315. consent of not necessary to consolidation, 325, n. reaching property of consolidating corporation, 334. consolidating corporation protecting, 335. right to object to ratification of contract, 353. how affected by ultra vires contracts, 379. effect of leases on rights of, 460. when income bondholders are, 482. when can not become parties to suit to foreclose, 511. what property they may sell on execution, 520, n. becoming purchasers at foreclosure sale, 521. when may have all the rights of bona fide purchasers, 529. right in reorganized corporation after foreclosure sale, 532. when may follow assets after reorganization, 535. right to purchase at foreclosure sale, 535. receiver occupies fiduciary relation to, 537. appointment of receiver at request of, 538, n. equity selling road for benefit of, 539. receiver not appointed because they are dissatisfied, 540. appointing receiver upon application of unsecured, 548. 2832 INDEX. [^References are to /Sections. '^ Vol. I, §§ 1-3S1, Vol. II, §§ 3'^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170.1. CREDITOES— ConM»«ed. appointment of receiver on application of creditor at large, 548, n. appointment of receiver upon application of secured, 549. when may obtain priority over a receiver, 555. when resident creditors will be protected against foreign receivers, 555. when directors become trustees for, 557. when qualified to act as receivers, 561. how affected by set-oft in actions by receiver, 570. when may inspect books of receivers, 583. equity following fund for benefit of, 600. trust fund doctrine in favor of, 600. corporation making voluntary assignment for benefit of, 602. preferring by mortgages, 603. stockholders and ofiicers may be preferred as, 604. right to secure dissolution of corporation, 609. rights of on dissolution of corporation, 609, 614. rights in railway aid bonds, 863. attacking construction contract, 1058. when can attach or garnish against a carrier, 1538. See Corporate Creditor. CREDITOR'S BILL, for whom and against whom it should be brought, 182. when appropriate remedy against stockholders, 1K2, n. when action in state court not bar to one in federal court, 553. CREW, negligence in failing to supply train with sufficient, 1257. CRIME, sending claim to foreign state for garnishment is, when, 627. when injunction will lie to prevent commission of, 631. by corporations, 709. obstructing mails, 727. interfering with interstate commerce, 727. placing obstructions on track, 730. endangering passage of trains, 730. various crimes against railroad companies, 734. when it is to issue passes, 1612. violating interstate commerce act, 1688. See Penal Oppenses. CRIMINAL, carrier refusing to carry, 1577. CRIMINAL OFFENSE, to act as corporation without authority, 15. to employ alien laborer, 1336. INDEX. 2833 [^Beferences are to Sections. '\ Vol. I, §§ 1-3S1, Vol. II, §§ S2S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1.391-1703. CRIMINAL PROSECUTION, federal courts will not enjoin, when, 632, n. CROPS, tenant entitled to damage to under condemnation proceedings, 1003. destroyed as a result of fire, 1247. CROSS-EXAMINATION, of witnesses in condemnation proceedings, 1036, 1037. CROSSINGS, joint contract to maintain, 354. duty of lessee to give signals at, 471. mandamus to compel receiver to construct, 578. mandamus to compel construction of, 639, 698. validity of statute compelling trains to stop at, 668. compelling company to light, 668. stationing flagmen at, 668. power of railroad commissioners over, 682. indictment for failure to repair, 718. indictment for failure to give signals at, 718. allowing trains to stand on, 719. duty to stop at, 721. requiring company to keep signs, gates or flagmen at crossings, 724. requiring cattle-guards at, 724. company determining methods and expediency of, 920. when agreement to put in runs with the land, 936, n. agreement to maintain as a condition subsequent, 941. duty to stop, look and listen at, 1095. mandamus to compel restoration of, 1096. need not to be fenced, 1193. slacking speed of trains at, 1204, n. See Injuries AT Ceossings ; Private Crossings ; Highway Crossings. CROSSINGS OF RAILROADS BY RAILROADS, under right of eminent domain, 975. when may be enjoined, 1049, n., 1125. right of one railroad to cross another, 1116. not affected by manner in which road acquired, 1116. crossing secured by agreement of companies, 1117. agreement to maintain and repair, 1117. damages for breach of contract in reference to, 1118. enforcing agreement as to crossing, 1118. crossings secured under statutory authority, 1119. effort to agree, 1119. showing necessity for crossing, 119. 2834 iNDKx. \_Meferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ S^Z-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CROSSINGS OP RAILROADS BY B.kl'L'ROA.ViS— Continued. sufficiency of petition for, 1119. location of crossing, 1119, 1120. power of railroad commissioners, 1119. effect of award of commissioners, 1119. franchise must not be impaired, 1121. crossings at grade, 1122. crossings above or below grade, 1123. number of crossings, 1124. compensation for taking of property, 1126. elements of damages, 1127. expense of keeping crossings in repair, 1127. expense of constructing crossing, 1128. latest company bearing expense of constructing, 1128. agreement to keep in repair, 1128. companies jointly paying expense of repairs, 1128. watchmen and ilagmen at, 1129. duty imposed by contract to stop at, 1130. duty to stop at crossings imposed by statute, 1131. collisions at crossings, 1132. order and manner in which trains shall pass at, 1132. priority of passage, 1133. maintenance and repair of crossings, 1134. street railways crossing steam railroads, 1135. CROWDED CARS, passengers standing on platform, 1630, 1636. CULVERTS, effect of failure to provide necessary, 937. CUMULATIVE REMEDIES, collection and enforcement of calls and assessments, 150. CUMULATIVE VOTING, when permitted, 160. CURATIVE ACTS, when valid and when not, 843. in reference to proceedings granting public aid, 843. requisites of, 845. validating void bonds, 895. CUSTODIA LEGIS, property in possession of receiver is in, 563, n. INDEX. 2835 [^Beferences are to Sections. "^ Vol. I, §§ 1-3S1, Vol. II, §§ 3^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. CUSTODIANS, imputing their negligence to children, 1262. CUSTODY OF BAGGAGE, rule where passenger retains, 1654. CUSTOM, duty at crossings by, 1154. as affecting right of animals to run at large, 1180. to give signals, effect of, 1252. as affecting duty of inspection, 1278. as affecting obligation of transfer companies, 1399. as affecting delivery and acceptance, 1403. requiring shipper to load freight, 1405. constituting notice of delivery, 1410. as affecting delivery, 1412. as affecting rights, duties and liabilities of connecting carriers, 1452. as affecting duty to furnish cars, 1474. to send bill of lading after receipt of goods, 1502, n. as affecting place of delivery by the carrier, 1519. effect on manner of delivery, 1521. effect on delivery by the carrier, 1522. will not excuse negligence, 1522, n. requiring notice to consignee, 1527. as an element in determining rights and duties of carriers, 1527. as affecting question of reasonable time, 1528. affecting consignee's duty to pay freight, ISSE', n. determining amount of freight charges, 1560. as affecting delivery of baggage, 1653. CUTTINGS, condemning land for, 978. D DAMAGES, to abutters on account of elevated railway, 7. by issue of fraudulent stock, SO. for failure to transfer stock on books, 92 n. for failure to register transfer of stock, 98, for failure to pay for stock subscribed for, 102, n. issuing stock to pay, 110 n. for failing to locate terminus in city voting aid, 118, n. must result from fraudulent representations, 127. recovery for wrongful forfeiture of stock, 154, n. 2S36 INDEX. [Befereiices arc to Sections.'] Vol. I, §§ 1-321, Vol. II, §§ 3n-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DAMAGES— Contmaed. stockholder recovering for negligence or misconduct of corporation, 169, n. unpaid subscription may be collected to pay, 175. on tort, personal liability of stockholders, 185. stockholder recovering because of unauthorized consolidation, 328. when adjacent landholder's claim for superior to mortgage, 500. liability of trustees for, 514, n. purchaser at foreclosure sale not liable for those caused by old com- pany, 526, n. for being excluded from reorganization agreement, 534. appointing receiver without notice to prevent, 556, n. suing receiver in court of law for, 573. receivers liable for those resulting from torts, 577. right of corporation to sue for and recover, 615. payment of as condition precedent to occupying street, 630. from erection of coal chute or water-tank, 631. where two railroads cross, 632. amount claimed is value in dispute in removal of causes, 648, n. right to impose double, 669. for violating statutory duty, 712. in addition to penalty, 714. liquidated distinguished from penalty, 715. for failure to give statutory signals, 721. on account of preliminary survey, 925. for failure to water and feed live stock, 726. no change of location after they have been assessed, 930. where there is change of location, 930. effect of release of by married woman, 934. for breach of contract in reference to right of way, 935, n. those covered in general release of, 937. effect of landowner's receipt for, 937. for right of way, effect of release of, 937. for failure to perform conditions subsequent, 942. as remedy for breach of covenant, 945. for negligence where road is constructed under license, 949. for construction of road, how right tc affected by acquiescence, 949. mode of assessing under eminent domain power, 934. for interfering with drainage, 976. elements of for taking property, 976. where riparian rights are interfered with, 976. for diverting stream, 977. for interfering with lateral support, 977. when benefits can not be set off against, 988. can not be based on conjecture, 994. INDEX. 283"/ [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DAMAGES— OouiireMed. elements of in condemnation proceedings, 996. caused by change of route, 999. for abuse of power of eminent domain, 1031. caused by cutting and grading, 1032. opinions of witnesses as to, 1038. commissioners assessing upon their own knowledge, 1039. effect of excessive award of, 1041, n. including past, present and future in verdict, 1048. for encroachment on adjoining property, 1049. caused by construction of road, 1057. where company causes delay in performing construction contract, 1062. where company delays contractor, 1062. where property does not abut on street, 1086. where railway company fails to restore and repair street, 1092. none for expense in complying with police regulations, 1103. elements of where railroad crosses railroad, 1127. for violating contract to stop at crossings, 1130. for filling up private subway, 1140. for failure to grant private crossing, 1141. for obstruction of private crossing, 1141. for failure to pi;pperly locate private crossing, 1143. for destruction of easement, 1147. for destruction or impairment of private crossing, 1148. for failure to fence, 1181. caused by barb wire fences, 1184. to employe by collision with animals, 1192. for failure to perform statutory duty, 1207, n. demand for where animals are injured, 1216. appraisement of where animals are injured, 1217. measure where animals are injured, 1218. remittitur where excessive damages are given, 1218. awarding exemplary where animals are injured, 1218. liability for those caused by fires, 1222. absolute liability for from fires, 1223. where insured property destroyed by fire, 1234. measure of for property destroyed by fire, 1239. for personal injuries caused by fires, 1247. limiting in death cases, 1360. measure of for injuries causing death, 1378. when gratuitous bailee liable for, 1389. caused by misdescription in bill of lading, 1422. what initial carrier liable for, 1441. for furnishing unsuitable cars, 1448, n. COKP. 180 2838 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. n, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DAMAGES— Continued. for change of route, 1449. for refusal to carry, 1466. as result of undue preference, 1469. for failure to furnish cars, 1473. caused by delay in furnishing cars, 1474. caused by unreasonable delay, 1482. for failure to care for goods during delay, 1486. stipulating amount of in case of loss of freight, 1510. when to present claim for those to freight, 1512. for failure to receive live stock, 1547. for failure to feed and water live stock, 1554. for delay in shipping live stock, 1555. setting off against freight charges, 1558. for breach of contract to give passes, 1611. for failure to furnish berth, 1620. for being ejected from train, 1637. for loss, injury or delay of baggage, 1660. action for for refusal to carry, 1691. punitive or exemplary, 1693. compensatory, 1693. See Benefits and Damages ; Compensation and Damages ; Liquidated Damages. DANGER, track as warning of, 1153, 1157, 1163. care must be proportioned to, 1156. persons voluntarily going into place of, 1173. inviting or alluring child into, 1259. care must be proportioned to, 1273, 1590. duty to warn employes of, 1283. obtaining knowledge of from fellow-servant, 1283. duty to warn children of, 1283. remaining in service after knowledge of, 1288. servant voluntarily going into place of, 1303. contributory negligence in failing to guard against, 1313. effect where carrier has knowledge of, 1584. contributory negligence in assuming place of, 1628. steps of car as place of, 1630, n. DANGEROUS GOODS, right to refuse to carry, 1466. DANGEROUS MACHINES, cars are not, 1260. INDEX. 2839 [^Beferences are to Sections.'] Vol. I, §§ 1-381, Vol. II, §§ SS2-918, Vol. Ill, §§ 919-1390, Vol. IV, §U391-1703 DANGEROUS PLACE, ejecting trespasser at, 1255, n. contributory negligence in riding in, 1581, n. injury to passenger while riding in, 1632. DANGEROUS SERVICE. injuries to employes by, 1302. DATE, effect of omission in proxy, 162. DAYS OP GRACE, when allowed on coupons on bonds, 484, n. when interest coupons entitled to, 487. DE FACTO BOARD, calls and assessments made by, 136. DE FACTO CORPORATIONS, what are not, 20. special legislation affecting, 20. validity of conveyance to, 409. validity of mortgage by, 497. estoppel to deny contract with, 619. validity of subscription to, 848. what necessary to constitute, 957. when organization can not be questioned in condemnation proceed- ings, 957. how to question rights of, 957. exercise of right of eminent domain by, 957. DE FACTO DIRECTORS, illustrative cases of, 246. two boards, 247. DE FACTO OFFICERS, service of process on, 621. validity of railway aid bonds executed by, 913. DEAF PERSON, duty at crossings, 1172. DEATH, revokes conditional subscription, 112, n. effect on trust deed, 501. when receiver liable for that of employe, 577, n. indicting railroad companies for causing, 716. 2840 INDEX. {Beferences are to Sections.] Vol. I, §§ i-SSl, Vol. II, §§ SSS-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. DEATH— Continued. revoking license, 949. effect on condemnation proceedings, 1025. effect on engineers' estimates, 1059. caused by fire set by railway company, 1247. injuries resulting in death, 1359. during pendency of action, effect, 1375. See Injukibs Resulting in Death. DEBENTURES, definition and nature of, 504. DEBRIS, damages from throwing on adjoining lands, 1057. DEBTS, should be paid in preference to dividends, 81, n. corporation taking shares of stock in payment of, 95. lien on stock to secure, 100. issuing stock to pay, 110. making assessment on stock to pay, 148. director's right to take security for his, 169. when stockholders are severally and jointly liable for, 185. what ones stockholders not personally liable for, 186. when stockholders liable for as partners, 190. power of agent to contract, 220. when dividends become, 305, 310. how affect right to pa)' dividends, 316. consolidated company subject to what ones, 329. extent to which may be enforced against consolidated company, 334. holding consolidated company for, 338. when must be assumed on sale and reorganization, 526. effect of assumption of on sale and reorganization, 526. what ones are preferred on foreclosure sale, 528. duty of receiver to pay, 566, n. capital stock trust fund for payment of, 600. corporation insolvent when unable to pay, 601. eSect of dissolution on, 611. can not be escaped by dissolving corporation, 608. disposition of on dissolution, 613. constitutional limitation upon power of municipalises to incur, 820. DECAY, notice of tendency to, 1278. caused by inherent nature of goods, 1481. INDEX. 2841 ISeferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 32^-918, Vol. in, §§ 919-1S90, Vol. IV, §§ 1391-1703. DECEASED SHAEEHOLDEE, enforcing statutory liability against, 189. DECLAEATIONS, to establish relation of principal and agent, 210. of agents, 217. must relate to transaction or event in controversy, 219. by directors, 269. when superintendent's bind company, 297. when station agent's bind company, 303. See Admissions ; Complaint ; Pleading. DECEEE, on foreclosure of mortgages, 515. what it is final as to, 515. effect on parties without notice, 516. by consent, 516. deficiency, 517. final and appealable, 518. declaring dissolution of corporation, 607. DEDICATION, of land for use as a highway, 425. acquiring right of way by, 932. when will not be presumed, 947. effect of common law dedication, 947. by properly executed plat, 947. of land to use of railroad company, 947. easement acquired by, 947, n. when governed by statute, 947, n. as affecting duty to fence, 1193. DEED, to corporation not in existence, 409. accepting by parol, 412. who executes company's, 414. construction of those to railroad companies, 415, 416. effect of designating purposes for which land is conveyed, 419. merger of preliminary agreement in, 421. effect of one from one tenant in common, 934. effect of failure to perform conditions in, 940. remedy where company fails to perform conditions subsequent in, 942. when equity will cancel, 944. company bound by covenants in, 945. effect of conveyance of easement by, 949. 2842 INDEX. IBeferences are to Sections.'i Vol. I, §§ 1-3S1, Vol. II, §§ 3^g-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DEEDS AND DOCUMENTS, when are not baggage, 1647, n. DEEDS OF TRUST, recording, 501. authority to execute, 501. DEFAULT, as ground for foreclosure of mortgage, 505. foreclosure for in payment of interest, 507. how affects time for bringing suit to foreclose, 514. sale on in payment of interest on bonds, 522. not necessary for appointment of receiver, 544. in payment of indebtedness as ground for appointing receiver, 545. removal of receiver on account of, 583. liability of connecting carriers for, 1434, 1447, 1448. DEFECTIVE CARS, injury to live stock by, 1548. DEFECTIVE CROSSINGS, injuries at, 1176. evidence to show notice of, 1177. DEFECTIVE DESCRIPTION, how may be remedied, 1029. DEFECTIVE FENCES, notice of, 1185. burden of proof to show knowledge of, 1185. effect where landowner has knowledge of, 1209. DEFECTIVE MACHINERY, exhibiting to jury, 1700. See Appliances. DEFECTIVE MORTGAGES, effect of, 502. DEFECTIVE ORGANIZATION, waiver of, 20. collateral attack on, 20. effect of delay in attacking, 20. legislature ratifying, 20. DEFECTIVE TRACK, effect of switchman's knowledge of, 1290. INDEX. 284o IBeferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 3£2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DEFECTS, curing in corporate organization, 20. receivers liable for injuries caused by, 577. effect of formal in municipal aid bonds, 881. inspecting foreign cars for, 1279. what ones employe assumes risk of, 1288, 1311. effect of knowledge of, 1288, n. employe bound to use ordinary care to remedy, 1293. continuing to work with knowledge of, 1295. notifying employer of, 1296. rule as to master's knowledge of, 1307. when master chargeable with knowledge of, 1307. effect of discovery after accident, 1308. knowledge of on part of employe, 1311. averring and proving lack of knowledge of, 1311. evidence of employe's knowledge of, 131-. duty of employes to complain of, 1345. knowledge of as contributory negligence, 1345, n. what are within employer's liability acts, 1347. when existence of a question of fact, 1347. must be proximate cause of injury, 1349. mere existence does not show negligence, 1349. rule where not attributable to employers' negligence, 1349. injury to goods from those in cars, 1480. See Latent Defects; Obvious Defects. DEFENDANT, in mortgage foreclosure suit, 511. right to remove causes to the federal courts, 645. in condemnation proceedings, 1025. when has burden of proving contributory negligence, 1163, 1313. burden of disproving negligence in fire cases, 1245. DEFENSE, when stockholder may set up one for corporation, 167. stockholders making against judgment against corporation, 180, n. of stockholders to actions to enforce statutory liability, 186. to foreclosure suit, 513. to suits by receivers, 569. which garnishee may set up, 625. to quo warranto proceedings, 644. to municipal subscriptions, 870. to municipal aid bonds in hands of bona fide holders, 898. to municipal aid bonds, 913. 2844 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. 11, §§ 3^2-918, Vol. HI, §§ 919-1390, Vol. IV, §§ 1391-1703' DEFENSE— Continued. by municipality to railway aid bonds, 918. collection of insurance money is not in fire cases, 1234. carrier surrendering goods under legal process, 1537. which carrier may plead, 1695. DEFICIENCY, when there is lien for after sale on foreclosure, 517. DEFICIENCY DECREE, when may be rendered, 517, DEFILE, location of road in, 922. DEFINITIONS, of railroad companies, 1. of railroad, 3. of railway, 3. of railroad track, 5. of right of way, 5. of road-bed, 5. of roadway, 5. of street railway, 6. of elevated railroads, 7. of electric railroads, 8. of cable railroads, 9. of corporation, 15. of material and immaterial amendments, 45. of franchise, 63. of capital stock, 76. of watered stock, 88, of treasurer, 292. of dividends, 304, n. of net profits, 316. of stock dividends, 320. of consolidation, 335. of the term ultra vires, 368. of public policy, 383. of illegal contract, 383. of debentures, 504. of final decree, 518. of receiver, 537. of receivers' certificates, 588. of transitory action, 623, n. of writ of quo warranto, 644. INDEX. 2845 IBeferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 3^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703, DEFINITIONS— ContiBMed. of separable controversy, 650. of domestic commerce, 690, 1671. of interstate commerce, 690, 1671. of reasonable and unreasonable rates, 693, n. of compensation, 693, n. of license tax, 759. of tax, 767, n., 781. of toll, 768, n. of local assessments, 781. of land grants, 793. of want of power, 884. of condition precedent, 940. of covenant running with the land, 945, n. of eminent domain, 950. of special benefits, 989. of general benefits, 989. of market value, 995. of subcontractor, 1061. of independent contractor, 1063. of highway crossing, 1097. of private crossings, 1136. of ordinary care, 1156, 1165. of cattle-guards, 1198. of wing fences, 1199. of remote fires, 1231. of license, 1248. of vice-principal, 1316, 1317. of superior agent, 1317. of terms connected with employers' liability acts, 1338. of train, 1354. of car, 1354. of delivery, 1404. of bills of lading, 1415. of connecting carriers, 1442. of public enemies, 1458. of reasonable time, 1528. of right of stoppage in transitu, 1539. of excessive charges, 1563. of accident, 1584. of fare, 1593. of ticket, 1593. of baggage, 1646. of baggage checks, 1655. 2846 INDEX. [^References are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DEFINITIONS - Continued. of reasonable rates, 1684. of unjust rates, 1684. of commutation and mileage tickets, 1687. DEGREE OF OAEE, required of carriers of passengers, 1585. owing to person riding on pass, 1606. See Cake; Negligence. DELAY, bringing suit to prevent issue of preferred stock, 82, n. in accepting subscriptions, 113. waiving conditions to subscriptions, 115. in completing road, effect on subscriptions, 120. in objecting to forfeiture of stock, effect, 154. effect of in bringing suit to foreclose mortgage, 505. in bringing suit to set aside fraudulent foreclosure sale, 529. in applying for removal of causes, 653. as affecting right to mandamus, 874. allowing interest on account of, 1006. in prosecuting condemnation proceedings, 1032. in performing construction contract, damages for, 1058. in making engineer's estimates, 1059, n. effect of that in construction contracts caused by the company, 1062. in shipment, 1409. liability for that caused by mob, 1459. in furnishing cars, effect of, 1474. when carrier liable for, 1482. as prima facie evidence of negligence, 1483. caused by accidents and obstructions, 1484. railroad company is not an insurer against, 1484. care of goods during, 1486. notice to owner of, 1487. destruction of goods awaiting transportation by fire, 1488. caused by act of owner, 1489. stipulating against liability from that caused by mobs and strikes, 1513. to secure identification of consignee, 1525. caring for live stock during, 1555. snowstorm excusing, 1655. atmospheric conditions excusing, 1555. carrier not insurer against, 1555. what amounts to unreasonable in shipping live stock, 1555. in carriage of live stock, 1555. effect of that in unloading cars, 1567. in carriage of baggage, 1660. See Laches ; Unreasonable Delay. INDEX. 2847 [Beferences are to Sections. 1 Vol. I, §§ 1-3S1, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DELEGATION OF AUTHORITY, to make calls on shareholders, 135. by directors, 224. by board of directors, 257. by directors, illustrative cases of, 258. DELEGATION OF DUTIES, what duties may be delegated, 1276. to promulgate rules, 1280. in reference to time-tables, 1281. to instruct as to dangers, 1283. DELIVERY, on transfer of shares of stock, 97. of .subscription, 114. to transfer company, effect of, 1399. to person named in bill of lading, 1426. by assignment of bill of lading, 1428. connecting carrier's liability commences with, 1443. DELIVERY AND ACCEPTANCE, liability begins with delivery, 1403. may be constructive or implied, 1403. as affected by custom and usage, 1403. illustrative cases of, 1404. formal acceptance not necessary, 1404. what constitutes complete delivery, 1404. definition of, 1404. suflBciency of evidence showing, 1404, n. effect of delivery of warehouse receipt, 1404. effect of requirement that shipper shall load, 1405. delivery to an authorized agent, 1406. effect of delivery to unauthorized person, 1406, n. delivery to unauthorized person, 1407. delivery by agent of shipper, 1408. delivery must be for immediate shipment, 1409. notice of delivery, 1410. constructive notice of delivery, 1410. place of delivery, 1411. delivery to connecting carrier, 1412. evidence of delivery, 1413. when delivery a mixed question of law and fact, 1413. plaintiff has burden of proving delivery, 1413. bill of lading as evidence of delivery, 1413. to carrier passes title to consignee, 1414. of baggage, 1653. 2848 INDEX. {^Beferences are to Sections.l Vol. I, §§ 1-3S1, Vol. II, §§ 3^S-918, Vol. Ill, §§ 919-1390, V<,1. IV, §§ 1391-1703. DELIVERY BY THE CARRIER, generally, 1517. liability as insurer usually terminated by, 1517. when sufficiency of a question of fact, 1517. personal delivery, 1518, 1527. place of delivery, 1519. custom as affecting place of, 1519. time of delivery, 1520. manner of delivery, 1521. effect of custom and usage, 1522. delivery must be to the right person, 1523. without production of bill of lading, 1523. delivery to agent, 1524. right to require identification of consignee, 1525. ' misdelivery, 1526. when demand for necessary, 1526. duty of after carrier becomes a warehouseman, 1526. effect of that upon forged order, 1526. effect of delivery to swindler, 1526. notice to consignee or his agent, 1527. personal delivery no longer required, 1527. reasonable time to inspect and remove, 1528. rule where goods are to be held until called for, 1529. rule where goods are not to be delivered until paid for, 1530. where draft is attached to bill of lading, 1530. waiver by consignee, 1531. carrier's right to receipt or surrender of bill of lading, 1532. duty to store, 1533. what is sufficient to defeat right of stoppage in transitu, 1543. liability as warehouseman, 1533. effect of part delivery, 1533, n. when complete as to live stock, 1552, n. waives lien for charges, 1572. of baggage, 1652, 1653. See Excuses foe Failure to Dbliveb. DEMAND, subscriptions payable upon, 140. for calls and assessments, 144. should precede suit to compel payment of dividends, 310. necessity and effect of for dividends, 311. when necessary before suit to foreclose mortgage, 505. on directors to defend corporation, 511, n. when not necessary for restoration of highway, 719. for damages where animals are injured, 1216. INDEX. 2849 IBeferences are to Sections.l Vol. I, §§ 1-331, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DEMAND— Contiimed. must be reasonable one for cars, 1476. for delivery of freight, wben necessary, 1526. DEMURRAGE, right to charge, 200. right to charge for use of cars, 1566. when right to exists, 1567. in maritime law, 1567. charging for use of tracks, 1567. is not an overcharge, 1567. notice to consignee as condition precedent to right to recover, 1567. when lien allowed for, 1567. collecting through car service associations, 1568. regulating by rules of car service association, 1568. See Freight Oh.ieges. DEMURRER, does not reach failure to allege corporate existence, 616. in quo warranto proceedings, 644. raising question of defect of parties, 713. to petition in condemnation proceedings, 1028. DEPENDENT CONTRACTS, connected with leases, 450. DEPOSIT, when sufficient as a tender, 1051, n. DEPOTS, real estate, 31. condemning land for, 42, 682, 960, 971, 973. implied authority to maintain, 41. effect of failure to establish on subscription, 120. complying with condition as to location, 125. contract to maintain at certain place. 342. when contract relating to location of is void, 386. validity of contracts in reference to location of, 386. right to acquire real estate for, 393. purchaser at foreclosure sale not bound by contract for, 526, n. enjoining construction of street through, 632. posting rules and schedules in, 662. mandamus to compel maintenance of, 662. not a nuisance, 665. railroad commission condemning land for, 682. crime to break into, 732. 2850 INDEX. [Beferences are to Sections.'] Vol. I, ^^l-Sn, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DEPOTS— Continued. local assessments against, 785. validity of contract as to location at particular place, 928. public policy in regard to location of, 928, 'n. location of as a condition subsequent, 941. agreement to locate as condition subsequent, 942. compliance with condition as to location, 943, n. agreement to construct as a covenant, 945. duty to construct, 1056. when mechanic's lien may be acquired on, 1069. duty to persons calling for freight at, 1256. duty to hotel keeper at to solicit guests, 1256. rule for determining necessity, 1479. what are, 1479, n. as proper place of delivery, 1519. duty as to maintenance, 1590. passenger has reasonable time to leave, 1592. See Stations. DEPOT BUILDINGS, part of railroad track, 5. compelling construction of by mandatory injunction, 635. street can not be extended through, 966, n. DEPOT FACILITIES, condemning land for, 952. DEPOT GROUNDS, when lands can not be dedicated for, 947. duty to fence at, 1194. when what is a question for the jury, 1194. what constitutes, 1194. DEPOT YARD, what constitutes, 1194, n. DERAILMENT, when raises presumption of negligence, 1634. caused by wounded animal, 1634. when company liable for injury caused by, 1634. DESCRIPTION, what sufficient of railway terminus, 36. sufficiency of in title bond for conveyance of real estate, 422, n. effect of defective in agreement to sell real estate, 935. sufficiency of that in appropriation cases, 1022. INDEX. 2851 [References are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ SS^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1.391-1703. BESCRIFTION— Continued. of property by reference to map, 1022. amending that in petition for condemnation, 1029. sufficiency of tiiat in appropriation cases, 1029. aiding tliat in appropriation cases by reference to maps and plats, 1029, n. sufficiency of in report of commissioners, 1041. DESPATCH COMPANIES, as carriers, 1453. DESTRUCTION OF BAGGAGE, liability of initial carrier for, 1658. DETACHED COUPONS, limitation of action on, 486. DEVIATION FROM ROUTE, when initial carrier liable for, 1440. emergency may justify, 1440. by consent of parties, 1440. on account of strike, 1459. effect where it is not cause of loss, 1515. benefit of exemption lost by, 1515. DEVISE, of stock and dividends, 305. DEVISEES, right to take advantage of breach of conditions subsequent, 942. as parties to condemnation proceedings, 1025. DIRECTING A VERDICT, in crossing cases, 1179. where employe injured by a risk of the service, 1297. where there was contributory negligence, 1313. generally, 1702. DIRECTIONS OF SHIPPER, duty of obedience to, 1490. DIRECTIONS OF TRAINMEN, when passengers justified in obeying, 16<3. DIRECTORS, accepting charter in jurisdiction granting, 17. to serve first year, 19. electing, 19. 2852 INDEX. \_Iieferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ S£g-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DIRECTOES— Continued. naming in articles of association, 36. place of residence, 36. no power to materially amend charter, 45. changing number under statutory authority, 46. suit to compel payment of dividends by, 83. can not ordinarily increase or decrease capital stock, 8'i . taking stock as a bonus for services rendered, 90, n. power to buy and sell stock, 94. reselling stock transferred to the corporation, 95. action by not necessary to secure lien on stock, 100. accepting conditional subscription, 112, n. deciding that conditions have been performed, 116. making calls payable in installments, 134. may make calls and assessments, 135. act as a body in making calls and assessments, 136. discretion of in making calls, 137. making calls to pay debts after insolvency, 146. declaring forfeiture of stock, 152. fraudulent sale to themselves, 169. can not deny right to inspect corporate books, 172. when combination to elect is lawful, 174. may be personally liable for cancelling subscription, 176. when may release stockholder from liability, 176. by-laws regulating number of, 191. when may make by-laws, 194. what officers they must elect, 208. appointing and removing agents, 209. delegating power to agents, 224. appointing subordinate officers, 224, n. different classes of officers, 234. constitute governing board, 235. governing board not the corporation, 236. board of represents the corporation, 237. principal officers of corporation, 238. number of, 239. how chosen, 240. eligibility to office of, 241. when persons not stockholders may be, 241. ineligibility because of connection with competing lines, 242. when court may appoint, 242. election of ineligible person to office of, 243. officers de facto, 244, 247. election of ineligible person, 245. who may question right of ineligible persons to be, 245. INDEX. 2853 [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DIRECTORS— CoMtinifed. illustrative cases of defaeto, 246. two boards, 247. holding over, 248. failure to elect, 248. source of powers of, 249. general powers of, 250. when stockholders can not control, 250. illustrative cases of powers of, 251. power to pledge property and mortgage real estate, 251. when may accept stock in other corporations, 251. no power to make organic changes, 252, 440. when may lease the road, 252. extent of their authority, 253. official action by, 255, 256. must act together, not separately, 256. delegation of authority by, 257. illustrative cases of delegation of authority by, 258. action by where law prescribes the mode of action, 259. meetings, 260. special and stated meetings of, 261. effect of failure to notify of special meeting, 262. presumptions in favor of regularity of stated meetings of, 262. quorum at meetings of, 263. proxies at meetings of, 263. meeting outside of the state, 264. record of proceedings, 265. corporate records as evidence, 266. proof of the proceedings of, 267. notice to, when notice to the company, 268. notice to binds successors in office, 268. admissions and declarations of, 269. authority of one who owns majority of the stock, 269, n. ratification of acts of, 270. removal from office, 271. filling vacancies in board of, 271, n. compensation of, 272. for what services they are entitled to compensation, 272. may also act as other officers, 272. their relation to the stockholders, 273. are trustees for stockholders, 274. when guilty of breach of trust, 274. illustrative cases of as trustees, 275. power to sell property to one of their number, 275. dealings with corporation, 276. 2854 INDEX. [References are to Sections. 'i Vol. I, §§ 1-3S1, Vol. 11, §§5«-9i^, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DIRECTORS— Continued. purchasing indebtedness against the corporation, 276. loaning money to the corporation, 276. can not make profits for themselves, 276, n. termination of fiduciary relations, 277. liability of, 278. liability in matter of contract, 279. errors of judgment, 280. liability for negligence, 281. fraud on third persons, 282. what ones personally liable for fraud, 282. when personally liable by statute, 282. granting powers to the president, 286. authorizing secretary to execute contracts, 295. when action in declaring dividends final, 307. declaration of dividend discretionary with, 312. when may reclaim dividends, 315. personal liability of in reference to dividends, 318. must not discriminate in matter of paying dividends, 321. personally liable for unauthorized consolidation, 328. exercising power to contract, 347. when may authorize leases, 440. rule of respondeat superior applicable to, when, 440. what acts they may perform, 440, n. setting aside lease for fraud of, 478. power to authorize execution of bonds, 485. executing mortgage outside of state creating corporation, 491. power to authorize mortgage, 491. may be trustee in trust deed, 501. refusing to defend corporation, 511. purchasing at foreclosure sale, 529, 536. right to own and enforce bonds, 529, n. receiver where they fail to act, 547. when proper parties to institute suit for a receiver, 551, n. when become trustees on dissolution of corporation, 557. when should be made parties in suit for receiver, 557. as receivers, 561. power to make voluntary assignment, 602. duty to creditors on winding up the 'orporatiou, 604. loaning money to corporation, 604. when may be preferred as creditors, 604. duty to account to stockholders^ on dissolution, 612. right to share with other creditors on dissolution, 614. when must consent to bringing of suits, 615. stockholder suing when they refuse to, 620. INDEX. 2855 [Beferences are to Sections.} Vol. J, §§ 1-321, Vol. II, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DIRECTORS— Contireaed. when de facto may be restrained from acting, 634. where personal liability of may be enforced, 710. duty in regard to location of road, 920. when equity will not restrain, 929. determining necessities for condemnation proceedings, 973. can not take construction contract, 1058. service of notice on, 1071. DISAFFIRMANCE, of release or compromise, 1377. DISCHARGE OF RECEIVERS, power of court in reference to, 586. effect of, 587. DISCOUNT, sale of receiver's certificates at, 595. DISCRETION, of directors in declaring dividends, 83, n. of board of directors in making calls, 137. limitations upon in making calls and assessments, 138. of directors in declaring dividends, 312. abuse of in declaring dividends, 314. when courts will interfere to control, 343. of trustees and officers as to time and manner of sale, 524. in appointment of receivers, 539, 540, 547. of court in control of ancillary receivers, 555. in appointing receivers without notice, 556, n. of court in relection of a receiver, 56J . of receiver in management of business, 566. in granting leave to sue receivers, 571. of court in punishing for contempt, 575. of court in compensating receivers, 584. of court in fixing compensation of attorneys of receivers, 585. of court in removing and discharging receivers, 586. of railway company in taking lands, 629. of corporate officers will not be controlled by injunction, 634. when court has none in refusing writ of mandamus, 637, n. mandamus will not lie to prevent exercise of, 642. can not be controlled by mandamus, 699, 1016. of legislature in classifying property for taxation, 740. when courts can not control that of legislature, 868. when courts can not control that of officers, 907. of company as to location of road, 919. 2856 INDEX. [References are to Sectuins.'\ Vol. I, §§ l-Sel, Vol. II, %%SZ2-n8, Vol. Ill, §§ 919-1390, Vol. IT, §§ 1391-1703. DISCRETION— Core«i)med. of company in determining location of road, 920. as to change of location, 929. of company as to location of tracks and the like, 954, n. of company as to estate taken under condemnation proceedings, 970. of company as to amount of land condemned, 973. as to admitting evidence of value in appropriation cases, 1036. of court in matters affecting competency of witnesses, 1037. of court to order view, 1040. when company's as to restoration of crossing will not be controlled, 1106. as to construction of crossings, 1108. presumption as to that of children, 1261. in changing time-tables, 1281. as to making rules and regulations, 1576. DISCRETIONARY POWERS, distinguished from peremptory duties, 907. DISCRIMINAIION, enjoining, 27. carrier no right to make, 200. directors can not make in favor of certain stockholders, 275. in payment of dividends, 821. by common carrier is void, 388. removing receiver guilty of, 586, n. mandamus to prevent company from making, 638, 640. railroad commission can not make, 679. in taxation of railroad property, 744. effect of in levying taxes, 775. railroad company can not make, 1391. in favor of express companies, 1453. unjust is forbidden, 1467. like facilities to be furnished where like conditions exist, 1468. effect on stipulations limiting liability, 1469. by charging different freight rates, 1560. by allowing rebaoes, 1565. when payment of cartage does not amount to, 1566. by refusing to give commutation rates, 1600. by issuing passes, 1612. what is under interstate commerce act, 1676. injunction to prevent, 1676. against particular place, 1676. when not unjust, 1677. circumstances and conditions affecting, 1677. INDEX. 2857 [References are to Sections.] Vol. I, §§ 1-331, Vol. II, §§ 3^3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DISCRIMINATION— ComJinKed. illustrative cases of, 1678. in granting use of tracks, 1678. against hackmen, draymen, and carters, 1678, n. mandamus as remedy against, 1678, n. in long or short hauls, 1682. when group rate amounts to, 1683. DISEASED CATTLE, refusing to carry, 1547, 1669, n. DISMISSAL, of cause after removal to federal court, 655. of appropriation proceedings, effect of, 1032. DISORDERLY CONDUCT, rule prohibiting on cars, 200. DISORDERLY PASSENGERS, right to eject from train, 1637. DISORDERLY PERSON, liability for injury to passengers by, 1639. DISPATCH COMPANIES, as common carriers, 1401. DISPATCH LINE, contract of two companies to maintain, 342. DISSENTING BONDHOLDERS, rights of under mortgage, 533. DISSENTING SUBSCRIBERS, release of on consolidation, 325. DISSOLUTION, of corporation on forfeiture, effect, 55. of corporation by limitation, 62. effected by sale of franchises, 75. rights of preferred stockholders on, 85. right of stockholder on, 157. when single stockholder may {,revent, 163. when effected by consolidation, 326, 606. when does not take place on consolidation, 335. disposition of property on, 426, 613. when foreclosure sale works, 525. 2858 INDEX. \^Beferences are to Sections. '\ Vol. I, §§ l-Sn, Vol. II, §§ 3S£-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DISSOLUTION— CoJiMnMed. appointing receiver where corporation is on verge of, 545. as ground for appointment of receiver, 547. appointment of receiver does not effect, 563. mere insolvency does not work, 601, 606. voluntary assignment does not amount to, 602. what constitutes, 606. what acts are cause for, 606. judicial determination of, 607. voluntary, 608. proceedings to dissolve, 609. power of foreign courts to decree, 609. quo warranto by state to have it declared, 609. in case of consolidated company, 610. effect of, 611. corporation may have a qualified existence after, 612. effect on pending suits, 612. disposition of property on, 613. rights of creditors upon, 614. See Insolvency and Dissolution. DISSOLUTION OF ATTACHMENT, duty of carrier on, 1537. DISTINCTION, between charter and franchise, 64. between corporate franchise and corporate rights, 68. between license and franchise, 69. between by-laws and rules and regulations, 199. between servant and intermediate agents, 301. between contracts ultra vires and those which are not, 373. between donation and sale of lands to corporation, 413. DISTRAINT FOE RENT, seizure of property in hands of receiver for, contempt, 575. DISTRIBUTION, decree of foreclosure providing for, 515. DIVERSE CITIZENSHIP, as affecting venue of actions, 623. must exist when suit is brought, 649. need only appear in petition for removal, 649. as ground for removal of causes, 649, 651. when must exist to justify removal of causes, 649. when need not appear in complaint, 649. as ground of jurisdiction in federal courts, 916. INDEX. 2859 [References are to Sections.] Vol. I, §§ 1-3^1, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ ISdl-llOi. DIVIDENDS, corporate property until declared, 76. on preferred stock before on common stock, 81. money to pay can not be raised by issue of preferred stock, 81. declaring out of net earnings, 83. suit to compel payment of, 83. payment of guaranteed, 83. discretion of directors in declaring, 83, n. paying on common stock after paying on preferred stock, 84. pass with assignment of stock, 84. stock held by corporation can not draw, 95. lien on stock attaches to, 100. right to vote stock issued in payment of, 157. power of directors to declare, 224. rights of stockholder in reference to, 304. definition of, 304, n. when belong to stockholders, 305. who entitled to on sale of stock, 306. to whom should be paid, 306. rights of life tenant and remainderman, 307. apportionment of by statute, 307. when not property of the corporation, 309. rights of creditors and stockholders, 309. right to rescind, 310. interpleader between parties claiming, 310. are irrevocable, when, 310. set-off or counter-claim against by corporation, 310. when interest may be recovered on, 311. agreement to pay certain one ultra vires, when, 310, n. necessity and effect of demand for, 311. declaration of discretionary with directors, 312. borrowing money to pay, 313. remedies for abuse of discretion in declaring, 314. equity compelling payment of, 314. limitations upon authority to declare, 315. suits to reclaim, 315. should be declared out of profits, 316. enjoining payment of, 317, 634. personal Uability of directors in reference to, 318. payable in scrip, 319. payment in stock, 320. in property on reduction of capital stock, 320. what kind of money payable in, 320. payable without discrimination, 321. on shares given for bonds, 483. 2860 INDEX. [^Beferences are to Sections.1 Vol. I, §§ 1-SSl, Vol. II, §§ 5«-W5, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DIVIDENDS— Continued. right of receiver to recover fraudulently declared, 569. when stockholders may enjoin payment of, 634. compensation for damage caused by, 993. DOCKS, right to acquire real estate for, 393. DOCUMENTS, when those referred to in prospectus must be examined by subscriber, 130, n. DOGS, no duty to fence against, 1190. when company liable for those killed, 1190. refusal to carry, 1466. right of baggage-master to carry, 1466. "DOING BUSINESS," bringing suit does not amount to within removal act, 30. DOMESTIC COMMERCE, definition of, 690. power of states to regulate, 690, 780. distinguished from interstate commerce, 780, n. 'definition of , 1671. regulation of railroad engaged in, 1673. DOMESTIC CORPORATION, when foreign becomes, 26. with reference to federal jurisdiction, 28. railroad is of state chartering, 29. lease does not make lessee a, 29. authority to condemn land does not make, 29. fixing status of after consolidation, 335. foreign corporation becomes by consolidation, 339. foreign corporation becoming by adoption, 649. state can not make federal corporation one, 673. when consolidated company regarded as, 956. condemning land for purpose of leasing it, 958. DOMESTIC CREDITORS. rights^over foreign receiver, 556. DOMICILE, of corporation, 24. of consolidated corporation, 26. of corporation formed by concurrent legislation, 26. INDEX. 2861 {Beferences are to Sections.1 Vol. I, §§ 1-SSl, Vol. 11, §§ 32S'918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DONATION, when municipalities may make to railroads, 820. statutory authority necessary, 827. when municipality can not give to railroad company, 835. public aid by, 841. general power to make, 875. See Public Aid; Municipal Aid Bonds. DONATION OF LANDS, distinguished from sale, 413. DOUBLE AGENCIES, are not presumed, 303. DOUBLE DAMAGES, power to impose, 669. validity of statutes permitting, 714. when not regarded as penalty, 715. for constructing private crossing, 1145. where animals are injured, 1183, 1219. practice in allowing, 1219. as a penalty, 1219. conditions precedent to recovery of, 1219. DOUBLE DECK CARS, duty to furnish for shipping sheep, 1551. DOUBLE TAXATION, railway companies protected against, 660. prohibited, 744, n. when can not be avoided, 757, n. DOWER, how right of way afiected by right to, 934, n. DRAFTS, power of treasurer to accept, 292. effect where company accepts those of subcontractor, 1061, n. attached to bills of lading, effect, 1427, n., 1530. DRAINAGE, damage for interfering with, 976. DRAINS, duty to cover in yards, 1272. 2862 INDEX. '[References are to Seotions.l Vol. I, §§ 1-3S1, Vol. II, §§ 32S-918, Vol. Ill, §§ 919-1390, Vol. IV, ^U391-1703. DEAW BAE, assuming risk of insufficieBt, 1290. negligence in placing too low, 1347. DRAWBACK, effect of, 1680. See Bbbates. DRAWING ROOM CAR, person riding on pass purchasing seat in, 1608, n., 1620. DRAWING ROOM CAR COMPANIES, See Sleeping Cak Companies. DRAYAGE, authority of receiver to pay, 566. See Cabtage. DRAYMEN, discrimination against, 1678, n. DROVER, regarded as passenger, 1604. riding on passes, 1605. not mere gratuitous passenger, 1605. validity of contract making him an employe, 1605. care owing to, 1606. guilty of contributory negligence, 1609. injury to by low bridge, 1632, n. DRUNKEN PERSON, sale of stock by, effect, 93. See Intoxicated Person. DRY SEASONS, extra precautions against fire in, 1228. "DUE PROCESS OF LAW," meaning of term, 666. means that there must be right to a hearing, 686. notice required, 695. in tax proceedings, 771. constitution requiring, 980. what necessary to constitute, 1010. constructive notice, 1019. reasonable notice required, 1020. in stock-killing cases, 1183. INDEX. 2863 {^Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. 11, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DUMMY LINE, is railroad, 6. required to stop at crossings, 6, 1131. required to keep look-outs, 6. required to sound whistle, 6. as commercial railway, 1131. DUPLICATE BILLS OF LADING, when may be issued, 1430. DUST, damage caused by, 995. requiring street railway company to keep down, 1082. DUTIES, of promoters, 11, of corporation defined by special charter, 16. of officers and agents, 213. of treasurer, 293. of new company on consolidation, 332. can not be delegated to another company, 619. extent of receiver's, 566. no negligence unless breach of, 1251. as affecting question of negligence, 1267. DUTY TO DECLARE FORFEITUBE, when mandatory and when discretionary, 50. DUTY TO FENCE, rests upon receiver, 577. common law rule, 1180. when animals may rightfully run at large, 1180. statutory duty to fence, 1181. construction of statutes imposing the duty, 1181. time when statute applies, 1181. landowner building at company's expense, 1181. mandamus to enforce, 1181. damages for failure to perform, 1181. statutes imposing rest upon police power, 1182. constitutionality of statutes imposing, 1183. due process of law under statutes, 1183. kind of fence required, 1184. agreement as to kind of fence, 1184. bluff, embankment or hedge as fence, 1184. what animals company must fence against, 1184. repairs of fences, 1185. 2864 INDEX. [iJe/erences are to SerMons.] Vol. I, §§ 1-3S1, Vol. II, §§ 38S-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DUTY TO FENCE— Cora«freued. injuries to fence by casualties and trespassers, 1185. not discharged by mere erection of fence, 1185. when rests on landowner, 1185. transfer of, 1186. does not rest on contract, 1186. fence erected by landowner, 1187. agreement to fence, 1188. effect where volunteer performs, 1187, n. third person not bound by contract to build, 1188. measure of damages for animals injured, 1188. when runs with the land, 1188. waiver, 1189. to whom duty is owing, 1190. what animals must be fenced against, 1190. in reference to dogs, 1 190. against animals attached to wagons, 1190, n. as against children, 1190. owing to public, 1191, n. injuries to passengers resulting from neglect of, 1192. injuries to employes resulting from neglect of, 1192. highways and crossings allowed to remain unfenced, 1193. at parallel highways, 1193. between the tracks, 1193. where highway has been vacated, 1193. at private crossings, 1193. at depot and station grounds, 1194. exceptions, 1194. where safety of employes is endangered, 1194. when does not apply to both sides of track, 1194. fences in cities, towns and villages, 1195. at margin of corporations, 1195. fences at embankments, 1196. fences at oblique approaches to highways, 1197. wing fences along margin of highway, 1197. cattle-guards, 1198. wing fences, 1199. gates and bars, 1199. proof of repairs after accident, 1200. duty to keep gates and bars closed, 1200. place of entry of animals on railway track, 1201. determining place where fence required, 1202. injuries to animals on highway, 1203. rests upon lessees, mortgagees and receivers, 1208. rests upon partnership and individual, 1208. INDEX. 2865 [References are to Sections.'] Vol. I, §§ 1-S^i, Vol. 11, §§ 3^e-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. DUTY TO VESCE— Continued. contributory negligence, 1209. animals abandoned by their owner, 1210. animals attracted to railroad tracks, 1211. ownership of animals, 1212. presumption of negligence, 1213. burden of showing excuse from, 1214. pleading and practice, 1215. notice and demand for damages, 1216. appraisement of damages where animals are injured, 1217. measure of damages where animals are injured, 1218. liability where fence destroyed by fire, 1247. fencing freight yard, 1260. owing to employes, 1270. owing to passengers, 1270. See Animals; Injuries to Animals. DUTY TO STOEE, when exists on part of common carrier, 1533. DWELLING-HOUSE, what included within, 924. when railroad can not be located through, 924. when can not be condemned, 960, 969. when may be taken under eminent domain power, 963. when passenger must be ejected near, 1637. DYNAMITE, shipment on passenger trains prohibited, 725. ■p EARNINGS, paying debts out of before dividends, 81, n. paying dividends out of, 316. when included under mortgage lien, 495. what claims shall be paid out of by receiver, 528. mortgagor not accountable to mortgagee for, when, 528, n. diversion of as ground for appointing receiver, 545. receiver appointed to take charge of pending foreclosure, 546. when must be applied to payment of rentals on leased lines, 582. when subject to attachment and garnishment, 626. as affecting reasonableness of rates, 692. EARS, contributory negligence in traveler obstructing, 1164. 2866 INDEX. [Beferences are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ S'22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EARTHQUAKE, as an act of God, 1455, n. EASEMENT, acquisition of by adverse possession, 401. enjoining interference with company's, 632, n. when railroad company takes only an, 938. acquired by dedication, 947, n. extent of that acquired under mere license, 949. effect of conveyance of by deed, 949. may be condemned, 963. when that only acquired under power of eminent domain, 972. when perpetual easement acquired, 972. compensatipn for destruction of, 1025, n. damages for destruction of, 1147. EASEMENT OF ACCESS, abutting owner has, 1085. compensation for interference with, 1087. EFFORT TO AGREE, in appropriation cases, 1027. as jurisdictional fact in condemnation cases, 1027. to what matters it must extend, 1027. petition alleging unsuccessful attempt to agree, 1027. proof of, 1027. waiver of proof of, 1027. must be made in good faith, 1027. in securing railroad crossings, 1119. as condition precedent to condemnation proceedings, 1119. burden of proof to show failure of, 1119. EJECTION OF PASSENGER, where ticket has expired, 1598. when riding on fraudulent pass, 1610. sleeping car company liable for, 1621. insane passenger may be ejected, 1621. when and when not justifiable, 1637. tender of fare after it has commenced, 1637. excessive and unnecessary force must not be used, 1637. statutes fixing place of, 1637. right to resist wrongful ejection, 1637. liability for willful or wrongful, 1637, n. EJECTION OF TRESPASSERS, right in regard to, 1255. INDEX. 2867 [Meferenees are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 EJECTMENT. right of trustees to maintain, 514. enjoining action for, 628, n., 1049, n. when action for may be removed to federal court, 646. where company fails to perform conditions subsequent, 942. injunction to restrain enforcement of judgment in, 945. against Hcensee, 949. when landowner may eject company from street, 1049. injunction to prevent, 1049, n. to oust company where proceedings are void, 1055. when abutting owner may maintain, 1096. ELECTION, of remedy for enforcing calls and assessments, 150. of directors, when may be temporarily postponed, 174. combinations and conspiracies in reference to at stockholders' meet- ing, 174, of officers, 208. of ineligible person to office of director, 245. when directors can not postpone, 251. to declare entire mortgage debt due, 506. on question of public aid, 828. for public aid, rules governing, 849. to grant railway aid, wrong officer calling, 850. for public aid, notice of, 859. mandamus to compel announcement of result of, 874, n. to abandon condemnation proceedings, 1033. ELECTION OF REMEDIES, right to, 150, 1693. ELECTRIC CARS, negligence in running at high rate of speed, 1094. ELECTRIC RAILROAD, definition of, 8. classed as street railways, 8. right to cross bridges, 8. railway company not required to maintain bridge for, 1111. crossing railroad by viaduct, 1123, n. not an additional burden to street, 1088. ELECTRIC SIGNALS, requiring company to maintain at crossings, 724. ELEMENTS OF DAMAGE, necessity for making stops at railway crossings is not, 1127. 2868 INDEX. [References are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ SS^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. ELEMENTS OF VALUE, in assessing damages, 994. ELEVATED RAILBOADS, definition of, 7. organized under general statutes, 7. street railway companies can not construct, 7. usually regarded as street railways, 7. damaging abutting owners, 7. railway company may build short one, 42. ELEVATOR, when not covered by general mortgage, 495. mandamus to compel delivery of cars to, 640. condemning land for track to, 960. EMBANKMENT, damages for construction of, 937. condemning land for, 973. damages for construction, 977. compensation for damages caused by, 993. damages from construction of, 1057. as a part of highway crossing, 1097. at highway crossings, 1107. rights of abutting owners, 1113. compensation for erecting at railway crossing, 1127. serving as fence, 1184. duty to fence at, 1196. EMBEZZLEMENT, by railroad officers and employes, 734. EMERGENCY, authority to employ surgeon in, 222. authority of conductor in, 302. as affecting appointment of receiver without notice, 556. serving notice of application for a receiver in an, 558, n. person going on track in is not a trespasser, 1252. effect where employe acts in, 1314. may justify deviation from route, 1440. EMINENT DOMAIN, individual exercising right of, 1. whether private railroad may exercise right of, 4, 960, n. street railway company may exercise right of, 4. electric roads exercising right of, 8. INDEX. 2869 [Beferences are to Sections.] Vol. I, §§ 1-3:11, Vol. II, §§ 3^1^-918, Vol. Ill, §§ 919-1390, Vol. TV, §§ 1391-MOS. EMINENT DOMAIN— CoreJiiiued. franchises subject to right of, 32. aiding construction of railroads, 33. seizure of corporate franchises under power of, 74. title to land acquired by compared to that obtained by purchase, 394. when lessee may exercise right of, 461, n. when right of passes on foreclosure sale, 531. when abuse of powers will be enjoined, 629, n. authorizing condemnation of railroad property, 922. exercising for branch and lateral roads, 923. does not reside in company's engineer, 927, n. can not be used to change from route to route, 930. single exercise does not exhaust the power, 930, 971. acquiring right of way through power of, 932. condition precedent to exercise of power of, 933. definition and nature of, 950. distinguished from power of taxation, 950. distinguished from police power, 950. compensation necessary where it is exercised, 950. legislature regulating exercise of, 950. as an attribute of sovereignty, 950. limited and regulated by constitutions, 950. when territory may exercise power of, 950. power can not be surrendered by grant or •ontract, 950. limitations upon power of, 950, n. constitutional provisions and questions, 951. statute authorizing exercise of, 951. when compensation must precede the taking of private property, 951. who determines question of public use and necessit}', 952. delegating exercise of to a commission, 952. amount of property that may be taken under, 952. what constitutes public use, 952. delegation of power of, 953. corporation exercising power of, 953. delegation of power of to railroad companies, 954. mode of assessing damages under, 954. construction of statutes granting right to condemn, 955. strict construction of statutes granting power of, 955. rights of foreign and consolidated companies, 956. exercise of right of by de facto corporations, 957. right to condemn where road is leased or in hands of a receiver, 958. power of regarded as a personal trust, 958. how appointment of receiver affects power of, 958. Corp. 182 2870 INDEX. [^References are to Sections.'] Vol. I, §§ 1-S^l, Vol. n, §§ 322-918, Vol. HI, §§ 919-1390, Vol. IV, §§ 1391-1703. EMINENT BOUA.!^— Continued. right to condemn can not be delegated to contractor or construction company, 959. company condemning for benefit of contractor, 959. purposes for which company may condemn, 960. condemnation for roads to mines and manufacturing establishments, 961. private enterprise not entitled to benefit of, 961. condemnation of land for future use, 962. second appropriation, 962. what may be appropriated under, 963. when can not be defeated by private contract, 963. how may affect covenants, 963. effect of legal disabilities on, 963. condemning property of other corporations, 964. effect where condemnation interferes with public interests, 964. what property of state or United States may be taken under, 965. crossing navigable streams, 966. taking property devoted to a public use, 966. effect of authority to build between two points, 966. rule where two public uses can stand together, 966, 1098. taking corporate franchises under, 967, 1098. condemning franchises, 967. exclusive grants and franchises, 968. exempt property, 969. dwelling-house and appurtenances exempt from, when, 969. extent of taking under, 970. taking additional property, 971. securing terminal facilities under power of, 971. title or interest acquired, 972. when only easement acquired under, 972. width taken for right of way, 973. taking buildings under power of, 973. when statutory method is exclusive, 973. taking right of way of another road, 974. crossing another road, 975. what constitutes a taking under, 976. illustrative case of what constitutes a taking, 977. what is a taking of private property under, 977. property damaged or injured, constitutional and statutory pro- visions, 978. damages arising from exercise of, 078. parties entitled to compensation under exercise of, 1003. jury trial not allowable where property seized under, 1012. proceedings in county where land is located, 1014. INDEX. 2871 \^Beferences are to Sections.'] Vol. I, §§ l-sn, Vol. II, §§ 3.12-018, Vol. Ill, §§ 919-1S90, Vol. IV, §§ 1391-1703. EMINENT DOMKm— Continued. parties to proceeding under, 1025. showing right to exercise power of, 1029. damage for abuse of power of, 1031. waiver of objections to procedure under, 1047. injunction as remedy against abuse of, 1049. eflect where power of has been exhausted, 1049, n. certiorari as remedy in proceedings under, 1054. railway franchises subject to power of, 1098. railroads crossing railroads under power of, 1116. what railroads may invoke power of, 1116. See Compensation and Damages ; Condemnation Pboceedings ; Pkoobduke IN Appbopriation Cases. EMPLOYER, duty to furnish safe working place, 1267, h. negligence in failing to keep premises safe, 1272. not liable where not guilty of negligence, 1274. not liable for latent defects, 1275. duty to make inspections, 1275. is not an insurer, 1287. duty to promulgate rules, 1294. negligence test of liability of, 1297. not liable unless negligence was proximate cause, 1310. not bound to procure the best machinery, 1343. EMPLOYER AND EMPLOYE, See Master and Servant. EMPLOYER'S DUTY, contract the basis of, 1267. EMPLOYERS' LIABILITY ACTS, changes in law of master and servant by legislation, 1334. abridging right to contract, 1334. effect on street railway companies, 1334, n. validity of statutes, 1335. invalid legislation, 1336. general rule as to construction of, 1837. changing common law, 1337. definitions, 1338. effect on contract between employer and employe, 1339. merely prescribing penalties, 1339. railroads in different states, 1340. railroads operated by receivers, 1341. 2872 INDEX. {^References are to Sections.'] Vol. I, §§ 1-S21, Vol. 11, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-1703. EMPLOYERS' LIABILITY XCTQ— Continued. relation of master and servant must exist, 1342. effect of specific enumeration, 1342. who employe within, 1342. care respecting machinery and appliances, 1348. who are within the statute, 1344. effect of contributory negligence, 1344. effect on assumption of risks, 1345. who are fellow-servants under, 1346. what are defects in appliances and machinery within, 1347. rule under as to latent defects, 1348. rule where defect not attributable to negligence of employer, 1349. pleading under, 1349. burden of proof under, 1349. presumption of negligence, 1350. selection of co-employes, 1351. superintendence within meaning of, 1352. what constitutes negligence in superintendence, 1353. meaning of "cars" and "trains" within, 1354. meaning of use and operation of railway, 1355. injury while using hand-car, 1355. "charge and control," 1356. effect on doctrine of contributory negligence, 1357. contract waiving right of action invalid, 1358. EMPLOYEE'S METHODS, employe acquainting himself with, 1291. duty of employe to learn, 1294. EMPLOYES, duty to adopt rules for regulation of, 200. duty to exercise care in selecting, 213. authority to employ surgeon to attend, 222. duty to employ surgeon for, 223, 1388. right to erect dwellings for, 394. liability of lessor to lessee's, 472. receiver's contracts with, 567. interfering with receiver guilty of contempt of court, 575. court directing receiver to enter into contracts with, 575. receivers Hable for personal injuries to, 577. liability of receiver for wages of, 580. statutory preference in favor of, 605. right to strike, 633. when mandatory injunction binding on, 636. statute compelling payment of discharged, 665. INDEX. 2873 [^Beferences are to Sections. ~\ Vol. I, §§ 1-331, Vol. II, §§ 3SS-918, Vol. in, §§ 919-1300, Vol. IV, §§ 1391-1703. EM.FhOY'ES— Continued. companies may be compelled to examine, 668. penalty for retaining intoxicated, 724. legislative requirements as to qualifications of, 724, n. may be guilty of embezzlement, 734. land can not be condemned for dwellings of, 960 not competent as jurors. 1017, n. effect where company pays those of contractor, 1063. injured in collisions at crossings, 1132. duty to repair crossings owing to, 1134. effect of misleading traveler at crossing, 1171. right of traveler to rely on directions of, 1171, 1580. when traveler should not rely on invitations of, 1171, 1580. how to treat deaf and dumb person, 1172. duty to drunken person, 1172. duty to fence owing to, 1192. assuming risks of service, 1192. fences endangering safety, 1194. wrongfully starting fires, 1227. acts without scope of their duty, 1227, n. duty to extinguish fires, 1232. when become mere licensees, 1251. company only liable for acts within scope of authority, 1255. authority to eject trespassers, 1255. presuming that person will step from the track, 1257. not entitled to signals while making up trains, 1258. liability to strangers for willful acts of, 1265. liability for assault of, 1265. torts committed without scope of employment, 1265. assaults by without scope of their employment, 1265. knowledge of structures near the track, 1269. assuming risk of structures near the track, 1269. injury to by failure to fence, 1270. when assume risks of low bridges, 1271. effect of their knowledge of low bridges, 1271. knowledge of uncovered ditches and drains, 1272. master delegating duty owing to, 1276. duty to obey rules, 1280. looking for wild and extra trains, 1281. violating rules, 1282. duty to warn them of danger, 1283. ordered to strange working place, 1283. presumption of competency of, 1285. duty to use ordinary care in selection of, 1292. duty to learn employer's rules, 1294. 2874 INDEX. \^Befereuces are to Sections.J Vol. I, §§ 1-331, Vol. II, §§ S«-9-ZS, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EMPLOYES— Coniimted. duty to complain of defects in appliances, 1296. injuries to by explosions, 1299. injuries to by collisions, 1300. working outside line of duty, 1303, 1304. volunteers do not become, 1305. contributory negligence of, 1313. when are vice-principals, 1317. effect of authority to hire and discharge, 1329. giving reasons for discharge of, 1336. who are within employers' liability acts, 1342. liability for acts of while on strike, 1459. when and when not passengers, 1578. authority to accept persons as passengers, 1580. no power to make rules and regulations, 1580. carrier liable for negligent and tortious acts of, 1589. when one riding on pass is a passenger, 1604. contract attempting to make drover an employe, 1605. issuing passes to families of, 1612. duty of sleeping car company as to employment of, 1622. contracting against liability for negligence, 1627, n. liabiUty for willful acts of, 1638. accidentally injuring passenger. 1638. illustrative cases of liability for assaults of, 1638. assaulting and injuring passengers, 1638. company ratifying willful acts of, 1638. are not passengers, 1644, n. when admissions of admissible against the carrier, 1695, n. actions for injuries to, 1697. See Injuries to Employes; Master and Servant. EMPLOYES' WAGES, garnishment of, 627. ENABLING ACTS, construction of, 836. effect of repeal of, 842. effect of failure to conform to, 850. illustrative cases of failure to conform to, 850. how to be construed, 852. fixing amount of public aid, 854. requiring notice, 859. conforming to in issuing aid bonds, 883. conditions imposed by must be performed, 893. requiring registration of railway aid bonds, 908. INDEX. 2875 [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ S^^-918, Vol. HI, §§ 919-1390, Vol. IV, §§ 1391-1703. ENFORCEMENT, of by-laws, 197. of rules and regulations, 201. ENFORCEMENT OF LIEN, on stock, 101. for freight charges, 1571. ENGINE, personalty or realty, 31. rules prohibiting passengers from riding on, 200. when may be attached, 624. See Locomotives. ENGINE HOUSES, right to acquire real estate for, 393. land may be condemned for, 980. street can not be opened through, 1104. ENGINEER, no authority to permit persons to ride on train, 221. authority to employ surgeon, 222. when conductor may employ, 302. how acts of affect question of location, 920, n. effect of preliminary survey by, 927. when liable for fraud, 1059. duty to employ competent and trustworthy, 1059. as stockholder in company, 1059. authority can not be extended by implication, 1059. can not alter contract, 1059, n. right to make changes, 1060. relying on presumption that person will step from track, 1153. indicting for failing to give signals, ] 158. injured by collision with animals, 1192. duty where animals discovered on track, 1204. looking ahead for animals, 1205. not bound to keep constant lookout, 1205. pleading unskillfulness of, 1241. when guilty of willfulness, 1257. negligence in giving signals, 1264. liability for acts of incompetent, 1290. assumption of risks by, 1297. remaining at post to protect trains, 1297. competency, 1297, n. contributory negligence of, 1297, n. not fellow-servant with sleeping car porter, 1320. 2876 INDEX. IBeferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ S£^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. ENGINEER— C'ore«inMe(Z. as fellow-servant with other train men, 1330. brakeman recovering for negligence of, 1344. when superior of fireman, 1346. can not abrogate rules and regulations, 1580. ENGINEERS' ESTIMATES, effect of, 1059. consideration for, 1059. stipulations in regard to are irrevocable, 1059. effect of fraud in, 1059. effect of failure to furnish, 1059. how affected by gross error, 1059. relieving against mistalies in, 1059. effect where engineer is a stockholder, 1059. right of contractor to be present when measurements are taken, 1059. as condition precedent, 1059. compensation where engineer refuses to furnish, 1059. effect of death of engineer, 1059. effect of delay in making, 1059, n. binding on subcontractors, 1061. ENTERTAINMENT, effect where party furnishes to jury, 1046. ENTIRE ROAD, power to sell, 27. need not be completed before collection of subscriptions, 118, n. enforcing lien against, 1071. ENTIRETY, sale of road as, 522. assessing railroad property as, 737. See Fragments. EQUAL PROTECTION OF LAWS, wliat is, 21, n. railway companies entitled to, 679. states required to give, 772. corporations as persons, 773. what is a denial of, 774. classification not a denial of, 776. EQUALITY AND UNIFORMITY, in taxing railroad property, 741. INDEX. 2877 IBeferenees are to Sections.'] Vol. I, §§ 1-331, Vol. II, §§ 333-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. EQUIPMENT, receivers liable for defects in, 577. negligence in not adopting proper standard of, 1472. duty of carrier as to standard of, 1472. duty to provide for perishable property, 1475. duty of carrier to use proper, 1478. duty owing to passengers in respect to, 1585. duty of passenger carrier as to, 1587. See Appliances; Machineey. EQUITABLE ASSETS, appointing receiver to reach, 548. EQUITABLE ATTACHMENT, appointment of receiver is a sort of, 540. EQUITABLE INTERESTS, owners as parties to condemnation proceedings, 1025. EQUITABLE MORTGAGE, what amounts to, 502. EQUITY, compelling registry of transfer of stock, 98. compelling payment of calls, 146. reviewing action of majority at instance of minority, 169. resort to to reach money due from stockholders, 182. compelling payment of dividend, 314. under ultra vires contracts, 371. will not permit trust to fail for want of trustee, 501. reforming trust deed, 502. putting mortgagees in possession, 514. selling railroad as an entirety, 522. controlling priority in payment of claims on foreclosure sale, 528. protecting rights under reorganization agreement, 534. when power to appoint receivers abridged by statute, 538. jurisdiction in to appoint receivers, 538. caution in appointment of receivers, 539. taking charge of affairs of insolvent railway, 543. extra-territorial jurisdiction to appoint receivers, 554. usually appoints receiver only where suit is pending, 560. power to annul receiver's contracts, 567. authorizing receivers to maintain suits, 568. protecting its receivers, 572. following fund for benefit of creditors, 600. power to declare dissolution of corporation, 609. 2878 INDEX. [References are to Sections.'] Vol.1, ^U-3S1, Vol.11, §§323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§1391-1703. EQUITY— Continued. protecting creditors and shareholders on dissolution, 613. keeping pace with society, 633. jurisdiction over railroad commissioners, 707. when will not restrain directors, 929. when will not decree specific performance, 936. when it will interfere in case of breach of conditions subsequent, 944. setting aside construction contracts, 1058. will not decree specific performance of construction contracts, 1062. will not interfere where there is remedy at law, 1096. enforcing contract as to railway crossings, 1118. preventing grade crossings, 1122. enjoining construction of railway crossings, 1125. enforcing contract to grant private crossings, 1141. proceeding in to satisfy carrier's lien, 1571. EQUITY OF REDEMPTION, when cut oft by valid foreclosure sale, 530. ERRORS, when will not defeat public aid, 871. action to correct those in municipal aid bonds, 873, n. ERRORS OF JUDGMENT, liability of directors for, 280. ESCHEAT, of corporate property, 426. ESCROW, subscriptions in, 114. deed to proposed corporation placed in, 409. ESSENCE OF CONTRACT, when time is of, 851. ESTATE, taken on acquisition of right of way, 938. taken under power of eminent domain, 970. ESTIMATES, See Engineers' Estimates. ESTOPPEL, to question statements of certificates of stock, 79. to question increase of capital stofik, S7. of stockholders to complain, 89 INDEX. 2879 [References are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ 3n-918, Vol. Ill, §§ 919-1S90, Vol. IV, §§ 1391-1703. ESTOPPEL— ConfMMeiZ. to deny liability on shares of stock, 95, n. to deny membership in corporation, 103. of subscriber to set up conditions, 115. to question fraudulent subscription, 131. of stockholder to question validity of call, 143. to deny validity of forfeiture of stock, 154. of stockholders to question proceedings at meeting in which they parti- cipated, 164. of stockholder to deny existence of corporation, 175. to allege that corporation is partnership, 190. by accepting benefits of contract, 227. of corporation to dispute validity of its acts, 259. to question statements of bill of lading, 303. of stockholders to question consolidation, 325, n. of consolidated company to question its acts, 337. of directors to question validity of contract, 349. by contracts, 352. by ultra vires contracts, 371. to set up defense of ultra vires, 372. of grantor of real estate to deny corporate existence, 408. of grantor to complain of noise, smoke, etc., 418. of company to deny existence of street, 425. of stockholders to question ultra vires mortgage, 493. by participating in reorganization, scheme, 534. to deny lien of receiver's certificates, 592. to question validity of receiver's certificates, 596. of purchaser to question lien of receiver's certificates, 596. to deny corporate existence, 619. by decision of railroad commissioners, 696. when created against government by land grants, 806. against the state, 806. as affecting question of public aid, 858. to question lack of notice of railway aid election, 859. to defend against subscriptions, 870. of tax-payers in reference to municipal aid, 871. by silence and acquiescence, 871. to question bonds illegally issued, 873. to question validity of aid bonds, 883. in favor of holders of railway aid bonds, 887. how affects validity of railway aid bonds, 890. recitals in bonds creating, 890, n., 897, 898. created by acts, 894, 903. protecting bona fide holder of railway aid bonds, 896. by recitals in bonds, 897. 2880 INDEX. \_Iieferences are to Sections.] Vol. I, m-3Sl, Vol. II, §§ S22-91S, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-170:1. ESTOPP EL— Continued. illustrative cases of by recitals in bonds, 898. when not created by recitals in bonds, 899. recitals in bonds to constitute must be of facts, 901. none where municipal officer has no jurisdiction, 902. otherwise than by recitals in aid bonds, 903. when payment of interest does not amount to, 903. created by voting as stockholder, 903. created by substitution of municipal aid bonds, 903. arising from long acquiescence, 903, 1049. by retention of stock, 904. when must be reciprocal, 905. to deny abandonment of location, 931. to deny award, 933. when does not arise under license, 949. to claim compensation and damages, 1008. running with the land, 1008. by affirmative acts, 1008, n. of landowner to question possession in condemnation cases, 1048. of landowner to question railroad company's possession, 1049. by accepting compensation and damages, 1049. by acquiescence, 1049. by acceptance of compensation and damages, 1052. to oust company under unauthorized entry, 1055. to enforce lien, 1075. to object to railroad in street, 1096. to claim private crossings, 1139. to question constitutionality of farm crossing statute, 1142. bill of lading operating as, 1418. of shipper by valuation given, 1510. to question conditions in passes, 1613. EVAPORATION, when carrier liable for loss by, 1481. EVIDENCE, to constitute one a promoter, 10. of acceptance of special charter, 17. of existence of corporation, 18. articles of incorporation as, 36. of ownership of corporate stock, 78. that one is a stockholder, 108. to show that subscription is an escrow, 114. of abandonment of contemplated route, 122. when by-laws are against strangers, 192. of stockholders' right to vote, 157, INDEX. 2881 [References are to Section^.] Vol. I, §§ 1~S31, Vol. II, §§ 322-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. EVIDENCE— Core«feMe(i. when may be required as to validity of proxy, 162. when judgment against corporation is conclusive as to stockholders, 180. to establish relation of principal and agent, 210. admission of declarations in, 219. entries in corporate records, 265. corporate records as, 266. of consolidation, 324, 326, n. contracts executed under seal, effect, 411. when must be offered of corporate existence, 616, n. as to reasonableness of rates, 688, n. record of proceedings before railroad commissioners, 695. on indictment for causing death, 716. in prosecution for obstructing track, 730. land patent for purpose of, 796. as to value, in condemnation proceedings, 994, 1036. of abandonment of condemnation proceedings, 1033. discretion as to admitting in condemnation proceedings, 1036. award should be based on, 1039. competency in condemnation proceedings, 1039. effect where award of damages contrary to, 1040, n. of negligence in violation of ordinance, 1095. of negligence, breach of statutory duty, 1155. positive better than negative, 1158. of intoxication of flagman, 1157. as to giving of signals, 1158. of subfequent repairs at highway crossing, 1177. of other accidents at crossing, 1177. to show notice of defective crossings, 1177. of suflBciency of cattle-guard, 1198. of ownership by possession, 1212. in action for injuries to animals, 1213. where animals are killed or injured, 1214. ordinances as where animals are injured, 1214. fire as prima facie evidence of negligence, 1222. in proving value of property burned, 1239. must follow pleading, 1241, 1309. burden of disproving negligeace in fire cases, 1242. of setting of fires, 1243. of compromise of fire cases, 1243. of negligence in fire cases, 1244. to rebut presumption of negligence in fire cases, 1245. of employer's negligence, 1309. of knowledge of defects, 1312. of subsequent repairs, competency, 1349. 2882 INDEX. IMeferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1701 EVIDENCE— CoBJOTwed. life tables as, 1378. sufficiency of that showing delivery, 1404, n, 1406. of custom as affecting delivery, 1412. of delivery, generally, 1413. bills of lading are of receipt of goods, 1419. bills of lading as of condition, weight or contents, 1420. of unreasonable delay, 1483. of insolvency, sufficiency of, 1539. when ticket is of contract with carrier, 1593. ticket as conclusive evidence between conductor and passenger, 1594. tickets as evidence of passenger's rights, 1594. of fraud in use of pass, 1610. what is sufficient to rebut presumption of negligence, 1635, n. when baggage checks are competent as, 1655. admissibility of baggage checks as, 1658. of reasonableness of rates, 1684. in actions against common carriers, 1695. must be responsive to issues, 1695. of repairs after accident, 1697. when real evidence may be introduced, 1700. of experiments, when admissible, 1700. overcoming presumptions by, 1701. mere scintilla not sufficient to carry case to the jury, 1702. demurrer to, 1702, n. effect of physical facts, 1703. See Admissions; Declarations. EX PARTE APPLICATION, for appointment of receivers, 556. EX POST FACTO, by-law is void, 193. EXCEPTIONS, when must be taken to receivers' accounts, 583, n. EXCESSIVE CHARGES, remedy against, 1563. what are, 1563. rights and remedies where they are demanded, 1564. suing for recovery of, 1564. effect of voluntary payment of, 1564. when protest against is necessary, 1564. effect of interstate commerce law, 1564, n. rule where special services are rendered, 1566. INDEX. 2883 IReferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EXCESSIVE DAMAGES, remittitur where they are given, 1218. EXCESSIVE FORCE, must not be used in ejecting passengers, 1637. EXCESSIVE SPEED, causing injuries, 1204. as evidence of negligence in fire cases, 1244. EXCISE TAX, when may be imposed on interstate railroad, 762. EXCLUSIVE FRANCHISES, legislature granting, 32. amendment amounting to, 46. subject to power of eminent domain, 968. effect of grant of conflicting, 968. what is grant of, 968. EXCLUSIVE GRANTS, subject to power of eminent domain, 968. EXCURSION RATE, when may be paid on train, 1603. EXCURSION TICKET, limiting as to day and train, 1601. nature of contract contained in, 1601. EXCURSION TRAIN, authority of station agent to contract for, 303, n. when prohibited on Sunday, 717. EXCUSES, for refusal to carry goods, 1466. for failure to receive live stock, 1547. EXCUSES FOR FAILURE TO DELIVER, difference between cases not within the scope of duty and cases involv- ing excuses for non-delivery, 1534. excuses arising from acts of shipper, owner or consignee, 1535. countermanding original shipping directions, 1536. seizure under legal process, 1537. attachment, 1538. garnishment, 1538. 2884 INDEX. IBeferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§5«-9iS, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EXCUSES FOR FAILURE TO DELIVER— Continued. general doctrine as to stoppage in transitu, 1539. who may exercise right of stoppage in transitu, 1540. against whom the right of stoppage in transitu may be exercised, 1541. mode of exercising right of stoppage in transitu, 1542. termination of the right of stoppage in transitu, 1543. interpleader between adverse claimants, 1544. procedure on part of carrier where there are adverse claimants, l.i44. EXECUTED CONTRACTS, effect where they were ultra vires, 372. EXECUTION, when corporate franchise may be sold on, 67. stock may be sold on, 79, n. reaching stock under, 149, n. against corporation before resorting to stockholder's liability, 179. against corporation, 188. preceding enforcement of stockholders' statutory liability, 188. when may be issued against companies constituting consolidation, 338. assignment of bonds after levy of, 484, n. when single bondholder can not levy, 486. what railroad property subject to sale on, 520. statute authorizing sale under, 520. reaching railroad property fraudulently transferred, 535. appointing receiver where it is not effective, 548. when receiver's rights superior to subsequent, 563. on property in hands of receiver, 574. injunction to secure stay of, 1049, n. on judgment in condemnation proceedings, 1033. EXECUTION SALE, does not transfer corporate franchise, 37, n. what railroad property subject to, 520. EXECUTIVE AND MINISTERIAL OFFICERS AND AGENTS, See President ; Theasdebr ; Secebtahy ; Managing Age.n'ts ; Intermediate Agents; Superintendent; Conductors; Station Agents ; Agents. EXECUTIVE COMMITTEE, locating road, 920. EXECUTIVE DEPARTMENT, may be authorized to appoint receivers, 559. INDEX. 2885 [References are to Sections."] Vol. I, %% 1-321, Vol. II, §§ Sn-918, Vol. Ill, §§ 919-1390, Vol. IV, ^^1391-1703. EXECUTORS, purchase and sale of shares of stock by, 94. right to vote stock, 156. when can convey land for right of way, 934. suing for injuries causing death, 1372. See Administbatohs. EXECUTORY CONTRACTS, effect where they are ultra vires, 372. to purchase real estate, when not enforceable, 407. EXEMPLARY DAMAGES, where animals are injured, 1218. in cases of injuries causing death, 1378. in action on tort, 1693. See PoNiTivB Damages. EXEMPT PROPERTY, from location of railroad, 924. from power of eminent domain, 969. EXEMPTION, of stockholders from personal liability, 186, granted to corporate representatives, 205. duty of garnishee to present defendant's right to, 625, 627. when personal defense which may be waived, 625. laws giving have no extra-territorial effect, 627. avoiding by sending claim to foreign state, 627. EXEMPTION FROM NEGLIGENCE, when carrier can not contract for, 1645. EXEMPTION FROM TAXATION, on consolidation, 747. does not extend to leased lines, 747. presumption is against, 747. right of non-assignable, 748. is not a franchise, 749. of property used in operating railroad, 750. statute creating strictly construed, 750. as a contract, 768, 770. when state may withdraw, 770. property used for religious and charitable purposes, 781. does not cover local assessments, 781, 784. Corp. 183 2886 INDEX. ^References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EXHIBITION, power to donate corporate funds for, 374. EXPENSES, those borne by promoters, 13. of state officer supervising railroads, who pays, 43. single bondholder bringing suit entitled to, 509. as affecting appointment of receiver, 540, n. receiver seeking advice of court as to, 566. duty of receiver to pay, 566. of operating road by receiver, 580. receiver's, attorney's fees as a part of, 585. of constructing railway crossing, 1128. of keeping watchmen at railroad crossings, 1129. of keeping railway crossing in repair, 1134. of putting in private crossing, 1142. See Costs. EXPERIMENTS, when evidence of admissible, 1700. when may be made before the jury, 1700. EXPERT WITNESS, person testifying to value of real estate need not be, 1037. EXPIRATION OF CHARTER, effect of, 62. EXPLOSION, negligence can not be inferred from, 1299. injuries to employes from, 1299. EXPOSED POSITION, effect where shipper places goods in, 1493. See Contributory Negligence. EXPOSED PROPERTY, liability where set on fire, 1228. EXPRESS AGREEMENT, waiving conditions to subscription, 115. EXPRESS AUTHORITY, to take railroad property, 41, n. See Authority. INDEX. 2887 \_Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ S^3-91S, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. EXPRESS CAES, prohibiting passengers from riding in, 200. EXPRESS COMPANY, railroad company conducting, 1394. as common carrier, 1401. as railroad carrier, 1453. discrimination in favor of, 1453. EXPRESS CONTRACT, excluding extra-terminal liability, 1438. against act of God, 1456. violence of mob does not relieve where there is, 1460. to furnish cars, 1473. limiting liability by, 1496. to make personal delivery, 1518. See Contracts. EXPRESS MESSENGERS, as passengers, 1578, 1645. passengers while riding on passes, 1604. limiting liability for injuries to, 1645. EXPULSION OF PASSENGER, when company not liable for, 1602. See Ejection of Passengers. EXTENDING TIME, for completion of road, 45, n. EXTORTION, in contract limiting liability, 1500. EXTORTIONATE CHARGES, remedy for, 701, n. EXTRA BAGGAGE, authority of baggage-master to receive, 1649. EXTRA CHARGES, for what they may or may not be made, 1566. for storing goods, 1567. for transporting perishable goods, 1566. See Freight Charges. EXTRA COMPENSATION, for seat in chair-car, 200, n. 2888 INDEX. {References are to Sections.} Vol. I, §§ 1-331, Vol. II, §§ 33^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-110:1 EXTRA FARE, persons without tickets, 200. ejection of passenger for failure to pay, 1637. EXTRA PAY, for building temporary track, 1060. EXTRA-TERMINAL DEFAULTS, actions on account of, 1441. EXTRA-TERMINAL LIABILITY, creating by contract, 1433, 1434, 1435. contracts creating xCltra vires, 1434. what constitutes contract for, 1435. when contract for may be inferred, 1435. when may be inferred from acceptance of goods, 1435. illustrative cases of, 1436. authority of agents as to, 1437. excluding by contract, 1438. EXTRA-TERRITORIAL EFFECT, laws do not have, 27, n. penal statutes have no, 710. when statutes have none, 1364. EXTRA-TERRITORIAL JURISDICTION, to appoint receivers, 554. EXTRA TRAINS, traveler must look out for, 1166. duty of employes to look for, 1281. trackmen assuming risk of, 1298. EXTRA WORK, in construction of road, 1060. when contractor entitled to pay for, 1060. when engineer must consent to, 1060. EXTRAORDINARY DANGERS, warning employes of, 1283. engineers do not assume, 1297. EXTRAORDINARY DIVIDENDS, right to as between life tenant and remainderman, 307. EXTRAORDINARY FLOODS, when carrier not liable for, 1584. INDEX. 2889 [Beference^ are to Sections. 1 Vol. I, §§ 1-S21, Vol. II, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-1703. EXTRAORDINARY PRESS OF BUSINESS, excusing carrier from shipping freight, 1479. EXTRAORDINARY REMEDY, mandamus is, 1690. EXTRAORDINARY RISKS, employe does not assume, 1288. when brakemen assume, 1296. EXTRAORDINARY STORMS, carrier not liable for loss by, 1455. 1 EXTRINSIC EVIDENCE, to uphold municipal aid bonds, 913. FACILITIES FOR TRANSPORTATION, duty to furnish, 1479. FACT, acceptance of charter question of, 17, n. alleging facts upon which forfeiture of corporate franchises claimed, 55. effect of ignorance of on contracts, 351. recitals of constituting an estoppel, 901. court applies law to, 1679. duty of court where they are undisputed, 1702. effect of physical facts, 1703. See Questions of Law ; Questions of Fact. FACTOR, may exercise right of stoppage in transitu, 1540. FAILURE TO CONSTRUCT, abandonment of location by, 931. FAILURE TO DELIVER, live stock, liability for, 1556. FAILURE TO RUN TRAINS, as ground for forfeiture of charter, 49. FALSE ARREST, when company liable for, 1265. FALSE IMPRISONMENT, when company may be liable for, 303, 1265. action for against a corporation, 709, n. 2890 INDEX. [^References are to 'Sections.'] Vol. I, §§ 1-SSl, Vol. 11, §§ 3112-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FALSE PRETENSES, to obtain property from railroad companies, 734. FALSE REPRESENTATIONS, by person without authority, effect, 128. stockholder liable for, when, 190, n. effect of in railway aid election, 860. See Fkaddulbnt Rkpeesentations. FARE, exacting higher on train, 201. dividing between connecting lines, 356. company can not be deprived of, 691. penal offense to evade payment of, 729. person a passenger before payment of, 1578. definition of, 1593. must be reasonable, 1593. power of state to regulate rate of, 1593. interstate commerce law governing rates of, 1593. when passenger without ticket must pay, 1594. paid on train, 1603. when excursion rate may be paid on train, 1603. no lien on passenger for, 1603. mistake of conductor in collecting, 1603. giving passenger reasonable time in which to pay, 1603, n. ejection for refusal to pay, 1610, 1637, n. another person paying that of person about to be ejected, 1637. tender of after conductor has commenced to expel passenger, 1637. lien on baggage for payment of, 1662. FARM, how much land may be included in, 992, n. FARM CROSSING, purchaser at foreclosure sale not bound by parol agreement for, 526, n. mandamus to compe) construction of, 639. police power compelling erection of, 668. agreement to construct running with the land, 945. considering cost of in estimating damages, 996. when landowner entitled to, 996. See Peivate Crossings. FAST FREIGHT, extra charges for, 1566. INDEX. 2891 [References are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ 32Z-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. FAST FREIGHT COMPANIES, as common carriers, 1401. as railroad carriers, 1453. FATHER, recovering for death of minor child, 1368. FEDERAL COMMON LAW, what is, 1663. effect of, 1663. FEDERAL CONSTITUTION, regulation of interstate commerce, 689. effect on taxing power, 735. commerce clause of, 1664. state power as limited by commerce clause of, 1665. how commerce clause affects the police power, 1668. imposing limitations on police power, 1668. See Constitution; Taxation as Affected by the Fbdeeal Constitution. FEDERAL CORPORATIONS, formed by federal authority, 25. residence of, 25. state can not make them domestic corporations, 673. FEDERAL COURTS, removing causes to, 23. foreign corporations bringing actions in, 30. when stockholders may maintain suit in, 166, n. jurisdiction over consolidated corporations, 339. decreeing sale of road in more than one state, 515. application for receivers in, 552. will not compel accounting by receiver of a state court, 553. jurisdiction to appoint receiver for road in more than one state, 554. effect of removal to on appointment of receiver, 555. suing receivers appointed by without leave, 573. power to dissolve corporation, 609, n. when corporations may be sued in, 623. jurisdiction of, 645. what actions may be removed to, 646. how jurisdiction of affected by amount in controversy, 648. how jurisdiction affected by application for removal to, 654. judge of their own jurisdiction, 654. pleading and practice in after removal,, 656. effect of state statutes in, 702. rule in as to application of remedies, 702. 2892 INDEX. [Beferences are to Sections. "l Vol. I, §§ 1-321, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FEDERAL CO\S RTQ— Continued. following decisions of state courts, 768, 915, 1663. diverse citizenship as ground of jurisdiction in, 916. jurisdiction in reference to municipal aid bonds, 916. when not bound by state decisions, 977. enforcing general law as to master and servant, 1339. state can not exclude jurisdiction of, 1362. obtaining jurisdiction by removal, 1871. See Removal of Causes. FEDERAL GOVERNMENT, general powers of, 1664, n. states can not encroach upon powers of, 1670, n. FEDERAL JURISDICTION, as affected by consolidation, 28. See Jurisdiction; Removal op Causes. FEDERAL POWER, over interstate commerce, 1671. source of over interstate railroaids, 1663. over conspiracies, 1674. over trusts, 1674. over monopolies, 1674. over commerce and manufactures, 1674. to suppress combinations, 1674. FEDERAL QUESTION, removal of causes where one is involved, 652. illustrative cases of removal of causes on ground of, 652. law decided by supreme court is not, 652. suit to set aside lease does not raise, 652. how must be made to appear, 652. railroad commissioners removing cause on ground of, 708. FEDERAL REGULATIONS, effect of violation of, 725. FEE, for consolidation, 322. for right to be a corporation, 766. See Compensation ; Attorney's Fees. FEE-SIMPLE. TITLE, when is not acquired, 401, 402. railroad company acquiring, 938. INDEX. 2893 [^Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FEE-SIMPLE TITLE— Continued. when only easement transferred by deed of, 938. when acquired under exercise of power of eminent domain, 972. as affecting right to compensation for use of street, 1087. FEEDING LIVE STOCK, duty to feed live stock being carried, 1549, 1553. extra compensation for feeding live stock, 1566. FELLOW-PASSENGER, assaulting other passenger, 1638. injuring other passengers, 1639. FELLOW-SERVANT, when conductor is of other employes, 302, n. how statute in reference to affects employes of receivers, 577. legislature prescribing who are, 668. placing structure near the track, 1269, n. brakemen and switchmen are, 1276, n. when conductor is not with brakeman, 1282, n. obtaining knowledge of danger from, 1283. duty to employ competent ones, 1284. burden of proof where incompetency alleged, 1286. presumption as to care in selecting, 1286. retention of incompetent, 1292. rule where collision caused by, 1300. survey of the fellow-servant rule, 1316. rule at common law as to liability for negligence of, 1316. test for telling who is, 1316. vice-principal, 1317. superior agent, 1317. illustrative cases of vice-principals, 1318. illustrative cases of superior agents, 1318. vice-principal as to particular subjects, 1319. what constitutes a common employment, 1320. general managers, 1321. superintendents, 1321. train dispatcher, 1322. master mechanic, 1323. road masters, 1324. train masters, 1325. station-masters, 1326. when trainmen are, 1326. when inspectors are, 1326. telegraph operators, 1328. when foremen are, 1329. 2894 INDEX. {^References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 3Sg-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FELLOW-SERVANT— Con«inMed. mere name does not determine, 1329. trainmen operating same train, 1330. trainmen operating different trains, 1331. trainmen and switchmen and laborers and sectionmen, 1332. recent federal cases, 1333. who are under employers' liability acts, 1346. care in selecting, 1351. See Employebs' Liability Acts; Co-Employbs. FELLOW-SERVANT RULE, origin of doctrine of, 1316. FELONY, to destroy railroad track, 730, n. FEMALES, statute prohibiting employment of, 1336. FENCE, building after company is chartered, 44. power of general superintendent to contract for, 297. required by deed of right of way, 416. when covenant to build runs with the land, 420. parol agreement to construct does not run with the land, 420. when lessee must maintain, 461, n. duty of lessee to build, 471. liability of receivers for injuries to animals on account of lack of, 577. liability of corporation for failure to maintain pending a receivership, 581. mandamus to compel construction of, 638. statutes imposing duty to build are valid, 668. damages for failure to erect, 669. power of railroad commission to compel company to construct, 682. requiring company to maintain, 724. enforcing agreement to erect, 936. agreement to build running with land, 936, n. agreement to maintain as a condition subsequent, 941. when agreement to construct is a covenant, 945. costs as element of damages, 996. compensation and damages to pay for erection, 996. company paying half of expense of erecting, 996, n. requiring company to build by laws passed after road built, 1102. compensation for those taken by railway crossing, 1127. must be erected along margin of right of way, 1181. kind requirpfl, 1184. INDEX. 2895 [Beferentus are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. n , §§ 1391-1703. FENCE— Con«t««ed. parties agreeing as to kind of, 1184. blufi, embankment or hedge serving ae, 1184. enjoining erection of, 1184. duty to repair, 1185. reasonable time to repair after notice cf defects, 1185. employing third person to construct, 1186. those erected by landowner, 1187. effect of agreement to build, 1188. endangering safety of employes, 1194. in cities, towns and villages, 1195. cattle-guards as a part of, 1198. wing fences as part of, 1199. duty owing to passengers, 1686, n. See Duty to Fence. FERMENTATION, when carrier liable for loss by, 1481. FERRY, franchise to, 32, n. FICTITIOUS NAME, consignee ordering goods in, effect, 1526. effect of delivery to person who uses, 1535. FICTITIOUS PERSON, issuance of bills of lading to, 1419. effect of delivery by carrier to, 1526. FICTITIOUS STOCK, issue of as ground for forfeiture, 49. when not void, 89. FICTITIOUS SUBSCRIPTIONS, when disregarded. 111, n. FIDUCIARIES, purchase and sale of stock by, 94. FIDUCIARY RELATION, termination of between directors and corporation, 277. of president to stockholders, 291. treasurer 'occupies to corporation, 293. FINAL DECREE, on foreclosure of mortgages, 518. as to part of the parties, 518. 2896 INDEX. [Beferences are to Sectionst.] Vol. I, §§ 1-SSl, Vol. II, ^^322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FINE, assessing against person interfering with receiver, 575. power of legislature to provide for, 709. See Penalties. FIRE-ARMS, as baggage, 1647. FIRE BREAKS, landowner not bound to put out, 1238. FIREMAN, not bound to keep constant lookout, 1205. pleading unskillfulness of, 1241. ejecting trespassers, 1255. risk from running engine, 1296. assumption of risks by, 1297. as fellow-servant of other trainmen, 1330. when engineer superior of, 1346. can not abrogate rules and regulations, 1580. FIRES SET BY RAILWAY COMPANIES, imposing liability for, police regulation, 44. liability of lessee for, 471. action for damages by is local action, 623, n. companies may lawfully use fire, 718. destroying property to prevent spread of, 950. damage from increased danger of, 996. compensation for additional exposure to, 1127. authorized use of fire, 1221. when company not liable for, 1221. negligence as gist of action, 1221. effect of commingling, 1221. statutory liability, 1222. burden of proof fixed by statute, 1222. absolute liability for, 1222. injury to personal property by, 1222. constitutionality of statutes imposing absolute liability, 1223. insurable interest where there is absolute liability, 1223. equipment of engines, 1224. spark arresters, 1224. ash-pans, 1224. fuel used in locomotives, 1224. adopting most improved locomotives, 1224. liability for accidental escape of, 1224. management of engines, 1225. INDEX. 2897 {Beferences are to Sections. "] Vol. I, §§ 1-Sn, Vol. II, §§ 3n-918, Vol. Ill, §§ 919-1.390, Vol. IV, §§ 1391-1703. FIRES SET BY RAILWAY COMPANIES— Confimied. caught from burning car, 1225. duty to clear right of way of combustibles, 1226. those set to burn off right of way, 1227. liability where lire escapes by pure accident, 1227. set by employes without scope of duty, 1227. extra precautions in dry seasons, 1228. where wind is blowing, 1228. liability where property is exposed, 1228. those started on the right of way, 1229. started off the right of way, 1230. liability for remote fires, 1231. effect where independent agency intervenes, 123ft when wind is independent agency, 1231. distance to which they spread immaterial, 1231. jury determining question of proximate cause, 1281. effect of agreement with landowner to let them burn, 1231. duty to extinguish, 1232. no duty to patrol track to watch for, 1232. ownership of property burned, 1233. lessee recovering for loss by, 1233. destroying leased property, 1233. subrogation where insured property destroyed, 1233. insurance company as real party in interest, 1234. effect where property burned is insured, 1234. property on right of way, 1235. contributory negligence in exposing property to, 1235, n. contracts limiting liability, 1236. liability where road operated under lease, 1237. contributory negligence of owner, 1238. property owner not required to watch for, 1238. submitting question of contributor}^ negligence to jury, 1238. burning property awaiting shipment, 1238. duty of property-owner after discovery of, 1288. measure of damages for property destroyed by fire, 1239. value of real estate before and after, 1239. evidence to prove value of property burned, 1289. cost of replacing property not correct measure of damages, 1239, n. common law liability, 1221. pleading, 1240. parties, 1240. pleading, sufficiency of complaint, 1241. burden of proof, 1242, 1243. presumption of negligence, 1242. proof that company set out fire, 1243. 2898 iNDKX. [Beferences are tu Sections.] Vol. I, §§ 1-3S1, Vol. 11, §§ 3^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FIRES SET BY RAILWAY COMPANIES— ContinMed. burden on plaintiff to prove setting of, 1243. circumstantial evidence of setting, 1243. nonsuit in cases of, 1243. admissibility of proof of other fires, 1243. evidence of compromise not admissible, 1243. proof that company negligently set fire, 1244. proof that locomotive frequently set out fires, 1244. springing up just after trains pass, 1244. evidence to rebut presumption of negligence, 1245. attorney's fees in cases of, 1246. personal and other injuries caused by, 1247. liability for freight lost by, 1405. destroying freight awaiting shipment, 1411, 1488. destroying goods in vrarehouse, liability, 1462. validity of stipulation exempting carrier from loss by, 1508. FIRST MORTGAGE BONDS, priority over second mortgage bonds, 500. FISHING TACKLE, as baggage, 1646, n., 1647. FIXTURES, real estate, 31. when covered by general mortgage, 495. when covered by mortgage, 498. when rails are not regarded as, 998. FLAGMEN, compelling company to station at crossings, 668. power of railroad commission to require, 682. requiring company to keep at crossings, 724. paying expense of keeping at railway crossings, 1129. at railway crossing8,generally, 1129. effect of failure to heed signals of, 1157. liability for negligence of, 1157. effect of intoxication of, 1157. effect of invitation or direction by, 1157. effect of sudden discontinuance of, 1157. effect of signal by to traveler, 1166. negligence in failing to heed, 1171. railroad commissioners requiring at crossings, 1157. when required at crossings, 1157. rule where they do not see traveler, 1171, n. effect of absence at crossing, 1171, n. INDEX. 2899 [Beferences are to Sections.} Vol. I, §§ 1-3S1, Vol. 11, §§ 3Sg-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. T'L AGMEN— Continued. showing absence of without alleging it in complaint, 1157, n. duty to place not owing to employes, 1310. relation to company, 1328. FLOATING DEBT, power of directors to liquidate, 83. FLOODS, damages for causing, 977. as act of God, 1455. duty to provide against, 1584. when carrier excused from loss by, 1660. FLYING SWITCHES, statute to prevent, 668. when negligence per se, 1162. "F. O. B.," meaning of, 1425. FORECLOSURE, of mortgage on consolidated road, 27. of lien on stock, 101, n. sale by receiver pending, 523. when decree nisi may be rendered, 530. safest way to prepare for reorganization, 533. of mechanic's lien, 1074. FORECLOSURE OF MORTGAGE, because of default, 505. option to declare whole debt due, 506. when bringing suit amounts to election to declare whole debt due, 506. for default in payment of interest, 507. parties to, 508. bondholders as plaintiffs, 509. pledgees, assignees and others as plaintiffs, 510. defendants in suits for, 511. when lienholders should be made defendants, 512. defenses to, 513. effect of provisions giving trustees the right to take possession and sell, 514. the decree, 515. consent decree, 516. deficiency decree, 517. final and appealable decrees, 518. 2900 , INDEX. [iJe/erences are to Sections. ~\ Vol. I, §§ 1-321, Vol. II, ^38S-918, Vol. Ill, §§ 910-1390, Vol. IV, §§ 1391-1703. FORECLOSURE SALE, transfer of property and franchises under, 490. who may be purchaser at, 521. corporation purchaser at, 521. when franchise of being a corporation does not pass by, 525. effect of, 525. title acquired by purchaser at, 525. when purchaser takes free from liabilities and liens, 526. statutory liens operative after, 526. disposition of proceeds acquired from, 527. right to set aside for fraud, 529. legislature can not validate a fraudulent one, 529. redemption from, 530. constituting purchasers at a corporation, 531. liability of new corporation formed by purchasers, 532. when fraudulent against creditors, 535. payment of receiver's certificates on, 597. FORECLOSURE SUIT, effect of contract of stockholders to withdraw opposition to, 527. application of proceeds pending, 528. appointing receiver in, 546. when pending does not prevent appointment of receiver, 553. FOREIGN ADMINISTRATORS, when may sue for injuries causing death, 1372. FOREIGN ASSIGNMENTS, when will not be enforced, 599, n. FOREIGN ATTACHMENT, removal of to federal courts, 646. FOREIGN BUSINESS, corporation doing, 22. FOREIGN CARS, duty to inspect, 1279. obvious and latent defects, 1279. rule where there is no time to inspect, 1279. FOREIGN CORPORATION, authority and rights of, 26. considered with reference to federal jurisdiction, 28. operating under license, 29. INDEX. 2901 \_'References are to Sections.] Vol.1, ^U-3S1, Vol.11, ^^3SS-918, Vol. Ill, B 919-1390, Vol. IV, 1^391-1703. FOREIGN CORPORATION — CortJOTwed. operating under lease, 29. power of to condemn, 29. condition of admission to state, 30. acquiring domestic charter, 30. becoming domestic corporation, 30. bringing suit in federal court, 30. appointing receiver for property of, 30. liability of stockholder in, 150, n. consolidation with, 339. right to hold real estate, 398. who may assail its right to hold lands, 398. purchaser at foreclosure sale, 521, n. when proof of due incorporation required, 617, n. service of process upon, 621. when required to keep agents in state where it does business, 621. when may be sued in federal court, 623. may be subject to garnishment, 624. when may be garnished for debt of non-resident employe, 627. quo laarratito to try its right to do business, 644. what does not make it a domestic corporation, 649. state can not deprive it of the right of removal, 649. state levying excise tax on, 762, n. right to exercise power of eminent domain, 956. right to lien for material furnished, 1070. FOREIGN COUNTRY, directors' meeting held in, 264. FOREIGN COURT, relief in on stockholder's liability, 189. FOREIGN JURISDICTION, corporate meetings in, 24, n, 264. right of receiver to sue in, 570. FOREIGN LESSEES, rights of, 445. FOREIGN RAILROADS, acquisition of right of way, 933, n. FOREIGN RECEIVER, creditor obtaining priority over, 556. rights of similar to those of non-resident attaching creditor, 555 Corp. 184 2902 INDEX. IBeferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 33S-918, Vol. Ill, §§ 919-XS90, Vol. IV, §§ 1391-1703. FOREIGN RECEIVERS— ContHiMed. rights and powers of, 555. right to bring suits against, 571, n. See Rbceivbes. FOREIGN SHIPMENTS, statutes prohibiting limitation of liability not applicable to, 1499. FOREIGN STATE, enforcing personal liability of directors in, 710. will not enforce penal laws, 1365. enforcing statutes of other states, 1366. FOREIGN STATUTES, pleading in actions for death, 1364. FOREMAN, when agent and when servant, 300. when a fellow-servant, 1329. when a vice-principal, 1329. as fellow-servant, 1333. when regarded as a superintendent, 1352. as person in "charge or control," 1356. FORFEITURE, what is not ground for, 51. because of issue of watered stock, 88. as remedy for failing to pay calls and assessments, 149. when may be pursued as a remedy, 149. right to can not be created by by-law, 149, n. how stock is valued on, 150. effect of decision of railroad commissioners against, 696. defense to action for, 698. of land grants, 800, 801. of land grants, legislative declaration of, 802. not favored in law, 939. breach of condition'subsequent working, 940, n. for failure to perform conditions subsequent, 942. where there has been only colorable compliance with conditions, 943. none where damages can be given, 945. when can not be enforced in construction contracts, 1062 , fixed in construction contract, 1062. of ticket, 1599, n. FORFEITURE OF CHARTER, when takes effect without judicial determination, 47. causes for, 47, 48. INDEX. 2903 [Beferences are to Sections.'} Vol. I, §§ 1-SSl, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Voll IV, §§ 1391-1703. corporate franchise subject to, 48. Buit for must be by public or its representatives, 48. time to bring suit for, 48, n. future neglect not ground for, 48, n. grounds for, 49. illustrative cases, 49. when duty to declare is mandatory, 50. PORFEITUEE OF CHAETEE— OoniinwecZ. when duty to declare is discretionary, 50. how affected by public interests, 50. what is not cause for, 51. waiver of, 52. effect of sale of corporate property on, 51, n. must be judicially declared, 52. charter can not be revived after, 52. parties, 53. procedure in, 53. where proceedings for must be brought, 54, 55. can not be declared in collateral proceedings, 55. repeal taking place of, 57. for attempted transfer of road, 519. EOEFEITUEE OF STOCK, remedies in addition to, 150. what amounts to, 150. effect of, 151. disposition of surplus arising from sale, 151. rights of stockholder after, 151. effect of fraud in declaring, 151. statutory method must be pursued, 152 injunction against, 152. notice of, 153. defeating and annulling, 154. estoppel to deny validity, 154. mandamus will not lie to compel corporation to annul, 154, n. when by-law may provide for, 197. formalities must be complied with in, 259. when stockholder may enjoin, 634. FORGED ORDER, delivery of baggage on, 1659. FORGERY, of transfer of stock, 80, n. of railroad ticket, 734. 2904 INDEX. IBeferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, ^13^3-918, Vol. Ill, §§ 019-1390, Vol. IV, §§ 1391-1703. FORM, of subscriptions to stock, 103. FOEM OF ACTION, against common carriers, 1693. FORMAL ACCEPTANCE, not necessary, 1404. FORMAL DEFECTS, effect of in contracts, 346. effect of in municipal aid bonds, 881. FORMALITIES, necessary to transfer of stock, 97. necessary in forfeiture of stock, 152. of enactment of by-laws, 195. required in action by directors, 259. FORUM, designating in which to sue for injuries causing death, 1362. law of governs remedy, 1365. FORWARDING AGENT, when initial carrier is, 1432. initial carrier acting as, 1437, 1451. FORWARDING LINES, when carrier may select, 1423. FOURTEENTH AMENDMENT, unequal taxation under, effect, 774, 775. FRAGMENTARY PARTS, railroad can not be sold in, 520, 1074. FRANCHISES, state granting, 32. legislature granting exclusive, 32. turnpikes, 32, n. bridges, 32, n. canals, 32, n. ferries, 32, n. subject to right of eminent domain, 32, 74, 922, 967. not to be impaired, 32, n. what amounts to exercise of corporate, 36. effect of sale of corporate property on, 37, n., 51, n. , INDEX. 2905 [References are to Sections.'] Vol. /, §§ l-Sn, Vol. II, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FRANCHISES— aonffoMed. regrant of after forfeiture, 47. abuse of as ground for forfeiture, 48. questioning use of in quo loarranto proceedings, 53, 644. charging and pleading misuse of, 55, n. definition, 63. cliarter and franchise distinguished, 64. grant of corporate, 65. are not licenses, 65, 69. consideration for grant of, 66. when become effective, 66. nature of considered, 67. when may and when may not be sold, 67, 519. of being a corporation, 68. of being corporation distinguished from corporate rights, 68. i difference between and license, 69. sale of corporate property essential to exercise of, 70. effect of attempt to sell, 71. when pass on sale of property, 71. judicial sale of, 72. sequestration, 73. seizure of under power of eminent domain, 74, 922, 967. dissolution effected by sale of, 75. passing to consolidated company, 329. general authority to mortgage, 490. purchase of by another corporation, 519. of being corporation, effect of foreclosure sale on, 525. which pass on foreclosure sale, 531. appointing receiver to prevent abuse of, 547, n. die on dissolution of corporation, 613. mandamus to compel company to exercise, 638. quo warranto for usurpation of, 644. taxation of, 738. immunity from taxation is not,749. condemnation of, 922. abandonment of location by non-user of, 931. effect of transfer on right of eminent domain, 958, n. when subject to power of eminent domain, 967. compensation where part only impaired, 967. exclusive subject to power of eminent domain, 968. how sale of affects appropriation cases, 1025. injunction to protect rights in, 1049. when lien may be acquired on, 1069. municipal corporations no inherent power to grant, 1076. 2906 INDEX. {Eeferences are to Sections.'] Vol. I, §§ l-S^l, Vol. II, ^kSn-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FRANCHISES— Oontinwed. right to use streets, 1079. when can not be impaired by opening street, 1104 what amounts to impairment of, 1121. must not be impaired by railroad crossing, 1121. taken subject to right of other roads to cross, 1126. See CoRPOEATB Franchises. FRAUD, of promoter in selling to corporation, 12, n. in contract of promoter, 13. effect of in issuing shares of stock, 79, n., 80. in issuing watered stock, 88. in paying for stock with worthless property, 91. in payment of subscriptions with overvalued property, 110. parol conditions in subscriptions, 112. when may be shown by parol evidence, 129. subscriber must be free from negligence to take advantage of, 130. subscription induced by voidable, 131. subscriber has reasonable time in which to take advantage of, 132. in declaring forfeiture of stock, 151. when will release stockholder from liability, 176. when not available as a defense, 181. liability for agent's, 213, 1535, n. individual liability of agents for, 231. contract with director must be free from, 276, n. by directors on third persons, 282. when company not bound by agent's, 303. effect of in declaration of dividends, 318. setting aside lease for, 478. when will not be presumed, 478. effect of in increasing capital stock, 483, n. burden of proving on party charging it, 484. right to set aside foreclosure sale for, 529. effect of in sale or reorganization, 535. as ground for appointing receiver, 549. removing receiver appointed for purposes of, 586. vacating order of railroad commissioners on ground of, 707. effect of in railway aid election, 860. effect of in issuing municipal aid bonds, 873. how affects right to specific performance, 935. effect of in securing release of damages, 937. setting aside report of condemnation proceedings for, 1041. as affecting report of commissioners, 1042, n. effect of in construction contracts, 1058. INDEX. 2907 l^Beferences are to Sections,] Vol. I, §§ l-sn, Vol. n, §§ SS^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. FRAUD— CoreJinued. effect of in terminating construction contract, 1058. effect of in engineer's estimates, 1059. when engineer liable for, 1059. by lienholder, 1075. avoiding releases and compromises for, 1377. parol evidence to show, 1423. in assignment of bill of lading, 1428. effect of on part of connecting carrier, 1451. effect of that on part of shipper, 1491. in securing acceptance of bill of lading, 1502. on part of shipper in valuing goods, 1510. loss caused by that of shipper, 1534. liability of carrier for that of agent, 1535, n. ticket secured by, 1593, n. vilidity of pass obtained by, 1604, 1606. duty to person riding on pass secured by, 1609. effect of in securing passes, 1610. evidence of in use of pass, 1610. defeating plaintiff's right to recover, 1696. See Fraudulent Representations. FRAUDULENT CONVEYANCE, when receiver may sue to set aside, 537. FRAUDULENT REPRESENTATIONS, promoters liable for, 13. examples of in securing subscriptions, 127. in obtaining subscriptions, 127. personal liability of directors for, 282. effect where delivery secured by, 1572. See Fraud. FRAUDULENT SALE, right of minority stockholders to have set aside, 169. FRAUDULENT STOCK, enjoining payment of dividends on, 321, n. FREE PASSES. limiting liability to persons riding on, 1498. See Passes. FREEHOLDERS, when appraisers or commissioners must be, 1017. definition of, 1017, n. when abutters on streets have rights of, 1085. See Landowners. 2908 INDKX. {^Beferences are to Sections.] Vol. I, §§ l-Sn, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170S. FREEZING, liability of carrier for loss by, 1455. FREIGHT, rules governing receipt and delivery of 200. reasonable time in which to unload, 200. contracting for carriage beyond compaiiy's line, 303. authority to carry on passenger train, 303. liability of lessor for lessee's refusal to carry, 473, n. liability of trustees for loss of, 514, n. right of receiver to give special rate on, 579. authority of receiver to carry, 566. authority of receiver to contract for carriage of, 567. mandatory injunction to compel delivery of, 636. mandamus to compel carriage of, 640. legislature regulating rates of, 659. compelling companies to maintain facilities for, 662. regulating compensation for carriage of, 672, 689. company can not be deprived of, 691. validity of tax on interstate, 764. covenants in reference to shipment of, 946. injuries to animals caused by, 1207. duty to person loading and unloading, 1248. duty to person inquiring about, 1256. duty and liability of switching companies with reference to, 1398. street railway companies are not common carriers of, 1402. effect of requirement that shipper shall load, 1405. liability for that lost by fire, 1405. assumption that station agent has authority to receive, 1406. agent of shipper making delivery of, 1408. delivery and acceptance at unusual place, 1411. destruction by fire while awaiting shipment, 1411. claims for damage to, 1512. eflect of acceptance for carriage to other states, 1673, n. contracts in reference to interchange of, 1685. See Goods; Freight Charges. FREIGHT AGENT, when process may be served on, 621. See General Freight Agent. FREIGHT OAR. penalty for placing behind passenger coach, 724. riding on, 1609, 1629. See Freight Train. INDEX. 2909 [Beferences are to Sections.] Vol. I, §§ l-Sn, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1~03. FREIGHT CHARGES, validity of tax on, 763, n. riglits and liabilities of connecting carriers as to, 1451. duty of connecting carrier as to payment of accrued, 1452. non-payment as excuse for refusal to carry goods, 1466. consideration for reduced, 1510. regulating according to value of property shipped, 1510. lien for not divested by attachment, 1538. carrier waiving lien for, 1543, n. when may be demanded in advance, 1558. on lost freight, 1558. setting off damages against, 1558. who is liable for, 1559. liability of consignee for, 1559. how assignment of bill of lading affects, 1559. amount of compensation, 1560. when reasonableness a question for the court, 1560. when shipper may recover excess, 1560. custom and usage determining amount of, 1560. how calculated, 1561. where goods shrink or expand, 1561. pro rata itineris, 1562. where goods are stopped short of destination, 1562. where accident causes delay, 1562. excessive and unreasonable, 1563. value as affecting, 1563. carrier liable for overcharges, 1563. rights and remedies where excessive charges are demanded, 1564. effect of tender of reasonable, 1564. effect of voluntary payment of excessive, 1564. paid under mistake of fact, 1564. discrimination, 1565. rebates, 1565. compensation for special services, 1566. for what extra charges may be made, 1566. when extra charges may be made, 1566. demurrage, 1566. for delay in unloading cars, 1567. car service associations, 1568. collecting, 1569. where there are cpnnecting carriers, 1569. right to demand in advance, 1569. effect of excessive demand, 1569. enforcing payment by holding goods, 1569. lien for where there are connecting carriers, 1569. 2910 INDEX. [Jieferences are to Sections.} Vol. I, §§ 1-3S1, Vol. II, §§ 3^^-918, Vol. Ill, §§ 019-1390, Vol. IV, §§ 1391-1703. FREIGHT CHARGES— Continued. enforcement of lien for, 1571. last of connecting carriers collecting, 1569. carrier's lien for, 1570. action to collect, 1571. waiver and loss of lien for, 1572. power of interstate commerce commission, 1672. effect of unreasonable classification for, 1678. long and short haul, 1682. reasonable charges, 1684. See Dbmueeaqb. FREIGHT COMPANIES, See Fast Freight Companies. FREIGHT DEPOTS, duty to maintain, 720. land may be condemned for, 960. no duty to fence at, 1194. delivery must be made at as a rule, 1411. See Depots; Stations. FREIGHT HANDLER, risks assumed by, 1290. FREIGHT RATES, how reasonableness of determined, 691. See Freight Charges. FREIGHT TRAINS, rules forbidding carriage of passengers on, 200. running on Sunday, 717. penalty for riding on, 729. passenger trains have precedence over, 1133. contributory negligence in crossing track immediately behind, 1164. negligence in attempting to pass between sections of, 1169. rate at which may be run, 1225. effect where passengers are carried on, 1466, n. judicial knowledge as to running of, 1527. no presumption that person on is a passenger, 1578. passenger on, 1582. passenger assuming risks on, 1582. care owing to drover riding on, 1606. risks assumed by riding on, 1609, 1629. degree of care due to passengers on, 1629. injury to passengers on, 1620. INDEX. 2911 [iJe/ei'finces are to Sections.'] Vol. I, §§ l-Sil, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. FREIGHT TRAINS— CoweteMed. right to refuse to carry passengers on, 1629. breaking apart, 1635. ejecting passenger from, 1637, n. FREIGHT YARD, street can not be taken for, 1076. no duty to fence, 1260. enjoining destruction or condemnation of, 1632. FRESHET, as act of God, 1456. FRIGHTENING HORSES, liability for, 1264. FROGS, law fixing kind of, 724. negligence in failing to block, 1374, n. FRUIT TREES, measure of value for destruction by fire, 1239, n. FUEL, when subject to lien of mortgage, 495. subject to mortgage lien, 498. that may be used in locomotives, 1224. FUNDS, expending for purpose different from that for which collected, 374. lack of as affecting duty of receiver to public, 578. FURNITURE, subject to mortgage liens, 498. as baggage, 1647. FUTURE DAMAGES, effect on condemnation proceedings, 1004. FUTURE DIVIDENDS, when profits can not be reserved to pay, 84. FUTURE LEGISLATION, taking charter subject to, 43, n. FUTURE NEGLIGENCE, when may be contracted against, 1236. contracts against are void, 1376. 2912 INDEX. [Beferences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, ^ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. FUTURE NEGLIGENCE— CoKtMmetJ. can not be contracted against, 1390. when may be contracted against, 1608. See Negligence. FUTURE USE, condemning land for, 962, 973. G GARNISHEE, duty and liability of, 625. duty to claim exemption for principal defendant, 627. GARNISHMENT, stockholder liable to for unpaid calls, 182. obtaining jurisdiction over corporation by, 624. duty and liabihty of garnishee, 625. how situs of property affects right of action, 624. when foreign corporation subject to, 624. binding from time of service of process, 625. when wages exempt from, 625. answer in to be verified, 625, n. what may be reached in, 626. of employes' wages, 627. criminal offense to bring in foreign state, when, 627. does not reach wages of employe subsequently earned, 627. obtaining priority over receiver by, 555. when may be maintained against receiver, 573. as excuse for failure to deliver, 1538. GATE-KEEPER, liability for negligence of, 1157. negligence in failing to heed, 1171. liability for assault by, 1265, 1638. GATES, requiring company to keep at crossings, 724. abutting owner not entitled to aompensation for erection, 1113. at highway crossings, 1114. negligence in managing, 1171. when required at crossings, 1157. when necessity a question for the jury, 1157, open ones as invitation to cross, 1157. INDEX. 2913 \^Beferenais are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ .333-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. GATES AND BARS, at private crossings, 1193, 1199, 1200. duty to keep them closed, 1200. reasonable time in which to close and repair, 1200. duty of landowner to close, 1200. negligence of landowner in leaving open, 1209. GENERAL BENEFITS, how affect question of compensation and damages, 988. distinguished from special, 989. definition of, 989. GENERAL DENIAL, pleading admits corporate existence, when, 616. GENERAL FREIGHT AGENT, authorizing signing of bills of lading, 1416. contracting for extra-terminal liability, 1437, n. GENERAL INJURIES, when compensation not given for, 981. GENERAL ISSUE, effect of plea of, 1694. GENERAL LAWS, incorporation under, 18. corporation charters secured under, 34. for incorporation of railroads, 36. repeal of charter by, 60. charter subject to those reserving power to repeal, 61. federal courts enforcing as to master and servant, 1339. GENERAL LIEN, carrier has none, 1570. GENERAL MANAGER, can not release stockholder from liability, 176. not entitled to benefit of personal liability of stockholders, 186. judicial knowledge of authority of, 208, n. authority to contract for care of injured employe, 222. liability of company for arrest made by, 303, n. two companies may employ one, 342. as fellow-servant, 1321. GENERAL NOTICE, carrier's liability can not be limited by, 1501 2914 INDEX. [Meferences are to Sections.'^ Vol. I, §§ 1-S21, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. GENERAL RULES, for construing corporate charter, 38. GIANT POWDER, lien for that furnished, 1068. GIFT, of shares of stock, 96. directors can not make of corporate property, 274. when company can not take land by, 374, n. company may take land by, 983. GOING CONCERN, policy of the law to keep a railroad a, 573. GOLD, making bonds payable in, 487. GOODS, special contract for carriage of, 364. receiver liable for loss or damage to, 577. when no implied duty on part of passenger to carry, 1392. duty to accept and carry, 1393. transfer of from cars of one company to those of another, 1395. street railway companies are not common carriers of, 1402. when plaintiff must show offer to furnish, 1476. consignee has reasonable time to inspect and remove, 1528. rule where they are to be held until called for, 1529. rule where they are not to be delivered until paid for, 1530. duty to carry owing to the general public, 1690. • See Freight. GOVERNING BOARD, directors constitute, 235, 236. GOVERNMENT, departments of are separate, 677. when estopped by land grants, 806. reserving right to use railroad, 811. GOVERNMENTAL CONTROL, introductory, 657. how commerce clause of federal constitution afiects power of the states, 658. nature of, 659. legislative power over private rights of railroad companies, 659. INDEX. 2915 IBeferences are to Sections.] Vol. I, §§ 1-S^l, Vol. II, ^^322-918, Vol. Ill, §§ 919-1390, Vol. IT, §§ 1391-1703. GOVERNMENTAL CONTEOL-ConJinued. constitutional protection, 659. limits of legislative power sometimes unduly extended, 661. regulations affecting acts and duties of a public nature, 662. corporate rights are subject to the police power, 663. police power fettered by limitations, 664. subject must be one over which police power extends, 665. police power, legislative and judicial questions, 666. the police power and the commerce clause of the federal constitution, 667. regulations that have been held valid, 668 power to impose penalties in favor of private persons, 669. compelling erection of farm crossings, 668. regulating speed of trains, 670. abolishing grade crossing, 671. requiring services and denying compensation, 672. over federal corporations, 673. See Police Power. GOVERNMENTAL POWERS, municipality can not surrender, 1082. GOVERNMENTAL SUBDIVISIONS, may be authorized to issue aid bonds, 878. GRADE, making crossing above or below, 1123. GRADE CROSSING, municipality paying part of expense of changing, 361. power to change or remove, 671. may constitute nuisance, 671. power to abolish, 975. expense of abolishing, 975. when company may construct, 1108. rule where no statute forbids, 1108. crossing above grade, 1109. tendency to abolish, 1109. crossing below grade, 1110. of railroads, 1122. policy to discourage, 1122, 1123. equity preventing, 1122. injunction to prevent construction of, 1122, 1125. expense no excuse for abolishing, 1122. conforming to line crossed, 1122. railroad crossings above or below grade, 1123. 2916 INDEX. [References are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1301-1703. GRANT, by municipal corporations subject to conditions, 361. acquisition of fee of real estate by, 400. acquiring right of way by, 932. eminent domain power can not be surrendered by, 950, 963. construction of those by municipality, 1080. GRANTEE, when mortgagor's should be party to suit to foreclose, 511. essential to every conveyance, 933. grants construed strictly against, 1080. when railway company bound to give passes to, 1611. GRANTOR, performance prevented by, effect, 941. GRASS, must be cut and destroyed, 1226. duty to clear from right of way, 1226. See Combustible Matbeial. GRATUITOUS BAILEE, must exercise some degree of care, 1389. when company is of baggage, 1615, n. liability for baggage as, 1652. GRATUITOUS PASSENGERS, contracting against liability for injuries to, 1498. drovers are not, 1605. See Passes. GRATUITOUS STOCK, when may be recalled for cancellation, 89. GRAVEL, implied authority to take, 41. right to acquire real estate for, 393. condemning land for purpose of securing, 960. GRAVEL TRAIN, when running one is operating a railroad, 1, n. GROSS NEGLIGENCE, liability for, 1254. carrier can not limit its liability for, 1498. when there is, 1609. liability for merchandise lost by while being carried as baggage, 1649,n. See Negligence. INDEX. 2917 [Beferences are to Sections.] Vol. I, §§ 1-331, Vol. II, §§ 3J2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. GROSS RECEIPTS, taxation on basis of, 758, n., 765. GROUNDS OF FORFEITURE, of corporate franchise, 49. GROUP RATES, how affected by interstate commerce act, 1683. when amount to discrimination, 1683. GROWING CROPS, destroyed by building road, 995. measure of damages for destruction of, 1239, n. See Crops. GUARANTEED DIVIDENDS, payment of, arrearages, 83. rights of preferred stockholder after payment of, 84. GUARANTEED STOCK, when may be issued, 86. GUARANTOR, when should be party in suit to foreclose mortgage, 511. GUARANTY, power to make of bonds, 481. GUARD RAILS, law fixing kind of, 724. as a part of highway crossings, 1097. duty to erect at highway crossings, 1107. GUARDIANS, purchase and sale of stock by, 94. making deed for right of way, 934. suing for minor child, 1368. GUN CASE, as baggage, 1646, n. H HABEAS CORPUS. removal to federal court, 646. HACKMEN, discrimination against, 1678, n. Corp. 185 2918 INDEX. [^References are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, ^ 3-22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. HAND-CAR, rights of persona riding on, 221. child injured by, 1260. negligence in leaving on high,way, 1264. as "car" within employers' liability acts, 1354. liability for injury while using, 1355. when persons on are passengers, 1582. passenger not to be carried on, 1632. HANDLING GOODS, negligence of carrier in, 1481. HARDSHIP, as affecting construction contracts, 1060, n. HAZARDS, when those of dangerous service assumed, 1302. See Dangers; Risks; Assumption of Risks. HEADLIGHT, duty to have on locomotive, 1159, 1205. effect where obscured by rain, 1205, n. HEALTH, ill, as ground for removal of receiver, 586. HEARING, legislature can not deprive one of right to, 666. right to before railroad commission, 686. parties entitled to in condemnation proceedings, 1039. HEAT, duty to protect freight from, 1478. duty to furnish in sleeping cars, 1621. HEATING CARS, when company required to heat cars, 724, n. HEAVY GRADE, grade crossing causing, 1123. HEDGE, serving as fence, 1184. HEIRS, as parties to condemnation proceedings, 1025. INDEX. 2919 \_Befereiices are to Sections.'] Vol. I, §§ 1-321, Vol. II, §§ Sn-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1891-1703. HIDDEN DANGEES, duty to notify licensee of, 1250. HIGH SEAS, commerce on, 1671. HIGHER FARE, right to exact on train, 201. HIGHWAYS, railroads are in a sense public, 33. railroad's implied authority to cross, 41. constructing railroad along, 41. railways constructing bridges across, 43. dedication of land for use as, 425. enjoining company from occupying, 630. right of municipality to protect by injunction, 630. mandamus to compel restoration of, 689. regulating speed of trains across, 668. penalty for obstructing, 719. mandamus to compel company to restore, 719. duty of company to restore condition of, 719. government using railroad as, 811. implied power to cross, 922. rights of abutting landowners in, 987. assessing damages to land divided by, 992. duty of railway company to restore and repair, 1092. right to construct railway across, 1099. when authority to cross is implied, 1099. railway companies securing consent to cross, 1101. damages where they are opened across railroad, 1103. impairing rights by taking company's property, 1104. restoring condition of highway, 1105. railway company must not destroy, 1105. right to change course at crossings, 1105. right to change grade on surface of, 1108. must not be obstructed where crossing is above grade, 1109. passing over railroads, 1110. at what ones signals required, 1158. allowed to remain unfenced, 1193. duty to fence vacated or abandoned, 1193. . fences at oblique approaches to, 1197. fences should be erected on margin of, 1197. cattle-guards at margin of, 1198. injury to animals on, 1203. 2920 INDEX. [Beferences are to Sections.'] Vol. J, §§ l-Sn, Vol. II, §§ SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, ^^lS91-n03. HIGHWAYS— CoratfewecJ. causing injury to travelers on adjacent, 1263. negligence in leaving hand-cars upon, 1264. negligence in leaving car in, 1264, n. See Public Highways; Streets. HIGHWAY CEOSSINGS, rights of public at, 1093. definition of, 1097. what is included in highway crossing, 1097. embankments as part of, 1097. width of, 1097. right to lay out highway across railway, 1098. right to construct railway across highway, 1099. duty of railway company to restore, 1099. laying parallel tracks at, 1099. proceedings by municipality, 1100. proceedings by railway company, 1101. when is a taking of property, 1101. when compensation should be made, 1101. county commissioners consenting to, 1101, n. construction of crossing, 1102. duty as to highways laid out after road constructed, 1102. police power as to matter of constructing, 1102. duty to maintain is a continuing one, 1102. damages where highway is opened across railroad, 1103. cost of planking as element of damages, 1103. increased danger of accidents, damages, 1103. impairing rights of railway company, 1104. duty to restore independent of statute, 1105. mandamus to compel restoration, 1106. when company's discretion as to construction will not be controlled 1106. width of approaches and embankments at, 1107. approaches, embankments and other structures, 1107. duty to erect guards and barriers at, 1107. grade crossings, 1108. crossings above grade, 1109. crossings below grade, 1110. mandamus to compel construction of viaducts, 1111. duty to restore is a continuing one, 1111. keeping crossing in repair, 1112. duty to repair owing to passengers, 1122. obligation to repair extends only to lawful highways, 1112. rights of abutters, 1113. gates, watchmen and signals at, 1114. INDEX. 2921 [Beferenees are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. HIGHWAY CEOSSINGS— OonJireaed. accidents and injuries at, 1115. injury caused by defects in, 1115. warning of danger at, 1156. signboards, gates and flagmen at, 1157. signals on approach to, 1158. slackening speed of trains at, 1204, n. See Injuries at Crossings. HISTORY OF RAILWAYS, reference to, 4, n. HOLDING OVER, on failure to elect directors, 248. HOMESTEAD, effect where taken from railway land grants, 799. conveyance of to railroad company, 934. holder of as party to condemnation proceedings, 1025. HOMESTEAD CLAIMS, land grants conflicting with, 796. HOMESTEAD ENTRY, effect of cancellation of, 803. HORSES, duty to fence against, 1190. frightened by escaping steam, 1264. willfully frightening, 1264. liability for frightening, 1264. frightened by car in highway, 1264, n. See Animals; Dutb to Fence HOSTLER, as fellow-servant of boiler washer, 1346. HOSPITALS, See Relief Departments and Hospitals. HOTEL, included in mortgage of after-acquired property, 497. HOTEL KEEPER, duty to one at depot to solicit guests, 1256. HOTEL RUNNERS, right to expel from railroad premises, 200, n. 2922 INDEX. \Beferenees are to Sections.] Vol. I, ^U-SSl, Vol.11, ^32^-918, Vol. Ill, U 919-1390, Vol. IV, §§ 1391-1703. HOUSES, for employes, no authority to erect, 41, n. HUSBAND, suing for death of wife, 1368. HUSBAND AND WIFE, effect of conveyance from husband only, 934. as parties to condemnation proceedings, 1225. I IDENTIFICATION OF CONSIGNEE, right of carrier to require, 1525. negligence in failing to require, 1526, n. IDENTIFICATION OF PASSENGER, by signing name to ticket, 1600. IGNORANCE, as an element in corporate contracts, 351. freight charges paid under, 1564. See Knowledge; Notice. ILLEGAL ACTS, as affecting right to specific performance, 935. ILLEGAL CALLS, what constitute, 136. ILLEGAL CONTRACTS, distinguished from unlawful contracts, 369. courts will not enforce, 382. distinguished from ultra vires contracts, 383. classes of, 384. See CONTKACTS. ILLEGAL FARE, liability for conductor exacting, 302, n. ILLEGAL TAXES, shareholders resisting, 742. injunction to prevent collection, 751. remedies against, 751. tender in suit to restrain collection, 752. ILLEGITIMATE CHILD, action for death of, 1368. INDEX. 2923 IBeferences are to Seetions.'\ Vol. I, §§ 1-SSl, Vol. II, §§ SSM-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 ILLUSTRATIVE CASES, of police regulations, 44, 44, n. of forfeiture of charter, 49. of compliance witii conditions in subscriptions, 125. of exercise of authority by agents, 220. of scope of authority of corporate representatives, 221. of de facto directors, 246. of powers of directors, 251. of delegation of authority by directors, 258. of directors as trustees, 275. of corporate power to contract, 342. of contracts that may be made by railroad companies, 364. of ultra vires contracts, 374. of contracts void as against public policy, 388. of implied power to hold real estate, 393. of denial of power to acquire real estate, 394. of construction of statutes authorizing leases, 434. of liability of lessee under authorized lease, 471. of delay in suing to set aside fraudulent foreclosure sale, 529, n. of grounds for appointment of receivers, 547. of grounds for removal of receivers, 586. of acts which do not work dissolution, 606. of transitory actions, 623, n. of mandatory injunctions, 636. of cases where mandamus will not lie, 642. of separable controversy in removal of causes, 650. of removal of causes where federal question is involved, 652. of unconstitutional police regulations, 665. of powers of railroad commissioners, 682. of construction of land grants, 795. of effect of land grants, 797. of scope of legislative power in reference to public aid, 826. of impairment of contract rights in reference to public aid, 833. of construction of statutes authorizing public aid, 835. of failure to conform to enabling act in securing public aid, 850. of conditions in grant of public aid, 851. of estoppel by recitals in aid bonds, 898. of estoppel otherwise than by recitals in aid bonds, 903. of conditions subsequent, 941. of covenants in acquisition of right of way, 946. of what constitutes a taking of property, 977. of measure of damages in condemnation proceedings, 995. of matters to be considered in estimating damages, 996. of improvements made by company under unauthorized entry, 998. of evidence of value in condemnation cases, 1036. 2924 INDEX. [Beferences are to Sections.'] Vol. I, §§ l-SSl, Vol. II, §§ SS2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. ILLUSTRATIVE CASES— Continued. as to requisites of report of commissioners, 1042. of construction of grant to use streets, 1080. of contributory negligence at crossings, 1164. of injuries to trespassing children, 1260. of contributory negligence of children, 1261. of risks of service, 1290. of contributory negligence of employes, 1314. of who are vice-principals, 1318. of who are superior agents, 1318. of who may recover for injuries causing death, 1368. of delivery and acceptance, 1404. of extra-terminal liability, 1436. of time within which claim for loss of freight must be presented, 1512. of duty of sleeping car companies to passengers, 1621. of contributory negligence on part of passenger, 1633. of liability for assaults of employes, 1638. of presumption of negligence, 1644, n. of what things are personal baggage, 1647. of what is reasonable time to remove baggage, 1652, n. of void statutes, 1665. of state statutes regulating interstate commerce, 1669. of state statutes held not to be regulations of interstate commerce, 1670 of undue preferences, 1678. of discrimination, 1678. IMMATERIAL AMENDMENTS, majority stockholders making, 45. IMMATERIAL PROVISIONS, effect of omission in organizing corporation, 190. IMMEDIATE SHIPMENT, delivery must be for, 1409. liability for failure to make, 1462. IMMINENT PERIL, passenger injured by attempting to escape from, 1642. IMMORAL ACTS, as affecting right to specific performance, 935. IMMUNITY, definition and nature of, 63, n. when passes to new company on consolidation, 330. INDEX. 2925 IBeferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ SSS-918, Vol. Ill, §§ 919-1390; Vol. TV, §§ 1391-1703. IMMUNITY FROM TAXATION, See Exemption from Taxation. IMPAIRMENT OP FRANCHISE, what amounts to, 1121. IMPLICATION, waiver of forfeiture of corporate charter by, 52. power to issue preferred stock not extended by, 82, n. repeals by, 645, n. jurisdiction created by, 683. jurisdiction of railroad commission not extended by, 684. as to power of eminent domain, 967. engineer's power can not be extended by, 1059. IMPLIED AUTHORITY, to maintain restaurants, 41. to maintain telegraph line, 41. to maintain depots,, etc., 41. IMPLIED CONDITION, that corporate franchise is subject to forfeiture, 48. in conveyance of real estate, 939. IMPLIED DUTIES, created by contract of employment, 1267. of railroads as carriers, 1392. to carry passengers, 1393. IMPLIED POWERS, conferred by corporate charter, 38. contained in railroad charter, 41. to choose corporate officers, 206. of the corporation's president, 285. passing to president with grant of authority by directors, 286. to acquire real estate, 391, 392. illustrative instances in reference to holding real estate, 393. to mortgage, 490. possessed by railroad commission, 685. in construction of statutes, 834. to provide for indebtedness by taxation, 840. in issuing municipal aid bonds, 880. of agent to contract for extra-terminal liability, 1437. IMPLIED PROMISE, to pay subscriptions, 109. on part of assignee to pay freight charges, 1559. 2926 INDEX. [Meferences are to Sections. 1 Vol. I, §§ 1-3S1, Vol. II, §§ SS2-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. IMPORT DUTIES, carrier's lien for those paid, 1570. IMPOSTER, liability for delivery to, 1535. IMPRISONMENT, for failure to obey rules and regulations, 198. of person interfering with receiver, 575. IMPROPER PERSONS, carrier refusing to carry, 1577. IMPROVED APPLIANCES, duty to equip trains with, 1588. IMPROVEMENTS, discretion of directors in making, 83. by lessee operating under unauthorized lease, 464. pay for in condemnation proceedings, 985. as affecting compensation and damages, 995. when not considered in estimating damages, 997. company making under color of right, 997. made by company under unauthorized entry, 998. IMPUTABLE NEGLIGENCE, when exists, 1262. when engineer's imputed to fireman, 1297. of driver of street cars, 1178. IN CUSTODIA LEGIS, when property in subject to garnishment, 626. IN STATU QUO, placing party in on revocation of license, 949. IN TRANSITU, when goods in may be attached, 626. See Stoppage in Transitu. INADEQUACY OF PRICE, as ground for avoiding foreclosure sale, 529. INCIDENTAL POWERS, of the president, 284. passing with general power to' lease, 436. possessed by railroad commission. 6S5. See Impliei) Powers. INDEX. 2927 {_Iteferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 3SS~91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INCIDENTS, which pass with a principal grant, 418. INCOME, duty to secure for payment of income bonds, 482. what claims shall be paid out of by receiver, 528. receiver taking charge of pending foreclosure, 546. INCOME BONDS, power to issue, 482. INCOME MORTGAGE, nature of as a security, 482, n. INCOME TAX, when mortgagor not bound to pay, 505, n. INCOMPETENCY, of co-employes, duty to object to, 1292. no presumption of, 1285, 1286, 1292. of fellow-servant, when may be shown, 1697. INCOMPETENT FELLOW-SERVANTS, negligence in retaining, 1292. . INCOMPETENT SERVANT, negligence in hiring, 1329. INCONSISTENT ORDERS, effect of, 1314, n. INCONSISTENT USE, property devoted to public use can not be condemned for, 964. INCONVENIENCE, as an element of damages in condemnation proceedings, 994. not sufficient ground for defeating railway crossing, 1116. INCORPORATED TOWNS, may grant public aid, 847. INCORPORATING ACT, repeal of, effect on corporate charter, 60. INCORPORATION, under general laws, 18. stating objects of in charter, 18. conditions precedent to, 18. when must be alleged in bringing actions, 616. 2928 INDEX. IBeferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INCORPORATORS, names of in articles of incorporation, 18. residence of in articles of incorporation, 18. accepting charter, 35. INCREASE, of capital stock, 87. INCREASED PRECAUTIONS, after accident, evidence of inadmissible, 1697. INCUMBRANCES, duty of receiver to keep down out of rents and profits, 562. INDEBTEDNESS, power to secure by mortgage, 488, n. default in payment of as ground for appointing receiver, 545. INDEFINITENESS, when notice in appropriation cases void for, 1020. INDEMNITY, furnishing on payment of lost bond, 487. INDEMNITY LANDS, when title to passes, 799. statute providing for liberally construed, 799. when given in land grants, 799. INDEPENDENT AGENCY, what is, 1231. when wind is, 1231. intervening in cases of flres, 1231. INDEPENDENT CONTRACTOR, not entitled to statutory preference, 605. definition of, 1063. liability of company for negligence of, 1063. can not relieve company of performance of statutory duties, 1063. when liability of ceases, 1064. liability for negligence of himself and servants, 1064. INDICTMENT, when lies against a corporation, 709. recovering statutory penalty by, 712. of railroad companies for causing death, 716, 1368. for death, proof supporting theory, 716. INDEX. 2929 \_References are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ S22-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INDICTMENT— Continued. for leaving cars in public highway, 718. against railroad company for maintaining nuisance, 718. for failing to repair crossings, 718. for failure to give signals at crossings, 718, 721. for unlawfully cutting through highway, 718. for obstructing of highways, 719. of railway company for maintaining nuisance, 1096. killing stock, 1183. for violating interstate commerce act, 1688. for conspiracy, 1688, n. See Chimbs; Penal Offenses. INDIVIDUAL, niay operate railroad, 1. may be common carrier, 1. railroad is as to making contracts, 21. taking private property for public use, 953. duty to fence road operated by, 1208. INDOESEMENT, power to make, 480. of receiver's certificates, effect of, 594. INDORSEE, when should be party to foreclosure suit, 511. INELIGIBLE PERSON, election of to office of director, 243, 245. who may question right of to office of director, 245. INEQUALITY, how affects validity of taxation, 774. INEVITABLE ACCIDENT, when carrier liable for loss by, 1481. causing loss of baggage, 1651. » See Accident; Act op God. INFANT, owning and transferring shares of stock, 93. subscribing for stock, 107. sufficiency of notice to, 1023. when must be personally served, 1025. when guilty of contributory negligence, 1172. care due to one riding on pass, 1606. SeeCniLDBEN; Minohs. 2930 INDEX. IBeferences are to Sections.'} Vol. I, §§ 1-3S1, Vol. 11, ^^332-918, Vol. HI, §§ 919-1390,Vol. IV, §§ 1391-1703. INFIRM PERSONS, duty of street railway company to, 1094. injuries at crossings, 1172. INFLUENCING VOTERS, at railway aid election, 860. INFORMATION, to forfeit corporate charter, 55. demurrer to in quo warranto proceedings, 644. See Indictment; Q0O Warranto. INFORMER, rights where case is compromised, 713. when right to penalty becomes vested, 713. what necessary to constitute, 713. rights of in penal actions, 713. when may maintain actions, 713. INHERENT DEFECTS, carrier not bound to search for, 1492. See Latent Defects. INHERENT NATURE OF GOODS, carrier not liable for loss caused by, 1481, 1534. as defense to suit against carrier, 1695. INHERENT NATURE OF LIVE STOCK, liability for injuries caused by, 1546, 1549, 1557. INITIAL CARRIER, transfer company as agent of, 1399. eSect of delivery to transfer company, 1399. when liability of terminates, 1412. duties of, generally, 1432. duty where connecting carrier refuses to receive goods, 1432. as a forwarding agent, 1432, 1451. no extra-terminal liability unless by contract, 1433. extra-terminal liability by contract, 1434. what constitutes extra-terminal contract, 1435. when discharged by delivery to connecting carrier, 1435. when bound for entire carriage, 1435. effect where it accepts through rate, 1435. illustrative cases of extra-terminal liability, 1436. authority of agents as to extra-terminal liability, 1437. acting as forwarding agent, 1437. exclusion of liability by contract, 1438. INDEX. 2931 [^References are to Sectio7is.'\ Vol. I, §§ 1-SSl, Vol. II, §§ S2S-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INITIAL CA.'KRIER— Continued. rule where statute makes it liable for negligence of others, 1439. liability for deviation from route, 1440. liability for failure to obey instructions, 1440. transmitting shipper's instructions to connecting carriers, 1440. when may select route, 1440. actions on account of extra-terminal defaults, 1441. what damages liable for, 1441. when connecting carriers liable for default of, 1444. how its contract affects connecting carriers, 1446. presumption that it received goods in good condition, 1450. shipper suing, 1452. relation to succeeding carrier, 1452. when not liable for overcharges, 1563. authority to select route, 1569. liability for loss of baggage, 1658. INITIALS, of name of subscriber to articles of incorporation, 18, n. INJUNCTION, against unjust discrimination, 27. against failure to build road, 51. is not proper remedy to forfeit corporate charter, 55. against issue of preferred stock, 82. against payment of dividends on common stock, 83. against purchase of stock in another company, 95, n. to enjoin forfeiture of stock, 152. against combination or conspiracy of stockholders, 174. against removal of director, 271, n. against payment of dividends, 317. against payment of dividends on fraudulent stock, 321, n. against violation of pooling contract, 366, n. against performance of ultra vires contract, 372. to restrain making of ultra vires contract, 376. as a remedy to enforce ultra vires contracts, 376. against purchase of real estate, 406. against execution of unauthorized lease, 479. stockholder securing against ultra vires mortgage, 493. to prevent misuse of corporate franchises, 547, n. to stop suit brought without leave against a receiver, 572. against unlawful strikers, 575, 633. to prevent interference with receiver, 575, n. rights of corporation to sue for, 615. rights of public considered in granting, 626. against sending claim to foreign stiite, 627. 2932 INDEX. [Beferences are to Sections.'^ Vol. I, §§ 1-331, Vol. 11, §§ SJ2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INJUNCTION— ConJiJiued. right of railway company to remedy by, 628. will not be granted where will work great injury, 628. dissolving on execution of bond to pay damages, 629. where the company seeks to take or condemn lands, 629, 974. where railway company is acting in bad faith in condemnation pro- ceedings, 629. where railroad is laid in a street, 630. against nuisances, 631, 1069. at suit of the company, 632. dissolving on filing bond to pay damages, 632. when will lie to prevent multiplicity of suits, 632, n. grounds on which may be granted against strikers, 633. violation of one against strikers may be punished as a contempt, 633. at suit of stockholders, 634. English rule as to mandatory, 635. may be m-andatory in effect, 636. rule in the United States as to mandatory, 636. statute authorizing unconstitutional, 665. to prevent enforcement of unreasonable rates, 691. to prevent establishment of schedule of rates, 703. as remedy against railroad commissioners, 705. to prevent railroad commissioners from exceeding their jurisdiction, 706. as remedy against illegal taxes, 751. to prevent collection of local assessments, 782. to protect rights In land grants, 810. to prevent issue of municipal ^id bonds, 850. to prevent levy of tax for public aid, 857. as remedy against grant of public aid, 872. irregularities in granting public aid not ground for, 872. when amounts to collateral attack, 872. plaintiff must act promptly, 872. to prevent payment of void bonds, 873. to prevent issue of railway aid bonds, 893. to prevent breach of contract, 936. to prevent ouster from right of way, 944. to prevent revocation of license, 949. to prevent condemnation by irregularly organized company, 957. to prevent condemnation of right of way, 974. to prevent occupancy in condemnation cases, 1048. as remedy of landowner against unlawful proceedings, 104'J. effect where there is right of appeal, 1049. to prevent encroachment on adjoining property, 1049. to prevent railroad company from taking hind, 104!l, n. INDEX. 2933 {^References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 32;3~918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INJUNCTION— Coretteaed. to prevent ejectment of railroad, 1049, n. to secure stay of execution, 1049, n. to prevent railroads from crossing each other, 1049, n., 1116. effect where company fails to obtain dissolution, 1062. to prevent laying of railroad in narrow street, 1089. mandatory to compel railway company to repair streets, 1092, n. to prevent maintenance of nuisance, 1096. to prevent opening of street through railway property, 1104. to prevent crossing at grade, 1122. to prevent one railway from crossing another, 1125. to prevent construction of grade crossing, 1125. will not lie where there is remedy at law, 1125. denied where there is remedy by appeal or certiorari, 1125. to prevent violating of contract as to priority of passage, 1133. to prevent tearing up of street railway track, 1135. to prevent filling of passway under track, 1147. to prevejit erection of fences, 1184. to compel carrier to perform its duties, 1564. when will not lie as remedy against excessive charges, 1564. to prevent discrimination, 1676. to prevent violation of interstate commerce law, 1688, n. INJUEIES, need not be shown to forfeit charter, 49. liability for those occurring pending receivership where receiver collu- sively appointed, 587. liability for those caused by construction of road,' 1057. resulting from negligence of contractor, 1063. when caused by failure to give signals, 1114. at private crossings, 1151. effect in cases of injuries causing death, 1378. to person riding on pass, 1608. INJUEIES AT CROSSINGS, introductory, 1152. mutual rights and duties of company and traveler at crossings, 1153. duty of company at private crossings and at crossings by custom or license, 1154. statutory duties of company at crossing, 1155. violation of statutory duties as negligence, 1155. common law duty of company at crossings, 1156. degree of care required at crossings, 1156. sign-boards, gates and flagmen at, 1157. Corp. 186 2934 INDEX. {^Beferences are to Sections.^ Vol. I, §§ l-Sei, Vol. II, §§ 3^3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1708 INJURIES AT CROSSINGS— Co««i««ed. signals on approach to crossings, 1158. duty of company to keep a lookout, 1159. when rate of speed is negligent, 1160. duty of company where view is obstructed, 1161. backing and "kicking" cars, 1162. contributory negligence of travelers at crossings, 1163. illustrative cases of contributory negligence, 1164. duty of traveler at crossings, 1165. effect where traveler mentally absorbed, 1165. duty of the traveler to look and listen, 1166. duty of traveler to stop, look and listen, 1166. attempting to pass in front of approaching train or engine, 1168. passing under, over or between cars, 1169. smoke and like obstructions to view, 1170. misleading traveler, 1171. invitation to cross, 1171. children and infirm persons, 1172. sudden peril as affecting the duty of a traveler, 1173. negligence of driver of vehicle not imputed to passengers therein, 1174. negligence after discovery of traveler's danger, 1175. willfulness, 1175. evidence of subsequent repairs and other accidents at same place, 1177. injuries at defective crossings, 1176. collisions with street cars, 1178. directing a verdict in crossing cases, 1179. See Tkavblbes. INJURIES RESULTING IN DEATH, introductory, 1359. right of action for purely statutory, 1359. loss of services from time of injury to death, 1359. constitutional questions, 1360. acts of omission and commission, 1361. construction of statutes, 1361. limiting the right to sue, 1362. designating the forum, 1362. instantaneous death, 1363. statutes have no extra-territorial effect, 1364. pleading foreign statute, 1364. the right and the remedy, 1365. conflict of law, 1366. law of place governing right of action, 1366. who may recover, 1367. illustrative cases of who may recover, 1368. INDEX. 2935 l^Beferences are to Sections. 1 Vol. I, §§ XSSI, Vol. II, §§ 322-918, Vol. Ill, §§ 919-l.-}00, Vol. IV, §§ 1391-1703. INJURIES RESULTING IN D^LTB.— Continued. when personal representatives must sue, 1368. proceeding by indictment, 1368. rights of person dependent on deceased, 1368. what must be shown to constitute cause of action, 1369. death after year and a day, 1370. actions for are transitory, 1371. where action for may be brought, 1371. actions by administrators and executors, 1372. beneficiaries in action for, 1372. when foreign administrators may sue, 1372. who are next of kin, 1372. time within which action must be brought, 1373. statutes of limitation at place of accident govern, 1373. contributory negligence may be relied on, 1374. one recovery merges cause of action, 1375. but one recovery for, 1375. effect of death pending action for personal injuries, 1375. release, 1376. compromise of, 1376. who has authority to compromise, 1376. avoiding releases and compromises, 1377. measure of damages for, 1378. exemplary damages, 1378. life insurance does not affect right to recover, 1378. life tables as evidence, 1378. contingencies affecting measure of damages in, 1378. INJURIES TO ANIMALS, liability of receiver for, 577. stopping train, 1204. rate of speed of train, 1204. signals, 1206. contributory negligence of owner, 1206. actual collision with apimal, 1207. caused by fright, 1207. liability of lessees, mortgagees, and receivers, 1208. when lessor and lessee both liable for, 1208, n. contributory negligence of owner, 1209. contributory negligence in leaving gates and bars open, 1209. animals attracted to railway tracks, 1211. presumption of negligence, 1213. absolute liability can not be imposed for, 1213. what constitutes prima facie case, 1213. circumstantial evidence in cases of, 1214. 2936 INDEX. \_lieferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. 11, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INJUEIES TO ATSlUAlaS— Continued. evidence generally, 1214. burden of proof, 1214. burden on plaintiff to show place of entry, 1214. speed ordinances as evidence, 1214. pleading and practice, 1215. assignment of claim for, 1215. directing verdict in cases of, 1215. notice and demand for damages, 1216. who may make affidavit to claim for, 1216. service of notice of upon railroad company, 1216. appraisement of damages, 1217. plea of abatement in action for, 1217, n. value of carcass, 1218. awarding exemplary damages, 1218. money expended in attempting cures, 1218. opinions as to value, 1218. measure of damages, 1218. interest on damages, 1218. allowing double damages, 1219. posting list of animals killed or injured, 1219. recovering attorney's fee, 1220. See Animals ; Duty to Fence. INJURIES TO BAGGAGE, liability for, 1660. See Baggagb. INJURIES TO EMPLOYES, introductory, 1266. contract the basis of the employer's duty, 1267. employer's duty to furnish reasonably safe working place, 1268. by structures near the track, 1269. by reason of failure to fence, 1270. by defective bridges, 1271. by low bridges, 1271. negligence of employer in failing to keep premises safe, 1272. effect of promise to make repairs, 1272. master's duty respecting machinery and appliances, 1273. appliances generally used are sufficient, 1274. latent defects, 1275. delegation of master's duty, 1276. employer not bound to abandon appliances because newer ones are in use, 1277. duty of inspection, 1278. duty as to inspecting foreign cars, 1279. INDEX. 2937 {^Beferences are to Sections. 1 Vol. I, §§ 1-SSl, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INJUEIES TO EMPLOYES— ContOTMed. employer's duty to promulgate rules, 1280. time-tables or schedules, 1281. violation of rules by employes, 1282. duty to warn employe of danger, 1283. duty to employ competent servants, 1284. presumption of competency of employe, 1285. burden of proof where incompetency of fellow-servant is alleged, 1286. trains to be provided with a sufficient crew, 1287. employer is not an insurer, 1287. assumption of risks of service, 1288. where dangers are open, 1288. assumption of risks from employer's methods, 1289. illustrative cases of risks of service, 1290. duty of employe to acquaint himself with employer's business methods, 1291. duty of employe in regard to competency of co-employe, 1292. employe bound to use ordinary care to remedy defects, 1293. duty of employe to learn rules of employer, 1294. promise to repair, 1295. assumption of risks by brakemen, 1296. assumption of risks by engineers and firemen, 1297. dangers to section men from running of trains, 1298. injuries from explosions, 1299. injuries from collisions, 1300. by cars negligently loaded, 1301. by dangerous service, 1302. ordinary risks of service assumed, 1302. performing work outside of scope of contract of employment, 1303. special orders to work outside line of duty, 1304. volunteers, 1305. concurrent negligence, 1306. negligence of employer must be proximate cause, 1306, 1310. rule as to master's knowledge of defects, 1307. test of employer's liability, 1308. evidence of employer's negligence, 1309. knowledge of defects on part of employe, 1311. evidence of knowledge of defects, 1312. contributory negligence of, 1313. illustrative case of contributory negligence of employes, 1314. presumption that employer has done his duty, 1314. violation of statutory duty as contributory negligence, 1315. actions for, 1697 2938 INDEX. [References are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INJURIES TO LICENSEES, liability for, 1251. See Licensees. INJURIES TO PASSENGERS, carrier's negligence must be proximate cause, 1584. boarding and alighting from trains, 1628. received on freight trains, 1629. riding on platforms and steps, 1630. riding in baggage car, 1631. while riding in dangerous and improper places, 1633, while occupying improper position in car, 1633. caused by derailment, 1634. by collisions, 1635. from obstructions, 1636. ejection of passengers, 1637. assaults and injuries by employes, 1638. caused by other passengers and third persons, 3639. received in sleeping cars, 1640. received at stations, 1641. contributory negligence, 1642. effect of direction of train men to occupy dangerous position, 1643. burden of proof, 1644. when mere proof of raises presumption of negligence, 1644. effect of contracts limiting liability, 1645. actions for, 1696. See Passengers. INJURIES TO SERVANTS, See Injuries to Employes, INJURIES TO STRANGERS, See Strangers. INJURIES TO TRESPASSERS, liability for, 1254. upon railway tracks, 1257. See Trespassbks. INN-KEEPER, sleeping car company is not, 1616. INNOCENT PURCHASERS, of railway aid bonds, 836, n. See Bona Fide Purchasers. INDEX. 2939 {Meferences are to Sections.'] Vol. I, §§ 1-S21, Vol. II, §§ SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INNOCENT THIRD PERSONS, rights as against liens, 1075. INSANE PERSON, carrier not bound to accept as passenger, 1577. liability for acts of, 1621. when may be ejected from train, 1637. INSOLVENCY, effect on forfeiture, 49, n. as ground for appointment of a receiver, 538, n., 543. when sufficient for appointment of receiver without default, 644. as statutory ground for appointment of receiver, 544. how to plead, 544, n. failure to pay taxes indication of, 545. as affecting right to remedy of mandamus, 642. what is sufficient evidence of, 1539. how vendee's affects right of stoppage in transitu, 1539. INSOLVENCY AND DISSOLUTION, scope of chapter discussing, 598. railroad company subject to state insolvency law, 599. trust fund doctrine, 600. effect of insolvency, 601. when a corporation is deemed insolvent, 601. assignments by corporations, 602. preferences by corporations, 603. preferences of stockholders and officers, 604. statutory preference of employes, 605. what constitutes a dissolution, 606. judicial determination of dissolution, 607. voluntary dissolution, 608. proceedings to dissolve, 609. dissolution in case of consolidated company, 610. effect of dissolution, 611. corporation may have a qualified existence after dissolution, 612. disposition of property on dissolution, 613. rights of creditors upon, 614. INSOLVENCY LAWS, no extra-territorial effect, 599. INSOLVENT COMPANY, right to reclaim dividends paid by, 310, n. can not declare dividends, 315, n. equity assuming control of, 539. making voluntary assignment, 602. not entitled to railway aid bonds, 877. 2940 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INSOLVENT PERSON, effect of transfer of shares to, 92, 93. effect of subscription by, 111, n. INSOLVENT STOCKHOLDER, need not be party to suit for receiver, 557. INSPECTION, of spark arresters and ash pans, 1224. defendant proving in fire cases, 1245. failure to make proper, 1263. duty of employer to make, 1275, 1278. to whom duty of is owing, 1278. duty to make is a continuing one, 1278. to what duty of extends, 1278. custom and usage as affecting duty of, 1278. of foreign cars, rule where there is not time for, 1279. duty of due to engineers and fiiremen, 1297. duty as to generally, 1299. when consignee entitled to, 1528. duty of carriers of passengers to make, 1587. of track for broken rail, 1634. of couplings in train, 1685. of party, 1699. INSPECTION OF BOOKS, right to those held by receiver, 583. See Books of the Company. INSPECTORS, duty as to employment of, 1278. when fellow-servants and when vice-principals, 1327. are superior agents, 1327. INSPECTORS OF ELECTIONS, can not determine who has right to vote, 157. when they may be enjoined from receiving vote, 174, n. INSTALLMENTS, subscriptions payable in, 133, n. subscriptions may be ordered paid in, 137. payment of calls in, effect on forfeiture, 152. payment of can not be avoided by transfer of stock, 178. 1 INSTANTANEOUS DEATH, recovery for negligence causing, 1363. INDEX. 2941 [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. 11, §§ .3£2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INSTRUCTIONS, liability of initial carrier for failing to obey, 1440. effect of failure to obey those of shipper, 1462. duty of obedience to those of shipper, 1490. INSTRUCTIONS OF COURT, as to effect of life tables, 1378. when court must give peremptory, 1702. INSURABLE INTEREST, in property along right of way, 1223, 1234. INSURANCE, when stockholders may take and recover, 168. authority of receiver to effect upon property held by him, 567. as element of damages in condemnation proceedings, 996. on property destroyed by fire set by company, 1234. carrier taking on property in its custody, 1509. effect of stipulations as to in contracts limiting liability, 1509. INSURANCE COMPANY, as real party in interest, 1234. property-owner as trustee for, 1234. rights where railroad company burns insured property, 1234. relief association is not, 1380. when subrogated to rights of shipper, 1509. INSURER, employer is not, 1287, 1308. private carrier does not act as, 1397. when carrier is liable as, 1425, 1481. common carrier as, 1454. warehouseman is not, 1463. railroad company is not against delay, 1484, 1555. carriers limiting their liability as, 1495. reasons for holding carrier liable as, 1497. right to make special contract limiting liability as, 1500. how to limit liability as, 1502. limiting liability as by parol, 1503. liability as usually terminated only by delivery, 1517. notice to consignee terminating liability as, 1527. when liability of carrier as ceases, 1527. carrier is not against delays, 1555. carrier of passengers is not, 1583, 1587. how far carrier is against assaults by employes, 1638. company is not of passenger's safety, 1640. carrier is of money carried as baggage, 1647, n. of merchandise carried as baggage, 1649. 2942 INDEX. '[Beferences are to Sections. '\ Vol. I, §§ 1-3^1, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INSURGENTS, when are and when are not public enemies, 1458. INTENT, effect in interpreting railroad charter, 38, n. not cause for forfeiture of charter, 51. looking to in matter of subscription to stock, 103. how affects consolidation, 324, 335. as an element in enforcement of contracts, 346. when malicious presumed, 730. as affecting construction of land grants, 794, as affecting matter of conditions, 940. as affecting construction of conditions subsequent, 943. when not necessary to constitute willfulness, 1257. INTERCHANGE OF BUSINESS, how affected by interstate commerce act, 1685. INTERCHANGE OF FREIGHT, rules and regulations governing, 1685. INTEREST, when allowed on dividends on preferred stock, 83. paying on preferred stock out of profits, 86. when may be collected on calls and assessments, 144. when may be recovered on dividends, 311. when agreement to pay on stock is void, 316. paying on stock, earnings, 316. out of what it should be paid, 482. on overdue interest coupons, 486. mortgage to secure bonds covers, 486. payment of on bonds, 487. when payment of is ratification of unauthorized mortgage, 492. how failure to pay on bonds affect the right to foreclose, 505. arresting suit by payment of, 507. foreclosure of mortgage for default in payment of on bonds, 507. maintaining suit at law for, 514. leasing road for purpose of paying, 522. sale on default in payment of, 522. default in payment of as ground for receiver, 545. appointing receiver where it remains long unpaid, 546. receiver paying on first mortgage bonds, 667. as affecting removal of causes, 651. rate of on municipal aid bonds, 880, n. effect of payment on aid bonds as to estoppel, 903. allowance of in condemnation proceedings, lOOG. on damages where animals are injured, 1218. on damages in fire cases, 1239. INDEX. 2943 [Beferenees are to Sections.'] Vol. I, §§ l-S^i, Vol. 11, §§ 3S^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. INTEREST-BEAEING STOCK, when may be issued, 86. INTEREST COUPONS, taxes on, 1, n. guaranteeing, 482. general nature of, 486. character determined by bonds to which they are attached, 486. limitation of action on, 486. what action may be maintained on, 486. when overdue bear Interest, 486. priority and order of payment, 487. INTERESTED PARTIES, who are within statute authorizing removal, 647. INTERESTED PERSONS, contracts by, 348. INTERLOCKING SWITCHES, excusing railroad companies from stopping at crossings, 1131. INTERLOCUTORY ORDER, appointment of receiver is, 558. when appeal lies from, 1053. INTERMEDIATE AGENTS, power to appoint, 299. agent for one purpose not for another, 300. distinguished from servants, 301. INTERMEDIATE CARRIER, when not liable for overcharges, 1563. INTERPLEADER, between parties claiming same dividend, 310. right of corporation to maintain bill of, 615. right to have cause removed to federal court, 647. carrier filing where there are adverse claimants, 1544. INTERSTATE CARRIER, considering interests of in construing interstate commerce act, 1667. compelling it to assume responsibility for other carriers, 1670. INTERSTATE COMMERCE, state can not control, 25. restricting foreign corporation from doing, 30. 2944 INDEX. [Beferences are to Sections.'] Vol. J, §§ 1-Sn, Vol. 11, §§ S^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170J. INTERSTATE COMMERCE— Con«im(e(Z. states can not regulate generally, 658, 754, 1664. power of states to regulate, 658, 690. state can not regulate, 667. how far police regulations may affect, 667. state railroad commissioners can not regulate, 689. distinguished from domestic commerce, 690. definition of, 690, 1671. at what point it begins, 690. soliciting business for interstate railroad is, 690, n. what power to regulate includes, 725. penal offense to interfere with, 727. taxation of railroad engaged in, 735. can not be obstructed by taxing power, 754. power of federal government to regulate, 754, 1671. states can not tax, 755. states taxing railroad property used in, 755. validity of license tax on, 759, n. taxation on gross receipts from, 765. distinguished from domestic commerce, 780, n. statutes giving right of action for death do not interfere with, 1360. contract limiting liability as to, 1438. sleeping and parlor car companies as instrumentalities of, 1618. running of trains on Sunday, 1668. prohibiting running trains on Sunday, 1668, 1673. state statutes held to be regulations of, 1669. state statutes held not to be regulations of, 1670. effect of inaction of congress, 1671. extent of federal power over, 1671. See Domestic Commerce. INTERSTATE COMMERCE ACT, obstruction of mails a violation of, 633. effect on excessive charges, 1564, n. effect on contracts for rebates, 1565, n. governing rates of fare, 1593. effect on passes, 1612. source, nature, and extent of federal power over interstate railroads, 1663. commerce clause of the federal constitution, 1664. general view of, 1666. state power as limited by commerce clause of federal constitution, 1665. construction of, 1667. what is continuous line within, 1667. the police power as affected by commerce clause of the constitution, 1668. INDEX. 2945 {^Beferences are to Sections.} Vol. I, §§ 1-3S1, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. INTERSTATE COMMERCE ACT- ConJirawed. state statutes held to be regulations of interstate commerce, 1669. what is interstate commerce, 1671. the interstate commerce commission, 1672. railroads engaged in domestic commerce, 1673. when a railroad is interstate, 1673. conspiracies, 1674. trusts, 1674. monopolies, 1674. commerce and manufactures, 1674. what is discrimination under, 1676. what is undue preference under, 1676. when preference not unjust, 1677. when discrimination not unjust, 1677. illustrative cases of discrimination, 1678. undue preference mixed question of law and fact, 1679. rebates as affected by, 1680. effect on formation of connecting lines, 1681. effect on terminal facilities, 1681. effect on traffic contracts, 1681. long and short hauls, 1682. regulating charges for long and short hauls, 1682. furnishing cartage as a violation of, 1682. group rates, 1683. reasonable charges under, 1684. interchange of business, 1685. joint tariffs under, 1686. through rates under, 1686. posting rate sheets or schedules under, 1686. party rates, mileage and commutation tickets, 1687. violations of, 1688. indictment for violating, 1688. injunction to prevent violation of, 1688, n. INTERSTATE COMMERCE COMMISSION, act creating is constitutional, 676, n. power as to rates of freight, 1672. not a legislative body, 1672. not strictly a corporation, 1672. nature and powers of, 1672. not strictly a judicial tribunal, 1672. authority over pooling contracts, 1675. INTERSTATE COMMERCE LAW, See Interstate Commerce Act. 2946 INDEX. IBeferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INTERSTATE COMMERCE RAILROADS, taxation of, 753. INTERSTATE FREIGHT, what constitutes, 764. validity of tax on, 764. INTERSTATE PASSENGERS, power of state to provide for safety of, 1668, n. INTERSTATE RAILROAD COMPANY, imposing license tax on, 759. validity of privilege tax on, 760. when excise tax may be imposed on, 762. taxing gross receipts of, 765. source of federal power over, 1663. taxation of, 1664, n. what is, 1673. INTERSTATE SHIPMENTS, statutes prohibiting limitation of liability not applicable to, 1499. INTERVENING PETITION, in condemnation proceedings, 1001. INTERVENOR, right to have cause removed to federal court, 647. INTOXICATED EMPLOYE, penalty for retaining, 724. INTOXICATED PERSON, duty of railway employes to, 1172. duty at highway crossing, 1172. carrier refusing to carry, 1577. right to eject from train, 1637. INTOXICATION, showing that of flagman, 1157. as element of contributory negligence, 1172. INTRUDER, duty to, 1305. on trains, duty to, 1581. does not become a passenger, 1581. injuring passenger, liability for, 1640. See Trespassers. INDEX. 2947 [^References are to Sections."] Vol. I, §§ 1-sn, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. INVALID BONDS, subrogation of holder of, 910. liability of municipality to purchaser of, 911. INVENTIONS, duty in reference to adoption of new ones, 1224. carrier not bound to adopt new and untried, 1588. See Appliances ; Machinery. INVESTMENTS, when directors have power to make, 251. INVITATION, distinguished from license, 1248, 1249. implied for public to come upon railway premises, 1252. when implied, 1154. what necessary to constitute, 1154. effect of that by flagman, 1157. INVITATION TO CROSS, effect of, 1171. what amounts to, 1171. by open gate, 1157. IRON RAILS, are usually real estate, 389, n. IRREGULARITIES, waiver of in corporate organization, 20. effect of slight in organizing corporation, 36. waiver of in making calls, 134, n. effect of in issuing bonds, 485. effect of in levying taxes, 751. effect on question of public aid, 838. act curing those in public aid proceedings, 843. effect on grant of public aid, 844. when will not defeat public aid, 871. in granting public aid not ground for injunction, 872. effect of in condemnation cases, 1018. IRREPARABLE DAMAGES OR INJURY, as affecting right to relief by injunction, 628. as ground for injunction against strikers, 683. IRREVOCABLE CHARTERS, constitutional provisions against granting, 56, n. 2948 INDEX. [Befereiices are to Sactions.'] Vol. I, §§ l-Sn, Vol. II, §§ SSS-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-170S. ISSUES, recovery limited to, 1694. evidence must be responsive to, 1695. See Pleading. JEEKS OF TRAIN, employes assuming risks of, 1290. brakemen assuming risk of, 1296. of freight train, risks assumed, 1582. passenger assuming risks from, 1589. when company not liable for, 1629. JEWELRY, when is and is not baggage, 1647. JOINT ACTION, against railroad company and receiver for death of employe, 577, n. of two tribunals in condemnation proceedings, 1014. against railway and street car company for collision, 1178. where insured property destroyed by fire, 1233, 1240. against companies causing collision, 1635. for loss of baggage, 1660. against common carrier, 1692, n. JOINT CARRIAGE, partnership for, 1444. JOINT DEFENDANTS, to action in tort, 1693. JOINT LIABILITY, of lessor and lessee, 476. of corporations, 617. of company and contractor, 1064. of connecting carriers, 1441, 1445. for acts of common agent, 1447. JOINT OWNERS, transfer of stock owned by, 93. signing petition for public aid, 858. conveyance of right of way by, 934. naming in petition in condemnation proceedings, 1028. taking appeal in appropriation cases, 1053. INDEX. 2949 [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. JOINT BATE, does not effect a partnership, 1445. JOINT TARIFFS, under interstate commerce acts, 1686. JOINT TENANCY, in corporate stock, 93, n. JOINT TENANTS, as parties to condemnation proceedings, 1025, n. JOINT THROUGH RATE, as affecting question of discrimination, 1677. as affecting question of preference, 1677. JOLTS, of freight train, risk of assumed, 1582. passenger assuming risks from, 1589. See Jerks op Train. JUDGE, stockholder disqualified to serve as, 173. when relationship to stockholder renders incompetent, 173, n. authority to appoint receivers in vacation, 559. relative of should not be appointed receiver, 561. railroad commissioner is not, 675. See Courts. JUDGMENT, effect of one recovered during pendency of forfeiture proceedings, 55. in suit to forfeit corporate charter, 55. sustaining one secured on calls and assessments, 140. must be taken before stockholder's liability can be enforced, 179. how one against corporation affects stockholders, 180. against corporation, conclusive as to stockholders, when, 180. assignee suing on, proving consideration, 181, n. stockholder setting off against his liability, 186, n. when must precede statutory liability of stockholders, 188. against corporation, 188. treasurer no power to confess for corporation, 292. against consolidated company, 338, 339. lien of mortgage superior to, 497. purchaser at foreclosure sale not liable lor vendor's, 526, n. rule as to priority in payment of, 528, n. Corp. 187 2950 INDEX. [References are to Sections.] Vol. I, §§ 1-3^1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. JUDGMENT— Continued. right of receiver to bring action to set aside and vacate, 537, n. failure to pay as ground for appointing receiver, 545, n. appointing receivers where claims have not been reduced to, 548. enforcing by appointment of receiver, 54*. right to set off in action by receiver of corporation, 569. right of receiver to maintain action on, 570. in suit brought against receiver without leave a mere nullity, 571, n. in suit commenced before appointment of receiver, 574. right of receiver to appeal from, 583. receiver can not be compelled to take for his compensation, 584. against ancillary receiver after his discharge not binding, 587, n. effect of that on local assessments, 790. only parties bound by, 914. on municipal aid bonds, 918. against trustee binding beneficiary, 1003, n. abandoning condemnation proceedings after, 1033. appeal from in condemnation cases, 1053. amounting to waiver of lien, 1075. effect of against one connecting carrier, 1452. JUDGMENT CREDITOR, when acquires priority, 189. when should be party to foreclosure suit, 512. right to have fraudulent foreclosure sale set aside, 529. appointing receiver on application of, 548. receiver suing as, 570. right to maintain suit for dissolution, 609, n. as party to condemnation proceedings, 1025. JUDGMENT LIEN-HOLDERS, notice to in condemnation cases, 1023. JUDICIAL ACT, when repeal of charter is not, 57. levying taxes is not, 736, n. JUDICIAL CONTROL, over appraisers appointed to assess benefits and damages, 1015. JUDICIAL DECISIONS, becoming a part of statutes, 768. JUDICIAL DETERMINATION, forfeiture taking effect without, 47, forfeiture of corporate franchise without, 48. INDEX. 2951 [Beferences are to Sections.'] Vol. I, §§ 1-S21, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. JUDICIAL INVESTIGATION, legislature can not shut out, 666. JUDICIAL KNOWLEDGE, when courts will not take of authority of corporate officers, 208. of duties required of president, 284. of nature and hazards of railroad business, 298. as to authority of subordinate agents, 299. of powers of station agent, 303. that persons cross railway tracks in safety, 1165. of county limits and geographical features, 1215. as to employment of telegraph operators, 1328. of course of freight carriage, 1401. as to running of freight trains, 1527. of what sleeping-car companies undertake, 1617. of what is reasonable time for train to stop, 1628, n. of jerking motion of trains, 1630. as to system of baggage checks, 1655. of municipal ordinances, 1698. JUDICIAL POWERS, can not be conferred upon administrative and ministerial officers, 677. investing railway commission with, 677. railroad commission possesses quasi, 683. legislature has none, 705, 983. JUDICIAL PROCEEDING, when necessary to forfeit land grants, 801. JUDICIAL QUESTION, forfeiture of corporate charter, 54. in reference to police power, 666. how far question of tariff rates is, 691. propriety of exercising eminent domain is not, 952. when measure of compensation is, 983. question of compensation is, 1011. See Questions of Law. JUDICIAL SALE, statute must be strictly followed, 72. of corporate franchises, 72. See Sales. JUDICIAL TRIBUNAL, interstate commerce commiBsion is not, 1672. 2952 INDEX. [References are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ 33^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. JUDICIARY, power over police regulations, 664. JUNIOR LIEN-HOLDER, when may be admitted as party to foreclosure suit, 512. can not compel foreclosure of prior mortgage, 512, n. JUNIOR MORTGAGEE, denying validity of senior mortgage, 513. right to secure appointment of receiver, 549. asking that receiver borrow money to pay interest on bonds, 549. JURISDICTION, railway company citizen for purposes of, 21. confining corporation to a single one, 22. citizenship affecting, 23, 916. of incorporating state over foreign property, 26, n. to appoint receiver over road in two states, 27. to sell entire road, 27. how affected by consolidation, 28. in quo warranto proceedings, 54. of equity to put mortgage trustees in possession, 514, n. in equity to appoint receivers, 538, 552. conflict of in appointment of receivers, 553. how affected by time of bringing suit, 553. how affected by priority of possession in appointing receivers, 553. what necessary to confer in applications for appointment of receivers, 553. extra-territorial to appoint receivers, 554. receivers maintaining suits by reason of comity, 570. duty of garnishee to question, 625. amount as determining that of federal courts, 646, n. of federal courts as affected by amount in controversy, 648. how affected by application for removal of causes, 654. federal courts decide on their own, 654. when attaches in removal of causes, 654. burden on petitioner to show in removal of causes, 655, u. of railroad commissioners, 683, 684. created by implication, 683. of railroad commission not extended by implication, 684. to enforce orders of railroad commissioners, 697. effect where railroad commissioners exceed, 706. of petition for railway aid, 865. enjoining railway aid bonds for want of, 893. no estoppel where municipal officer has none, 902. of federal courts in reference to municipal aid bonds, 916. INDEX. 2953 ^Referejices are to Sections.] Vol.1, ^U-SSl, Vol. 11, %%SSS-918, Vol. Ill, ^ 919-1390, Vol. IV, ^ 1391-1703. JUEISDICTION— Conffmtedl. diverse citizenship as ground of in federal courts, 916. can not be conferred by consent, 1014. when must affirmatively appear, 1014. in appropriation cases, 1014. how affected by effort to agree in appropriation cases, 1027. when must be shown by report of commissioners, 1041. when objections to may be made, 1041. how objections to raised on appeal, 1053, n. can not be ousted by contract, 1059. to condemn railway crossing, 1119. in cases where animals are injured, 1215. JURISDICTIONAL FACTS, decision of local officers as to, 865. effort to agree, 1027. averring in condemnation cases, 1028. JURORS, when stockholders disqualified to serve as, 173. qualification of, 1017. waiving objections to competency of, 1017. employes not competent as, 1017, n. competency where county a party, 1017, n. oath to be taken by, 1018. when there may be peremptory challenge, 1024, n. meeting in appropriation cases, 1034. party furnishing entertainment to, 1046. misconduct of in appropriation cases, 1046. JURY, ratification of subscription is a question for, 104. intention as to location of terminus question for, 124. deciding whetheo notice of calls was given, 141. can not pass on reasonableness of corporate by-laws, 193, 202. when may find that by-law has been adopted, 195. determining whether agent has exceeded his authority, 198, n. determining reasonableness of rules and regulations, 202. exemption of corporate representatives from service on, 205. can not prescribe penalties, 679. trial of cases against receivers by, 573. trial by after removal to federal court, 656. fixing amount of penalty, 714. can not fix location, 920. when abandonment of location a question for, 931. determining value in condemnation proceedings, 995, 1038. 2954 INDEX. IBeferences are to Sections.'] Vol. I, §§i-5^/, Vol.11, §§5;gf-9iS, Vol. Ill, §§ 919-1390, Vol. TV, §§ 1391-1703. JURY — Continued. what it may consider in fixing damages in condemnation proceed- ings, 996. when assessment of benefits need not be left to, 1012. what is meaning of term, 1012. challenge to the array, 1017. determining question of public necessity, 1021. summoning in appropriation cases, 1024. not bound by opinions of witnesses, 1038. viewing premises in appropriation cases, 1040. when negligence a question of fact for, 1095, 1150, 1156, 1224, 1244. determining whether highway crossing has been restored, 1105. as to whether crossing in proper repair a question for, 1112. deciding whether or not it was negligence to omit signals, 1150. determining what constitutes ordinary care, 1156. when ordinary care a question for, 1156. deciding whether gate is necessary, 1157. determining whether speed was excessive, 1160. when contributory negligence a question for, 1163. deciding whether child guilty of contributory negligence, 1172, 1261. denying right of trial by, 1183. determining question of what is depot ground, 1194. determining what is sufficient cattle-guard, 1198. when may determine places where fence required, 1202. question of negligence in adopting machinery, 1224. determining question of negligence in allowing combustibles to accu- mulate, 1226. determining question of proximate cause in fire cases, 1231 . submitting question of contributory negligence in fire cases to, 1238. negligence as question for in fire cases, 1244. determining discretion of child, 1261. question of child's contributory negligence for, 1261. considering life and mortality tables, 1378. when may infer contract imposing extra-terminal liability, 1435. taking case from where there is only one inference, 1642, 1702. determining what is baggage, 1648. plaintiff exhibiting injured part to, 1699. experiments and practical tests before, 1700. withdrawing case from, 1702. See Questions of Fact; Questions of Law. JURY TRIAL, when allowed in condemnation proceedings, 951. when not allowed in appropriation cases, 1010. waiver of in appropriation cases, 1012. INDEX. 2955 [Eeferences are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, §§ 3SS-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. JUST COMPENSATION, See Compensation and Damages. K KICKING CARS, negligence in, 1162. KNIVES, when are not baggage, 1647, n. KNOWLEDGE, when does not amount to contributory negligence, 1271. employe's of uncovered ditches and drains, 1272. of defects barring recovery, 1288, n. of defects on part of employe, 1311. when may be inferred on part of employe, 1312. of defects as contributory negligence, 1345, n. of general notice limiting liability, 1501. effect where carrier has of danger, 1584. how to aver, 1697. See Judicial Knowledge; Notice. L LABOR, issuing receiver's certificates to pay for, 590. when claim for prior to mortgage, 1072. LABOR ORGANIZATION, compelling employe to withdraw from, 1336. LABORER, who regarded as, 186. protection of by six months' rule as to preferred claims, 528. when may be paid out of body of property, 528. preference on insolvency and dissolution, 605. distinguished from subcontractor, 1061. rights of those helping to construct road, 1065. when stockholders liable to, 1065. contractor giving bond to secure, 1065. lien for unpaid wages, 1065. statutes giving preference to, 1067. who are within meaning of lien laws, 1070. time-keeper is not within lien law, 1070, n. when fellow-servant with trainmen, 1332. 2956 INDEX. [Beferences are to Sections. '\ Vol. I, §§ 1-SSl, Vol. II, §§ S^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LABORERS' LIENS, against street railways, 6. for unpaid wages, 1065. LACHES, effect in suit to forfeit corporate charter, 52. in failing to take advantage of fraud, 132. barring remedy on forfeiture of stock, 154, n. defeating stockholder's right to question consolidation, 328. effect on rights under ultra vires contract, 373, n. preventing relief on ultra vires contracts, 377. of stockholders in objecting to lease, 442, n. barring right to attack fraudulent foreclosure sale, 529. effect of by minority bondholders, 534. defeating right to a receiver, 550. as affecting right to attack receiver's certificates, 591. in presenting receiver's certificates, 597. as affecting right to injunction, 629, 872. defeating right to enjoin laying of road in street, 630. defeating right of stockholder to an injunction, 634. as affecting right to cancel land patent, 803. See Dblay; Estoppel. LADIES, providing separate cars for, 200. LAND, implied power of railway companies to condemn, 41. condemning for abutments to bridges, 42. condemning for water tanks, shops, etc., 42. corporation taking and conveying, 42. condemning for branch or lateral road, 42. company can not speculate in, 374. See Real Estate; Eminent Domain. LAND GRANTS, when not covered by general mortgage, 495. taxation of, 779. ground upon which public aid to railroads rests, 792. construction of is liberal, 792. meaning of the term, 793. aid to railroads by, 793. construction of, 794. have effect of legislative enactments, 794. upon conditions precedent or subsequent, 794. illustrative cases of construction of, 795. INDEX^ 2957 [Beferences are to Sections.'^ Vol. I, §§ t-331, Vol. II, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LAND GRANTS— Cojifinued!. title in, 795. rule where there is conflict in, 795. effect of, 796. time from which they are effective, 796. taking advantage of breach of condition in, 796. when change of route may be made under, 796. patent not necessary to company, 796. conflicting with homestead claims, 796. illustrative cases of effect of, 797. state imposing conditions in, 797. effect on reserved lands, 798. when indemnity lands allowed, 799. priority of rights, 800. forfeiture for breach of conditions, 800. reverting to United States, 800. breach of condition in, 801. forfeiture, 801. proceeding to divest title conferred by, 801, who may object to breach of conditions in, 801. legislative declaration of forfeiture, 802. cancellation of grants and entries, 803. effect of staking and surveying line, 804. aid to two companies by same grant, 805. when government estopped by, 806. rule where state renders performance of conditions impossible, 807. partial failure to perform conditions, 808. rights of trespasser as against, 808. notice by possession, 809. bona fide purchasers as against, 809. effect of reservation of right to use railroad as highway, 811. injunction to protect rights in, 1810. LAND PATENTS, suits to cancel, 803. how laches affects right to cancel, 803. LANDOWNER, right to petition for change of location, 930. old location reverting to, 931. enforcing agreement to purchase, 935. right to compensation for additional servitude, 977. when telegraph line not additional burden to, 977. when entitled to farm crossings, 996. when track becomes property of, 998. 2958 INDEX. [References are to Sections.] Vol. I, §§ 1-3S1, Vol. II, ^^322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LANDOWNER— Continued. damages to which he is entitled, 998. authorizing entry, effect of improvements made under, 998, n. estopped by accepting damages, 1004, n., 1049, 1052. recovering damages caused by negligent acts, 1005. when entitled to interest in condemnation proceedings, 1006. reasonable time to enforce compensation and damages, 1007. waiving right to claim compensation and damages, 1008. naming in petition for condemnation, 1028. notice to of meeting of commissioners in condemnation proceedings, 1034. testimony of in appropriation cases, 1037. remedies in appropriation cases, 1049. when estopped to eject railroad company, 1049. estoppel by accepting compensation and damages, 1049, 1052. when may eject company from street, 1049. injunction as remedy for against unlawful proceedings, 1049. when estopped by giving credit, 1052. rights where railroads constructed in streets, 1086. what landowners are entitled to private crossings, 1139. how conveyance of right of way affects right to private crossing, 1138. estoppel to claim private crossings, 1139. when entitled to underground crossing, 1139. securing private crossings under statutory authority, 1142. putting in private crossing at expense of company, 1142. right to locate private crossings, 1143. number of private crossings entitled to, 1143. what is sufficient private crossing for, 1144. right to subways and passways under tracks, 1147. building fence at railway company's cost, 1181. notifying company of defects in fence, 1185. when must repair fences, 1185. fences erected by, 1187. agreeing to erect fences, 1188 . when liable for stock killed, 1188. waiving duty to fence, 1189. duty to fence at private crossings, 1193, n. duty to close gates and bars, 1200, contributory negligence in leaving gates and bars open, 1209. effect where he has knowledge of defective fences, 1209. objecting to clearing off right of w.iy by fire, 1227. agreeing to let fires burn, effect, 1231. not bound to remove combustibles, 1238. stacking grain and hay near right of way, 123S. INDEX. 2959 [^Beferences are to Sections. '\ Vol. I, §§ 1-3^1, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LANDOWNER— Coniinwed. not bound to put out fire breaks, 1238. duty to his licensee, 1250. See Abuttbes. LARCENY, of railroad ticket, 734. LATENT DANGERS, duty to warn employe of, 1283. LATENT DEFECT, what is regarded as a, 1275. employer not liable for, 1275. inspecting foreign cars for, 1279. in brakes, 1296. rule under employers' liability acts as to, 1348. carrier not liable for, 1587. LATERAL ROAD, condemning land for, 42. building optional with company, 42. location of, 923. property may be condemned for, 960, 961. as public highway, 961. See Branch Lines and Roads. LATERAL SUPPORT, disturbing in constructing line, 937. when interference with constitutes a taking, 977. liability for interfering with, 1005. damages from interfering with, 1057. LATEST IMPROVEMENTS, carrier not bound to adopt, 1588. LAW AND FACT, when contributory negligence a mixed question of, 1163. See Questions of Fact; Questions of Law. LAW OF PLACE, how affects contracts, 1494. in determining liability of common carriers, 1494. eflect on contracts limiting liability, 1506. LAW OF THE FORUM, governs remedy, 1365. effect on contracts limiting liability, 1506. 2960 INDEX. IBeferences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. "LAW OF THE LAND," meaning of the term, 666. LAWS, equal protection of, 21, n. applicable to foreign and domestic corporations, 26. no effect beyond jurisdiction, 27. LAWS OF THE UNITED STATES, removing causes arising under, 652. LEAKAGE, when carrier liable for loss by, 1481. stipulating against liability for loss by, 1513. effect on freight charges, 1561. LEASE, domestic corporation operating under, 29. unauthorized, cause for forfeiture, 49. when stockholders must consent to, 252. delegation of power to execute, 258. effect of attempting to substitute for consolidation, 323. distinguished from contract for use of part of road, 357. setting aside because ultra vires, 372, n. power to make, 427, 430. what the legislature may prescribe, 428. power to make not implied, 429. legislative authority requisite, 429. general rule as to power to make, 430. statutory authority necessary, 430. foundation for rule authorizing, 431. power to accept, 432. statutes authorizing not aided by construction, 433. statutes authorizing strictly construed, 434. construction of statutes authorizing, generally, 435. what power to make includes, 435. what is included in authority to execute, 486. scope of the authority to make, 437. statutes authorizing to be strictly followed, 437. are not favored, 438. consent of stockholders, 439. concurrence of stockholders necessary, 440. when directors may authorize without consent of stockholders, 440. what number of stockholders must assent to, 441. consent of stockholders, 442. stockholders' waiving formal execution of, 442, INDEX. 2961 [Beferences are to Sectionfi.] Vol. I, §§ 1-SSl, Vol. n, §§ S^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LEASE— Continued. where parties are corporations of different states, 443. authority to execute has no extra-territorial effect, 444. rights of foreign lessors, 445. to connecting lines, 446. to competing lines, 447. when those of competing lines are void, 447. effect of unauthorized, 448. construction of, 449. dependent and independent contracts, 450. how covenants in are enforced, 450. contract to permit use of track is not, necessarily, 451. distinguished from trackage contracts, 451. under guise of traffic contract, 452. effect and construction of contracts granting right to use, 453. effect of part performance of, 454. duration of, 455. effect on taxation, 456. public duties of lessee under, 457. duties of lessee to operate road, 458. lessee not liable for wrongs committed prior to, 459. effect on rights of creditors, 460. rights and duties to which lessee company succeeds, 461. lessee not liable on lessor's contract obligations, 462. contract obligations of lessor, 462. recovery of rent under unauthorized lease, 463. improvements of road by lessee operating under unauthorized, 464. receiver's power to make, 465. liability of lessor on unauthorized, 466. liability of lessor for injuries caused by negligence of lessee, 467. when lessor liable for lessee's negligence in operating the road, 468, 469. control reserved by lessor, 470. illustrative cases of liability of lessee under, 471. liability of lessor to employes of lessee, 472. liability of lessor under unauthorized, 473. liability of lessee for injuries caused by negligence of lessee, 474. contracts of the lessee, 475. joint liability of lessor and lessee, 476. liability of company where it permits use of track by another company, 477. ratifying fraudulent, 478. enjoining execution of unauthorized, 479. included in mortgage of after acquired property, 497. not included in power to mortgage, 519. for purpose of paying interest on bonds, 522. 2962 INDEX. [Beferences are to Sections.'^ Vol. I, §§ l-sn, Vol. II, §§ 323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170. LEASE — Continued. authority of receiver to execute, 567. court authorizing receivers to secure on road, 582. when receiver bound by terms of as assignee of company, 582. how covenants in affected by dissolution, 611, n. when stockholders may enjoin execution of, 634. suit to set aside not removable, 652. effect of one executed without statutory authority, 931. effect of conveyance by either lessor or lessee, 934. condemning property held under, 963. how affects appropriation cases, 1025. ejectment of company on expiration of, 1049, n. liability for fire where road is operated under, 1237. by sleeping car company, 1616, n. LEASED LINES, liability of receivers for rentals on, 582. receivers for, 582. exemption from taxation does not apply to, 747. LEAVE TO SUE, when receiver must obtain, 537. receivers, when and how must be obtained from court, 537, 571, 573. receivers, effect of failure to obtain, 572. receivers, when must be alleged in complaint, 572. receivers, when to raise object that leave has not been granted, 572. LEGAL DISABILITIES, effect on release, 937. effect on power of eminent domain, 963. LEGAL PROCEEDINGS, exempting carrier from liability for failure to deliver, 1461. carrier notifying shipper of, 1461. LEGAL PROCESS, duty of carrier where goods are seized under, 1537. seizure under excusing delivery by carrier, 1537. LEGAL STATUS OF CORPORATION, as an individual, 21. as a citizen, 21. confined to jurisdiction creating it, 22. foreign business, 22. how affected by comity, 22, citizenship, 23. INDEX. 2963 \_References are to Sections.] Vol. I, §§ l-Sgl, Vol. II, §§ 3^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170.;. LEGAL STATUS OF CORPORATION— CoJirtiwed. removal of causes, 23. residence and domicile, 24. jurisdiction, 24. federal corporations, 25. railroad extending into more than one state, 26. control of railroad extending into more than one state, 27. formed by consolidation, 28. citizen of state granting charter, 29. as affected by license, 29. foreign corporations, 30. admitting foreign corporations to state, 30. railroads as property, 31. railroads as monopolies, 32. railroads as public highways, 33. LEGISLATIVE ACT, recognizing corporation is not a charter, 29. LEGISLATIVE AUTHORITY, to individual to operate road, 1. essential to creation of corporation, 15. to sell railroad property, 21. when essential to sale of corporate property, 70 n. to purchase stock in another company, 95. necessary to execution of leases, 429. necessary to acceptance of lease, 432. for execution of mortgage, 488. requisite to issue of municipal aid bonds, 876. See Legislative Power; Legislature. LEGISLATIVE CONTROL, of railroad as private corporation, 2. LEGISLATIVE DISCRETION, in taxation of railroad property, 740. when courts can not control, 868. LEGISLATIVE INTENTION, as affecting consolidation, 28. LEGISLATIVE POWER, over railway companies, 659. limits sometimes unduly extended, 661. can not be delegated, 675. authority to make regulations not a delegation of, 678. delegation of in reference to public aid, 821. 2964 INDEX. l^Beferenoes are to Sections .'\ Vol. I, §§ 1-S21, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1.190, Vol. IV, §§ 1391-1703. LEGISLATIVE POWER— ConJirewed. scope of in reference to public aid, 825. illustrative cases of scope of in reference to public aid, 826. definition of want of, 884. as to creation of tribunal for condemnation proceedings, 1013. LEGISLATIVE QUESTIONS, in reference to police power, 666. propriety of exercising power of eminent domain is, 952. See Constitutional Questions. LEGISLATIVE RECOGNITION, when equivalent to corporate charter, 52, n. LEGISLATIVE TRIBUNAL, interstate commerce commission is not, 1672. LEGISLATURE, ratifying defective corporate organization, 20. adopting corporation as citizen, 23. giving authority to foreign corporations, 26. granting exclusive franchise, 32. granting corporate franchises, 34. power to amend or repeal charter, 43, 57. granting new charter, 46. modifying charters, 46. regranting franchises, 47. repealing corporate charters, 56. creating new corporation on repeal of charter, 59. effect of repeal of charter by, 59. power to revoke licenses, 69. granting power to sell franchises, 71. reserving power to amend charter, 252. must authorize consolidation, 322. power to authorize consolidation with foreign corporations, 339. power to authorize leases, 427. •what it may prescribe in reference to leases, 428. ratifying ultra vires mortgage, 493. can not validate fraudulent foreclosure sale, 529. power to provide for reorganization, 531. power to appoint receivers, 559. consenting to company occupying streets, 630. regulating rates of freight, 659. power over public corporations, 662. control over police power, 663. power to declare a thing a nuisance, 664, n. INDEX. 2965 {^References are to Sections.} Vol. I, §§ 1-S^l, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LEGISLATUEE— Cofitmueci. no power to adjudicate questions, 666. power to dispense with notice, 666. determining questions of public policy, 666, n. power to compel company to maintain lights, 668. power to impose penalties, 669. regulating speed of trains, 670. can not authorize unjust discrimination, 679. prescribing qualifications of railroad commissioners, 681. seeking intention of in construing statutes, 683. power to compel establishment of stations, 694. has no judicial power, 705. power over railroad companies, 709. providing for fines and penalties, 709. power to prescribe regulations, 721. power in reference to taxation, 736. power to determine policy and expediency, 736. choosing methods of taxation, 776. declaring forfeiture of land grant, 802. when may aid railway companies, 812. constitutional power to authorize municipal aid, 814, 824. scope of power in reference to public aid, 825. right to choose means and methods, 837. control over municipalities, 837. authorizing public aid by donations and subscriptions, 841. power to validate township aid bonds, 843. power to ratify grant of public aid, 844. when may enact special laws, 845, n. when can not validate bonds, 845. power to change boundaries of municipal corporations, 853. control over municipal corporations, 868. may organize taxing districts, 878. making municipal aid bonds non-negotiable, 882. fixing location of road, 919. fixing termini of road, 919. authorizing condemnation of railroad property and franchises, 922. confirming location of road, 926. authorizing change of route, 930. authorizing conveyances in advance of organization, 933. regulating exercise of power of eminent domain, 950. power to determine question of necessity for exercise of eminent do- main, 952. power over question of eminent domain, 952. delegating power of eminent domain, 953. Corp. 188 2966 INDEX. \^Beferences are to Septions,^ Vol. I, §§ 1-3S1, Vol. 11, §§52;^-9iS, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. LEGISLATURE— Continued. what property it may authorize condemned, 963. authorizing condemnation of property of other corporations, 964. authorizing condemnation of property devoted to public use, 966. fixing title or interest acquired under power of eminent domain, 972. prescribing width of right of way, 973. authorizing condemnation of right of way of other company, 974. does not possess judicial power, 983. fixing time in which damages shall be paid, 1007. power as to constitution of tribunals in appropriation proceedings, 1012. creating tribunals to assess benefits and damages, 1012. prescribing notice in appropriation cases, 1019. authority over question of notice, 1020. determining political questions, 1021. prescribing requisites of petition in appropriation cases, 1028. regulating mode of taking appeals, 1053. regulating appeals and questions to be considered on, 1053. power and control over streets, 1076. granting to railroads use of streets, 1076. authorizing use of tracks, 1084. abolishing and changing grade crossings, 1109. discouraging grade crossings, 1122. requiring company to fence its tracks, 1181, 1182, n. changing law of master and servant, 1334. LENGTH OF RAILWAY, stating in articles of incorporation, 18, u. stating in charter, 36. giving approximate length in charter sufiicient, 36. LESSEE, beginning construction of road within time limited, 47, n. assessing road for taxation against, 456. public duties of under authorized lease, 457. not liable for wrongs prior to lease, 459. when acquires rights prior to creditors, 460. rights and duties acquired under authorized lease, 461. liability for negligence in operating road, 474. contracts of, 475. joint liability with lessor, 476. when should be made party to application for receiver, 557. liability of receiver as, 580. liability of consolidated company for acts of, 722. how affected by landlord's conveyance, 934. when may exercise right of eminent domain, 958. damage to by condemnation proceedings, 995. INDEX. 2967 [Beferences are to Sections. '\ Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. IjES&EE— Continued. notice to of condemnation cases, 1023. as party to condemnation proceedings, 1025. when liable for compensation and damages, 1048. right to maintain action of trespass, 1049. duty to repair railway crossing, 1134. duty to grant private crossings, 1142. liability for injuries to animals, 1208. recovering for damage by fires, 1233. recovering for buildings burned, 1233. liability for damage by fires, 1237. when lessor liable for torts of, 1237. liability for negligence of, 1573. See Lease. LESSOR, when road should be assessed against for taxation, 456. when lessee liable for debts of, 460. liability on unauthorized lease, 466. when liable for injuries caused by negligence of lessee, 467. when liable for negligence in operating the road, 468. liability for lessee's negligence, 469, 1573. reserving control of road, 470. general liability under unauthorized lease, 473. joint liability with lessee, 476. consenting to receivers operating leased lines, 582. when liable for injuries to animals, 1208. when liable for lessee's torts, 1237. See Lease. LEVEE, right to construct on navigable stream, 977. LIABILITY, of corporation fixed in special charter, 16. when purchaser at foreclosure sale takes free from, 526. limiting by contract, 1438. See Contracts Limiting Liability. LIBEL, railroad company liable for, 214, n. corporation may be liable for, 617, n. LIBERAL CONSTRUCTION, of remedial statutes, 715. of statute providing for indemnity lands, 799. of statutes authorizing liens, 1067. to employer's liability acts, 1337. of interstate commerce act in favor of the public, 1667. See Statutoey Constkuction. 2968 INDEX. [References are to Sections.'] Vol. I, §§ l-sn, Vol. II, ^SSS-918, Vol.UTI, §§ 919-1390, Vol. IV, §§ 1391-1703. LICENSE, effect on citizenship of railroads, 29. state revoking, 29. distinguished from franchise, 65, 69. not protected as a franchise, 66. when becomes a contract, 66. when revocable, 60. to use tracks of another company, 453. acquiring right of way by, 932. rights acquired by entry under, 949. incidents that pass with it, 949. when may be revoked, 949. enjoining revocation of, 949. extent of easement acquired under, 949. placing parties in statu quo on revocation, 949. revoking after money has been spent on faith of, 949. what amounts to notice of, 949. when estoppel does not arise under, 949. effect of one in writing and based on valuable consideration, 949. holder of as party to condemnation proceedings, 1025. right to use streets, 1079. risks and perils accompanying, 1154, 1250. duty at crossings by, 1154. buildings located on right of way under, 1235. defined, 1248. distinguished from invitation, 1248, 1249. when implied, 1248. taken subject to perils, 1250. willful or wanton injuries, 1250. when implied to cross railway tracks, 1252. mere acquiescence does not amount to, 1252. when inferred from frequent use, 1252. to use yard and private tracks, 1258. liability for loss of goods on premises under, 1493. LICENSE FEE, for use of streets, 1081. LICENSE TAX, definition of, 759. imposing on interstate railroad, 759. LICENSEES, duty owing to, 215, 1154, 1250. injury to at private crossing, 1151. upon railway premises, 1248. INDEX. 2969 [^Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 3SS-918. Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LICENSEES— Continued. city firemen and policemen as, 1248. who are, 1248. definition of, 1248, n. difference between invitation and license, 1249. duty to look out for on the track, 1250. liability for injuries to, 1251. injured on defective platform, 1251. when employes are, 1251, 1303. company not bound to block switches against, 1258. duty to children who are, 1259. duty to those at stations, 1641. LICENSOR, duty owing from to licensee, 1250. LIEN, of corporation on stock, 79, 99. to what one on stock attaches, 100. how to enforce against stock, 310. priority, 336, 1071, 1072. effect of consolidation on, 336. when purchaser takes bonds subject to, 484. what secured by railroad mortgage, 495. mortgage lien only attaches to mortgagor's interest, 497. when purchaser at foreclosure sale takes free from, 526. sale on foreclosure subject to valid ones, 526. how affected by appointment of receiver, 563. of judgment in suit brought before appointment of receiver, 574, n. priority of that of receiver's certificates, 590. created by receiver's certificates, 591, 592. how that of receiver's certificates enforced, 592. statutory provisions as to that of receiver's certificates, 593. estoppel to question that of receiver's certificates, 596. of assessment for taxes, 745. created by local assessments, 789. against right of way, method of enforcing, 790. when state has for guarantying bonds, 813. when subcontractor entitled to, 1061. of laborer for unpaid wages, 1065. when none on street railway, 1067. statute authorizing, 1067. for what it may be obtained, 1068. not given for groceries and food, 1068. can be none for material not delivered, 1068. 2970 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-S21, Vol. II, §§ 3'22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LIEN — Continued. for clearing road-bed, 1068. upon what it may be acquired, 1069. road can not be sold in parcels to satisfy, 1069, 1071. who may acquire, 1070. who are laborers within meaning of lien laws, 1070. mode of acquiring, 1071. notice as prerequisite to acquiring, 1071. time in which to take, 1071. filing notice of with certain officer, 1071. enforcing against entire road, 1071. priority of, 1071. when lien holders share pro rata, 1072. when prior to mortgage, 1072. assignability of, 1073. enforcement of, 1074. waiver of, 1075. estoppel to enforce, 1075. when subcontractor estopped from enforcing, 1075. of connecting carriers for freight, 1451, 1569, 1570. when connecting carrier not entitled to, 1451. company's can not be divested by attachment, 1538. carrier waiving that for freight charges, 1543, n. for feeding and watering live stock, 1554. when allowed for demurrage, 1567. for import duties paid, 1570. superior to claims of carrier, 1570. for freight charges generally, 1570. may include charges of connecting carrier, 1570. confined to specific goods, 1570. enforcing for freight charges, 1571. none on passenger for his fare, 1603. on baggage for charges for carriage, 1662. See Mechanics' Libns. LIEN OF CARRIER, enforcing by sale of goods, 1571. statute providing for enforcement, 1571. waiver and loss of, 1572. reserving by conditional delivery, 1572. not waived where delivery secured by fraudulent representations, 1572 how affected by part dehvery, 1572. See Lien. INDEX. 2971 [Be/erendes are to Sections.] Vol. I, §§ 1-321, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LIEN ON STOCK, when not lost, 100, n. waiver of, 101. enforcement of, 101. method of enforcing, 101. LIEN-HOLDERS, when should be made defendants in suit to foreclose, 512. LIFE INSURANCE, effect on injuries causing death, 1378. LIFE TABLES, as evidence, 1378. instructions as to effect of, 1378. LIFE TENANT, right to dividends, 307. right to stock purchased with surplus earnings, 307. duties of in reference to stock, 808. duty to pay calls and taxes, 308. when can convey to railroad company, 934. rights under condemnation proceedings, 1003. LIGHT AND AIR, abutting owner's right to easement of, 1085. LIGHT-HOUSES, securing land for under power of eminent domain, 950. LIGHTS, compelling company to maintain, 668, 724. companies compelled to light tracks, 668. duty to have on cars, 1159. duty to place in station buildings, 1590. duty to provide at stations and platforms, 1641. LIMITATION, railway company affected as "person," 21, n. on corporate grant, 39. on right to sell corporate property, 70. upon the police power, 664. of action for injuries causing death, 1373. imposing where company acts as private carrier, 1397. when carrier may impose upon its liability, 1454. effect of those on face of ticket, 1593. on railroad ticket, generally, 1598. See Contracts Limiting Liability. 2972 INDEX. [Beferences are to Sections.l Vol. I, §§ 1-321, Vol.11, ^^332-918, Vol. Ill, §§ 919-1390,Vol. IV, §§ 1391-1703. LIMITED TICKET, company extending time of, 1598. what amounts to waiver of limitation, 1598. when journey regarded as commenced, 1598. "construed strictly against the carrier, 1598. right of company to issue, 1598. usually non-transferable, 1599. mileage ticket as, 1600. LIMITING LIABILITY, by stipulation in pass, 1606. validity of stipulation in pass limiting liability, 1608. for loss of baggage, 1661. See Contracts Limiting Liability. LINE, contracting for carriage of goods beyond, 364. when can be extended beyond limits fixed by charter, 374. agreement to deviate from that fixed, when void, 387. LINE OF DUTY, liability for acts performed in, 214. performing work outside of, 1803. special orders to work outside of, 1304. contributory negligence in leaving, 1313. assaults by employes within, 1638. LIQUIDATED DAMAGES, penalty distinguished from, 715. provided for by construction contract, 1058. fixed in construction contract, 1062. LITIGATION, when stockholders will be permitted to carry on for corporation, 181. authority of treasurer to conduct, 292. power of corporation over, 618. LIVE STOCK, penalty for confinement of, 726. feeding and watering on trains, 726, 1554. facilities for loading and unloading, 1479. validity of stipulation exempting carrier from liability in case of, 1511. injuries by vice or propensity of, liability, 1.511, 1545. effect of owner accompanying shipment of, 1511, 1549. failure to unload, water or feed, 1511, 1553. injury by inherent nature of, 1545. INDEX. 2973 [References are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LIVE STOCK— Continued. carrier not liable for injuries arising from inherent nature of, 1546. duty to receive and carry, 1547. burden of proof to show injury to, 1548. negligence of owner in loading, 1550. cars and appliances for shipping, 1551. duty of connecting carrier as to transportation of, 1551. failure to furnish cars for carriage of, 1551. facilities for loading and unloading, 1551. loading and unloading, 1552. statutes governing carriage of, 1554. negligence in failing to feed and water, 1554. train on which it should be shipped, 1555. duty to care for during delays, 1555. liability for loss or failure to deliver, 1556. extra compensation for feeding, 1566. See Careikes of Live Stock ; Duty to Fence. LOADING STOCK, duty in regard to, 1552. LOANS, by directors to corporation closely scrutinized, 604. LOBBYING, using corporate funds for, 374. LOCAL ACTIONS, examples of, 623, n. LOCAL ASSESSMENTS, distinguished from taxes, 781. definition of, 781. theory on which levied, 781. benefits resulting from, 781. power to levy, 782. power of municipalities to levy, 782. theory on which they are levied, 782. when collection may be enjoined, 782. power to levy rests on statutes, 782. can not be levied under general taxing power, 782. statute authorizing strictly construed, 782. how many may be levied, 783. statute must be complied with, 783. to pay for repairs and the like, 784. what property subject to, 784. 2974 INDEX. {^References are to Sections.} Vol. I, §§ 1-3S1, Vol. II, §§«^-9i5, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LOCAL ASSESSMENTS— ContfoMed. against property of railroad companies, 785. when right of way liable for, 786, 787. where street crosses right of way, 786. benefits as affecting right to levy, 786. against street railway, 786, n. right of way is not abutting property, 787. mode of assessing right of way, 788. lien created by, 789. what liens they are superior to, 789. personal liability for, 789. attorney's fee for foreclosing lien of, 789. enforcing against right of way, 790. procedure in reference to, 791. See Assessments. LOCAL AUTHOEITIES, consenting to operation of cable roads, 9. consenting to highway crossings, 1101. LOCAL IMPROVEMENT, See Local Assessments. LOCAL INFLUENCE, as affecting right to removal to federal court, 645. as ground for removal of causes, 651. counter-affidavits to disprove, 651. time for removing causes on ground of, 653. LOCAL LAWS, railways entitled to protection of, 24. can not be passed against railway companies, 660. singling out railroads, 679. LOCAL LEGISIjATION, against railway companies, 669. LOCAL OFFICERS, duty where public aid authorized by popular vote, 862. deciding jurisdictional facts in railway aid proceedings, 865. LOCATION OF CROSSING, in petition for condemnation, 1119. how determined, 1120. fixing by agreement, 1120. fixing that of private crossings, 1143. INDEX. 2975 {^References are to Sections.] Vol. I, %%1-3S1, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LOCATION OF DEPOT, in compliance with conditions in subscriptions, 125. LOCATION OF ROAD, subscriptions conditioned upon, 121. when a condition precedent, 121. how choice of location determined, 919. legislature fixing, 919. discretion of company in determining, 920. conflicting grants, 921. priority of location, 921. on property already devoted to public use, 922. in canyon, pass or defile, 922. using track and road-bed of another company, 922. branch and lateral roads, 923. exempt property, 924. preliminary survey, 925. map of proposed route, 926. perfecting location, 926. effect of, 927. when location is complete, 927. when fixed by filing of map, 927. contracts to influence location, 928. when change of authorized, 929. discretion of company as to changes of, 929. change of location after first location is finally completed, 930. abandonment of location, 931. old location reverting to landowners, 931. discretion-of company as to selection of, 954. LOCATION OF ROUTE, stock taken upon condition as to, 121. LOCOMOTIVES, providing a place for sheltering is authorized, 415. when subject to sale on execution, 520. right to take water for, 977, n. damages for increased danger of fire from, 996. duty to have head-light on, 1159. contributory negligence to cross before, 1164. attempting to cross in front of approaching, 1168. duty to equip with head-lights, 1205. emission of sparks as negligence, 1221. duty to provide with fire apparatus, 1224. using most improved, 1224. negligence in failing to repair, 1224. 2976 INDEX. \_References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LOCOMOTIVES— ConiiKMed. negligence in burning wood in, 1224. duty to inspect, 1224, 1278, 1297. duty as to management, 1225. negligence in overloading, 1225. excessive use of steam, 1225. burden of showing defective condition, 1242. proving setting of fires by, 1243. emitting large sparks, 1244. proof that they frequently set fires, 1244. defendant proving inspection of in fire cases, 1245. assuming risks from moving, 1289. brakemen assumes risk of firemen running, 1296. injuries by explosion of boiler of, 1299. term does not include trolley cars, 1338. duty to provide proper ones, 1478. relation of person riding on, 1581. duty of passenger carriers as to, 1587. sleeping car companies do not undertake to furnish, 1616. passenger not to be carried on, 1632. presumption as to ownership of, 1701. LONG AND SHORT HAULS, how affected by interstate commerce act, 1682. group rates, 1683. LONGITUDINAL TAKING, when allowed, 974. LONGITUDINAL TAKING FOR STREET, railway not generally subject to, 1098. LOOK AND LISTEN, mental absorption will not excuse traveler from duty to, 1165. duty of traveler to, 1166. must be at a place where it will be effective, 1166. what is sufficient discharge of duty to, 1170. directing a verdict where plaintiff did not, 1179. See Stop, Look and Listen. LOOKOUT, negligence in failing to keep, 1095. duty of company to keep, 1159. on backing cars, 1162. for animals on track, 1205. need not be constant, 1205. INDEX. 2977 [Beferences are to Sections.'] Vol. J, §§ l-sn, Vol. II, §§ 3S^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. LOOKOUT— Continued. when must be kept for licensees, on track, 1250. no duty to keep for trespassers, 1257. for trespassers on tracks in cities, 1257. keeping for trespassing children, 1260. LOSS OF BAGGAGE, liability of initial carrier for, 1658. liability for, 1660. who may recover for, 1660. LOSS OF FREIGHT, when to present claim for, 1512. proof of raising presumption of negligence, 1516. eSect of right to freight charges, 1558. LOSS OF SERVICES, between injury and death, 1359. LOST BOND, compelling payment of, 487. re-execution of, 487. LOST CERTIFICATES, issue of new ones in place of, 80. LOST TICKET, title to, 1593. effect of loss of ticket, 1594, 1620. LOW BRIDGE, effect of employe's knowledge of, 1271. as a risk of the service, 1271. liability for injury to drover by, 1632, n. LOWER RATE, where liability is limited, 1504. LUGGAGE, See Baggage. LUNCH STAND, duty to person visiting, 1256. 2978 INDEX. [Meferences are to Sections. '\ Vol. I, §§ 1-Sn, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. M IIACHINE SHOPS, part of railroad track, 5. MACHINERY, issuing receiver's certificates to pay for, 590. duty as to selection of, 1224. not bound to discard for new inventions, 1272, n. master's duty respecting, 1273. liability for latent defects in, 1275. employer not bound to abandon because newer ones are in use, 1277. duty of employe to remedy defects in, 1293. effect of promise to repair, 1295. duty of employes to complain of defective, 1296. careless use distinguished from defects in, 1301. using that outside scope of employment, 1303. effect of discovery of defects in after accident, 1308. person charged with care of is not a fellow-servant, 1318. cars held to be, 1338, employer not bound to procure the best, 1343. care required under employer's liability acts, 1343. what are defects in within employers' liability acts, 1347. carrier not bound to adopt most approved, 1472. exhibiting defective to the jury, 1700. See Appliances; Equipment. MAIL, notice of calls and assessments by, 141. when obstruction of a violation of interstate commerce, 633. duty of trains to carry, 724. penal offense to obstruct, 727. when notice by is sufficient, 1023, n. MAIL AGENTS, as passengers, 1578. MAIL BAGS, injury to person by throwing off, 1256. assuming risk of throwing on train, 1290. passenger injured by one thrown from car, 1639, n. MAIN LINE, stating termini of, 36. INDEX. 2979 [^Beferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MAJORITY, of board of directors confirming calls, 136, n. when necessary to constitute a quorum, 161. when may amend charter, 163, n. can not withdraw from corporation, 176. of directors may act, when, 260. of quorum of directors may act, when, 263. right to effect consolidation, 325. right to effect reorganization, 531. rights of on reorganization, 533. upholding reorganization scheme by, 533. court protecting by furthering reorganization scheme, 536. of stockholders surrendering corporate charter, 608. to MAJORITY OF COMMISSIONERS, when necessary in appropriation cases, 1014. MAJORITY OF VOTES, meaning in railway aid election, 849. MAJORITY STOCKHOLDERS, accepting immaterial amendment to charter, 45. can not amend charter, 45. assuming trust relation to corporation, 169. MALICIOUS INTENT, when presumed, 730. MALICIOUS PROSECUTION, when company liable for, 214. corporation may be liable for, 617, n. when corporation not liable for, 709, n. MALICIOUS TRESPASS, on railroad property, 733. MALUM IN SE, contracts which are void, 369. railroad company can not perform acts which are, 382. MANAGER, when same as receiver, 566. MANAGING AGENTS, powers and authority of, 296. service of process on, 621. 2980 INDEX. [References are to iSevtiona.'] Vol. I, §§ l-SSi, Vol. II, %^ 323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MANDAMUS, to compel transfer of stock on books, 92, n. to compel registration of stock, 98. will not lie to compel annulment of forfeiture of stock, 154, n. to compel calling of stockholders' meeting, 164. to compel inspection of books, 172, 271, n. to compel lessee to operate road, 457, 458. ■will not lie to compel sale under decree of foreclosure, 524, n. receiver of another court will not be controlled by, 553. to compel receivers to perform public duty, 578. right of corporation to remedy by, 615. injunction may have effect of, 636. to compel performance of legal duty, 637. laws relating to strictly construed, 637. to compel completion and operation of road, 638. to compel restoration of highway, 639, 719, 1092, 1096. to compel construction of crossings and viaducts, 639, 698, 1106, 1111. to compel construction of farm crossing, 639, 1145. to compel carriage of freight, 640. to compel the company to maintain stations and furnish increased facil- ities, 641, 662, 698, 720. to compel company to pay damages, 641, n. when it will not lie, 642. what must be shown to entitle one to writ of, 642. den3ang where it would prove unavailing, 642. who may be relator in suits for, 643. removal to federal court, 646. to compel location of station, 698. to compel obedience to ordinances, 698, n. to enforce order of railroad commissioners, 698, 699, to compel posting of schedules, 699. does not lie to control discretion, 699. to compel construction of line, 699, 1056. to compel construction of stations, 720. to compel levy of tax to pay public aid, 820, n., 918. to enforce subscription to railway, 836. when lies to compel issue of railway aid bonds, 862, 863. as remedy to enforce public aid, 874. to compel issue of railway aid bonds, 874. delay as affecting right to, 874. to compel execution of railway aid bonds, 907. to compel issue and delivery of railway aid bonds, 917. to compel municipal officers to perform their duty, 917. to compel levy of tax, 918. defense by municipality to, 918. INDEX. 2981 [References are to Sections.'] Vol. I, §§ 1-3S1, Vol. 11, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1.191-1703. MANDAMUS— OoBfOTMeti. contempt in refusing to obey, 918. to compel appointment of appraisers or commissioners, 1016. as remedy against administrative officers, 1016. to compel construction of road, 1056. to compel construction of^private crossing, 1145. to compel construction of fences, 1181. when will not lie as remedy against excessive charges, 1564. to compel carrier to perform its duties, 1564. as remedy against discrimination, 1678, n. is an extraordinary remedy, 1690. as remedy for breach of duty by public or common carrier, 1690. MANDATORY INJUNCTION, when may be granted against strikers, 633. English rule as to, 635. rule in the United States as to, 636. illustrative cases of, 636. remedy to which railway companies entitled, 636. to compel railway company to repair streets, 1092, n. to compel restoration of highway, 1106. MANNER OF DELIVERY, how determined, 1521. effect of custom and usage, 1522. consignee waiving objections to, 1531. MANUFACTURING ESTABLISHMENT, company can not condemn land for purpose of establishing' 960. condemnation for roads to, 961. MAP, effect of failure of railway company to file, 51. effect of filing under land grants, 796. when company must submit of proposed location, 926. describing property by reference to, 1022. filing in appropriation cases, 1029, n. MAPS AND PLATS, to aid description in appropriation cases, 1029, n. MARITIME LAW, demurrage under, 1567. MARKET, sale of stock on, 91. Corp. 190 2982 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ S'^g-918, Vol. Ill, §§ 910-1390, Vol. IV, §§ 1391-1703. MABKET VALUE, when stock may be demanded at, 109. as affecting compensation in condemnation proceedings, 994. when is measure of damages in condemnation proceedings, 995. before and after taking, 995. definition of, 995. confining evidence to in condemnation cases, 1036. as affecting damages in condemnation cases, 1036. as measure of damages in fire cases, 1239. where animals are killed or injured, 1218. MARRIED WOMEN, may own shares of stock, 93. may subscribe for stock, 107. effect of release of damages by, 934. See Husband and Wife. MASONIC REGALIA, when is not baggage, 1647, n. MASQUERADE COSTUMES, when are not baggage, 1647, n. MASTER AND SERVANT, right of servant to quit services of master, 833. servant's negligence attributable to master, 1174. when contractor is a master, 1064. master ratifying willful act, 1265. when master liable for servant's willful acts, 1265. master's duty respecting machinery and appliances, 1273. delegation of master's duty, 1276. what duties may be delegated, 1276. master's duty in reference to inspection, 1278, 1327. duty of master to promulgate rules, 1280. when on equal ground as to defects, 1288. rule where servant goes outside scope of employment, 1303. liability of master where servant ordered out of line of duty, 1304. merely volunteering does not create relation of, i:'>()5. rule as to master's knowledge of defects, 1307. teat of master's liability, 130S. vice-principal as to particular subject,^, 1319. servant sometimes employe and sometimes vice-principal, 1319. legislation changing law of, 1334. how employers' liability acts affect contract relation between, 1339. federal courts enforcing general law as to, 1339. relation must exist to call in operation employers' liability acts, 1342. INDEX. 2983 [References are to (Sections.] Vol. I, §§ 1-Sai, Vol. II, §§ S22-91S, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. MASTER AND SERVANT— Continued. duty of servant to complain of defects, 1345. rule where servant is riding on pass, 1606. See Employees' Liability Acts. MASTER IN CHANCERY, to select receiver, 552. referring receiver's accounts to, 583. See Employer. MASTER MECHANIC, as a fellow-servant, 1323. as vice-principal, 1323. MATERIAL, six months' rule applicable to claims for, 528. condemning land for purpose of securing, 960. effect of unauthorized appropriation of, 1057. lien on railroad for, 1067. what lien may be acquired for, 1068. can be no lien for that not delivered, 1068. groceries and food are not, 1068. MATERIAL ALTERATIONS, what constitute, 122. MATERIAL AMENDMENTS, consent of all stockholders generally required, 45. MATERIAL MEN, when not entitled to priority over mortgage, 500. distinguished from subcontractors, 1061. contractor giving bond to secure, 1065. MATURITY, presenting bonds before, 483. purchase of bonds after notice of irregularities, 484. MEADOW, measure of damage for burning, 1239. MEANS AND METHODS, of securing public aid, 837. municipality adopting in issuing bonds, 906. 2984 INDEX. [Meferences are to Sections.'] Vol. I, §§ l-Sm, Vol. II, §§ 3JS-918, Vol. Ill, §§ 919-1390, Vol. IV, %^1S91-1703. MEASUEE OF DAMAGES, where land taken under eminent domain, 980, 995. in condemnation proceedings, 994. in condemnation proceedings, illustrative cases of, 995. where land is condemned, 995. for failure to construct private crossings, 1141. where animals are killed or injured, 1188, 1218. for property destroyed by fire, 1239. market value as in fire cases. 1239. value before and after injury by fire, 1239. where buildings destroyed or injured by fire, 1239. allowing interest in fire cases, 1239. where growing crops destroyed or injured by fire, 1239, n. for injuries causing death, 1378. contingencies affecting in death cases, 1378. for breach of contract to give passes, 1611, n. for loss of or injury to baggage, 1660, n. for refusal to carry, 1691, n. See Damages. MEASUREMENTS, notice to contractor of making, 1059. MECHANIC'S LIEN, who regarded laborers within law entitling them to, 186. priority over mortgages, 500, n. attacking appointment of receiver in suit to enforce, 564. general laws do not include railroads, 1066. upon what it may be acquired, 1069. who may acquire, 1070. when lien holders share pro rata, 1072. when prior to mortgage, 1072. when may be assigned, 1073. enforcing by scire facias, 1970. waiver of, 1075. waiving by accepting other security, 1075. MEDICAL ATTENDANCE, when servants may secure, 222, n. furnishing to employes, 1388. MEETINGS, stockholders' held out of state, 24, n. of stockholders, 164. of board of directors, 260. stated and special of directors, 261. of directors outside of the state, 264. INDEX. 2985 [References are to Sections.'] Vol. I, §§ 1-S21, Vol. II, §§ Sn-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MEMBERS, of corporation bound by by-laws, 192. MENTAL ABSORPTION, effect on injuries at highway crossings, 1165. MERCHANDISE AS BAGGAGE, knowledge that baggage contains merchandise, 1649. contract to carry as baggage, 1649. when carrier liable as insurer, 1649. MERGER, by consolidation, 334. distinguished from consolidation, 335. of preliminary agreement in deed, 421. where there is a recovery for personal injuries, 1375. of oral negotiations in bill of lading, 1503. METHODS OF BUSINESS, engineers assuming risks of employer's, 1297. METHODS OF TAXATION, how many there are, 738. statutory method of assessment exclusive, 739. See Taxation. MILEAGE BASIS, valuation on for taxation, 758. assessing taxes on, 765. MILEAGE TICKETS, when may be issued, 1600. effect of limitation in as to time, 1600. conductor refusing to accept detached coupons, 1600. how to detach coupons from, 1600. redemption of unused portion, 1600, n. under interstate commerce act, 1687. MILITARY DUTY, exemption of corporate representatives from, 205. MILITARY ROADS, securing under eminent domain, 950. MILITARY SERVICE, effect on railway aid election, 849. 2986 INDEX. IBeferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. 11, §§ SSS-918, Vol. Ill, §§ 919-1S90, Vol. IV, §§ lS91-nOS. MILK, group rates on, 1683. MILLS, condemnation for branch roads leading to, 961. MINES, right of railway company to purchase, 393. condemnation for branch roads to, 961. MINISTERIAL AGENTS, officers are, 206, n. when courts may appoint, 918. MINISTERIAL OFFICERS, strictly judicial powers can not be conferred on, 677. railroad commissioners are, 677. power to fix tariff of rates, 691. MINOR, when an employe, 1342. who may recover for death of, 1368. guardian maintaining action for, 1368. rights in relief association, 1384. See Infants; Childhkn. MINORITY BONDHOLDERS, refusing to participate in reorganization, 534. MINORITY STOCKHOLDERS, consent to charter amendments, 45. rights of, 163, 169. when may enjoin action of majority stockholders, 165. when may prevent consolidation, 325. rights of upon reorganization, 531. rights of upon reorganization by agreement, 533. court protecting by furthering reorganization, 536. right to ask appointment of receiver, 550. when may compel dissolution, 608. right to have property distributed on dissolution, 612. MISCONDUCT, director forfeiting right to office by, 271, n. effect of on part of mortgage trustee, 508. when receiver liable for that of his servants, 577. as ground for removal of receivers, 586. INDEX. 2987 {^References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 3^3-918, Vol. Ill, §§ 919-1S90, Vol. IV, §§ 1391-1703. MISCONDUCT— Continued. as afiecting report of commissioners, 1042, n. of jurors or commissioners in appropriation cases, 1046. ejection of passengers for, 1637. MISDELIVERY, of live stock, 1556. MISDELIVERY BY CARRIER, when amounts to a conversion, 1526. what will amount to, 1526. See Excuses for Failure to Deliver ; Delivery. MISDEMEANOR, breaking into ticket office, 732. See Penal Offenses ; Crimes. MISDESCRIPTION, effect of in bill of lading, 1422. MISJOINDER, remedy for, 1215. MISLEADING TRAVELER, liability for, 1171. MISMANAGEMENT, as ground for appointment of receiver, 543, 549. receiver suing officers for, 569, n. as affecting amount of receiver's compensation, 584. MISREPRESENTATION, in obtaining subscriptions, 127. in prospectus, 128. by agents generally, 128. liability for agent'.s, 213. individual liability of officers for, 231. See Fraudulent Repebsbntations. MISTAKE, payments on stock made under, 115, n. how affects right to specific performance, 935. relieving against those in engineer's estimates, 1059. parol evidence to show, 1423. carrier not liable for shipper's, 1491. in delivering freight to wrong person, 1523. of shipper in marking goods, 1535. 2988 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MIST AKB— Continued. effect of agents in fixing freight rate, 1565. person on train by, when a passenger, 1578. effect of in taking up wrong coupon of ticket, 1597. effect of in collecting fare, 1603. rule where baggage is received by, 1657. MISTAKE OF FACT, payment of freight charges under, 1564. MISUSEE, as ground for forfeiture, 48. MIXED QUESTION OF LAW AND FACT, undue preference is, 1679. See Questions of Fact; Questions of Law. MIXED TRAINS, degree of care due to passengers riding on, 1629. MOBS, liability for loss or damage caused by, 1459. contracting against loss by, 1460. violence of does not relieve where there is express contract, 1460. refusing to carry goods on account of danger of, 1466. stipulating against loss from delay caused by, 1513. effect of delay caused by, 1555. See Stkikees. MODBEN APPLIANCES, duty to equip trains with, 1588. MODIFICATIONS, legislature making to charters, 46. See Amendment. MONEY, corporation's power to borrow, 42, 342. donated upon condition, 121. recovering back that paid on fraudulent subscriptions, 131. treasurer has no power to borrow, 292. power to borrow to pay dividends, 313. what kind dividends must be paid in, 320. liability for that borrowed in excess of authority, 351. obtained on ultra vires contracts, 369. effect of retaining under ultra vires contract, 371. INDEX. 2989 [^Beferences are to /Sections.'} Vol. I, §§ 1-SSl, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TAO'S'EY— Continued. power of president to borrow, 491, n. securing payment of by mortgage on after-acquired property, 497. receiver borrowing and issuing certificates, 588, 593. right of corporation to borrow from its officers, 604. set apart for payment of interest not subject to garnishment, 626. implied power of municipality to borrow, 875, n. compensation must be made in, 982. compensation and damages must be awarded in, 1042. tender must be made in, 1051. sleeping car company liable for loss of, 1622. as baggage, 1647. when carrier insurer of that carried as baggage, 1647, n. MONOPOLIES, railroads as, 32. not implied, 32. grant of not presumed, 39. contract creating is void, 388. municipality can not grant, 1077. when created by grant to use street, 1083. federal power over, 1674. "MORE OE LESS," effect of expression in bill of lading, 1420. MORTALITY TABLES, in cases of injuries causing death, 1378. See Life Tables. MORTGAGE, when franchise can be mortgaged, 67. of corporate franchise, 71. sale of franchises on foreclosure of, 72. when calls and assessments can be mortgaged, 145. when directors may make, 253. delegation of power to execute, 258. who has power to execute, 285, 491. when takes precedence over unsecured debts of consolidating compa- nies, 336. how affected by consolidation, 336, n. incidents of power to execute, 345, n. state authorizing execution of, 385. what power to execute includes, 480. legislative authority necessary, 488. may be made of part of road, 489. 2990 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-321, Vol. 11, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MORTGAGE— ConMnMed. what may be mortgaged, 490. ■when stockholders may authorize, 491, n. ratifying unauthorized or improperly executed, 492. ^hen ultra vires one may be made effective, 493. recording, 494. what property is covered by, 495. effect of specific enumeration of property in, 495. what covered by one on the undertaking, 496. of after-acquired property, 497. validity of one by de facto corporation, 497. when fixtures subject to lien of, 498. priority of, 500. trust deed in effect is, 501. equitable and defective, 502. statutory, 503. foreclosure because of default, 505. option to declare whole debt secured by due, 506. foreclosure for default in payment of interest, 507. validity of agreement in as to suits by bondholders, 509. defendants in suits to foreclose, 511. defenses to foreclosure of, 513. effect of provisions in giving trustees right to take possession and sell, 514. right of assignee of, 514. maintaining suit at law on, 514. agreement of mortgagees not to sue at law, 514. when action to foreclose may be brought, 514. consent decree to foreclosure of, 516. power to sell not included in, 519. sale under should be as an entirety, 520, n. with power of sale, 521. selling consolidated road to pay several, 523. priority of those on consolidated line, 523. rendering provisional decree of foreclosure, 530. right to redeem from, 530. dissenting bondholders can not be deprived of rights under, 533. when majority of bondholders may modify, 533. receiver's certificates superior to, 592. preferring creditors by, 603. to ofiicers to secure loan of money, 604. action to foreclose is a local action, 623. mechanics' lien prior to, 1072. when taking operates as waiver of lien, 1075. INDEX. 2991 [References are to Sections.'] Vol. I, §§ i-sn. Vol. II, §§ 3^3-918, Vol. in, §§ 919-1390, Voi. iv, §§ 1391-1703. MORTGAGE BONDHOLDERS, becoming purchasers at foreclosure sale, 521. receiver's certificates superior to lien of, 591. when claims for labor prior to rights of, 1072. MORTGAGE BONDS, exchanging preferred stock for, 81. priority of operating expenses over, 580. money set apart for payment of interest on not subject to garnishment, 626. MORTGAGE CREDITORS, receiver not appointed because of disagreement among, 546. expenses of operation by receiver superior to, 580. MORTGAGE SALE, dissolution caused by, 606, n. MORTGAGE SECURITY, what bondholders entitled to participate in, 485. how interest coupons share in, 487. reserved power to create prior lien or to dispose of unnecessary prop- erty, 499. MORTGAGE TRUSTEES, discretion as to time and manner of sale, 524. suing to set aside fraudulent foreclosure sale, 529, u. can not purchase at their own sale, 529. can not form combination with bondholders, 535. when may purchase at foreclosure sale, 535. when refusal to give possession to ground for a receiver, 545. MORTGAGED PROPERTY, may be condemned, 963. MORTGAGEE, becomes stockholder on exchanging bonds for stock, 81, n. when may vote stock, 157, n. must show loss before can have receiver, 545. appointing receiver on application of, 549. how affected by conveyance to railroad company, 9?4. rights where there are condemnation proceedings, 1003. as party to condemnation proceedings, 1003. notice to in condemnation cases, 1023, 1052, n. when liable for compensation and damages, 1048. right to maintain action of trespass, 1049. 2992 INDEX. [Beferences are to Sections. '\ Vol. I, §§ 1-Sn, Vol. 11, §§ 322-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. MORTGAGEE— Continued. need not be party to street opening proceedings, 1100, n. liability for injuries to animals, 1208. when carrier may deliver possession to, 1537. MORTGAGOR, trustees notifying of intention to sell, 514. right to set aside foreclosure sale for fraud, 529. insolvency of as ground for appointment of receiver, 546. when must deliver possession to receiver, 562. MOTHER, recovering for death of minor child, 1368. recovering for death of illegitimate child, 1368. MOTION, appointment of receiver upon, 558. to set aside report of commissioners, 1044. MOTIVE, wrong one no defense to calls, 139. See Intent. MOTIVE POWER, does not determine character of road, 4, n. that street railway may use, 1080. MOVING CAR, negligence in standing on steps of, 1630. MOVING TRAIN, child passing in front of, 1261. negligence in attempting to board, 1628. contributory negligence in alighting from, 1628, n. MULES, duty to fence against, 1190. MULTIPLICITY OF SUITS, equity interfering to prevent, 628, n. enjoining, 632. injunction against strikers to prevent, 633. MUNICIPAL AID, when consolidated company may collect, 329, n. constitutionality of statutes authorizing, 814. tendency of decisions is to support statutes authorizing, 818, n. power to grant is continuous, 828. INDEX. zyyrf [JJe/erences are to Sections. '\ Vol. I, §§ 1-SSl, Vol. II, §§ 323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MUNICIPAL AID BONDS, can not be issued under power to make subscriptions, 839. power to issue not to be implied, 839. validating, 843. injunction to prevent issue of, 850. effect of conditions in, 851. postponing issuance of, 862. mandamus to compel issue of, 863, 874, 917. rights of creditors in, 863. actions to correct errors in, 873, n. power to issue, generally, 875. legislative authority to issue necessary, 875, 876. unauthorized are void, 876. constitutional questions, completed road, 877. insolvent company not entitled to, 877. v governmental subdivisions may be authorized to issue, 878. execution of the power to issue aid bonds, 879. may be sold through broker, 879, n. following statute in issuing, 879. execution of the power to issue, implied powers, 880. where should be made payable, 880. rate of interest on, 880, n. formal execution of, 881. effect of absence of municipal seal from, 881. what officers may execute, 881, n. nature of, 882. as commercial paper, 882. who is bona fide holder of, 882. effect of recitals in, 882, n. proceedings of municipal officers must conform to statute, 883. want of power, effect of, 884. conflict of authority, 885. consolidation does not take away right to, 886, 913, n. duty of purchaser to ascertain that power to issue exists, 887. when void in hands of bona fide holder, 888. issued in excess of limits prescribed by constitution, 888, 895. limitation of amount, 889. in excess of limit prescribed by statute, 890. recitals in creating an estoppel, 890. running beyond time prescribed, 891. payable out of a specific fund, 892. liability on those issued for a special purpose, 892. tax-payer enjoining issue of, 893. performance of conditions, 893. suing for cancellation, 893, n. 2994 INDEX. \_Beferences aj-e to Bections.'\ Vol. I, §§ 1-S21, Vol. II, §§ SSJ-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MUNICIPAL AID BOliCDS— Continued. when are void, 894. ratification of those irregularly issued, 894. validity of those issued without statutory authority, 895. recitals can not give them validity, 895. bona fide holders of, 896. notice given by, 896. recitals in as notice, 896. general doctrine as to estoppel by recitals in, 897. when agent may be appointed to execute, 898. illustrative cases of estoppel by recitals in, 898. defenses to in hands of bona fide holders, 898. recitals in not always conclusive, 899. when registration required, 899, 908. conclusiveness of oflBcial certificates, 900. recitals in to constitute an estoppel must be of facts, 901. no estoppel where officer has no jurisdiction, 902. purchasers must ascertain validity, 902, n. estoppel otherwise than by recitals, 903. payment of interest as an estoppel, 903. renewal creating estoppel, 903. estoppel by retention of stock, 904. effect of recitals in as against bondholders, 905. refunding, 906. substitution, 906. discretionary power and peremptory duty, 907. exchanging direct for stock, 907. effect where sold for leas than sum fixed by statute, 909. subrogation of holder of invalid bonds, 910. liability of municipality to purchaser of invalid bonds, 911. right of municipality to recover money paid because of railroad compa- ny's wrong, 912. defenses to, 913. how affected by consolidation, 913, n. extrinsic evidence to uphold, 913. validity of those executed by de facto officers, 913. bondholders not bound by proceedings to which they are not parties, 914. following state decisions, 915. jurisdiction of federal courts, 916. compelling issue of bonds, 917. remedies of bondholders, 918. effect of resignation of municipal officers, 918. judgment on, 918. See Public Aid. INDEX. 2995 \^Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 3S^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. MUNICIPAL AUTHORITIES, consenting to company occupying streets, 630. MUNICIPAL BONDS, paying subscriptions with, 110. effect of repeal of law authorizing, 833. See Municipal Aid Bonds. MUNICIPAL CORPOEATIONS, taking stock in railways, 107. contracts with for terminal facilities, 360. granting right to use streets for tracks, 361. power to determine location of tracks, 361, n. regulating speed of trains, 670. mandamus to enforce ordinances of, 698, n. power to make reasonable regulations, 724. constitutional limitation on power to levy taxes, 816, n. constitutional limitation upon power to incur debts, 820. when may make donations and subscriptions to railroads, 820. compelling them to grant public aid, 824. compelling them to take stock in railways, 824, granting aid to branch roads, 826. aiding railroad which is without its limits, 826. power to grant aid is continuous, 828. how many subscriptions may make to railway company, 838. taxing one railroad to aid another, 830. can not give negotiable instruments to railway companies, 835. basis of authority to grant public aid, 836. control of the legislature over, 837. power to aid by subscription does not authorize execution of bonds, 839. division for purpose of voting for public aid, 846. what ones may be authorized to grant aid, 847. power to prescribe conditions to grant of public aid, 852. exercising power of eminent domain, 953. power of legislature to change boundaries of, 853. how change of affects public aid, 853. how extinction affects railway aid, 854. limitations upon amount of public aid they may give, 854. when may ratify railway aid subscription, 867. legislative control over, 868. rights and liabilities as stockholders in railway company, 869. remedies in reference to public aid, 873. restraining railroad company from violating agreement, 873. power to aid railway companies generally, 875. borrowing money to pay aid bonds, 875, n. 2996 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ 322-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. MUNICIPAL COEPORATIONS— Continued. authority to become a stockholder, 875, n. implied powers in issuing aid bonds, 880. when bonds not general obligations of, 892. ratifying bonds irregularly issued, 894. when bound by recitals in bonds, 897. executing bonds through agents, 898. estoppel by retaining stock, 904. liability to purchaser of invalid bonds, 911. recovering money paid because of wrong of railroad company, 912. no inherent power to create corporations or grant franchises, 1076. when may grant use of streets to railroads, 1076. consenting to use of streets, 1076. implied power of to grant right to use street, 1077. consenting to use of streets, 1078. nature and effect of grant by, 1079. reserving right to amend or repeal ordinances, 1079. imposing conditions to grant of use of street, 1081. regulating speed of trains, 1082, 1204. holding streets in trust for public, 1089. power to compel railway companies to restore and repair streets, 1092. liability for defective streets, 1092. repairing streets at cost of railway company, 1092. remedy over against railway company, 1092. power to lay out streets across railways, 1098. proceedings by in opening street across railway, 1100. consenting to laying of railroad across street, 1101. determining whether crossing shall be above or below grade, 1109. requiring gates and flagmen at railroad crossings, 1114. duty to fence in, 1195. as operator of railroad, 1338. MUNICIPAL OFFICERS, when may grant public aid, 823. duty in reference to vote of public aid, 862. power in reference to public aid where popular vote required, 864. possess only statutory powers, 864. conforming to statute in issuing aid bonds, 883. duty in regard to certifying bonds, 900. mandamus to compel execution of railway aid bonds, 907. mandamus to compel performance of duty, 917. effect of resignation of, 918. MUNICIPAL ORDINANCE, effect of violation of, 711. See Ordinances, INDEX. 2991 l^Beferences are to Sections.'\ Vol. I, §§ 1-SSl, Vol. II, §§ 3-22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170S. MUNICIPAL SUBSCRIPTIONS, defenses to, 870. See Municipal Aid; Public Aid. MUNIMENTS OF TITLE, bills of lading as, 1426. MURDER, by shooting into car, 131, n. aiUTUAL DUTIES, at highway crossings, 1153. MUTUAL RIGHTS, at highway crossings, 1153. MUTUALITY, as affecting question of license, 1249. as affecting injuries to servants, 1305. in contract in relief department, 1383. N NAME, of incorporators in articles, 18. initials of christian in articles of incorporation, 18. stating corporate in articles of association, 36. changing is immaterial amendment, 45, n. when receiver may sue in his own, 568. when it implies a corporation, 617. signing to mileage ticket, 1600. NARROW STREET, railroads in, 1089. See Highways; Sthebts. NATIONS, comity, 22. NATURAL PERSON, railroad compared to, 21. corporations act through, 203. corporations different from, 661. NATURAL PROPENSITY, live stock injured by, carrier not liable, 1551. OoRP. 191 2998 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-331, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703.' NAVIGABLE RIVEE, rights of landowner on to construct leveea, 977. NAVIGABLE WATERS, authority to bridge, 966. NAVIGATION, mandamus to prevent interference with, 638. railroad must not interfere with, 966. damages for obstructing, 1057. NECESSARY POWERS, what phrase includes, 38. NECESSARY PROPERTY, when may be sold, 519. NECESSITY, for taking corporate franchises under power of eminent domain, 74. as ground for making contract by contractor, 302. determining for appointment of a receiver, 558. when running trains is a work of, 717. as affecting right to change the route, 930. who determines question of, 952. power of legislature to determine question of, 952. when courts bound by company's determination of, 954. burden of establishing, 973. right of property owner to dispute, 1021. as affecting amount of damages in appropriation cases, 1036. for railway crossing, 1119. as affecting number of railroad crossings, 1124. NEGATIVE EVIDENCE, weight of, 1158. NEGLECT TO KEEP IN REPAIR, cause for forfeiture, 49. NEGLIGENCE, when subscriber must be free from, 130. liability for agent's, 213. in selecting employes, 213. in furnishing unskillful surgeon, 222. liability of directors for, 281. liability for superintendent's, 297, when contract against liability for void, .388. liability for under unauthorized lease, 466. INDEX. 2999 \_Eeferences are to Sections.'] Vol. I, §§ 1-321, Vol. II, §§ 323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. NEGLIGENCE— Coretfewed. can be none where there is no duty, 466. when lessor liable for lessee's, 467, 473. lessor's liability for lessee's in operating road, 469. liability of lessee for, 471, 474. when lessor and lessee jointly liable for, 476. suing receiver for that of his employes, 573, n. receivers liable for that of his servants, 577. of receiver reducing his compensation, 584. as ground for removing receiver, 586. when must be proximate cause of accident, 711. violation of statutory duty as, 711. violation of ordinance as evidence of, 711, 1095, 1214. violation of penal statutes as proof of, 711. in failure to properly keep station, 720. in construction of road under license, 949. in constructing bridges, damages for, 977. in making preliminary survey, 986. in constructing road, liability for, 1005, 1057. in prosecuting condemnation proceedings, 1032. in blasting, damages for, 1057. terminating construction contract on account of, 1058. liability for that of subcontractor, 1061. liability of company for that of contractor or servants, 1063. in running train while constructing road, 1063. liability for that of independent contractor, 1063. liability for that in selecting contractor, 1063. in running electric cars at high rate of speed, 1094. must be proximate cause of injury, 1095. excessive speed as, 1095. in failing to keep lookout ahead, 1095. when question of fact for the jury, 1095. in failing to erect sign-boards, 1114, 1157. causing injury at crossing, 1115. presumption of as to collision at crossing, 1132 in failing to give signals, 1150. in omission of signals, 1154. violation of statutory duties as, 1155. breach of statutory duty as evidence of, 1155. when omitting signboards, gates and flagmen is, 1157. of flagman or gate-keeper, 1157. in not properly giving signals, 1158, 1206. in rate of speed, 1160. presumption that traveler at crossing was guilty of, 1163. where traveler proceeds upon calculation of chances, 1165. 3000 INDEX. [^References are to Sections. 1 Vol. I, §§ 1-3S1, Vol. II, §§5^^-975, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1708. NEGLIGENCE- Continued. to fail to stop before crossing track, 1167. in managing gates at crossings, 1171. age at wiiicli children accountable for, 1172. in placing person in position of sudden peril, 1173. drivers not imputed to passenger in vehicle, 1174. agent's attributable to principal, 1174. servant's attributable to master, 1174. after discovery of traveler's danger, 1175. in injuring animals, common law rule, 1180. in failing to fence, 1181. in failing to fence, injury to passengers, 1191. in failing to fence, injury to employes, 1192. in killing animals, 1194. in injuring animals, 1201. in injuring animals on highway, 1203. in failing to keep lookout for animals, 1205. omission of signals as evidence of, 1206. in recklessly giving signals, 1207. in attracting animals to railway tracks, 1211. presumption where animals are injured, 1213. mere killing of animal as evidence of, 1213. what sufficient to overcome presumption of, 1213. burden of establishing where animals were injured, 1214. violation of ordinance not conclusive proof of, 1214. in use of fire, 1221. as gist of action in fire cases, 1221. when emission of sparks is not, 1221. fire aa prima facie evidence of, 1222. in failing to properly equip locomotive with fire apparatus, 1224. in failing to repair locomotives, 1224. burning wood in coal-burning locomotive, 1224. in management of locomotives, 1225. in failing to clear right of way of combustibles, 1226. in suffering fire to escape from right of way, 1227, 1229. in failing to extinguish fires, 1232. in burning property located on right of way, 1235. contracting against liability for, 1236. when lessor liable for lessee's, 1237. presumption that railway company will not be guilty of, 1238. pleading in fire cases, 1241. presumption of in fire cases, 1242. plaintiff has burden of proving in fire cases, 1242. burden of disproving in fire cases, 1242. proving by circumstantial evidence, 1244. INDEX. 3001 [^Beferences are to 8ections.'\ Vol. I, §§ 1-3^1, Vol. II, §§ 33^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-170S. NEGLIGENCE— ContfoMec?. as question for jury in fire cases, 1244. where spark arrester is absent, 1244. great and unusual speed as evidence of, 1244. in burning wood in coal burning locomotive, 1244. evidence to rebut in fire cases, 1245. none unless breach of some duty, 1251. distinguished from willfulness, 1251, n. gross negligence, 1254. in throwing oft mail bags, 1256. in trespassing upon railway track, 1257. in leaving turntable unlocked, 1259. of children, 1261. imputable, 1262. in watching children, 1262. in frightening horses, 1264. in giving statutory signals, 1264. in failing to keep premises safe, 1272. none in using appliances generally used, 1274. no liability where there is none, 1275. where buffers of cars are of unequal heights, 1279. in employing unskilled employes, 1284. never presumed, 1286, 1299. burden of proving, 1286. in retaining incompetent fellow-servants, 1292. is test of employer's liability, 1297, 1308. mere proof of accident does not show, 1297. can not be inferred from fact of explosion, 1299. proof of where boiler explodes, 1299. proof of can not be left to conjecture, 1299. when not established by mere proof of a collision, 1300, 1635. in loading cars, 1301. concurrent where employes are injured, 1306. employer's must be proximate cause, 1306, 1310. in failing to secure knowledge of defects, 1307. evidence of employer's, 1309. may be inferred from circumstances, 1309. liability for that of fellow-servant, 1316. must be to create liability for defects, 1349. mere existence of defect does not establish, 1349. presumption from occurrence of accident, 1350. in selecting co-employes, 1351. what constitutes in matter of superintendence, 1353. validity of contract against, 1358. acts of omission or acts of commission, 1361. 3002 INDEX. [References are to Sections.'] Vol. I, §§ 1-331, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. NEGLIGENCE— Continued. causing instantaneous death, liability for, 1363. arises out of breach of duty, 1367. breach of duty must be shown, 1369. contract in relief department against, effect, 1381. in selecting physician or surgeon, 1388. when company liable for that of surgeon, 1389. validity of contracts against future negligence, 1390. private carrier stipulating against liability for, 1397. presumption of as against street railway companies, 1402. must be proximate cause, 1402, n. statute making initial carrier liable for negligence of others, 1439. carrier showing absence of where it relies on act of God, 1457. contributing to loss by public enemies, 1458. warehouseman liable for, 1463. in wrongful shipment of goods, 1463. in not adopting proper cars and equipment, 1472. as to proper cars, equipment and appliances, 1478. in failing to properly equip trains, 1479. of carrier in handling goods, 1481. delay as prima facie evidence of, 1483. causing destruction of goods while in wareiiouse, 1488. in delaying goods, 1488. in failing to obey directions and instructions of shipper, 1490. of shipper in packing and loading goods, 1492. carrier has no right to contract against liability for in most jurisdic- tions, 1497. right to contract against liability for in some jurisdictions, 1498. limiting liability as to gross and ordinary, 1498. immunity from will not be implied, 1498. when carrier must show absence of, 1516. custom or usage will not relieve from, 1522, n. in delivery by warehouseman, 1.526. in failing to identify consignee, 1526, n. of shipper in marking goods, 1535. burden to show that injuring live stock, 1548. in caring for animals being shipped, 1548. of owner in loading live stock, 1550. in failing to feed and water animals, 1554. liability of lessor and lessee for, 1573. must be before passenger can recover, 1583. must be proximate cause of injury to passenger, 1584. in constructing roadbed and tracks, 1586. in failing to make inspections, 1587. in stopping or starting trains, 1589. INDEX. 3003 [Meferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. 11, §§ 3SZ-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. NEGLIGENCE— ConfinMed. in suddenly starting train, 1589, n. in failing to apply brakes, 1589, n. in maintenance of depots or station buildings, 1590. stipulation in pass against liability for, 1606. validity of stipulation in pass exempting carrier from, 1608. degrees of, 1609. of sleeping-car company in caring for property, 1622. effect of in loss of baggage, 1623, 1652. in operating trains, 1625. validity of contract against liability for, 1627. of conductor in starting trains, 1628, n. when presumption of raised by fact that there was collision, 1635. in placing tracks close together, 1636. liability for that of sleeping-car employes, 1640. must be the proximate cause, 1640, 1697. inferring from circumstances, 1644. carrier can not contract for exemption from, 1645. suificieiicy of allegations of, 1694, n. must be proved as charged, 1696. plaintiff limited to that charged in his complaint, 1697. may be pleaded generally, 1697. NEGLIGENCE PER SE, when violation of ordinance is, 711, 1698. to refuse to repair railroad crossing, 1134. breach of statutory duty as, 1155. when rate of speed is not, 1160. in making flying switch, 1162. no rate of speed is, 1204. omission of signals is not, 1206. rate of speed of freight train is not, 1225. in allowing accumulation of combustible material, 1226. erecting wooden building near railway track is not, 1238, n. when staking cars is not, 1258. sounding whistle is not, 1264. failing to feed and water live stock, 1554. in attempting to board moving train, 1628, n. in standing on steps of moving car, 1630. in assuming place of danger, 1633. effect where passenger's conduct is, 1642. NEGLIGENT ACTS, award of compensation in condemnation cases does not cover, 1005. 3004 INDEX. IBeferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. 11, §§ S3S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. NEGOTIABLE BONDS, when municipal corporations may execute, 839. NEGOTIABLE INSTRUMENTS, when shares of stock are, 79. corporate power to issue, 342. railroad bonds regarded as, 484. when interest coupons are, 486. receiver's certificates, 594. municipalities can not execute to railway companies, 835. NET EARNINGS, dividends can only be declared out of, 83. what are, 83, n. right to as between life tenant and remainderman, 307. when may be mortgaged, 495. what included within, 495. chargeable with operating expenses during receivership, 581, n. as affecting reasonableness of rates, 693. NET INCOME, discretion of directors in determining what is, 482. NET PROFITS, what are, 316, n. NEW CERTIFICATES, issue of in place of lost ones, 80. NEW CHARTER, how affects stockholders, 43. distinguished from amendment, 46, n. See Charter. NEW COMPANY, chartering on repeal of old charter, 59. when special privileges and immunities pass to on consolidation, 330. duties and obligations of on consolidation, 332. liability on old contracts after consolidation, 333- liability of for torts, 334. is usually formed by consolidation, 335. liability of that formed by purchasers at foreclosure sale, 532. public aid not restricted to, 829. NEW INVENTIONS, employer not bound to discard machinery for, 1272, n. carrier not required to adopt, 1588. See Inventions; M.\.chinery; Ai'i-liancbs. INDifiX. 3005 [Beferences are to Sections.'] Vol. 7, §§ l-Sn, Vol. II, §§ 3SSa-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. NEW MATTEE, must be specially pleaded, 1694. NEW SHARES, informality in creating, effect, 156. right of remainderman to, 307. who entitled to when stock dividend is declared, 320. NEW STOCK, how disposed of, 87. NEXT OF KIN, who are, 1372. NITRO-GLYCERINE, shipment on passenger trains prohibited, 725. NOISE, right of adjoining owner to complain of, 418. compensation for damage from, 978, 996. obscuring sound of approaching train, 1167. NOMINAL PARTIES, right to remove cause can not be secured by joining them, 647. who are, 647, n NON-COMPETING LINES, may consolidate, 385, n. NON COMPOS MENTIS, transfer of stock by person who is, 93. NON-DELIVERY, proof of, when raises presumption of negHgence, 1516. caused by acts of shipper, owner or consignee, 1535. excused by failure to produce bill of lading, 1535. stoppage in transitu, as excuse for, 1539. See Excuses for Failure to Deliver. NON-PAYMENT OF FREIGHT, as ground for refusal to carry goods, 1466. NON-RESIDENT, when railway company is, 24. when eligible to office of director, 241 . may be trustee in trust deed, 501. competency to act as receiver, 561. 3006 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-321, Vol. II, ^3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. NON-RESIDENT— Continued. effect of insolvency laws on, 599, n. suing wherever process can be served, 623. obtaining jurisdiction over by publication, 624. right to remove causes to the federal courts, 645. signing petition for grant of public aid, 858. NON-RESIDENT ATTACHING CREDITOR, rights of foreign receiver similar to, 555. NON-RESIDENT CORPORATION, power to acquire real estate, 933, n. NON SUI JURIS, duty to fence against child who is, 1190. effect where child is, 1261. NONSUIT, in fire cases, 1243. practice on motion for, 1702, n. NON-TRANSFERABLE TICKETS, when may be issued, 1599. NON-USER, as ground for forfeiture, 48. temporary interruption is not, 51. as ground for appointment of a receiver, 538, n. of franchises, when constitutes abandonment, 9S1. NOTES, power of corporation to give, 42. paying subscriptions in, 110. for fraudulent subscription, when may be enforced, 131. power of directors to authorize sale of, 258. when liability on can not be escaped by reorganization, 535. See Phomissoey Notes. NOTICE, to purchaser of corporate stock, 94. of transfer of stock which has not been registered, 98, n. of by-law creating lien on stock, 99. to subscriber of performance of conditions, 116. to pay subscription, when required, 133. to pay calls, 134, n. of call not required before suit, 140. of calls and assessments, requisiti's of, 141. INDEX. 3007 [Beferenoes are to Sections.'\ Vol. I, §§ l-sn, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. 'SOTICE— Continued. waiver of, of calls and assessments, 143. sufficiency of before forfeiture of stock, 152, n. of forfeiture of stock, 153. when required of stockholders' meetings, 164. to stockholder is not notice to corporation, 171. to agents or officers, 226. required of special meetings of directors, 261. not required to be given of stated meeting of directors, 262. how should be given to directors of special meeting, 262. to directors is notice to company, when, 268. of authority of president, effect of, 288. to treasurer, when notice to corporation, 293, n. of superintendent's authority, who chargeable with, 297. to consolidated company of mortgage, 336, n. of charter provisions by contracting parties, 350. of corporate power to contract, 351. when bonds are, of conditions in trust deed, 484. when pendency of suit is to purchaser of bonds, 484. of intention to declare entire mortgage debt due, 506. of sale by trustees, 514. of appointment of receiver, 556, n. of application for a receiver, 558. to persons dealing with receivers, 567, n. when necessary before fixing receiver's compensation, 584. to parties before issuing receiver's certificates, 591. questioning receiver's certificates for lack of, 596. of injunction against strikers, 633. power of legislature to dispense with, 666. when must be given by railroad commissioners, 695. necessary to due process of law, 695. of tax proceedings, 771. of election to grant railway aid, 850, 859. of election to grant public aid, 859. effect where purchaser takes railway aid bonds on, 893. as affecting bona fide holder, 896. recitals in bonds as, 896. as affecting right to municipal aid bonds, 917. of covenants, 945. by occupancy and use of roadbed, 949. of condemnation proceedings, 1001, 1019, 1025. to a purchaser by existence of railroad, 1002. before seizure of private property, 1019. effect of that not provided for by law, 1019. requisites of that in appropriation cases, 1019. 3008 INDEX. \_Iteferences are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ S2Ji-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170.] NOTICE— Continued. power of legislature over, 1020. when that in appropriation cases void for indefiniteness, 1020. by publication and posting in condemnation cases, 1020. political question as to expediency, 1021. sufficiency of as to description in appropriation cases, 1022. service of in appropriation cases, 1023. when that by mail is sufficient, 1023. service of on agent, 1023. sufficiency of that to infants, 1023. to mortgagees, of condemnation proceedings, 1025. of meeting of jurors in condemnation cases, 1034. of time of holding court, 1034. of adjournment in appropriation cases, 1034. waiver of defects in, 1047. of appeal in appropriation cases, 1053. when subcontractors must give to owner, 1070. as condition of acquiring lien, 1071. sufficiency of to acquire lien, 1071. of street opening proceedings, 1100. service on station agent, 1100, n. to company to put in private crossings, 1142. of defects in crossings, 1176. of defective crossings, evidence of, 1177. of defects in fences, 1185. of t&dency of timber to decay, 1200, n., 1278. of injuries to animals, how to serve upon railway company, 1216. as condition precedent to recovery of double damages, 1219. to licensee of dangers, 1250. of change in time tables, 1281. to employer of defects, 1296. to train dispatcher not notice to the company, 1322, n. of delivery, 1410. to shipper of connecting carrier's refusal to receive freight, 1440. to succeeding connecting carrier, 1449. to shipper of legal proceedings, 1461. to consignee of arrival of goods, 1464. to consignee, terminating liability as common carrier, 1464. when has effect to limit liability, 1495. effect of general one limiting liability, 1507. when not necessary as to loss of freight, 1512. to agent of consignee, 1524. to consignee or his agent, 1527. of arrival of goods, 1527. to consignor of consignee's refusal to accept goods, 1530. INDEX. 3009 [Beferences are to Sections.} Vol. I, §§ 1-3^1, Vol. 11, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. NOTICE— Continued. by carrier of taking of goods under legal process, 1537. of attachment proceedings, 1538. of exercise of right of stoppage in transitu, 1542. where third party lays claim to freight, 1544. duty to furnish cars on, 1551. before right to charge demurrage, 1567. to passenger of rules and regulations, 1576, 1627. of stopping and starting trains, 1628, n. that conductor has no authority to carry passengers on freight trains, 1629. that merchandise is shipped as baggage, 1649. limiting liability for baggage, 1661. effect of that on back of ticket, 1661 . to furnish cars, 1691. See Knowledge. NOTICE TO CONSIGNEE, generally, 1364. ^ when notice to agent is sufficient, 1524, 1527. custom or usage requiring, 1527. NUDUM PACTUM, when subscription is, 113. NUISANCE, railroad operated by individual may be, 1. liability of consolidated company for continuance of, 332. liability of lessee for maintaining, 471. liability of receiver for one created by the corporation, 581, n., 718. injunction against, 631, 1096. created by failing to build and maintain suitable crossings, 639, n. power of legislature to declare a thing to be, 664, n. railway depot is not, 665 . grade crossing may be, 671. indicting railroad company for maintaining, 718, 1096. civil liability for maintaining, 718. when railway company not liable for, 718. effect where company in hands of receiver, 718. by constructing unauthorized road, 1056. company liable for, 1063. when contractor liable for, 1063. street railway becoming, 1088. when constructing railroad in street is, 1090. when unauthorized use of steam is, 1090. injunction to prevent maintenance of, 1096. 3010 INDEX. IBeferences are to Sections.] Vol.1, ^U-S^l, Vol.11, ^^3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, ^US91-170S. NUL TIEL COEPOEATION, plea of after expiration of charter, 62. plea of, generally, 616, n. NUMBER OF CROSSINGS, to which railway companies are entitled, 1124. private crossings, 1143. NUMBER OF DIRECTORS, naming in articles of association, 36. how fixed, 239. NUMBER OF INCORPORATORS, stating in articles of incorporation, 18. NURSING AND CARE, providing for injured employe, 222. OATH, of jurors and commissioners in condemnation cases, 1018. OBJECT OF INCORPORATION, stating in articles, 18. OBJECTIONS, stockholders waiving to lease, 442. OBLIGATION OF CONTRACT, removing causes where state law impairs, 652. can not be impaired, 687. impairing by taxation, 768 impairing by tax on bonds, 769. when constitutional provisions do and do not impair, 819. wnen impaired by condemnation of franchises, 968. impairing by grant of conflicting franchises, 968. effect of statutes imposing absolute liability, 1223. OBLIQUE APPROACHES TO HIGHWAYS, duty to fence at, 1197. OBSTRUCTED VIEW, duty of company where there is, 1161. duty of traveler where there is, 1164. INDEX. 3011 IBeferences are to Sections."] Vol. I, §§ 1~3S1, Vol. II, §§ 3.1Z-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-1703. OBSTRUCTION, effect of delay caused by, 1484. injuries to passengers from, 1636. placed dangerously near the track, 1636. OBSTRUCTION OF HIGHWAYS, indictment for, 719. OBVIOUS DEFECTS, • inspecting foreign cars for, 1279. assumption of risks from, 1288. contracting against liability for injuries caused by, 1358. See Defects; Latent Defects. OBVIOUS RISKS, assuming outside line of duty, 1304. OFFENSES, railway commissioners can not define, 677. See Crimes ; Penal Offenses. OFFER OF COMPROMISE, value can not be proven by, 1218, n. OFFER OF GOODS, where there is failure to furnish cars, 1476. burden on plaintiff to show, 1477. OFFICE FURNITURE, when subject to general mortgage lien, 495. OFFICERS, making affidavit for removal to federal court, 23. power to buy and sell stock, 93. voting for by proxy, 162. power to make rules and regulations, 199. corporations act through, 203. how appointed by railroad companies, 204. inherent power to choose, 206. qualifications of, 207. election of, 208. what powers may exercise, 208. notice to, 226. compensation of, 230. bonds of, 232. sureties on bonds of, 233. different classes of, 234. 3012 INDEX. \^Meferences are to Sections.} Vol. I, §§ 1-3S1, Vol. II, §§ 333-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. OFFICERS — Continued. elected at meeting outside of state, 246. effect of failure to elect, 248. effect of personal interest in contract, 348. , discretion as to time and manner of sale, 524. when not guilty of fraud in sale and reorganization, 635, n. appointing receiver on resignation of, 543, when are receivers of the court, 546. when should not be appointed as receivers, 561. corporation preferring as creditors, 604. omission to elect does not work dissolution, 606. service of process upon those of corporation, 621. discretion of can not be controlled by injunction, 634. effect of paying them extravagant and unreasonable salaries, 693. may be guilty of embezzlement, 734. how state bound by acts of its officers, 806. validity of contract by to control location, 928. can not take construction contract, 1058. issuing passes to families of, 1612. See DiHECTOES ; Pkbsidbnt ; Secebtary ; Tebasueee ; Supbeintendent, General Managee. OFFICERS DE FACTO, when directors become, 248. what constitutes, 244. OFFICERS DE JURE, illustrative cases of, 246. OFFICIAL ACTION, how should be taken by directors, 255, 256. OFFICIAL CERTIFICATES TO BONDS, conclusiveness of, 900. OMNIBUS DRIVER, right to expel from railroad premises, 200, n. OPEN AND CLOSE, in appropriation cases, 1035. OPEN DEFECTS, assumption of risks from, 1288. See Obvious Defects. OPERA GLASSES, as baggage, 1647, n. INDEX. 3013 {^Beferences are to Sections.} Vol. I, §§ 1-3^1, Vol. II, §§ 313-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. OPERATING A RAILBOAD, when running gravel train is, 1, n. OPERATING EXPENSES, paying before mortgage debt, 495. what are regarded as, 528, n. duty of receiver to pay, 566, n. what claims classed as, 580. priority over mortgage bonds, 580. OPERATION OF THE ROAD, liability of receiver on claims arising from, 580. mandamus to compel, 638. OPINION, when does not amount to fraud, 127. when expression of does not constitute fraud, 127, n. as part of the res gestx, 218. OPINION EVIDENCE, in suits against carriers, 1695, n. OPINIONS OF WITNESSES, jury not bound by, 1038. as to value of real estate, 1038. when witnesses may give, 1038. as to value of animals, 1218. as to value In fire cases, 1239. OPTION, owner of on stock is not entitled to dividends, 306. to declare entire mortgage debt due, 506 of shipper to accept reduced rate, 1504. ORAL EVIDENCE, as to necessity for a receiver, 558, n. in support of objections to report of commissioners, 1044. See Parol Evidence. ORAL NEGOTIATIONS, merged in written agreement, 1423. when merged in bill of lading, 1503. Corp. 192 3014 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ 3S^-918, Voh III, §§ 919-1390, Vol. IV, §§ 1391-1703. ORDER, appointing receiver, 562. giving authority to issue receiver's certificates, 591. confirming report of commissioners, 1045. disobedience as contributory negligence, 1313, 1314. effect of inconsistent, 1314, n. ORDINANCES, regulating speed of trains, 670. mandamus to compel obedience to, 698, n. proximate cause where they have been violated, 711. violation as proof of negligence, 711, 1095, 1214. requiring signals, 721. governing speed, 721. granting right to construct railroad in street, 1078. becoming binding contract, 1079. repealing or amending, 1079. holding part good and part bad, 1082. presumption that they are reasonable, 1082. when void for unreasonableness, 1082. prohibiting smoking in street cars, 1082, n. running trains in violation of, 1155, n. requiring flagmen at crossings, 1157. when violation of amounts to an invitation to cross, 1171. violation of does not relieve traveler from exercising care, 1165. regulating speed of trains, 1204. violation must be proximate cause, 1310. violating as to speed, 1589. effect of disobedience, 1589, n. when need not be copied in complaint, 1698. judicial knowledge of, 1698. how and when to plead, 1698. ORDINARY CARE, when company must use at crossings by custom or license, 1154. definition of, 1156, 1165. jury determining what constitutes, 1156. traveler must use at crossings, 1163, 1165. contributory negligence in failing to use, 1 171 . in looking out for animals, 1205. to furnish reasonably safe working place, 1268. duty to use in furnishing machinery and appliances, 1273. how to determine what is, 1273. in adoption of rules, 1280. to provide trains with sufficient crew, 1287. INDEX. 3015 [^References are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, ^U391-170S. ORDINARY CARE— Continued. in selection of employes, 1292. employe bound to use to remedy defects, 1293. in making inspections, 1299. in selecting telegraph operators, 1328. duty to use to avoid unreasonable delay, 1483. what amounts to, 1590. as to maintenance of depots and station buildings, 1590. See Case; Negligence. ORDINARY NEGLIGENCE, carrier limiting its liability for, 1498. ORDINARY RISKS, assumption of, 1288. See Assumption op Risks. ORGANIC CHANGES, power of directors to make, 252. ORGANIZATION, of corporation, perfecting, 19. waiving defective corporate, 20. collateral attack on, 20. power of corporation to carry into effect object of, 42. ORIGINAL BILL, when receiver need not be prayed for in, 558. ORIGINAL CARRIER, See Initial Careibk. OVERCHARGES, penalty for making, 714, n. carrier liable for, 1563. how affected by interstate commerce law, 1564, n. demurrage is not, 1567. OVERDUE COUPONS, • effect on negotiability of bonds, 484. negotiability, 486, n. OVERHEAD CROSSINGS, when company may be required to construct, 1110. railroad crossing by, 1123. effect where expense of will be great, 1123, n. 3016 INDEX. [SefereHces are to Sections.'] Vol. I, §§ 1-S31, Vol. 11, ^ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-n03. OVERHEAD CROSSINGS— Continued. injunction as remedy to compel construction of, 1125. ordering street railway to construct, 1135. to serve as private crossing, 1147. OVERISSUE, of stock, lost or forged certiflcateB, 80. OVERVALUATION, effect of transferring property to corporation at, 175. OVERVALUED PROPERTY, stock paid for by, 91. OWNERSHIP, must be claim of to constitute adverse possession, 948. as affecting condemnation proceedings, 1030. possession as evidence of, 1212. of animals killed or injured, 1212. of property burned, 1233. must be alleged in suit to recover for fire losses, 1241. PAID UP STOCK, when corporation estopped to question, 79, n. issuing to creditor in settlement of claim, 90. paying for property with, 91. issuing for less than par value, 110. when liable to assessment, 148. PALACE OAR COMPANIES, See Sleeping Car Companies. PAR VALUE, when stock must be taken at, 109. when stock can not be issued for less than, 110. assessments on stock can not exceed, 147. PARALLEL LINES, when one may not become oflScer of, 207. when may consolidate, 322. condemning land for, 974. See Competing Roads. PARALLEL TRACKS, condemning land for, 960, n., 974. right to lay at highway crossings, 1099. INDEX. 3017 [^Beferences are to Sections. '\ Vol. I, §§ 1-3^1, Vol. 11, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PAEK, when street can not be opened through, 1104. PARLOR OAR, rights of persons holding passes to be carried in, 1614. relation ol railroad company to passenger riding in, 1625. when passenger may ride in free, 1626. compensation for riding in, 1626. PARLOR CAR COMPANIES, duties and liabilities of, 1618. as instruments of interstate commerce, 1618. taxation of, 1618, n. See Sleeping Car Companies. PARENTS, contributory negligence of in allowing children to trespass, 1255. imputing their negligence to children, 1262. PAROL AGREEMENTS, how subscriptions affected by, 127. to put in private crossing, 1149. PAROL CONDITIONS, to subscriptions are void, 112. effect of failure to perform in subscriptions, 119. PAROL CONTRACT, as bill of lading, 1415, n. PAROL DECLARATIONS, when corporate officer's amount to fraud, 128. PAROL DEDICATION, when and to whom can be made, 947. PAROL EVIDENCE, to show that subscription is an escrow, 114. when inadmissible to change subscription to stock, 114, n. not ordinarily admissible to vary written subscription, 119. when fraud may be shown by, 129. of by-laws, 195. to supply omissions in corporate records, 266, 267. as to dedication, 947, to show right of way, 973, n. to contradict bill of lading, 1415, 1419. to show contents of goods on which bill of lading issued, 1420. 3018 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, B3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. PAROL EVIDENCE -Contiraaed. to explain ambiguity in bill of lading, 1423. to show fraud or mistake in bill of lading, 1423. to explain meaning of technical terms, 1425. when written contract can not be varied by, 1494, 1503. to show contract with passenger, 1593. as to contract for sleeping car ticket, 1620. See Evidence; Pboof. PAROL LICENSE, placing parties in statu quo on revocation, 949. when death has effect of revoking, 949. ejectment on revocation of, 949. when landowner not permitted to revoke, 949, n. rails laid under, 998, n. effect where road is constructed under, 1048. PAROL LIMITATION, of carrier's liability, 1503. PAROL PROMISES, how affect subscriptions, 127. PAROL SUBSCRIPTION, may be valid, when, 103. PART DELIVERY, effect of that by the carrier, 1533, n. effect on right of stoppage in transitu, 1543. effect on lien of carrier, 1572. PART PAYMENT, when constitutes waiver of conditions in subscriptions, 115. See Payment. PART PERFORMANCE, of leases, effect, 454. PARTICULAR SUBJECTS, vice-principal as to, 1319 . PARTICULAR TRACT, damages confined to, 992. PARTIES, in proceedings to forfeit corporate charter, 53. when stockholders may become, 167. INDEX. 3019 [References are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ 3HS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PARTIES— Continued. to suits after consolidation, 338. to foreclosure suits, 508. consenting to decree of foreclosure, 516. appeal as to part of, 518. to suit attacking fraudulent foreclosure sale, 529. can not secure appointment of receiver by consent, 541. to proceedings for appointment of receiver, 557. relative of should not be appointed receiver, 561. should not ordinarily be appointed receivers, 561. agreeing upon receiver, 561. when receivers may be substituted as, 574. to injunction suit against strikers, 633. who may be relator in suit for mandamus, 643. as affecting removal of causes to federal court, 647. court arranging as plaintiffs and defendants before removing cause, 647. to suits against railroad commissioners, 703. in suits to enforce penalties, 713. raising question by demurrer, 713. bound by judgment, 914. to condemnation proceedings, 1001. can not confer jurisdiction by consent, 1014. in appropriation cases, 1025. judgment creditors as to condemnation proceedings, 1025. effect of omitting in condemnation proceedings, 1025. amendment in condemnation cases as to, 1026. entertaining jury, effect, 1046. to appeal in appropriation cases, 1053. effect of practical construction of contracts by, 1058, n. railway as party defendant to street crossing proceedings, 1100. where insured property destroyed by fire, 1233. insurance company as real party in interest, 1234. in actions for injuries by fires, 1240. in suits for injuries causing death, 1368. consenting to deviation from route, 1440. determining law of their contract, 1494. to suit for loss of baggage, 1658. to action against common carrier, 1692. where loss was paid by insurance company, 1692, n. inspection and physical examination of, 1699. PARTITION PROCEEDINGS, record of as evidence of title, 1030, n. 3020 INDEX. \Beferences are to Sections.] Vol. I, §§ l-Sn, Vol. II, §§ S2Z-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PARTNERS, when promoters are, 13. may sell and transfer partnership stock, 93. right to vote stock, 156, n. when stockholders liable as, 190. when shareholders are, 619. connecting carriers as, 1441. when connecting carriers liable as, 1445. when connecting carriers are not, 1452. PARTNERSHIP, when attempted corporate organization results in, 199. duty to fence road operated by, 1208. for joint carriage, 1444. joint rates do not make, 1445. what constitutes between connecting carriers, 1445. PARTY RATES, under interstate commerce act, 1687. PASSAGE, priority of at railway crossings, 1133, 1153. See Peiokity of Passage. PASSENGER CAR, negligence in assuming dangerous position in, 1633. negligence in standing up in, 1633. PASSENGER CARRIER, when no implied duty on part of to carry goods, 1392. See Caekiees of Passengers ; Passbngeks. PASSENGER STATION, power to erect in foreign state, 251. no duty to fence at, 1194. See Depots; Stations. PASSENGER TRAINS, effect of failure to run regular, 51. mandamus to compel company to run, 639. how failure to run affects question of abandonment, 931, n. precedence over freight trains, 1133. PASSENGERS, street railways common carriers of, 6. implied authority to collect fare from, 41. maintaining restaurants for, 41 . INDEX. 3021 [References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 32S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PASSENGERS— CoraJinued. rules and regulations affecting, 41. right to prescribe rules for regulation of, 200. when may be carried on freight trains, 200. duty to inform themselves when and where trains stop, 200, n., 1576, n., 1593. effect of assuming duty to furnish surgeon for, 222. furnishing medical attendance to, 222, n. assaults on by conductor, 302, n., 1638. authority of station agent over, 303. power to make special contract for carriage of, 364. contracting for conveyance beyond line, 374, n. authority of receiver to carry, 366. receivers liablei for personal injuries to, 577. mandatory injunction to secure conveniences for, 635. compelling company to maintain accommodations for, 662. regulating compensation for carriage of, 672, 689. tax on those carried, 763. providing for comfort of, 931. municipality fixing rate for carrying, 1081. duty to repair crossings owing to, 1112, 1134. injured in collisions at crossings, 1132. negligence of driver of vehicle not imputed to, 1174. injuries to by failure of duty to fence, 1191, 1270. duties to in reference to track, 1192, n. duty to servant of, 1256. duty to friends of, 1256. porters on palace car as, 1320, n. duty to carry is a public duty, 1392, 1574. no duty to carry on all trains, 1392. implied obligation to carry, 1393. who have contagious disease, 1393, n. reasonable time to remove baggage, 1464, n. effect where they are carried on freight trains, 1466, n. contracting against liability for injuries to gratuitous, 1498. no duty to carry on all trains, 1573. when may sue two companies, 1573. duty to receive and carry, 1574. rush of business as excuse for refusal to carry, 1575. disregarding rules and regulations, 1576. duty to obey rules and regulations, 1576. duty to ascertain when trains stop, 1576, n. may rely on statements of conductor, 1576, n. improper or unfit persons, 1577. seeking to deprive carrier of business, 1577. 3022 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-S21, Vol. II, §§ 33S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PASSENGERS— Continued. carrier not bound to accept insane person as, 1577, 1621. refusing to carry intoxicated person as, 1577. who are passengers, 1578. presumption tliat person on train is, 1578. mail agents as, 1578. postal clerks as, 1578. person on train to assist, 1578. leaving train temporarily, 1578. persons may be before payment of fare, 1578. persons on train by mistake, 1578. wben employes are, 1578. express messengers as, 1578. government soldiers as, 1578, n. ' when relation of carrier and passenger begins, 1579. holder of ticket not always one, 1579. authority of subordinate employes to create relation of, 1580. obeying directions of employes, 1580. power of conductor to make a person a, 1580. taking passage on freight trains, hand-cars and the like, 1582. carrier not insurer of safety of, 1583. can only recover for negligence, 1583. rule where injured by accident, 1584. assume some risks, 1585. duty to fence owing to, 1586, n. duty to give signals for protection of, 1589. assuming risks of jerks and jolts, 1589. duty to protect from injury by third persons, 1591. reasonable time to leave depot or train, 1592. right to temporarily leave train, 1592. parol evidence to show contract with, 1593. ticket as evidence of rights of, 1594. when may be expelled, 1594. when conductor not bound to take statement of, 1594. giving them reasonable time to search for lost tickets, 1594, n. when entitled to stop-over privileges, 1595. when journey regarded as commenced, 1598. when may rely on representations of agent, 1598. when must sign name to ticket, 1600. extra charge where they do not hold tickets, 1603. no lien on for fare, 1603. giving them reasonable time to pay fare, 1603, n. when persons riding on passes are, 1604. when employes riding on jiasses are, 1604. when drovers riding on passes are, 1605. INDEX. 3023 [Iteferences are to Sections.'] Vol. I, §§ 1-Sn, Vol. 11, §§ 3^2-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. P ASSENGEES— Continued . sleeping car companies can not refuse to receive, 1617. assaults on by porter or conductor, 1618. how many sleeping car berths may be sold to one, 1620. duty of sleeping car company as to property of, 1621 . duty to awaken, 1621. duties of sleeping car companies to, 1621. burden of proof to show loss of baggage, 1623. retaining custody of baggage, 1623. liability of sleeping car companies for property of, 1628. contributory negligence of in loss of property on sleeping car, 1624. relation of railroad company to those traveling in sleeping car, 1625. notice to of rules and regulations, 1627. injuries to, 1628-1645. duty to assist in alighting from train, 1628, n. starting trains while they are alighting, 1628. obeying directions of conductor, 1628, n. care due to those riding on freight or mixed trains, 1629. right to refuse to carry on freight trains, 1629. effect of failure to furnish them seats, 1630. going from one car to another, 1630. injury to those riding in baggage-car, 1631. injury to while riding in dangerous or improper place, 1632. extending arm out of window, 1633. leaning head out of window, 1633. negligence in standing up in passenger car, 1633. injury by derailment, 1634. leaping from train to avoid collision, 1635, n. ejection of, 1637. unnecessary force must not be used in ejecting, 1637. right to resist wrongful ejection, 1637. employes assaulting and injuring, 1638. assault by fellow-passenger, 1638. injury by fellow-passengers or third persons, 1639. duty of conductor to protect, 1639. injury by mail pouch thrown from car, 1639, n. injuries received in sleeping cars, 1640. effect where they are guilty of negligence in alighting from train, 1641. effect of contributory negligence of, 1642. when justified in obeying directions of trainmen, 1643. employes are not, 1644, n. . station in life as determining what is personal baggage, 1647. rule where they retain custody of baggage, 1654. baggage should be transported on same train with, 1656. duty to call for baggage, 1659. 3024 INDEX. {_Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PASSENGERS— ConJinaed. separate accommodations for white and colored, 1665. power of state to provide for safety of, 1668, n. duty to carry owing to the general public, 1690. actions for injuries to, 1696. See Carriers op Passengers; Injuries to Passengers. PASSENGERS FOR HIRE, drovers usually are, 1605. when persons riding on passes are, 1608. PASSES, when lessee not bound to honor, 436, n. lessee not bound to furnish on lessor's contract, 462, n. effect of receiver's contract to give, 567, n., 1611. receiver no power to bind company by oral contract for annual, 590, n. effect of agreement to give, 941, 1611. effect of covenant to give, 946, 1611. limiting liability to persons riding on, 1498. drover riding on is a passenger, 1604, 1605. postal clerks riding on, 1604. sleeping-car porters riding on, 1604. when person riding on is a passenger and when not, 1604. validity of those obtained by fraud, 1604, 1610. when employe riding on is a passenger, 1604. express messengers riding on, 1604. duty to persons riding on, 1606. stipulation in against liability for negligence, 1606. fraud in obtaining possession of, 1606. care due to minors riding on, 1606. conditions in, 1607. when persons holding must sign, 1607. validity of stipulation exempting carrier from liability for negligence, 1608. when not regarded as gratuitous, 1608. effect where based on a consideration, 1608. contracting against future negligence, 1608. holder purchasing seat in drawing room car, 1608, n. injury to persons riding on, 1609. law of what state governs, 1609, n. contributory negligence of persons riding on, 1609, n. person other than the one entitled to use a pass riding thereon, 1610. effect of fraud in securing, 1610. contracts to give, 1611. what members of family may ride on family pass, 1611. INDEX. 3025 [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ S^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. VA.&SEB— Continued. when contract to give runs with land, 1611. validity of contract by receivers to give, 1611. specific performance of contract to give, 1611. measure of damages for breach of contract to give, 1611, n. interstate commerce law, 1612. issuing to families of ofiicers and employes, 1612. when a crime to issue, 1612. discrimination by issuing, 1612. statutes prohibiting granting of, 1613. constitutional provisions prohibiting granting of, 1613. public ofiicers prohibited from accepting, 1613. estoppel to question conditions in, 1613. rights of persons holding to be carried in sleeping and parlor cars, 1614. baggage of persons riding on, 1615. ejecting persons who hold, 1637, n. See Tickets. PASSWAY, injunction to prevent filling up, 1147. under railroad track, 1147. See Chossings Below Ghadb; Subways. PATENT FOR REAL ESTATE, effect of, 797. PAYMENT, of capital stock as condition precedent to incorporation, 18. for stock, agreement as to value of property, 91. of cash deposit on subscription to stock, 106. of subscriptions, 110. enforcing that agreed upon by parties, 110. when part is waiver of conditions in subscription, 115. for corporate stock in property, 116. of conditional subscriptions, 121. when to make of calls and assessments, 133 of calls, terms of, 134. court compelling of calls and assessments, 146. of receiver's certificates, 597. PENAL LAWS, foreign state will not enforce, 1365. PENAL OFFENSES, railway company "person" within statutes in regard to, 21, n. penal offenses by railroad companies, generally, 709. 3026 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 333-91S, Vol. Ill, §§ 019-1390, Vol. IV, §§ 1391-1703. PENAL OFFE^^SES— Continued. penal statutes strictly construed, 710. penal statutes no extra-territorial effect, 710. right of action as affected by penal statutes, 711. action for enforcement of penal statutes, 712. informer's rights, 713. parties in suits to enforce, 713. rule for computing penalty, 714. when penalty and when liquidated damages, 715. indictment of railroad companies for causing death, 716. violation of Sunday laws, 717. railroad company guilty of by maintaining a nuisance, 718. obstruction of highways, 719. failure to maintain accommodations at stations, 720. duty to give statutory signals, 721. duty to stop at crossings, 721. blackboards and bulletins at stations, 722. unlawful speed, 723. various penal regulations, 724. violations of federal regulations, 725. penalty for confinement of live stock, 726. obstructing mails, 727. interfering with interstate commerce, 727. sale of tickets without authority, 728. climbing on cars, 729. evading payment of fare, 729. placing obstruction on track, 729. shooting or throwing missile at car, 731. breaking into depot or car, 732. burglary, 732. injury to railroad property, 733. malicious trespass, 733. various crimes against railroad companies, 734. PENAL STATUTES, corporations amenable to, 709. strictly construed, 710. no extra-territorial effect, 710. comity in reference to, 710. right of action as affected by, 711. effect of violation as proof of negligence, 711. action for enforcement of, 712. what are, 715, 1361. INDEX. 3027 \_Eeferences are to Sections.} Vol. I, §§ 1-331, Vol. II, §§ S2-2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PENALTY, against street railway, 6. foreign states will not enforce, when, 189. ' enforcing by-laws by, 197. for violation of rules and regulations, 201. directors subject to for violation of duty, 282. effect of on prohibited contract, 381. suit for can not be removed to federal court, 646. power to impose in favor of private persons, 669. power of railroad commission over, 679. jury can not prescribe, 679. where tariff rate is unreasonable, 691. for violating order of railroad commission, 699. power of legislature to provide for, 709. when receiver not subject to, 709. civil action to recover, 713. dividing between informer and state, 713. when informer's right to becomes vested, 713. effect where state fails to sue for, 713. rule for computing, 714. jury fixing amount of, 714. when only one can be recovered, 714. when cumulative, 714. for making overcharges, 714, n. distinguished from liquidated damages, 715. when attorney's fee is, 715. for allowing trains to stand on crossings, 719. for failure to establish stations, 720. for failure to give statutory signals, 721. for failure to announce station, 724. for confinement of live stock, 726. for failure to make return for taxation, 743. fixed in construction contract, 1062. for failing to stop trains at crossing, 1131. for failing to give signals, 1158. double damages as, 1183, 1219. in cases of injuries to animals, 1216. effect where employer's liability acts merely prescribe, 1339. for failure to feed and water live stock, 1554. for failing to check baggage, 1605. for failing to deliver telegraph messages, 1670. PENDING SUITS, effect of consolidation upon, 338. 3028 INDEX. [References are to Sections.] Vol. I, §§ 1-.SS1, Vol. II, §§ S2H-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PEREMPTOBY CHALLENGE, when there may be, 1024, n. PEREMPTORY DUTY, distinguished from discretionary powers, 907. PEREMPTORY INSTRUCTION, when court must give, 1702. PERFORMANCE, rule where it becomes impossible, 935. PERIL, rule where person acts on sudden or unexpected, 1173. PERIODICAL INSTALLMENTS, calls and assessments, 138. PERISHABLE FREIGHT OR GOODS, duty of initial carrier with reference to, 1432. duty as to carriage of, 1449. duty to provide cars and equipment for, 1475. liability for loss of, 1516. extra charges for transporting, 1566. sale of by carrier, 1571. effect of consignee's refusal to accept, 1571. PERMANENT STRUCTURES, injunction to prevent condemnation of, 1125. PERMISSIVE PRIVILEGE, where employe works outside scope of employment, 1303. PERPETUITY, avoided in franchises if possible, 39. municipality can not grant, 1077. PERSON, railway company is, within constitution, 21. a corporation is, 660, 773. PERSONAL ACTION, when may be maintained for calls and assessments, 150. PERSONAL BAGGAGE, what things are, 1647. See Baggage. INDEX. 3029 [Beffrftnces are to Si'ctions.'] Vol. I, §§ 1-321, Vol. 11, §§ 323-91S, Vol. Ill, §§ 919-1,390, Vol. IV, §§ 1391-1703. PERSONAL DECREE, when may be rendered on foreclosure, 517, n. PERSONAL DELIVERY, express contract to make, 1518. when carrier must make, 1518. rule requiring has been abrogated, 1527. PERSONAL INJURIES, liability of consolidated company for, 334. right of action for after foreclosure sale, 526, n. suing receivers for without leave of court, 57:3. receivers liable for those to passengers and employes, 577. where action on account of may be brought, 623. effect of contributory negligence, 1163. caused by fires, 1247. caused by throwing off mail bags, 1256. resulting from failure to give statutory signals, 1264. law of place of governing right of action, 1366. damages for aggravating, 1369, n. effect of death pending action for, 1375. but one recovery for, 1375. to person riding on pass, 1608. exhibiting injured part to jury, 1699. See Injuries at Crossings; Injuries to Employes; Injuries to Pas- sengers. PERSONAL JUDGMENT, when may be rendered in condemnation proceedings, 1033. PERSONAL LIABILITY, of promoters of corporation, 13. stockholders', who entitled to benefit of, 186. of directors in matter of contract, 279. corporate directors' for negligence, 281. of directors in matter of declaring dividends, 318. when receiver subject to, 576. for local assessments, 789. of stockholders to laborers, 1065. PERSONAL NOTICE, in appropriation cases, 1019. See Notice. Corp. 193 3030 INDEX. [Beferences are to Sections.'] Vol.1, §§ l-Sn, Vol.11, 1^322-918, Vol. Ill, ^^ 919-1390,Vol. IV, §§ 1391-1703. PERSONAL PROPERTY, what railroad property is, 31. shares of corporate stock, 79. shares of stock, 92. when roUing stock is, 389. remedy of mortgage trustee for possession of, 514. when subject to sale on execution, 520. disposition of on dissolution of corporation, 611. damage to in condemnation proceedings, 995. injury to by fire, 1222. buildings as, 1233. possession as evidence of title, 1233, n. measure of damages for burning, 1239. PERSONAL REPRESENTATIVES, as defendants in condemnation proceedings, 1025. when entitled to compensation and damages, 1025. when admissions admissible against, 1036. rights where death is instantaneous, 1363. suing for injuries causing death, 1368. recovering for death, 1372. PERSONAL RIGHT, effect of conveyance of real estate on, 1000. PERSONAL SERVICE, sufficiency of, 1023, n. when must be made on infant, 1025. PETITION, appointment of receiver upon, 558. not necessary before railroad commissioners, 695. amending in appropriation cases, 1026, n. sufficiency of in condemnation proceedings, 1027. for writ of certiorari, 1054. PETITION FOR PUBLIC AID, required, 822. requisites of, 858. when subject to collateral attack, 858. jurisdiction of, 865. PETITION FOR REMOVAL OF CAUSE!^, diverse citizenship must exist at time of filing, 649. as part of the record, 653. when should be filed, 653. See ReiMoval oi- Causes. INDEX. 3031 [^Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 32S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PETITION IN CONDEMNATION CASES, sufficiency of, 930. averring things required by statute, 1028. averring jurisdictional facta, 1028. demurrer to, 1028. amendment to, 1028. must be signed, 1028. when must be verified, 1028. contents of the petition, 1029. amending description in, 1029. sufficiency of description in, 1029. waiver of defects in, 1047. to condemn railway crossing, 1119. sufficiency of to condemn railway crossing, 1119. location of crossing in, 1120. PETITIONERS, for public aid, qualifications of, 858. substituting in appropriation cases, 1026. PHOTOGRAPHS, use in condemnation proceedings, 1040, n. PHYSICAL EXAMINATION, when allowed of a party, 1699. PHYSICAL FACTS, use and effect of, 1703. PHYSICIAN, authority to employ in emergency, 222. authority of agents to employ, 222. when may recover for services rendered injured passenger, 222. care to be used in selecting, 223. effect of negligence in selecting, 1388. See Surgeon; Mbdical Attendance. PIERS, must not obstruct highway, 1109. PILOT, contributory negligence to ride on, 1632. PLACE, for payment of calls, 134. of payment of calls and assessments, designating in notice, 141. 3032 INDEX. \_Beferencef: are to Sections.'] Vol. I, ^^1-SSr, Vol.11, ^322-918, V<,}. in, §§ 919-1390, Vol. IV, §§ 1391-1703. PLACE OF AMUSEMENT, when company may maintain, 931. PLACE OF DANGER, injury to passenger while riding in, 1632. negligence per se in assuming, 1633. PLACE OF DELIVERY, where may be, 1411. where personal delivery by carrier must be made, 1519. effect of custom and usage, 1522. consignee waiving objections to, 1531. PLACE OF ENTRY, of animals on railway track, 1201. PLACE OF OPERATION. stating in articles of association, 18. PLACE OF PERFORMANCE, how laws of affects contract, 1494. effect on contract limiting liability, 1506. PLACE OF SHIPMENT, law governs contract, 1494. PLAINTIFFS, in foreclosure suits, 508. bondholders as in mortgage foreclosure suit, 509. pledgees and assignees in foreclosure suit, 510. what must show for appointment of receiver, 540. when need not allege corporate existence, 616. in condemnation proceedings, 1025. effect where guilty of contributory negligence, 109o. when have burden of proving freedom from contributory negligence, 1163, 1313, 1374. directing a verdict against, 1179. burden of proof in cases where animals are injured, 1214. duty of in cases where animals are injured, 1215. must show property right where seek to recover for loss ))y fire, 1233. burden of proving negligence in fire cases, 1242. have burden of proving setting of fire, 1243. duty to establish negligence, 1299, 1463. burden of proof under employers' liability acts, 1353. showing freedom from contributory negligence, 1374. must recover according to theory of complaint, 1396, n., 1628, 1697. INDEX. 3033 IRefereiices are to Sections.'] Vol. I, §§i-5fi, Vol. 11, §§52^-9iS, Vol. in, ^^919-1390, Vol. IV, ^1391-1703. PLAINTIFFS— Continued. have burden of proving delivery, 1413. burden of showing negligence of carrier, 1463. when must show offer to furnish goods, 1476. burden is on to show offer of goods, 1477. when has burden of showing loss by negligence of carrier, 1516. burden of showing negligence in injuring live stock, 1549. consignees as, 1692. what they must prove in actions against common carrier, 1695. fraud defeating right to recover, 1696. limited to negligence charged in complaint, 1697. exhibiting injured part to jury, 1699. PLANS, filing in appropriation proceedings, 1029, n. PLANS AND MAPS, effect of those referred to in charter, 919, n. PLAT, when making and recording amounts to conveyance, 947. PLATFOEM OF CAR, rules prohibiting passengers from riding on, 200, 1630, n. when passenger justified in standing on, 1630. injury to passenger riding on, 1630. standing on that of street car, 1630. PLATFORMS, licensee injured on defective, 1251. duty to keep in repair, 1256. to whom duty to keep in repair is owing, 1256. duty to keep in safe condition, 1296, 1590, n. effect of delivery on, 1411. liability for defects in, 1551. duty to passengers in respect to, 1641. duty to keep approaches to in repair, 1641. duty to provide lights at, 1641. where need not be maintained, 1641. PLEA IN ABATEMENT, to jurisdiction of federal court, 655. in action for injuries to animals, 1217, n. PLEADINGS, amending as to words "railway" or "railroad," 3. in suit to forfeit corporate charter, 55. 3034 INDEX. [Beferenoes are to Sections.'] Vol. I, §§ l-sn, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. VLE ADl^GQ— Continued. in suits to enforce forfeiture of corporate franchises, 55, n. pleading consolidation, 329. where bondholder brings suit to foreclose, 509. pleading insolvency in suit for receiver, 544, n. determining from them whether there is separable controversy, 650. raising federal question in, 652. in federal court after removal, 656. in appropriation cases, 1028. in suits where animals are injured, 1215. in actions for injuries by fires, 1240. BufSciency of complaint in fire cases, 1241. evidence must follow, 1241. evidence must conform to allegations of, 1309, 1694. lack of knowledge of defects, 1311. under employers' liability acts, 1349. in action for injuries causing death, 1359. foreign statutes in death cases, 1364. pleading contract limiting liability, 1438. special contract limiting liability, 1516, n. pleading special damages, 1691, n. in actions against carriers, 1694. effect of variance, 1694. effect of plea of the general issue, 1694. recovery limited to the issues, 1694. sufiiciency of allegations of negligence, 1694, n. how and when to plead ordinances, 1698. PLEDGE, of shares of corporate stock, 92. of corporate securities, 855. authority to make of bonds, 355. rights of pledgee of bonds, 484. right of pledgee to collect interest on bonds, 487. right of pledgee of bonds to bring foreclosure suit, 510. of collaterals by receiver, 567. effect on vendor's right to stoppage in transitu, 1429, n. PLEDGED STOCK, right to vote, 167. PLEDGEE, is not stockholder, 155, n. when may vote stock, 157, n. of bonds, rights generally, 484, 487, 510. of bonds, right to proceeds of foreclosure sale, 527. INDEX. 3035 [Beferences are to Sections. '\ Vol. I, §§ 1-SSl, Vol. II, §§ 32S-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. PLEDGEE— Continued. rights under bill of lading, 1426. how far a bona fide purchaser, 1429. how affected by right of stoppage in transitu, 1540. carrier's lien superior to claims of, 1570. POCKET OR TRAP, at oblique approaches to highways, 1197. POINT OF ENTRY, burden upon plaintiff to show, 1214. POLICE OFFICER, as licensee, 1248. when company liable for acts of, 1265. POLICE POWER, exercise of over corporations, 44. as applied to railway companies, 661, 1098. corporate rights are subject to, 663. can not be contracted away, 663. all property subject to, 663. fettered by limitations, 664. power of courts in reference to, 664. deciding necessity for exercise of, 664. subject regulated must be within, 665. legislative questions in reference to, 066. exercise must not interfere with interstate commerce, 667. commerce clause of federal constitution limiting, 667, 1668. compelling erection of farm crossings, 668, 1142. compelling change of grade crossings, 671, 1109. statutes creating railroad commissions, 676. as to control over Sunday, 717. distinguished from eminent domain, 950. abolishing grade crossings under, 975. municipality can not surrender, 1079, 1082. authorizing joint use of tracks, 1084, n. railway company subject to, 1098. over matter of constructing crossings, 1102. in reference to abolishing grade crossings, 1109. gates, watchmen and signals at crossing?, 1114. private crossings secured under, 1142. statutes imposing duty to fence rest upon, 1182. scope of, 1183, n. exercise is for benefit of the public, 1190. exercise of must be reasonable, 1668. 3036 INDEX. \_Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. 11, §§ SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. POLICE REGULATIONS, railway companies subject to, 44. federal power prevails over state power, 667. affecting interstate commerce, 667. those that have been held valid, 668. no compensation for expense in complying with, 1103. statutes or ordinances requiring signals, 1158. power to pass is limited, 1668. POLICEMEN, as licensees, 1248. POLICY AND EXPEDIENCY, power of legislature to determine, 736. POLITICAL QUESTIONS, legislature determining, 1021 . as to expediency of notice, 1021. I'OOLING CONTRACTS, power to make, 365. when and when not valid, 365. when are illegal, 366. presumption against validity of, 367. validity of rate fixed by, 1675. validity, 1675. POPULAR VOTE, submitting question of public aid to, 823. public aid authorized by, 862. power of municipal ofiBcers where it is required, 864. PORTER, not fellow-servant of trainmen, 1320. on palace car as a passenger, 1320, n. liability for assaults committed by, 1618, 1640. POSITIVE LAW, when practical construction has effect of, 40, n. POSSESSION, right of trustee to take, 514. when priority of determines jurisdiction, 553. of receivers, 565. of real estate as notice, 809. as affecting right to compensation in condemnation proceedings, 1001. INDJiX. 3037 \_Beferenc(is are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. POSSESSION— Continued. liability where company abandons, 1033. taken pending condemnation proceedings, 1033. of real estate pending appeal in appropriation cases, 1050. right to after tendering compensation aud damages, 1050. where tender of compensation and damages is refused, 1051. as evidence of ownership, 1212. as evidence of title, 1233, n. as affecting delivery and acceptance, 1404. when carrier may deliver to mortgagee, 1537. POSTAL CLERKS, negligence of in throwing off mail bags, 1256. as passengers, 1578. passengers while riding on passes, 1604. POSTHUMOUS CHILD, right of action for death of father, 1368. POSTING, notice in appropriation cases by, 1020, POVERTY, excusing watchfulness over children, 1262. POWER OF ATTORNEY, to transfer shares of stock, 97. to transfer stock irrevocable, 97, n. POWER TO CONTRACT, control of by courts, 343. POWER TO REPEAL, rule where it is not reserved, 58. reservation of by general laws, 61. POWERS, conferred by corporate charter, 16, 38. assuming unauthorized, 40, n. included in charter to build railroad, 41. general ones possessed by railway companies, 41. to repeal corporate charter, 57. to issue preferred stock, 82. stockholders', 163. to make by-laws, 191. limits of to make by-laws, 193. of officers and agents, 213. effect as an element in contracts, 373. definition of want of, 884. 3038 INDEX. ^References are to Sections.'\ Vol. I, §§ 1-3S1, Vol. 11, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. POWERS OF DIRECTORS, source of, 249. extent of, 250. illustrative cases of, 251. PRACTICABLE CARE, what constitutes highest degree of, 1587. See Cake; Caeriehs of Passengers. PRACTICAL CONSTRUCTION, effect of, 40. of corporate grants, 40. of contracts by parties, effect, 1058, n. PRACTICAL TESTS, making before the jury, 1700. PREFERRED CLAIMS, six months' rule in reference to, 528. PREFERENCES, by corporation, 603. to stockholders and officers, 604. in favor of employes, 605. statutes giving to laborers and material men, 1067. "when not unjust, 1677. See Undue Preferences. PREFERRED CREDITORS, when stockholders and officers may be of the corporation, 604. PREFERRED STOCK, nature of, 77. nature and essentials of, 81. when may be issued, 82. rights and remedies of dissenting stockholders, 82. suit to set aside issue of, 82. rights and remedies of holder of, 83. holder of not a creditor, 83. when holder of has no right to vote at stockholders' meeting, 83. right of holder after payment of guaranteed dividend, 84. PREFERRED STOCKHOLDERS, rights of on dissolution, 85. assets on distribution after dissolution, 85. right to as between life tenant and remainderman, 307. interest on dividends on, 311, n. rights of holders of when stock dividend is declared, 320, n. rights of on dissolution of corporation, 613. INDEX. 3039 [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 3^8-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. PREJUDICE, as ground for removal of causes, 645, 651. when application for removal of cause may be made on ground of, 653. PBELIMINARY AGREEMENTS, to subscribe for stock, 102. to take stock, withdrawal of, 102. merger in deed, 421. PRELIMINARY SUBSCRIPTIONS, enforcement of, 102. PRELIMINARY SURVEY, basing public aid on, 857. sufficiency of, 857. does not make location binding, 920, n. before location of road, 925. damages on account of, 925. effect of that by engineer, 927. company not bound by, 929. does not amount to a taking of property, 977. may be made before paying compensation, 986. is not a taking of property, 986. negligence in making, 986. how failure to make affects construction contracts, 1062. PRESCRIPTION, rule as to loss of rights by, 931. title acquired by, 947. acquiring right of way by, 948. private crossings secured by, 1140. duty to repair private crossings imposed by, 1146. as affecting duty to fence, 1193. PRESIDENT, ratifying contract made by himself, 14, n. liability for representations by, 128, n. company bound by acts of, 212. when notice to is notice to the corporation, 226, n. chief executive officer, 283. authority and powers of, 283. incidental and implied powers of, 284, 285. powers implied from grant of authority to by directors, 286. influence of usage in determining power of, 287. apparent authority of, 288. ratification of his unauthorized acts, 289. 3040 INDEX. [Seferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PRESIDENT— CoMMnMe(^. dealings with the corporation, 290. relation to shareholders, 291. power to authorize reformation of contract, 347, n. effect of personal interest in contract, 348, n. power to pledge bonds, 355. authority to affix corporate seal to contracts, 411, n. signing certificate authorizing lease, 438, n. authority to mortgage property, 491. when salary of not a preferred claim, 528. has no power to make voluntary assignment for corporation, 602. service of process where he is absent, 622. duty in regard to location of road, 920. becoming interested in construction contracts, 1058. PEESS OF BUSINESS, as excuse for failing to furnish cars, 1691. See Bush op Business. PRESUMPTION, of acceptance of special charter, 17, 35. as to validity of repeal of charter, 57. that person whose -hame is subscribed is a stockholder, 108. that one is stockholder, overcoming, 108, n. as to when condition was annexed to subscription, 112. that stockholders' meeting was duly called, 104. in favor of validity of consolidation, 323. in favor of power to make contracts, 340. against validity of pooling contracts, 367. of acceptance of conveyance to corporation, 409, n. of acceptance of grants which are beneficial, 417. that there is power to hold real estate, 423. of surrender of charter and acceptance of surrender, 608. that directors consented to suit by the corporation, 615. as to proximate cause where ordinance violated, 711. as to malicious intent in obstructing track, 730. as to relinquishment of power of taxation, 746. against exemption from taxation, 747. as to acceptance of public aid, 866. in regard to deed conveying right of way, 937. as to width of right of way, 938. when none in favor of dedication, 947. against right to condemn property devoted to public use, 966. that full width of right of way was taken, 973. as to purpose for which rails were laid, 998. as to assessment of damages in condeiiiuation proceedings, 1004. INDEX. 3041 IBeferences are to Sections.] Vnl. I, §§ I'SSl, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-110:. PRESUMPTION— ContirMiecJ. of payment of damages in condemnation proceedings, 1007. as to competency of witnesses, 103". in favor of discharge of duty, 1042, n., 1314, 1701. as to correctness of engineer's estimates, 1059. as to waiver of lien, 1075. that ordinances are reasonable, 1082. that traveler will leave the track, 1095, 1153, 1172, n., 1257. as to negligence in collision at crossing, 1132. that traveler at crossing was guilty of negligence, 1163. that traveler at crossing looked for trains, 1165. where young child on the track, 1172. that adult will care for himself, 1175. as to notice of defective fence, 1185. of negligence, what sufficient to overcome, 1213. of negligence where animals are injured, 1213. when none that children will step from track, 1253. that young child will step from the track, 1257. as to discretion of child, 1261. of competency of employe, 1285. as to care in selecting servants, 1286. none of negligence, 1286. as to employment of competent co-employes, 1292. that employer has done his duty, 1314. that common law is in force, 1364. none that relief department is ultra vires, 1379. that company acts as public carrier, 1396. that station agent has authority to receive freight, 1406. that bill of lading expresses contract, 1423. that title rests in consignee, 1426, 1559, 1692. against last of connecting carriers, 1450. that initial carrier received goods in good condition, 1450. reduced rate will not be presumed, 1504. that common law prevails, 1506, n. that agent has authority to agree to contract limiting liability, 1507. that consignee is owner of freight, 1559, 1692 as to ownership of trains, 1573, 1701 . that person on train is a passenger, 1578. against company as to loss of baggage, 1660. as to party by whom carrier was employed, 1692. none of freedom from contributory negligence, 1701. that company did its duty, 1701. as to ownership of locomotive, 1701. making prima facie case, 1701. as to authority of agents, 1701 . 3042 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-ssi, Vol. 11, §§ sss-gis, Vol. in, §§ 919-1390, voi. iv, §§ issi-nos. PRESUMPTION— ConMBMetJ. shifting burden of proof, 1701. can not be based upon a presumption, 1701. overcoming by evidence, 1701. how long available, 1701. effect of in actions against carriers, 1701. See Assumptions. PRESUMPTION OF NEGLIGENCE, of traveler, 1163, 1165. showing facts to raise, 1214. in fire cases, 1242. what suflBicient to raise in fire cases, 1242, 1244. from mere setting of fire, 1242. evidence to rebut in fire cases, 1245. how affected by contributory negligence, 1350. when raised by proof of accident, 1350, 1644, 1697, 1701. as applied to street railway companies, 1402. raised by proof of loss or injury to freight, 1516. that consignee is owner of goods, 1536, n. where there is derailment of car, 1634. raised by fact that there was collision, 1635. what is suflicient to rebut, 1635, n. when suSicient to make a prima facie case, 1644. when none on part of carrier, 1644. must be basis for, 1644. shifting burden of proof, 1644. illustrative cases of, 1644, n. none against warehouseman, 1652, n. PRICE, fixing in decree of foreclosure, 515. stating in agreement to convey real estate, 422. PRICE LIST, of commercial traveler as baggage, 1647, n. PRIMA FACIE CASE, where animals are injured, 1213. when proof of accident makes, 1583. presumptions making, 1701. statutes making certain things constitute, 688, n. PRIMA FACIE EVIDENCE, baggage check as of receipt of baggage, 1655. INDEX. 3043 IBeferences are to Sections. '\ Vol. I, §§ 1-3S1, Vol. II, §§ SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PRINCIPAL AND AGENT, proof of existence of relation of, 210. principal liable for acts of agent, when, 214. when agent's declarations admissible against, 218. when notice to agent is notice to, 226. when liable for willful acts of agent, 1622. PRINCIPAL DEBT, when not due on failure to pay interest, 507, n. PRINCIPAL OFFICE, stating in articles of incorporation, 18. residence of corporation determined by, 24. failure to keep as cause for forfeiture, 49. PRINCIPAL OFFICERS, where must reside, 49. PRINTED CONDITIONS, shipper bound by those in bill of lading, 1494. PRINTING, size of type for schedules, 641, n. PRIOR LIEN, reserved power to create, 499. PRIOR MORTGAGEES, when not necessary parties to suit to foreclose mortgage, 511. when all should be joined as parties, 512. PRIORITY, of lien on corporate stocK, 100. creditors of insolvent corporation, 189. of liens, 336. of mortgages, 500. arranging between mortgages by agreement, 500. mortgages on consolidated road, 523. in payment of claims after a foreclosure sale, 528. of lien taken for constructing road, 1071. PRIORITY OF LOCATION, effect of conflicting grants, 921. PRIORITY OP PASSAGE, at railroad crossings, 1130, 1133. enjoining violation of contract fixing, 1133. at public crossings, 1153. over street railway cars, 1178. 3044 INDEX. [Beferences are to Si-cliuns.] Vol. I, §§ 1-S31, Vol. II, §§ J22-918, Vol. Ill, §§ Olfi-JJOO, Vol. IV, §§ 1.391-1703. PRIVATE CARRIERS, railroad companies as, 1396. when undertaldng of company is that of a, 1396. common carrier becoming by contract, 1396. fixing extent of liability where company acts as, 1397. do not act as an insurers, 1397. stipulating against liability for negligence, 1397. duties distinguished from those of public carriers, 1397, n. distinguished from public carriers, 1573, n. PRIVATE CONTRACTS, mandamus will not lie to enforce, 642. PRIVATE CORPORATIONS, when railroad companies are, 2. person not forced to become member of, 16. public aid can not be given to, 841. taking rights subject to right of state, 1098. PRIVATE CROSSINGS, contracts to build, repair and restore, 359. considering cost of in estimating damages, 996. definition of, 1136. distinguished from public crossings, 1136. who entitled to, 1137, 1141. secured by agreement, 1137. how many company may grant, 1137. when tenant entitled to, 1137. effect of conveyance of right of way by landowner, 1138. securing when right of way is conveyed, 1138. when right to waived by unconditional conveyance, 1138. statutes securing right to, 1138. right to where right of way has been condemned, 1139. estoppel of landowner to claim, 1139. secured by prescription, 1140. secured by twenty years' adverse user, 1140. damage for obstruction by gates, 1141. measure of damages for failure to construct, 1141. secured under statutory authoritj', 1142. secured under police power, 1142. not confined to mere use for agricultural purposes, 1142. not for benefit of public, 1142. lessees bound to grant, 1142. duty of receiver to grant, 1142. procedure in securing, 1142. who bears expense of putting in, 1142. INDEX. 3045 \^Eeferences are to Sections.] Vol. I, §§ 1-331, Vol. II, §§ J^l-OlS, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PRIVATE CROSSINGS— Coreiinwed. landowner putting in at expense of company, 1142. location and number of, 1143. construction of, 1144. sufficiency of, 1144. enforcing construction, 1145. mandamus to compel construction of, 1145. recovering double cost of constructing, 1145. repair and maintenance, 1146 passways and subways under the track, 1147. overhead crossing to serve as, 1147. damages for destruction or inapairment of, 1138. how affected by change of grade, 1148. duty as to approaches to, 1148. when right to runs with the land, 1149. effect of parol agreement to put in, 1149. care required at on part of company, 1150. when signals required at, 1150, 1154. company recognizing as public crossing, 1150. accidents and injuries at, 1151. liability for injuries caused by defective, 1151. duty of railroad company at, 1154. duty to fence at, 1193, 1200. gates and bars at, 1193, 1199. landowner's duty to fence at, ] 193, n. when cattle-guards not required at, 1198. wing fences not reauired at, 1199, n. PRIVATE GRANT, right to acquire real estate by, 400. PRIVATE INDIVIDUALS, implied duty to carry passengers, 1393. PRIVATE MANUFACTORY, condemning land for railroad leading to, 961. sidetracks and switches leading to, 961. PRIVATE NUISANCE, civil liability for maintaining, 718. PRIVATE PARTY, when may be relator in suit for mandamus, 64.3, PRIVATE PERSONS, power to impose penalties in favor of, 669. Corp. 194 3046 INDEX. [References are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. PRIVATE PROPERTY, when railroad property is, 31. right to appropriate under the eminent domain, 950. riglit to take for public use, 950. when compensation must precede taking, 951. taking for public use on compensation, 951, n. can not be condemned for merely private enterprise, 954. what is a taking within meaning of constitution, 976. compensation for that taken by eminent domain, 979, 980, 1011, 1126 effect of unauthorized entry upon, 998. procedure in taking, 1009. jury trial not allowable where seized under eminent domain, 1012. notice before seizure, 1019. railroad crossing railroad is a taking of, 1126. PRIVATE PURPOSE, tax can not be levied for, 877. PRIVATE RIGHTS, legislative power over those of railway companies, 659. PRIVATE SALE, when forfeited shares of stock may be sold at, 152. PRIVATE SIDE TRACK, compelling delivery of freight at, 636. PRIVATE STATUTES, must be pleaded, 1698. PRIVATE WAY, action to enjoin closing of, 629. PRIVATE USES, when property may be condemned for, 952. PRIVILEGE TAX, when can not be imposed on railway, 759. vahdity of one on interstate railroads, 760. discriminated from a property tax, 761. levying on sleeping car companies, 762, n. PRO RATA ITINERIS, calculating freight charges, 1562. INDEX. 3047 [References are to Sections.'] Vol. I, §§ 1-S21, Vol. 11, §§ S22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PROCEDURE, in forfeiture of stock, 152. in appointment of receivers, 556. before state railroad commissioners, 695. on indictment for causing death, 716. in reference to local assessments, 791. in securing private crossings, 1142. governed by law of the forum, 1365. PROCEDURE IN APPROPRIATION CASES, introductory, 1009. nature of the proceeding, 1010. statute must be followed, 1010. tribunals, 1011, 1012. power of legislature as to constitution of tribunals, 1012. effect of constitutional provisions, 1012. legislative power as to creation of the tribunal, 1013. decision of majority of tribunal, 1014. jurisdiction, 1014. appointment of appraisers or commissioners to assess benefits and damages, 1015. mandamus to compel appointment of appraisers or commissioners, 1016. qualifications of jurors, 1017. appraisers as commissioners, 1017. waiver of defect in oath, 1018. oath must be taken by jurors or commissioners, 1018 general doctrine as to notice, 1019. requisites of notice, 1020. expediency of notice a political question, 1021. description in notice, 1022. service of notice, 1023. effect of notice on part of persons interested, 1023. summoning the jury or commissioners, 1024. parties, 1025. effect of omitting necessary parties, 1025. amendment as to parties, 1026. effort to agree, 1027. petition or articles of appropriation, 1028. when defendant need not prove title, 1028. contents of the petition, 1029. alleging purpose for which land is sought, 1029. title to land, 1030. effect of pendency of proceedings to condemn, 1031. effect of dismissal of proceedings, 1032. abandonment of proceedings, 1033. 3048 INDEX. [^Beferences are to Sections.'\ Vol. I, §U-3^1, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PEOCEDURE IN APPROPRIATION CASES— Continued. meeting of commissioners or jurors, 1034. open and close, 1035. illustrative cases of evidence of value, 1036. necessity of company as affecting damages, 1036, n. competency of witnesses, 1037. opinions of witnesses, 1038. power of commissioners to act upon their own knowledge, 1039. when there must be view of premises, 1040. report of commissioners, 1041. what amounts to waiver of defects in, 1041. illustrative cases of sufficiency of report of commissioners, 1042. requisites of report of commissioners, 1042. time within which report of commissioners must be made, 1043. objections to report of commissioners, 1044. modification of report,' 1045. confirmation or rejection of report, 1045. misconduct of jurors or commissioners, 1046. validity of quotient verdict, 1046. waiver of objections, 1047. remedies to enforce payment of compensation, 1048. trespass where taking of property is wrongful, 1048. common law remedy for damages, 1048. appeal and certiorari as remedy for landowner, 1049, 1053, 1054. remedies of landowner, 1049. injunction as remedy in, 1049. possession pending appeal, 1050. tender, 1051. estoppel by acceptance of damages, 1052. appeal in, 1053. who may appeal, 1053. certiorari, 1054. company a trespasser where proceedings are void, 1055. PROCESS, service of on stockholder is not service on corporation, 170. how service of affects right to appoint receiver, 560. service of in actions against corporations, 621. method in which it must be served, 621. what return to must show, 621, n. return of service of, 622. on jury in appropriation cases, 1024. effect of that under unconstitutional statute, 1461, n. See Notice; Summons. INDEX. 3049 [References are to Sections. 1 Vol. I, §§ 1-3^1, Vol. II, §§ SSS-918, Vol. in, §§ 919-1390. Vol. TV, §§ 1391-1703. PROFILES, filing in appropriation proceedings, 1029, n. PROFITS, promoter not allowed to make, 12. paying dividends on guaranteed stock out of, 86. right of stockholder to share in, 156, 304. right to as between life tenant and remainderman, 307. stockholder can not sue for before dividend is declared, 310. may be "invested in the business, 312. dividends should be declared out of, 316. receiver liable for those made out of trust estate, 576, n. as affecting reasonableness of rates, 693. taxation on basis of, 738, n. when subcontractor may recover for loss of, 1061. when contractor entitled to recover for loss of, 1062. PROHIBITED CONTRACTS, effect of prescribing penalties, 381. who entitled to advantage of, 381. PROMISE TO REPAIR, effect on assumption of risk and employer's liability, 1272, 1295. See Repairs. PROMISSORY NOTES, power of corporation to give, 42. payment of subscription by, 106. when giving waives conditions to subscription, 115. effect of conditions in those given to pay subscriptions, 120. validity of indorsement by manager, 297. power of railroad companies to issue, 480. right of receiver to sue for collection of, 570. when municipal corporations may execute, 839. when taking is waiver of mechanic's lien, 1075. PROMOTERS, who are, 10, 11, n. taking subscriptions, 10. making preliminary contracts, 10. fiduciary relation of, 11. duties and liabilities of, 11. definition and discussion of, 11, n. not allowed secret profits, 11. can not retain commissions, 11. suits against, 11. 3050 INDEX. \_Beferences are to Sections.} Vol. I, §§ 1-Sn, Vol. II, §§ 3S^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. VB.OM.OT'ERS— Continued. corporation suing to set aside their acts, 11, n. corporation rescinding contract witti, 12. personal liability of, 13. when are partners, 13. acting fraudulently, 13. liability when organization fails, 13. when their contracts bind corporation, 14. using corporate funds to influence, 374. incompetency to act as appraisers, 1017. PROMOTION AND FORMATION OF THE CORPORATION, who are promoters, 10. fiduciary relations of promoters, 11. promoter may sell property to corporation, 12. personal liability of promoters, 13. effect of contract with promoters, 14. legislative authority essential to formation of corporation, 15. creation by special charter, 16. acceptance of charter, 17. incorporation under general laws, 18. perfecting the organization, 19. defective organization, 20. waiver of defective organization, 20. collateral attack on organization, 20. See Coepohation; Promoters. PROMPTNESS, when stockholder must exercise in taking advantage of fraud, 167. when party seeking to avoid contract must act witli, 276, n. See Delay; Estoppel; Laches. PROOF, of corporate existence, 18, 616, n. of passage of resolution making calls, 134, n. of notice of calls and assessments by publication, 142, n. of enactment of by-laws, 195. of existence of relation of principal and agent, 210. ' of authority of corporate representatives, 211. of authority of station agents, 303. of the proceedings of the board of directors, 267. of consolidation, 326. in prosecution for obstructing track, 730. on foreclosure of lien for local improvement, 791. of effort to agree in condemnation cases, 1027. of title in appropriation cases, 1030. INDEX. 3051 [References are to Sections.} Vol. I, §§ l-SSl, Vol. II, §§ 32S-918, Vol. Ill, §§ 919-1390, Vol. IV, ^^1391-1703. PROOF— Continued. of ownership of animals killed or injured, 1212. in action for injuries to animals, 1213. that company set out fires, 1243. that company negligently set fire, 1244. of incompetency of co-employes, 1351. of contract limiting carrier's liability, 1506. of special contract limiting liability, 1516, n. See Evidence. PROPENSITIES OF LIVE STOCK, carrier not liable for injuries caused by, 1546. live stock injured by, 1549. PROPERTY, not necessary to existence of corporation, 4, 601, 606. corporation purchasing from a promoter, 12. railway company buying and selling, 21. legislative power to sell railroad, 21, n. railroad acquiring in foreign state, 26. receiver of that belonging to foreign corporations, 30. railroads as, 31. taking that devoted to public use, 39, n. taking that devoted to railroad use, 41. effect of repeal of charter on, 59. limitation on corporate right to sell, 70. purchasing with watered stock, 88. paying for stock by overvalued, 91. paying subscription with, 110. paying for stock with, 175. president purchasing for company, 285. vesting in new company on consolidation, 329. obtained on ultra vires contracts, 369. effect of retaining under ultra vires contract, 371. restoring that received under ultra vires contract, 373. authority to hire out that not needed by the company, 400, n. general authority to mortgage, 490. what is covered by railroad mortgage, 495. what not covered by mortgage on after-acquired property, 497. amount of as affecting insolvency, 601. can not be seized without a hearing, 666. what is a taking of within meaning of constitution, 976. PROPERTY IN TRANSIT, not subject to garnishment, 626. See Stoppage in Transitu. 3052 INDEX. [jReferences are to Sections.'] Vol. I, §§ 1-331, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PROPERTY OWNER, duty to attempt to extinguish fire, 1238. See Landowner. PROPERTY TAX, discriminated from a privilege tax, 761. PROPOSED LINE, how deviation from affects compensation and damages, 999. PROSECUTING ATTORNEY, power to bring quo warranto proceedings, 644. PROSECUTION, when company liable for malicious, 214. for maintaining public nuisance, 976. for failure to stop trains at crossings, 1131. for killing stock, 1183. See Indictment. PROSPECTUS, effect of false statements in, 127, n., 282. misrepresentations in, effect on subscriptions, 128. what does not amount to fraudulent representations in, 128, n. PROTEST, when necessary against excessive charges, 1564. PROXIMATE CAUSE, when presumed, 711. where ordinances have been violated, 711. as element of actionable negligence, 1095, 1114, 1640, 1697. where there is breach of statutory duty, 1155, 1206, 1264. where signboard is omitted, 1157. where there is calculation of chances, 1168. excessive speed must be, 1204. where statutory signals are omitted, 1206. jury determining question of in cases of fires, 1231. failure to give statutory signals as, 1264. failure to promulgate rules as, 1280. violation of rules as, 1282. negligence of employer must be, 1306. employer's negligence must be, 1310. violation of ordinance must be, 1310. defect must be, 1349, in injuries causing death, 1369. INDEX. 3053 \_Beferences are to Sections.} Vol. I, §§ 1-Sn, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PROXIMATE CAV8B— Continued. negligence of street railroad company must be, 1402, n. showing that act of God was, 1457. in cases of loss by carriers, 1463. delay must be of loss, 1488. effect where deviation from route is not, 1515. in injuries to passengers, 1584, n. negligence to be actionable must be, 1640, 1697. PROXY, stockholders voting by, 162. should be in writing, when, 162. naked one is revocable, 162. what rights it confers, 162. VFhen must be witnessed, 162, n. authority of, 162, n. when by-law affecting is void, 193. at meeting of directors, 263. PUBLIC, railroads for benefit of, 1. railroads, relation to, 33. liberal construction of corporate charter in favor of, 38. taking advantage of causes for forfeiture, 47. not bound by corporate by-laws, 192. interest in location of tracks, switches and the like, 363. receivers bound to perform duty to, 518. rights of considered in granting injunctions, 628. right to enjoin unauthorized use of the street, 630. interest in having railroad preserved as a unity, 790. changing location for benefit of, 929, n. common law or parol dedication to, 947. streets held in trust for, 1089. rights where railroad in street, 1093. right to have streets and highways across railways, 1098. right to have other roads, 1116. duty to repair railway crossings owing to, 1134. farm crossings not for benefit of, 1142. exercise of police power is for benefit of, 1190. duty to fence owing to, 1191, n. convenience of as affecting duty to fence, 1195. when invitation to is implied, 1252. construction of statutes is liberal in favor of, 1667. duty to carry owing to, 1690. 3054 ixDEx. [References are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §13^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PUBLIC ACTS, power of legislature to regulate, 662. PUBLIC AGENTS, railroad companies as, 1391. PUBLIC AID, ground upon which that to railroads rests, 792. by means of land grants, 793. state aid, 812. lien of state for giving aid, 813. can not be given to private corporations, 814. constitutionality of statutes authorizing municipal aid to railroads, 814. where corporation both public and private, 814, n. construction of constitutional provisions, 815. corporate purpose, constitutional limitation, 816. constitutional prohibitions, 817. limitations upon state not necessarily limitations on municipal corpo- rations, 818. effect where state prohibited from granting, 818. tendency of decisions to support statutes authorizing, 818, n. constitutional restrictions operate prospectively, 819. limitations upon power of municipalities to incur debts, 820. company only entitled to money after it is collected, 820, 863. constitutional questions, delegation of legislative power, 821. authority to give is not a delegation of legislative power, 821. general law in reference to, 821. submission to vote, 822. when authorized without vote of the people, 822. when may be granted on petition, 822. submission to popular vote, constitutional requirements, 823. when municipal officers may grant, 823. constitutional power of legislature in reference to, 824. compelling public corporations to give, 824. scope of the legislative power, 825. illustrative cases of scope of legislative power in reference to, 826. to railroad without limits of aiding municipality, 826. to build branch roads, 826. to railroad outside the state, 826. validity of bonds issued in pursuance of, 826. statutory authority to grant, 827. power to grant is statutory, 827. power to aid is continuous, 828. making several subscriptions to same company, 828. not restricted to new companies, 829. taxing one railroad company to aiil ai;i,Uier, 830. INDEX. 3055 [Meferences are to Sections.'] Vol. I, %^'1-3^1, Vol. 11, §§ 3S2~918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PUBLIC AIB— Continued. construction of statutes conferring authority to aid railroad companies, 831,836. strict construction of statutes authorizing, 831. impairment of contract rights, 832. contract created by grant of, 832. grant protected by the constitution, 832. withdrawing offer of, 832. illustrative cases of impairment of contract rights, 883. implied powers in construction of statutes, 834. when to be collected as ordinary taxes, 834. illustrative cases of construction of statutes authorizing, 834. must be given in manner provided by statute, 835. construction of enabling acts, 836. adjudged cases as to enabling acts, 836. construction of special act authorizing, 836. charter conferring power to grant, 836. giving conditionally, 836, n. means and methods, 837. requirements of statute, 838. when irregularities or errors will not defeat, 838. power to aid by subscription does not authorize execution of bonds, 839. power to issue bonds not to be implied, 839. levy of taxes, 840. effect of withdrawal of power to grant, 840. by donations and subscriptions, 841. effect of repeal of enabling act, 842. effect of withdrawal of power authorizing grant of, 842. validating proceedings, 843. retrospective laws, 843. legislative power to authorize ratification, 844. waiver of conditions to grant of, 844. effect of irregularities, 844. requisites of curative statutes, 845. division of municipal corporation for purpose of voting, 846. creating taxing districts to vote for, 846. what corporations may be authorized to grant, 847. subscription to unorganized company, 848. to de facto corporation, 848. votes, voters, majority of votes, 849. rules governing election for, 849. effect of bribery in election for, 849. effect of failure to conform to enabling act, 850. when substantial compliance with the law sufficient, 850 notice of election to grant. 850, 859. 3056 INDEX. [Beferences are to Sections.'} Vol. I, §§ 1-3S1, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PUBLIC AID— Continued. when can not be granted at special meeting of town board, 850. special election to grant, 850. excuse for non-performance of conditions, 85]. performance of conditions, 851. when time as essence of contract affects, 851. conditioned on completion of road by certain time, 851. power of municipality to prescribe conditions, 852. conditions precedent to grant of, 852. change of municipality, 853. limitations upon the amount, 854. making objections to before rights of third parties intervene, 854. valuation of property, 855. on per cent, of valuation, 855. conditions must be performed, 856. sufficiency of preliminary survey for, 857. injunction to prevent levy of tax for, 857. requisites of petition for, 858. qualifications of petitioners for, 858. rules governing petitions for, 858. how to count taxpayers in petition for, 858. notice of election, 859. influencing voters at election for public aid, 860. validity of that secured by fraud, 860. ^ vote does not of itself constitute a contract, 861. when subscription complete, 861 . authorized by popular vote, duty of local officers, 862. voters prescribing conditions to, 862. contract granting, 863. enforcement, 863. subscription, 863. when company becomes entitled to, 863. power of municipal officers where statute requires submission to popu- lar vote, 864. decision of local officers as to jurisdictional facts, 865. collateral attack on proceedings, 865. acceptance of, 866. presumption as to acceptance of, 866. ratification of subscription, 867. stock subscribed by municipality, 868. dividing stock among tax-payers, 868. rights and liabilities of municipal corporations as stockholders, 869. defenses to municipal subscriptions, 870. tax-payers defending against subscriptions, 870. estoppel of tax-payers, 871. INDEX. 305- \_Beferences are to Sections.'] Vol. I, §§ l-sn. Vol. 11, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PUBLIC AID— Continued. when errors and irregularities will not defeat, 871. remedies of tax -payers, 871. when election will not be enjoined, 872. restraining payment after collection of tax, 872. remedies of municipalities, 873. remedies of railroad companies, 874. mandamus as remedy to enforce, 874. quo warranto proceedings as defense to, 874. See Land Gbants; Municipal Aid. PUBLIC AUCTION, sale of forfeited shares of stock at, 152. PUBLIC AUTHORITY, when exercise of exonerates carrier from liability, 1461. loss under as a defense, 1695. PUBLIC CORPORATIONS, when railroad companies are, 2. street railways are quasi, 6. railroads quasi, 33, n., 659. when may sell their property, 70. power of legislature over, 662. compelling them to grant public aid, 824. when property of may be condemned, 964. PUBLIC CROSSINGS, contracts to build, repair and restore, 359. distinguished from private crossings, 1136. recognizing private crossing as, 1150. rights of travelers at, 1152. rights of trains to priority at, 1153. what necessary to constitute, 1154. need not be fenced, 1193. how determined what ones are, 1193. crossing becoming such through use, 1252. See Crossings. PUBLIC DUTIES, of lessee under authorized lease, 457. imposed upon lessee, 461. courts taking charge of road to compel performance of, 542. failure to perform as ground for appointing receiver, 547. company can not escape by dissolution, 608. 3058 INDEX. l^Jteferences are to Sections.'] Vol. I, §§ 1-321, Vol. II, ^SS2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PUBLIC DVilKQ— Continued. mandatory injunction to compel performance of, 635, n. power of legislature to regulate, 662. duty to carry passengers is a public duty, 1392. PUBLIC ELEVATOE, when company may erect, 931. condemning land for track to, 960. PUBLIC ENEMIES, burden of proof to show loss by, 1458. when insurgents are, 1458. who are, 1458. non-delivery caused by, 1534. effect where negligence of carrier contributes to loss, 1534. acts of causing loss of baggage, 1651. defendant pleading act of as a defense, 1695. PUBLIC ENTERPRISES, taxes to aid, 824. PUBLIC HIGHWAYS, railroads as, 33. indictment for leaving cars in, 718. indictment for unlawfully cutting through, 718. railroad regarded as, 814, n. branch and lateral roads as, 961. when longitudinal taking authorized, 966. See Highways ; Streets. PUBLIC IMPROVEMENT, railroad as, 83. assessing right of way to pay for, 786, n. See Local Assessments. PUBLIC INTEREST, in railroad property, 31. as affecting forfeiture of charter, 50. requiring location of stations, 694. as affecting right to exercise power of eminent domain, 952. effect where condemnation interferes with, 964. failure to allege in petition for appropriation, 1028, n. right to railroad crossings based on, 1116. erection of fences interfering with, 1194. PUBLIC LANDING, condemning land for track to, 960. INDEX. 3059 [Beferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. n, §§ S^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PUBLIC NECESSITY, as an element in determining location of stations, 641. rigiit of property-owner to dispute, 1021. jury determining question of, 1021. PUBLIC NOTICE, when has effect to limit liability, 1495. PUBLIC NUISANCES, obstructing railway, 33, n. injunction to prevent, 631. prosecution for maintaining, 976. PUBLIC OFFICER, as relator in suit for mandamus, 643. member of railroad commission is, 680. prohibited from accepting passes, 1613. PUBLIC POLICY, issuing watered stock against, 88. secret agreements with stockholders against, 181, n. effect where pooling contracts are against, 366. contracts against are illegal, 383, 386. when contracts as to location of stations and tracks are against, 386. general conclusion as to contracts void because against, 387. illustrative cases of contracts void as against, 388. abandonment of road is against, 431. when trackage contract against, 451. preventing garnishment against railway companies, 624. legislature determining questions of, 666, n. in reference to enforcement of local assessments, 790. contracts influencing location are against, 928. in regard to location of depots, 928, n. effect where conditions subsequent opposed to, 941. when construction contracts with officers against, 1058. in abolishing grade crossings, 1109. when contracts against future negligence violate, 1236, 1376, 1497. contract in relief department not against, 1382. when contract limiting liability is against, 1438, 1497, 1627. discriminations are against, 1468. how conditions in passes affect, 1607. when conditions in passes are against, 1608. how affects sleeping car companies, 1618. effect of contracts limiting liability, 1627. 3060 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ SS^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. PUBLIC PROPERTY, when railroad property is, 31. power of state to control, 674. PUBLIC RIGHTS, grants in derogation of not presumed, 39. who may be relator in suit to enforce by mandamus, 643. legislative power over those of a railway company, 659. PUBLIC SAFETY, as an element in determining grade crossings, 1123. PUBLIC USE, railroad property devoted to, 2. taking property devoted to, 39, n, 630, n, 964, 966. where two uses can co-exist, 632, 966, 1098. location of road on property already devoted to, 922. right to take private property for, 950, 951, n. who determines question of, 952. amount of property that may be taken for, 952. what constitutes, 952, 961. ■when courts may determine, 954, n. must be shown in condemnation proceedings, 960 how question of determined, 960, n. condemning property for consistent use, 974. simply affecting land does not amount to taking for, 976. right to compensation for property taken for, 976. alleging in condemnation proceedings, 1029. when commissioners must find in their report, 1042. rule where two can stand together, 1098. impairing rights by taking property devoted to, 1104. street and railway existing together, 1104. two railway companies using same crossing, 1121. railroad crossing is a taking of property for, 1126. PUBLIC WAREHOUSE, condemning land for track to, 960. PUBLIC WELFARE, railroad is for benefit of, 814. right to appropriate property for, 950. PUBLICATION, notice of calls and assessments by, 142. obtaining jurisdiction over non-resident by, 624. before enactment of statute, 815. INDEX. 3061 IBeferences are to Sections.] Vol. I, §§ 1-331, Vol. II, §§ SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 PUBLICATION— Con«i)Mted. notice by in condemnation proceedings, 1020. suiBciency of notice by, 1023. affidavit accompanying, 1023. notice by of street opening proceedings, 1100. PUNISHMENT, of contempt of court, discretion of court, 575. railway commissioners can not prescribe, 677. PUNITIVE DAMAGES, in action on tort, 1693. no extra-territorial effect where statute gives, 1366. See Exemplary Damages. PURCHASE, of corporate property, effect of, 37. of other roads, 45, n. consolidation may be by, 324, n. acquiring right of way by, 932. PURCHASER, at judicial sale, rights of, 72. at foreclosure sale, title acquired by, 525. at foreclosure sale, when takes title free from liabilities and liens, 526. reorganization by purchasers at foreclosure sale, 531. at foreclosure sale, formation of new corporation by, 532. right to have receiver appointed, 546, n. of receiver's certificates, position of, 595. when estopped to question lien of receiver's certificates, 596. when do not acquire right of eminent domain, 958. See Bona Fide Puechasbks. PURCHASING AGENT, authority to contract, 347, n. may exercise right of stoppage in transitu, 1540. PURPOSE, stating in articles of incorporation, 18. of corporation, stating in charter, 36 n. of corporation must be authorized, 37. when changing is material amendment, 45, n. of journey as determining what is baggage, 1647. Corp. 195 3062 INDEX. IBeferences are to Sections.} Vol. I, §§ 1-3^1, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. Q QUALIFICATIONS, of corporate officers, 207. QUALITY, effect of statement of in bill of lading, 1420. QUANTITY, effect of statement of in bill of lading, 1420. QUANTUM MERUIT, recovering on for extra work, 1060, n. when contractor may recover on, 1062, n. QUARRIES, condemnation for roads leading to, 961. QUASI-PUBLIC CORPORATION, when property of may be condemned, 964. QUASI-PUBLIC WORKS, railroads are, 33. QUESTION OF FACT, acceptance of charter is, 17, n. ratification of subscription, 104. performance of conditions to subscriptions, 116. terminus meant is, when, 124. extent of agent's authority usually is, 128. when reasonableness of rules is, 202. existence of relation of principal and agent, when is, 210. whether act within scope of agent's authority, 211, n. care and diligence exercised by corporate directors, 278. scope of agent's authority, 296. when negligence is for the jury, 1095. as to best location for railroad crossing, 1120. whether flying switch was negligent, 1162, when contributory negligence is, 116.';. whether child of age to be guilty of contributory negligence, 1172. as to what is sufficient cattle-guard, 1198. as to where fence required, 1202. care in keeping lookout for animals, 1205. negligence is adopting machinery, 1224. whether fire breaks should be put out, 1238. INDEX. 3063 [References are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. QUESTION OF YkCi— Continued. child's contributory negligence, 1261. scope of employe's authority usually is, 1266. as to whether employe has knowledge of rules, 1294. whether station master is fellow-servant, 1326. when existence of defect is, 1347. when who has "charge and control" is, 1356. whether party is a common carrier sometimes is, 1392, n. as to whether transfer company is connecting carrier, 1399. when delivery is, 1413. as to whether carrier signed bill of lading, 1417, n. as to sufficiency of terminal facilities, 1479. when sufficiency of delivery is, 1517. as to what is a reasonable time for delivery by the carrier, 1520. as to what is reasonable time to remove goods, 1528. negligence in boarding or alighting from moving train, 1628. as to when passenger is guilty of negligence, 1633. when what is baggage is, 1648. when undue preference is, 1679. QUESTION OF LAW, materiality of amendment of charter, 45. when reasonableness of rules is, 202, 1280. as to what is within police power, 664. only considered on application for certiorari, 1054. when ordinary care is, 1156. when question of contributory negligence is, 1163, 1169. as to where fence required, 1202. child's contributory negligence, 1261. when sufficiency of terminal facilities is, 1479. when sufficiency of delivery by the carrier is, 1517. as to what is reasonable time to remove goods, 1528. reasonableness of freight charges, 1560. as to when passenger is guilty of negligence, 1633. when what is baggage is, 1648. when undue preference is, 1679. where facts are undisputed, 1702. QUESTIONS OF LAW AND FACT, nature of railroad property, realty or personalty, 31. See Mixed Questions of Law and Fact. QUI TAM ACTION, how may be brought, 712, n. when may be compromised, 713. 3064 INDEX. \_Meferences are to Sections.'\ Vol. I, §§ 1-3^1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170S. QUO WARRANTO, effect of delay in attack by, 20, n. against corporations, 52, 53. against whom writ should be directed, 53. jurisdiction in, 54. repeal taking place of, 57. does not lie because of issue of stock below par, 88, n. to question right to hold real estate, 405. abandonment to lessee grounds for, 448. to declare dissolution of corporation, 609. general nature of the remedy and proceeding by, 644. to try right of foreign corporation to do business, 644. definition of writ of, 644. removal to federal court, 646. proceedings as defense to public aid, 874. QUORUM, board of directors making calls, effect, 136. must be present at meeting of stockholders, 161. what constitutes of directors, 260. who should be counted in estimating of directors, 263. at meeting of directors, 263. QUOTIENT VERDICT, validity of, 1046. R RAILROAD, individual may operate, 1. corporation may operate, 1. limited company operating, 1, n. synonymous with railway, 3. definition of, 3, 4. amending pleading by changing word to railway, 3, n. what word includes, 4. property included within, 4. is not a ferry, 4, n. effect of word "railroad" in statutes, 6. dummy line is, 6. elevated road is, 7. congress chartering, 25. in more than one state, 26. control of in more than one state, 27. as property, 31. INDEX. 3065 [Beferences are to Sections.'] Vol. I, %^1-sn, Vol. II, §§ sn-918, voi. in, §§ 919-1390, Voi. iv, §§ i39i-no3. UXILRO XD— Continued. construction of parallel not prevented, 32. as a public highway, 33. control and possession of, 33. eminent domain aiding construction of, 33. regarded as a public improvement, 33. charter to build and operate, 41. powers contained in charter of, 41. right to cross highway, 41, 1099. sale of as an entirety, 522. statutes regulating appointment of receivers for, 538. equity assuming control of, 539. general rules as to when receivers will be appointed for, 540. extent to which courts have gone in control of, 542. implied power to cross, 922. no right to condemn longitudinally, 922. existence of as notice, 1002. general mechanic's lien law not applicable to, 1066. can not be sold in fragments, 1074. right to lay out highway across, 1098. effect of authority to construct from point to point, 1101. damages where highway is opened across, 1103. municipal corporation as operator of, 1338. operated by receivers, effect of employer's liability acts, 1341. power of congress to establish, 1663, n. See Bailroad Company. EAILEOAD AID BONDS, See Municipal Aid Bonds. BAILROAD AID ELECTION, See Election. RAILBOAD BONDS, taxation of those on entire line, 27. See Bonds; Railroad Securities. RAILROAD CARRIERS, who are, 1453. See Railroad Company as Carrier. RAILROAD CHARTERS, construction of, 38. RAILROAD COMMISSIONERS, approving by-laws, 198. nature of, 675. 3066 INDEX. [References are to Sections.'] Vol. I, §§ 1-321, Vol. II, §§ 3:22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EAILROAD COMMISSIONEES— CoBtiMwed. functions are not judicial, 675. the power to create, 676. validity of statutes creating, 676. investing with judicial power, 677. no authority to make unjust discriminations, 679. are public officers, 680. incidental powers of, 685. held to be a court, 685, n. requiring flagmen at crossings, 1157. taxes for salaries of, 777. See Statb Railroad Commissioners. EAILBOAD COMPANY, definition and characteristics, 1. organized under special charters or general laws, 1. depot company not regarded as, 1 n. state control of, 1. when public corporation, 2. when private corporation, 2. ownership of property not necessary, 4. organized by promoters, 10. regarded as individual, 21. buying and selling property, 21. "person" within constitution, 21. when citizen, 21. citizen of state creating, 23, 29. right to go to federal courts, 23. when citizen of two or more states, 23. has a residence and domicile, 24. foreign residence, 24. service on in foreign state, 24. . appointing foreign agent, 24. formed, by concurrent legislation, 26. enjoining from making discriminations, 27. as monopoly, 32. power to offer reward, 42. subject to police regulations, 44. constructing within limited time, 47. power to sell its franchises, 71. when may purchase stock in another company, 95. successor recovering subscriptions, 126. power to enact rules and regulations, 198, 199. examples of rules which it may adopt, 200. general doctrine as to contracts by, 216. INDEX. 3067 [References are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RAILROAD COMPA.'SY— Continued. president as chief executive officer, 283. power of station agent to bind by contracts, 303. consolidation of, 339. power to make contracts, 340. contracting tlirough directors, 347. absolving itself from performance of public functions, 359. right to use other company's track, 361. illustrative cases of contracts that may be made by, 364. power to lease comes from state, 385. when holds real estate same as natural person, 403. effect of conveyance to one not in existence, 409. construction of deeds to, 415, 416. power to convey real estate, 424. dedicating land for highway, 425. power to execute lease, 427, 428. power to make leases, 430. when may abandon franchises, 431. power to accept leases, 432. compelling by mandamus to operate road, 458. liability for negligence of another company using track, 477. power to issue notes and bonds, 480. when may sell franchise and necessary property, 519. power to purchase other company's franchise and property, 519. appointing receiver for on its own application, 551. who competent to act as receiver for, 561. subject to state insolvency law, 599. power to voluntarily dissolve, 608. when may be sued in federal courts, 623. resident of counties through which line passes, 623. county in which it may be sued, 623. subject and entitled to equitable remedies, 628. when may be enjoined from occupying street or highway, 630. mandatory injunction to compel performance of duty, 636. interest of public in as affecting right to writ of mandate, 637. when mandamus may be issued against, 637. power of legislature over, 657. can not be deprived of right to compensation, 659. as public corporation, 659. constitutional protection, 660. protected against double taxation, 660. entitled to same constitutional protection as natural persons, 661. right to hearing before railroad commission, 686. penal offenses by, 709. indicting for causing death, 716. 3068 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-321, Vol. II, §§ 322-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RAILROAD COMPANY— ComJiKMed. duty as to observing Sunday, 717. indicting for maintaining a nuisance, 718, 1096. when not liable for maintaining nuisance, 718. various crimes against, 734. classification of property for taxation, 740. taxing in more than one state, 757. local assessments against property of, 785. ground upon which public aid to rests, .792. aiding two by same grant, 805. when state can not take stock in, 818. taxing one company to aid another, 830. construction of statutes authorizing aid to, 831. remedies in reference to public aid, 874. power of municipalities to aid, 875. discretion in determining location of road, 920. power to change its location, 929. construction of conveyance to, 934. dedication of land to use of, 947. may acquire title by adverse possession, 948. delegating power of eminent domain to, 954. discretion as to selection of its route, 954. purposes for which it may condemn, 960. condemning land for future use, 962. condemning property of, 964. what estate secured by condemnation proceedings, 970. condemning right of way of another company, 974. using right of way of another company, 974. condemning property of another company, 974. exclusive possession of right of way, 987. right to abandon condemnation proceedings, 1033. a trespasser where condemnation proceedings void, 1055. when may terminate construction contracts, 1058. when liable for negligence of contractor, 1063. duty to restore highway crossings, 1099, 1105. pY-oceedings by in crossing highways, 1101. securing consent to cross highways, 1101. duty as to constructing and maintaining crossings, 1102. impairing rights by taking property, 1104. mandamus to compel restoration of highway, 1106. mandamus to compel construction of viaduct, 1111. right to cross lines of another company, 1116. what ones may invoke power of eminent domain, 1116. securing crossings by agreement, 1117. effort to agree as to crossings, 1119. INDEX. ^*^^^ [Beferenees are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ Se^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EAILROAD COMPANY— ConJimted. not allowed to impair franchise of other company by crossing, 1121. crossings at grade, 1122. crossings above or below grade, 1123. number of crossings to which entitled, 1124. contracting to stop at crossings, 1130. trains colliding at railway crossings, 1132. duty as to maintaining and repairing crossings, 1134. how many private crossings may grant, 1137. contracting to grant private crossings, 1141. locating private crossings, 1143. liable for destroying or impairing private crossing, 1148. care required on part of at private crossings, 1150. right to exclusive use of right of way, 1152. rights and duties at public crossings, 1153. prior right of passage at public crossings, 1153. duty to avoid collisions, 1153. duty at private crossings, 1154. duty at crossings by custom or license, 1154. common law duties at crossings, 1156. collision with street cars, 1178. suing it and street car company together, 1178. not bound to fence at common law, 1180. statutes imposing duty to fence tracks, 1181. contracting with landowner to erect fences, 1187, 1188. authority to use fire, 1221. duty to extinguish fires, 1232. liability where insured property destroyed by fire, 1234. insurable interest in property along right of way, 1234. contracting against negligence from fires, 1236. liability for fire where road is operated under lease, 1237. burden of disproving negligence in fire cases, 1242. duty and liability to trespassers, 1253, 1254. duty with respect to foreign cars, 1279'. duty to promulgate rules, 1280. validity of statutes which only apply to, 1335. effect of employers' liability acts where lines in different states, 1340. power to establish relief department, 1379. release by acceptance of benefits in relief association, 1384. duty to transport cars of other companies, 1394. conducting express company, 1394. right to compel breaking of bulk, 1395, as private carriers, 1396. no duty to carry beyond terminus, 1432. as warehousemen, 1463, 1464. 3070 INDEX. IBeferences are to Sections ] Vol. I, §§ 1-3S1, Vol. II, §§ 3S2-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RAILEOAD COMPANY— CoiiWMMed. of what goods they are common carriers, 1466. are common carriers of live stock, 1545. right to make demurrage charges, 1567. as carrier of passengers, 1573. power to make rules and regulations, 1576. right to issue limited tickets, 1598. making contracts to give passes, 1611. determining on what trains sleeping cars shall be run, 1619. when liable for assaults by sleeping-car employes, 1G21. can not contract away duties, 1625. requiring compensation for sleeping-car accommodations, 1625. relation to passenger traveling in sleeping or parlor car, 1625. when liable for injuries received in sleeping cars, 1640. when it is interstate, 1673. disabling itself from performing public duty, 1675. RAILROAD COMPANY AS CARRIER, nature of duty of common carrier, 1391. implied duty as carrier, 1392. general nature and duties of, 1393. carriage for other carriers, 1394. breaking bulk, 1395. transfer of goods from cars of one company to cars of another company, 1395. right to prescribe extent of liability where company acts as private car- rier, 1397. switching companies, 1398. tranfer companies, 1399. bridge companies, 1400. express companies, 1401. dispatch companies, 1401. fast freight companies, 1401. street railway companies, 1402. See Cakriees OF Passengers ; Common Caehibrs ; Carriers or Goods; Car- riers OP Live Stock. RAILROAD CROSSINGS, right to, 41. enjoining 632. complying with statutes authorizing, 632. control by railroad commissions, 683. duty to stop at, 721. negligence in failing to stop at, 1589. See Crossincs c.f Railroads by Railroads. INDEX. 3071 [Beferences are to Sections."] Vol. I, §§ 1-3S1, Vol. II, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RAILROAD FRANCHISES, what are, 63. nature of, 67. RAILROAD IN SEVERAL STATES, power of federal courts over, 27. RAILROADS IN STREETS, authority to use streets, 1076. implied authority of municipalities to grant use of street, 1077. perpetuity, 1077. how and by whom grant should be made or consent given, 1078. nature and effect of grant by municipality, 1079. construction of grant, illustrative cases, 1080. right of municipality to impose conditions, 1081. terms and conditions to constructing, 1081. municipal regulation and control, 1082. subject to reasonable regulations, 1082. rights of rival companies in streets, 1083. right of one company to use another's track, 1084. rights of abutters, 1085. special damages to abutting owner from, 1085. rights of landowners other than abutters, 1086. damages where property does not abut on street, 1086. commercial railroad as an additional burden, 1087. when street railways are an additional burden, 1088. railroads in narrow streets, 1089. obstruction of highways, 1090. nuisance, 1090. bridges, approaches and viaducts, 1091. duty of company to restore and repair, 1092. respective rights of the company and of the public, 1093. right of traveler to cross, 1093. damages for injury to, 1093. duty to travelers upon the street, 1094. person on is not a trespasser, 1094. liability for negligence, 1095. contributory negligence of person on, 1095. injury to person on, 1095. remedies for unlawful use of street, 1096. waiver of right to object to, 1096. RAILROAD LINE, describing in articles of incorporation, 18. extending into foreign state, 26. jurisdiction to appoint receivers for those in more than one state, 554. 3072 INDEX. IBefereiices are to Sections.l Vol. I, §§ 1-3^1, Vol. 11, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RAILROAD PROPERTY, what is real estate, 389. a penal offense to injure, 733. appropriate method of assessing, 737. contract exempting from taxation, 770. condemnation of, 992. states taxing that used in interstate commerce, 755. See Taxation of Railroad Pkopbrty. RAILROAD RECEIVERS, compensation of, 584. See Receivers. RAILROAD SECURITIES, power of railroad companies to issue, 480. power to guaranty bonds, 481. issuing income bonds, 482. convertible bonds, 483. negotiability of bonds, 484. bona fide purchasers of bonds, 484. form and manner of issuing bonds, 485. effect of irregularities in issuing, 485. interest coupons, 486. payment of bonds and interest, 487. no power to mortgage without legislative authority, 488. legislative authority to secure by mortgage, 489. distinction between authority to mortgage franchises and authority to mortgage property, 490. who may execute mortgage, 491. ratification by stockholders of unauthorized mortgage, 492. when ultra vires mortgage may be made effective, 493. recording mortgages, 494. as to what property is covered by a mortgage, 495. what is covered by a mortgage of the undertaking, 496. mortgage of after-acquired property, 497. when mortgage covers fixtures, 498. priority of mortgages, 500. trust deeds, 501. equitable and defective mortgages, 502. statutory mortgages, 503. debentures, 504. RAILROAD TIES, lien for those furnished, 1068, n. INDEX. 3073 [iJe/erences are to Sections.'] Vol. I, §§ 1-331, Vol. II, §§ 323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-170S. RAILROAD TRACK, definition of, 5. what structures it includes, 5. penalty for obstructing, 730. condemning line across, 966. animals attracted to, 1211. contributory negligence in trespassing upon, 1257. injury to trespassers upon, 1257. See Tracks. RAILROAD USE, taking property devoted to, 41. RAILS, real estate, 31. new ones subject to mortgage lien, 498. when are not regarded as fixtures, 998. laid under parol license, 998, n. RAILWAY, synonymous with "railroad," 3. definition of, 3, 4. amending pleadings by using word "railroad," 3, n. RATE OF SPEED, when negligent, 1160. when company may regulate, 1204. not negligence per se, 1204. statutes regulating, 1204. municipalities regulating, 1204. when may be increased where animals are on track, 1204. unusual as evidence of negligence, 1244. injuring person beside the track, 1263. when is and is not negligent, 1589. RATE SHEETS, duty to post, 1686. RATES, what lessee may charge, 461, n. what constitutes unreasonable, 692, 693. tests of reasonableness, 693. what is unreasonable one, 693. nature of power to make, 685. company may be heard as to reasonableness of, 686. effect of certificate of commission as to their reasonableness, 688. 3074 INDEX. [Beferences are to Sections.] Vol. I, §§ l-sn, Vol. II, §§ 3^:1-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RATES— CoBJinwed. evidence as to reasonableness of, 688, n. power ol courts to determine reasonableness of, 691. courts will not fix, 691. what constitutes discrimination as to, 1467. shippers must be treated alike as to, 1467. lower where liability is limited by contract, 1495, 1504. reduction of will not be presumed, 1504. rule where it is fixed by contract, 1560. effect of agent's mistake in naming, 1565. power of interstate commerce commission, 1672. fixing by combination, 1675. where shippers have side-tracks and switches, 1678. for long and short hauls, 1682. grouping stations for, 1683. reasonable charges, 1684. advances and reductions in, 1686. See Fkeight Charges; Gkoup Rates. RATIFICATION, of promoters' contracts, 14. of preliminary agreement to take stock, 102. of contract of subscription, question for jury, 104. of fraudulent subscription, 131. of subscriptions, 132. of unauthorized call, 135. of agent's acts, 212. of employment of surgeon, 222. of agent's acts, effect as notice, 226. of acts of corporate representatives, 227. acts that may be ratified, 228. what constitutes, 229. of committee's action by board of directors, 257. of unauthorized assessment, 258. action at board of directors' meeting to which all were not notified, 262. of acts of directors, 270. of contract with director by acquiescence, 276. of president's authorized acts, 289. of contracts made by secretary, 295. stockholders ratifying agreement of consolidation, 326. when not necessary to show a formal one of contracts, 352. of unauthorized acts of corporate officers, 353. by stockholders presumed from acquiescence, 380. of unauthorized or improperly executed mortgage, 492. of ultra vires mortgage, 493. INDEX. 3075 [^Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ SZS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RATIFICATION— Continued. legislative power to authorize of public aid proceedings, 844. of railway aid subscription, 867. of railway aid bonds irregularly issued, 894. of conveyances made before organization, 933. legislative consent by, 958. of acts of contractor, effect, 1063. of willful act by master, 1265. of original contract by connecting carrier, 1446. of delivery to wrong person, 1531, n. of willful act of employe, 1638, n. REAL ESTATE, depots, 31. station houses, 31. water tanks, 31. fixtures, 31. rolling stock, 31, 389. what railroad property regarded as, 31. right of way, 31, 389. road bed, 31. ties, 31. rails, 31. side tracks, 31. switches, 31. stockholders can not convey, 237. who may raise question as to that acquired by ultra vires acts, 378. what railroad property is, 389. statutory authority requisite to hold, 390. power to acquire, 391. for what purposes may be acquired, 391. implied power to acquire, 392. illustrative cases of implied power to acquire, 393. instances of denial of power to acquire, 394. can not be acquired for speculation, 394. title to is in the company, 395. company must execute conveyances of, 395. title not divested because it becomes unnecessary, 396. effect of conveyance of that which company has no authority to hold, 397. right of foreign corporation to hold, 398. power to acquire by grant greater than by condemnation, 399. acquisition of fee by private grant, 400. acquisition by adverse possession, 401. to what right possession is referred, 402. 3076 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§3^2-9-ZS, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. REAL ESTATE -CoiUwtted. rights of company where it has fee-simple title, 403. effect of a conveyance of that which the company was not authorized to acquire, 404. questioning the right to hold, 405. enjoining purchase because of no power to hold, 406. when executory contract to purchase not enforceable, 407. estoppel of parties to deny corporate existence, 408. deed of to company not in existence, 409. formal execution of conveyances and agreements relating to, 410. enforcing agreements to convey, 410. contracts relating to under corporate seal, effect as evidence, 411. acceptance of deed, 412. distinction between a donation and sale of, 413. deeds of company, who executes, 414. construction of deeds to railroad companies, 415, 416. presumption of acceptance of grants of, 417. incidents pass with principal thing granted, 418. effect of designating in the deed the purpose for which land is granted, 419. covenants that run with the land, 420. merger of preliminary agreement in deed, 421. bonds for conveyance of, 422. specific performance of contract to convey, 422. presumption that there is power to hold, 423. power of company to convey, 424. dedication of for use as a highway, 425. disposition of that which corporation has no power to hold, 426. escheat of, 426. power to mortgage, 489. when covered by mortgage of after-acquired property, 497. right of trustees in mortgage to maintain ejectment for, 514. when reorganized company liable for that condemned, 526. how affected by voluntary assignments, 599. disposal of on dissolution of corporation, 611. action regarding usually local, 623. when not subject to garnishment, 626. enjoining appropriation of where compensation has not been made, 629. injunction where company seeks to take or condemn, 629. suit to condemn, removal to federal court, 646. power of railroad commission to condemn, 682. taxation of that granted to railroad company, 779. when that of railway company subject to local assessments, 785. for what purposes it may be condemned, 930. when may be condemned for relocation, 930, n. INDEX. 8077 {^Beferences are to Sections.] Vol. 7, §§ 1-331, Vol. II, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. REAL ESTATE— Contmted. grantee essential to every conveyance, 933. authority to purchase for railroad purposes, 933. when company may take by giJt, 933. construction of conveyance of to railroad company, 934. specific performance of oral agreement to convey, 935. effect of defective description in agreement to sell, 935. company accepting conveyances of on condition, 939. conditions subsequent in conveyances of, 941. what covenants run with the land, 945. dedication to use of railroad, 947. when track becomes a part of, 949. condemning where company already owns lands, 954. right of construction company to condemn, 959. for what purposes may be condemned, 960. purposes to which it may be devoted after being condemned, 960. condemning for branch and lateral roads, 961. interest in acquired by condemnation proceedings, 970. damages confined to particular tract, 992. injury to tract not actually taken, 993. market value before and after taking, 995. reversion as affecting compensation and damages, 995. cost of filling and restoring as damages, 996. effect of unauthorized entry on, 998. rights of vendor and vendee in respect to condemnation proceedlngB, 1001. railway occupying constituting notice, 1002. estoppel running with, 1003. alleging purpose for which it is sought to be taken, 1029. description of that sought to be condemned, 1029. effect of pendency of proceedings to condemn, 1031. proving purchase-price as tending to show value, 1036. evidence of value of in condemnation proceedings, 1036. when value can not be shown by proof of mere offers, 1036. person testifying to value is not an expert, 1037. who competent to testify as to its value, 1037. farmers testifying as to value of, 1037. opinions of witnesses as to value of, 1038. showing value before and after taking, 1038. description in report of commissioners, 1041. remedy to enforce compensation for that taken, 1048. injunction to prevent wrongful occupation of, 1049. property rights in may be protected by injunction, 1049. effect of appropriation by receiver, 1049, n. effect where possession taken under erroneous proceedings, 1049, n. 3078 INDEX. [References are to Sections.'] Vol. I, §§ 1-321, Vol. 11, %^S 22-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. REAL ESTATE— ConJimted. possession of pending appeal, 1050. entry on where tender of compensation and damages is refused, 1051. trespass in taking possession of, 1055. damage for that taken by railway crossing, 1127. when right to private crossing runs with, 1149. when contract in reference to fences runs with, 1188. injury to by fire, 1222. measure of damages for injury by fire, 1239. value before and after injury by fire, 1239. evidence of extent of injury to by fire, 1239, n. when contract to give passes runs with, 1611. See Land Grants. REAL EVIDENCE, when may be introduced, 1700. REAL PARTY IN INTEREST, insurance company as, 1234. See Parties. REASONABLE CARE, where railroad is in street, 1094. in use of tracks, 1095. to keep crossings in repair, 1112. when due trespasser, 1253. to discover trespassers, 1254. duty to exercise in regard to appliances, 1278. in securing observance of rules, 1280, u. in preparing time-tables and schedules, 1281. in employing servants, 1284. measure of employer's duty, 1288. to protect property on sleeping-car, 1621. duty of warehouseman to use, 1652. See Caeb; Negligence. REASONABLE CHARGES, effect where carrier tenders, 1564. for delay in unloading cars, 1567. under interstate commerce act, 1684. See Freight Cii.vrges. REASONABLE DEMAND, when there must be for cars, 1476. REASONABLE NOTICE, required in condemnation cases, 1020. INDEX. 3079 IReferences are to Sections.} Vol. I, §§ X-32I, Vol. II, §§ 33^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. REASONABLE RATE, carrier bound to carry for, 1560. what is, 1684. REASONABLE REGULATIONS, expelling persons for failing to comply with, 200. REASONABLE TIME, preferred stock must be issued within, 82. stockholders must purchase new shares of stock within, 87. for infant to disaffirm purchase or sale of stock, 93. in which to withdraw conditional subscription, 115. in which to complete road, 120. in which to take advantage of fraud, 132. for inspecting corporate books by stockholders, 172, n. for disavowing agent's acts, 227. for stockholders to claim dividends, 309. in which to exchange bonds for stock, 483. in which to sell under decree, 515. in which to attack fraudulent foreclosure sale, 529. for minority bondholders to act, 534. for receiver to adopt or reject lease, 567. for company to restore street and highway, 639. to enforce compensation and damages, 1007. to pay damages in condemnation proceedings, 1033. in which to remove debris from adjoining land, 1057. to make repairs after discovery, 1176. in which to repair fences, 1185. in which to close and repair gates, 1200. to make repairs to fences, 1209. where bill of lading is silent as to time of shipment, 1423, n. for connecting carrier to receive goods, 1449. for consignee to remove goods, 1464. for passengers to remove baggage, 1464, n. for carrier to furnish cars, 1476. duty to transport goods within, 1482. in which to present claim for injury to freight, 1512. carrier must make delivery in, 1520. for delivery, question of fact as to what is, 1520. consignee has in which to unload freight, 1521. to secure identification of consignee, 1525. for consignee to receive goods, 1527. for consignee to inspect and remove goods, 1528. custom and usage as affecting question of, 1528. when a question of law or fact, 1528. 3080 INDEX. [References are to Sections.] Vol. I, §§ 1-3S1, Vol.11, ^^3S3-918, Vol. Ill, §§ 919-1390,VoL IV, §§ 1391-1703. REASONABLE tlKE— Continued. definition of, 1528. for consignee to inspect and pay for goods, 1530. duty to complete carriage of live stock within, 1555. for passenger io leave depot or train, 1592. for passenger to search for lost ticket, 1594, n. keeping ticket office open for, 1603. giving passenger reasonable time in vifhich to pay fare, 1603. for passengers to alight, 1628. passenger trains stopping for, 1628. to call for and claim baggage, 1652. for passenger to call for baggage, 1659. REASONABLENESS, of by-laws for the court, 193. of rules and regulations, 202. REASONABLENESS OF RATES, power of courts to determine, 691. REBATE, authority of agent to give, 303, n. when common carrier may lawfully give, 388. authority of receiver to pay, 566. discrimination by allowing, 1565. right of shipper to recover, 1565. effect of interstate commerce law on contracts for, 1565, n. discrimination and unjust preferences by giving, 1680. as effected by interstate commerce act, 1680. RECAPTION, vendor exercising right of, 1543. RECEIPT, bill of lading as, 1415. issuance not necessary to carrier's liability, 1462. effect of limitation in, 1502. carrier's right to on delivery, 1532. ticket as, 1593. baggage check as, 1655. RECEIPT FOR DAMAGES, effect of, 937. INDEX. 3081 \^Beferences are to Sections.] Vol. I, §§ l-SM, Vol. II, §§ 33S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RECEIVER, objecting to prosecution of writ of error in foreign state, 27, n. appointing over line in two states, 27. federal court appointing over line in two or more states, 27. appointing because no foreign agent has been named, 30. appointment of taking place of sequestration, 73. collecting calls and assessments to pay debts, 146. right to vote as stockholder, 158. stockholder acting as, 169. compromising corporate subscription, 177, n. may recover unpaid installments of stock, 178. bringing suits against stockholders, 184. represents creditors, 184. can not enforce statutory liability against stockholders, 187. appointing on failure to elect officers, 248. president has no power to consent to appointment of, 285. when may claim unpaid dividends, 309. may recover dividend paid by insolvent corporation, 315. right to repudiate corporation's ultra vires contracts, 379, n. power to lease, 465. when may maintain suit to foreclose, 510. who liable for negligence of, 515, n. sale by pending foreclosure, 523. how to apply proceeds derived pending foreclosure, 528. when may assist in reorganization scheme, 536. generally, 537. definition of, 537. indifferent between parties, 537. when may and may not be sued, 537. when may bring suits, 537. jurisdiction of courts of equity to appoint, 538. statutory provisions in reference to appointment of, 538. effect of statute naming grounds for appointment of, 538. statutes regulating appointment of for railroad companies, 538. grounds for appointment of, 538, n. power of court to appoint in vacation, 538, n., 559. jurisdiction to appoint sparingly exercised, 539. purpose of appointment, 539. appointing to manage road, 539. for failure to run trains, 539, n. will not be appointed because would do no harm, 540. courts reluctant to appoint for railways, 540. usually appointed only when suit is pending, 540, 560. general rule as to when will be appointed, 540. reviewing action of trial court in appointing on appeal, 540, n. 3082 INDEX. [References are to Sections.'] Vol. I, §§ 1-Sn, Vol. II, §§ SSg-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. 'KEC^IY'ER— Continued. cases in which will be appointed, 540, n. will not be appointed merely because parties consent, 541. extent to which jurisdiction to appoint has been exercised, 542. insolvency as ground for appointment of, 543. to protect rights of stockholders, 543. when insolvency without default sufficient to entitle to, 544. will not be appointed because of expected insolvency, 544. statute making insolvency ground for appointment of, 544. default in payment of indebtedness as ground for appointment, 545. taking charge of earnings, income, tolls and rents, 546. taking charge of earnings pending foreclosure, 546. appointing in foreclosure proceedings, 546. only appointed when necessity and right clear, ."j4'j, n. various grounds for appointment of, 547. for purpose of completing road, 547. appointing to prevent abuse of corporate franchises, 546, n. appointment upon application of unsecured creditors, 548. where claims have not been reduced to judgment, 548. appointing in proceedings supplementar}' to execution, 548. appointment upon application of secured creditors, 549. appointment on application of junior mortgagee, 549. appointing upon application of stockholders, 550. appointing upon application of corporation, 551. appointing where no suit pending, 551. what court may appoint, 552. when may be appointed on appeal, 552. selection of by master, 552 court commissioner no power to appoint, 552. application for usually made in federal courts, 552. conflict of jurisdiction in appointment of, 558. can not be interfered with by officers of another court, 553. when appointment of not interference with other courts, 553. jurisdiction of court which appoints, 553, n. extra-territorial jurisdiction to appoint, 554. courts compelling railway company to convey title to, 554. when person appointed as becomes mere agent of corporation, 554, n. ancillary appointment, 555. effect of removal of suit in which appointed to the federal court, 555. when creditors may obtain priority over, 555. authority to maintain suits in foreignjstates, 555, 570. when powers of will be extended over subject-matter of second suit, 555. comity in matter of appointing, 555. rights and title in jurisdictions other than that appointing theiu, .555, n. INDEX. 3083 [References are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ Sg^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. ^^GEWER— Continued. appointment on ex parte application, 556. attachment and garnishment of property over which they have been appointed, 555, n. procedure in appointment of, 556. notice before appointment of, 556. when may be appointed without notice, 556. parties to proceedings for appointment of, 557. appointment upon motion or petition and notice, 558. notice of application for appointment of, 558. appointing before answer or appearance, 558. who may appoint, 559. who may be appointed as, 561. removing one appointed by collusion, 561. is officer of the court, 561. order appointing, 562. order appointing fixing duties of, 562. rights as against attachments and executions, 563. effect of appointment, 563. when title dates from, 563, n. collateral attack on appointment of, 564. title and possession of, 565. control by the court, 566. seeking advice of court as to expenses, 566. authority, rights and duties of, 566. court sanctioning contracts of, 567. contracts of, 567. suits by, 568, 569. when may maintain suits in their own name, 568, defenses to suits by, 569. right to sue in other jurisdictions, 570. right to protect property in their possession, 570. court giving general leave to sue, 571. obtaining leave to maintain suits against, 571. suits against, 571. effect of failure to obtain leave to sue, 572. court of equity protecting, 572. complainant alleging that leave to sue has been obtained, 572. replevin against, 572, n. when properly in hands of may be garnished, 573. when may be sued without leave of court, 573. effect of act of congress on right to bring suits against, 573. rule where suits have been begun before appointment of, 674. when property in hands of may be levied upon, 574. may be substituted as party in actions for tort, 574, n. 3084 INDEX. [References are to Sections.] Vol. I, §§ 1-3Z1, Vol. II, §§ 3S^-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EECEIVER— Continued. court directing them to enter into contracts with employes, 575. protection of by the court, 575. fining and punishing persons interfering with, 575. general liability of, 576. liability similar to that of company operating road, 576. liability for torts, 577. when liable for torts committed before his appointment, 577. duty to obey orders of the court, 578. bound to perform duties to public, 578. mandamus against to compel performance of public duty, 578. liability on contracts, 579. liability on claims arising from operation of the road, 580. payment of claims on discharge of, 580. liability of corporation during receivership, 581. liability for failure to fence, 581, n. court authorizing to lease road, 582. for leased lines, 582. duty to account to court appointing them, 583. duty to allow inspection of books, 583. when entitled to right of appeal, 583. removal for failure to account, 583. accounts of, 583. when must look to person securing appointment for compensation, 584. statutes fixing compensation of, 584. compensation of, 584. reducing compensation of on account of negligence or mismanage- ment, 584. allowing him attorney's fees, 585. grounds for removal of, 586. removal and discharge of, 586. court removing those who disagree, 586, n. effect of removal or discharge of, 587. latitude allowed in incurring debts, 590. appointment of does not work dissolution, (i06, n. appointing to wind up corporation on dissolution, 612. when property in hands of subject to garnishment, 626. interfering with road in hands of a contempt, 633. right to remove action brought against him, 649, n. removing suits against those appointed by federal court, 652. corporation can not be prosecuted for acts of, 709. when not subject to penalty, 709. how appointment affects power of eminent domain, 958. how appointment affects question of corporate existence, 958. condemning property in hands of, 963. INDEX. 3085 [References are to Sections.'] Vol. I, §§ l-32i;.Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. HECEiyEB,— Continued. effect of appropriation of land by, 1049, n. construction contract witli, 1058. appointing to complete construction of road, 1062. duty to grant private crossings, 1142. liability for injuries to animals, 1208. appointment does not terminate existence of corporation, 1208. liability for ejecting trespassers, 1255, n. takes subject to the law, 1341. employer's liability acts where lines operated by, 1341. implied duty to carry passengers, 1393. contracting to carry beyond his line, 1434, n. validity of contract by to give passes, 1611. RECEIVER'S ACCOUNTS, duty to make, 583. referring to a master, 583. when exceptions must be taken to, 583, n. RECEIVER'S CERTIFICATES, when issue of will not be enjoined, 553. definition and nature of, 588. power of courts to authorize, 589. statutory authority to issue, 589, n. purposes for which they may be issued, 590. extent of power to issue, 590. to raise money to complete the road, 590. are paramount liens, 590. order giving authority to issue, 591. notice to parties before issuing, 581. appeal from order authorizing, 591, n. lien created by, 592. selling property subject to lien of, 592. statutory provisions as to lien of, 593. negotiability of, 594. effect of transfer of by indorsement, 594. rights of holders of, 595. holders charged with notice of what, 595. sale of at a discount, 595. who may question validity of, 596. payment and redemption of, 597. laches in presenting, 597. holders sharing pro rata in proceeds on sale, 597. 3086 INDEX. l^Beferences are to Sections. J Vol. I, §§ 1-S21, Vol. II, §§ Sg^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RECEIVERSHIP, termination of, 586. when not terminated by removal or discharge of receiver, 587. RECITALS, effeM of those in municipal aid bonds, 882, n. in bonds creating an estoppel, 890, n. can not give bonds validity, 895. in bonds as notice, 896. in bonds, general doctrine as to estoppel by, 897. of attempt to agree in condemnation cases not sufficient, 1027. RECITALS IN BONDS, illustrative cases of estoppel by, 898. not always conclusive, 899. to constitute an estoppel must be of facts, 901. effect of against bondholders, 905. RECORD, effect of recording articles of association in wrong book, 18, n. keeping of proceeding of directors, 265. fraudulent interpolations in, effect, 265. placing mortgages on, 494. on removal of causes, 653. duty of railroad commissioners to keep, 695. effect on condemnation proceedings, 1001. condemnation proceedings as matter of record, 1014, n. fixing parties to condemnation proceedings, 1025. when must be made of report of commissioners, 1043. RECORD EVIDENCE, patent for land as, 796. REDEMPTION, of stock after forfeiture, 154, n. from sale to pay interest, 522. from foreclosure sale, 530. who may redeem from foreclosure sale, 530. statute authorizing, 530. from fraudulent sale to mortgagee, 585. of receiver's certificates, 597. REDUCED RATES, when carrier may give, 1593. REDUCTION, of capital stock, 87. of stock, how accomplished, 87. INDEX. 3087 [Meferences are to Sections.] Vol. I, §§ 1-SSl, Vol. n, §§ 3^2-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. REFERENCE, making documents part of contracts by, 450, n. UEFRBSHMENT ROOMS, contract to stop train at, 363. REFRIGERATOR CARS, when company must furnish, 1473. REFUNDING, of municipal aid bonds, 906. REFUSAL, of corporation to register transfer of stock, 98. REFUSAL TO CARRY, excuses for, 1466. duty to state grounds of, 1471. offer of goods, 1476. extraordinary press of business as excuse for, 1575. disregard of rules and regulations, 1576. improper or unfit persons, 1577. remedy for, 1691. action for damages as remedy for, 1691. duty of shipper on, 1691. measure of damages for, lp91, n. averring special damages, 1691, n. where action for should be brought, 1691, n. REGISTRATION, of stock on transfer, 92, 94, 96, 97, 98. of stock, who may demand, 98, n. of stock, mandamus to compel, 98, n., 157, n. of stock, as determining right to vote, 157. REGISTRATION OF BONDS, effect on their negotiability, 484. when required, 899, 908. REGULATION OP CHARGES, test of reasonableness, 692. "REGULATION OF INTERSTATE COMMERCE," meaning of the term, 1665. See Interstate Commerce. 3088 INDEX. [References are to Sections.} Vol. I, §§ 1-3^1, Vol. 11, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, ^US91-170.}. EEGULATIONS, governing transfer of stock, 93. legislature prescribing for public acts and duties, 662. authority to make is not legislative, 678. states making for domestic commerce, 690. power of legislature to prescribe, 721. See Rules and Eegulations. REJECTION, of report of condemnation commissioners, 1045. RELATION OF PASSENGER AND CARRIER, when it begins, 1579. authority of subordinate employes to create, 1580. trespassers and intruders can not create, 1581. termination of, 1592. assault after it has ceased, 1638. RELATOR, who may be in suit for mandamus, 643. RELEASE, of stockholders, 176. effect of legal disabilities on, 937. in cases of injuries causing death, 1376. avoiding, 1377. tender in suit to avoid, 1377, 1697, n. what injuries excluded by, 1377. burden of proving fraud in, 1377. there must be consideration for, 1377. by accepting benefits in relief department, 1384. when does not include claim for negligent treatment in hospital, 1390. must be specially pleaded, 1696. RELIEF DEPARTMENTS AND HOSPITALS, power of railroad company to establish, 1379. relief association not an insuraoce company, 1380. effect of rule that company can not contract against negligence, 1381. contract to accept benefits and release company not against public policy, 1382. consideration and mutuality of contract, 1383. when acceptance of benefits releases company, 1384. release of railroad company may be made a prerequisite to action against relief association, 1385. suit against company releases relief association, 1386. compromise with company releases relief association, 1386. INDEX. 3089 IBeferences are to Sections.] Vol. I, §§ 1-3^1, Vol. II, §§ 5«-9^S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RELIEF DEPARTMENT AND HOSPITALS— Con«m«ed. effect of acceptance of benefits by widow and child bar to action against company, 1387. hospitals and medical attendance, 1388. when company liable for negligence of surgeon in hospital, 1389. when release of claim against company will not include claim for neg- ligent treatment in hospital, 1390. RELIGIOUS PURPOSES, property used for exempt from taxation, 781. REMAINDERMAN, right to dividends, 307. when not bound by condemnation proceedings, 1020. REMANDING CAUSES, after removal to federal courts, 654, 655. by consent not permitted, 655. waiver of right to ask, 655. for failure to file transcript, 655, n. See Removal of Causes. REMEDIAL STATUTES, liberal construction of, 715. REMEDIES, stockholders', 165, 169. for enforcing liability of stockholders, 188, n. of old stockholders on consolidation, 328. receiver will not be appointed where there is, 540. can be no equitable relief where there is, 628. as affecting right to writ of mandamus, 637. mandamus will not be granted where there is, 640. where there are rights, 697. for illegal acts of railroad commissioners, 701. rule where there is statutory, 702. certiorari as remedy, 704. to prevent collection of illegal taxes, 751. for enforcement of local assessments, 790. of taxpayers against public aid, 872. of municipalities in reference to public aid, 873. of railroad companies in reference to public aid, 874. of bondholders, 918. specific performance may be granted where there is, 935. of grantor vs'here company fails to perform conditions subsequent, 942. to enforce payment in condemnation cases, 1048. 3090 INDEX. {Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. REMEDIES— Coratinaed. when statutory are exclusive, 1048. of landowner in appropriation cases, 1049. injunction where there is none at law, 1049, 1125. for breach of construction contract, 1062. for enforcing lien, 1074. for unlawful use of street, 1096. mandamus to compel restoration of highway, 1106. for breach of contract concerning railroad crossing, 1118. for redress of trespasses, 1125. for breach of contract to grant private crossing, 1141. for breach of contract to fence, 1188. law of the forum governs, 1365. where excessive charges are demanded, 1564. for breach of duty as common carrier, 1690. for refusal to carry, 1691. right to election of, 1693. See Actions; Injunction; Mandamus. REMOTE DAMAGES, not allowed in condemnation proceedings, 991. See 'Damages. REMOTE FIRES, definition of, 1231. liability for, 1231. REMOVAL, of directors from office, 271. REMOVAL OF CAUSES, by corporation to federal courts, 23. state legislatures attempting to prevent, 23. statutes now in force governing, 645. when authorized, 645. what are suits of a civil nature under the removal act, 646. parties, 647. court arranging parties as defendants and plaintiffs, 647. can not be secured by joining nominal or improper parties, 647. as affected by amount in controversy, 648. on ground of diverse citizenship, 649. diversity of citizenship must exist at time suit is brought, 649. separable controversy, 650. prejudice as ground for, 651. local influence as ground for, 651. right of one defendant to, 651. sufficiency of affidavit for, 651. INDEX.. 3091 [^Beferences are to Sections .1 Vol. I, §§ 1-3S1, Vol. II, §§ 322-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. REMOVAL OF CA.VS'ES— Continued. how affected by interests and costs, 651. amount in controversy, 651. where one party is an alien, 651, n. counter-affidavits as to prejudice or local influence, 651. removal where federal question is involved, 652. illustrative cases of ground for, 652. how to make federal question appear, 652. time and manner of making application for, 633. how filing of amended complaint affects right to, 653. bond and record on, 653. effect of application on jurisdiction of state and federal court, 654. duty of state court when petition is filed, 654. application for constitutes appearance, 654. effect where cause is remanded, 654. when jurisdiction of federal court attaches. 654. power of state courts over, 654. can not be remanded by consent, 655. burden of proof to show jurisdiction in, 655, n. pleading and practice in federal court after removal, 656. remanding and dismissing cause, 655. by state railroad commissioners, 708. REMOVAL OF RECEIVERS, for failure to account, 583. power of court over, 586. effect of, 587. REMITTITUR, where excessive damages are given, 1218. REMUNERATION, company can not be deprived of, 693. right of common carrier to, 1558. See Febight Charges; Compensation. RENEWAL OF CHARTER, consent of stockholders, 62. RENT, recovery of under unauthorized lease, 463. priority over mortgage indebtedness, 580. when entitled to no priority on appointment of receivers, 582, u. how covenant to pay affected by dissolution, 611, n. damages on account of decreased rental value of property, 996. damages for causing loss of, 1057. 3092 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 323-918, Vol. Ill, §§ 910-1390, Vol. IV, §§ 1391-1703. RENTAL VALUE, as affected by condemnation proceedings, 996. RENTS AND INCOME, right of junior mortgagee to possession of, 549. appointing receiver for without making lessee a party, 557. duty of receiver to keep down Incumbrances out of, 562. REORGANIZATION, fraud in, effect, 535. court confirming plan of, 536. by the courts, 536. See Sale and Reorganization. REPAIR SHOPS, implied authority to maintain, 41. purchasing land for, 933. REPAIR TOOLS, subject to mortgage lien, 498. REPAIRS, implied power to make, 41. paying for before paying dividends, 81. appointing receiver when oflacers fail to make, 547. authority of receiver to borrow money for purposes of, 589. raising money on receivers' certificates for purposes of, 590. levying local assessments to pay for, 783. when mortgage prior to lien for, 1072, n. of street by railroad company, 1081. making at highway crossing, 1112. expense of making at railroad crossing, 1127. agreement to make at railway crossings, 1128. agreement to make as condition precedent to securing railway crossing, 1134. of railroad crossings, 1134. of private crossing, 1146. negligence in failing to make at crossings, 1176. reasonable time to make after discovery, 1176. proof of those subsequent to injury, 1177. duty to make to fences, 1185. duty to make to cattle-guards, 1198. reasonable time to make to fences, 1209. duty to make to fire-arresting apparatus, 1224. INDEX. 3093 [References are to Sections.} Vol. I, §§ 1-3S1, Vol. II, §§ :r^2-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. "REFAl^S— Continued. duty to make to platforms, 1256. effect of promise to make, ]272. how promise to make affects employer's liability, 1295. competency of evidence to show subsequent, 1349. See Promise to Ebpaie. EEPEAL, of corporate charter, 43. of by-laws, 196. by implication, 645, n. of city ordinances, 1079. REPEAL OF OHARTEE, reserved power in reference to, 56. where conditional power is reserved, 57. by legislature in place of quo warranto, 57. power of courts to review, 57. rule where power is not reserved, 58. effect of, 59. by general laws, 60. effect of, 611. REPLEVIN, authority of receiver to maintain action of, 568, n. when may be maintained against receiver without leave of court, 572, n. when action for may be removed to federal court, 646. right of pledgee to maintain, 1426. where reasonable freight charges are tendered, 1564. REPORT, as to corporate business, effect of fraud in, 282. REPORT OF COMMISSIONERS, in condemnation cases, 1041. confirmation by court, 1041. must be in writing, 1041. must be duly signed, 1041. when must contain description of property, 1041. what defects in may be waived, 1041. matters required by statute must appear, 1041. illustrative cases as to requisites of, 1042. should show me'eting of commissioners, 1042. degree of certainty required in, 1042. how closely statute must be followed, 1042. extending time for making, 1043. Corp. 197 3094 INDEX. [Beferencea are to Sections.'] Vol. I, §§ l-sn. Vol. 11, §§ SS'J-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. EEPOET OF COMMISSIONERS— Confi««ed. time within whicli report must be made, 1043. when must be recorded, 1043. objections to, 1043. motion or petition to set aside, 1044. affidavits to support or impeach, 1044. modiiication of, 1045. remitting to commissioners for review and correction, 1045. confirmation or rejection, 1045. sufficiency of order confirming, 1045. REPRESENTATIONS, effect of false ones in obtaining subscriptions, 127. REQUEST, to corporation to bring suit, 165. when must precede suit by stockholder, 620, n. See Demand. RES ADJUDICATA, when appointment of receiver is, 564. See Collateral Attack. RES GEST.-E, declarations and admissions as part of, 217. agent's declarations as part of, 218. in prosecution for obstructing track, 730. RES IPSA LOQUITUR, doctrine of, 1263. RESCISSION, of contract made with promoter, 12. of subscriptions, 132, 873. when must be in toto, 132. when can take place, 132. when stockholder entitled to, 176. RESERVATION, of right to amend or repeal charter, 43. RESERVED LANDS, how affected by land grants, 798. RESERVED POWER, in reference to repeal of charter, 56. INDEX. 3095 [^Seferences are to Sections.'^ Vol. I, §§ 1-Sn, Vol. II, §§ 3S13-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. RESIDENCE, of signers of articles of incorporation, 18. stating incorporators' in articles, 18. only stated in articles when statute requires, 18, n. of corporation, 24. of federal corporations, 25. stating directors', 36. RESIDENT CREDITORS, right as against foreign receivers, 570. RESOLUTION, directing payment of calls, 134. providing for compensation of directors, 272. RESPONDEAT SUPERIOR, rule applicable to directors, 440. doctrine of, 1316. when rule of does not apply, 1625. RESTAURANTS, implied authority to maintain, 41. when company may maintain, 931. RESTORATION OF HIGHWAY, mandamus to compel, 639, 1106. RESTRICTIONS, bill of lading assigned subject to, 1429. RETROSPECTIVE LAWS, in reference to public aid, 843. RETURN, to service of process, 621, 622. RETURN FOR TAXATION, t failure of corporation to make, 743. duty of corporation to make, 792. REVERSION, considering in fixing damages in condemnation proceedings, 994. as affecting compensation and damages, 995. REVERSIONERS, life tenant can not bind, 934. as parties to condemnation proceedings, 1025. 3096 INDEX. [References are to Sections.} Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. REVOCATION, of license by state, 29. of conditional subscription by death, 112, n. of conditional subscription, 113, n. of dividends, 310. of stock dividend, 313, n. REWARD, power of railway company to offer, 42. right of director to for recovery of stolen property, 272, n. authority of superintendent to offer, 297. RIGHT OF ACTION, validity of contract waiving, 1358. where there is instantaneous death, 1363. RIGHT OF WAY, definition of, 5. real estate, 31. implied power to condemn lands for, 41. granted for free pass, 364, n. agreement giving telegraph company exclusive right on void, 388. is real estate, 389. presumption as to width, 401, 938. what the term means in conveyances, 415. local assessment on to pay for street, 786. is not abutting property, 787. mode of assessing, 788. assessing as abutting property, 788. enforcing local assessment against, 790. one company using another's, 921, 922. acquiring by purchase, 930. sale to another company is not an abandonment, 931. reverting to owner on abandonment, 931. title to by adverse possession, 931, n. how width of fixed, 938. meaning of, 938, n. when lands can not be dedicated for, 947. condemning land for, 960. when longitudinal condemnation authorized, 966. increasing width by condemnation, 971. width taken for under condemnation proceedings, 973. ground upon which company may increase width of, 973. condemning varying widths, 973. how tracks may be located on, 973. taking that of another road, 974. INDEX. 3097 ^References are to Sections.] Vol.1, m-SSl, Vol.11, ^^312!S-918, Vol. Ill, ^^919-1390, Vol. IV, ^ 1391-1703. EIGHT OF 'WAX— Continued. longitudinal condemnation not permitted, 974. injunction to prevent condemnation of, 974. telegraph line as additional burden to, 977. exclusive possession of, 987. damage to landowner for fencing, 996. how failure to procure affects construction contracts, 1062. right of other roads to cross, 1116. damage by constructing other line across, 1127. how conveyance of affects right to private crossing, 1138. right to private crossings where it was secured by condemnation pro- ceedings, 1139. stranger no right on, 1152. fences must be erected along margin of, 1181. secured by agreement to fence, 1188. waiving duty to fence, 1189. full width of must be protected by fences, 1199. clearing entire width of combustibles, 1226. duty to clear of combustibles, 1226. statutes requiring removal of combustibles from, 1226. fires set to burn off, 1227. fires started on, 1229. negligence in suffering fire to escape from, 1229. liability for fires started off of, 1230. insurable interest in property along, 1234. burning property located on, 1235. contracts in reference to location of buildings on, 1235. contracting against liability for burning property on, 1236. landowner erecting buildings near, 1238. landowner stacking grain near, 1238. placing property on awaiting shipment, 1238. employes assuming danger of ditches and drains along, 1272. giving'passes in consideration for, 1611. See Acquisition op Eight of Way, Duty to Fence; Eminent Domain. EIGHT TO VOTE, how stockholders' determined, 157. EIGHTS, of foreign corporation, 26. of stockholders, 156, 169. extent of receiver's, 566. EIGHTS AND EEMEDIES, of stockholders objecting to issue of preferred stock, 82. See Eemedies. 3098 INDEX. [Beferences are to Sections.'] Vol. I, m-SSl, Vol.11, %% 32^-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. EIOTERS, are not public enemies, 1458. RIPARIAN PROPRIETOR, enjoined from erecting levee, 632. damages for interfering with, 976, 977. RISK OF SERVICE, employe assuming, 1192. structures near the track, 1269. assumption of, 1269, 1270, 1288. when dangers from low bridges are not, 1271. ordinary dangers, 1283. only ordinary ones assumed, 1288. illustrative cases of, 1290. effect where employe has knowledge of, 1292. brakeman assumes ordinary ones, 1296. assumption by engineers and firemen, 1297. outside line of duty, 1304. what defects employe takes risk of, 1311. breach of statutory duty is not, 1345. known defects, 1345. RISKS, passenger assuming on freight trains, 1582, 1609. passengers assume some, 1585. assumption of in riding on freight trains, 1629. See Assumption op Risks. RIVAL BUSINESS, when directors may engage in, 275. RIVAL COMPANY, effect of purchasing shares in for purposes of litigation, 167. enjoining it from voting stock, 174, n. rights in streets, 1083. effect of colorable possession by one, 1083. using track of other company, 1084. RIVAL LINES, can not be leased, 447. taxing to aid other road, 830. ROAD, abandoning as cause for forfeiture, 49. conditions as to beginning and completing, 117. when completed as to ]ni\k<^ subscription absolute, 117. INDEX. ' 3099 \^Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. 11, §§5^2-915, Vol. ITT, §§ 919-1390, Vol IV, §§ 1391-1703. EOAD — Continued,. effect of abandonment of on subscriptions, 123. effect of sale of on subscriptions, 123. contracts permitting use of part of, 357, 440. appointing receiver to complete, 547. mandamus to compel completion and operation of, 638. when construction of deemed commenced, 1056, n. See Location of Koad; Construction op Road. EOAD-BED, definition of, 5. real estate, 31. right to injunction to prevent interference with, 632. using that of another company, 922. duty to construct, 1056. lien for clearing, 1068. duty to put in reasonably safe condition, 1268. duty to keep safe owing to brakemen. 1296. engineers assuming risks of defects in, 1297. what company liable for defects in, 1573. liability for defects in, 1584, 1625. duty owing to passengers in respect to, 1585, 1629. duty of carriers of passengers as to, 1586. EOAD MASTER, not authorized to employ surgeon, 222. when vice-principal, 1324. ROADWAY, definition of, 5. ROBBERS, stipulating against liability from loss by, 1513. ROLLING STOCK, not necessary to existence of corporation, 4. real estate, 31. personalty, 31. when and when not real estate, 389. when covered by general mortgage, 495. mortgage covering after-acquired, 498. what amounts to mortgage on, 502. liability of receiver for rent on, 580. issuing receiver's certificates to pay for, 590 amount company required to keep, 1470. 3100 INDEX. \^Beferences are to Sections.'] Vol. I, §§ l-sn, Vol. II, §§ Sfl2-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. ROUND-HOUSES, part of railroad track, 5. street can not be opened through, 1104. ROUND-TRIP TICKETS, when must be stamped at end of line, 1597. for how long good, 1597. effect of sale of by passenger, 1597. ROUTE, amending charter to change, 43. slight change immaterial, 45, n. subscriptions conditioned on location of, 116. designating, effect on subscriptions, 121. evidence of abandonment of, 122. alteration of that fixed by charter, 122. contract to change, 374. ' contract to influence location of is void, when, 386. how staking and surveying affects land grants, 804. discretion as to selection of, 920. change of, 929. discretion of company as to selection of, 954. following that designated by shipper, 1440. when initial carrier may select, 1440. authority of initial carrier to select, 1569. See Line; Location of Road. RULES AND REGULATIONS, implied authority to make, 41. in England, 198. distinguished from by-laws, 199. right of railroad company to make, 199, 1567, 1576. examples of those which company may make, 200. when customer not bound to take notice of, 200. enforcement of, 201. reasonableness of, 202, 1576. when reasonableness a question of fact and when of law, 202, 1280. conductor must enforce, 302. authority of station agents to enact, 303. power of legislature to require, 657. posting in depots and stations, 662. railroad commissioners making, 678, 695. duty to procure observance of, 1280. failure to promulgate as proximate cause, 1280. duty of employes to obey, 1280. duty to promulgate can not be delegated, 1280. INDEX. 3101 [Beferences are to Sections.'] Vol. I, §§ l-sn, Vol. n, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. TV, §§ 1391-1703. EULES AND REGULATIONS— ConiiniieS. duty of master to promulgate, 1280. violation of by employes, 1282. effect of custom to disobey, 1282. waiver of obedience to, 1282. duty of employe to acquaint himself with, 1294. duty of employer to promulgate, 1294. contributory negligence in disobeying, 1313, 1814. adopted by car service associations, 1568. passengers disregarding, 1576. must be reasonable, 1576. entering train in compliance with, 1579. subordinate employes can not abrogate, 1580. employes no power to make, 1580. person violating as trespasser, 1581. right to make as to stop-over privileges, 1595. affecting mileage tickets, 1600. requiring extra fare when paid on the train, 1603. as to carriage of baggage of person riding on pass, 1615. effect of notice to passenger of, 1627. against standing on steps and platforms, 1630, n. ejecting passengers for failing to comply with, 1637. effect where passenger knowingly disobeys, 1643, 1696. as to receipt of baggage, 1651. governing interchange of freight, 1685. effect of violation by passenger, 1696. RUNNING SWITCHES, validity of statute to prevent, 668. RUSH OF BUSINESS, effect on duty to care for live stock, 1553. effect of delay caused by, 1555. as excuse for refusal to carry passengers, 1575. See Press of Business. s SAFE WORKING PLACE, duty of employer to furnish, 1267, n. See Master and Servant. SALARIES, power of directors to provide for payment of, 251. effect of paying extravagant and unreasonable, 693. 3102 INDEX. [References are to Sections.} Vol. I, ^^1-321, Vol. II, §§ 33S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SALE, of railway in different states, 27. of road as cause for forfeiture, 49. of corporate franchise, 67. of corporate property, effect on franchise, 70. of corporate franchise on execution, 72. corporate franchises, on dissolution, 75. of corporate stock, 92. of stock for less than par value, 110. of road, effect on subscription, 123. of stock on forfeiture, 150. formalities to be observed in sale of forfeited shares of stock, 152. lease having effect of, 455. of entire road on foreclosure, 507. right of trustee to make, 514. decree of foreclosure fixing terms of, 515. of road in two states under decree, 515. franchise and necessary property can not be sold without statutory authority, 519. power to mortgage does not authorize, 519. railroad can not be sold in fragmentary parts, 520. appointing receiver to investigate that made by insolvent corporation, 541. when that under execution after appointment of receiver void, 574. lien of receiver's certificates on proceeds of, 592. how affects appropriation cases, 1025. proof of as evidence in condemnation cases, 1036. as admissions in condemnation proceedings, 1036. to enforce carrier's lien, 1571. SALE AND REORGANIZATION, execution sales, 520. foreclosure sales, 521. sale on default in payment of interest, 522. sale of road as an entirety, 522. sale of consolidated road, 523. sale by receiver pending foreclosure, 523. discretion of trustees and officers as to time and manner of sale, 524. effect of sale, 525. purchaser's title, 525. when purchaser takes title free from liabilities and liens, 526. when debts and liabilities of old company must be assumed, 526. disposition of proceeds of sale, 527. six months rule as to preferred claims, ;V2S. Betting sale aside, 529. INDEX. 3103 [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SALE AND REORGANIZATION— ConfOTMed. redemption, 530. reorganization by purchasers at sale, 531. power of legislature to provide for reorganization, 581. statutory reorganization, 532. liability of new corporation, 532. rights of stockholders in the new corporation, 532. rights of minority upon reorganization by agreement, 533. rights and obligations of the parties, 534. laches and estoppel, 534. effect of fraud in, 535. reorganization by the courts, 536. SALE OF LAND, distinguished from donation of, 413. SCALES, railroad's implied authority to maintain, 41, n. SCALPERS, regulation of, 728, 1599. SCALPING, statutes to prevent, 1599. SCHEDULE, authority of conductor to change, 302. mandamus to control size of type for printing, 641, n. posting in depots and stations, 662, 1686. action to enforce, 698. mandamus to compel posting of, 699. parties to suit to enjoin establishment of, 703. statute requiring posting is constitutional, 722. duty to prepare can not be delegated, 1281. duty of company to adopt, 1281. SCINTILLA OF EVIDENCE, not sufficient to justify verdict, 1696. not sufficient to carry case to the jury, 1702. SCIRE FACIAS, to question corporate charter, 53. as remedy to enforce mechanic's lien, 1074. See Quo Warranto. 3104 INDEX. ^Beferences are to Sections.] Vol. I, §§ 1-3^1, Vol. II, §§ 3:i!J-91S, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. SCOPE OF AUTHORITY OR EMPLOYMENT, liability for agent's acts within, 213. of corporate representatives, 215. effect of agent exceeding, 216. declarations and admissions within, eHect of, 217. of corporate representatives, 221. liability of directors for acts within, 279. secretary acting within, 295. company liable for acts of employes within, 1255. brakeman ejecting trespassers, 1255. how to determine, 1266. as question of fact, 1266. acts of conductor without, 1265. torts committed outside of, 1265. liability for employer's willful acts within, 1265. performing work outside of, 1303. when employe without is mere licensee, 1303. assaults by employes within, 1638. See Mastbe and Servant; Ookpokate Repbeskntatives. SCRIP, dividends payable in, 319. paying interest on bonds in, 482. SEAL, when contracts must be made under, 345, 410. when necessary to validity of bonds, 485. company turning over to receiver, 562, n. SEATS, effect of failure to furnish passengers with, 1630. SECOND APPROPRIATION, when may be made under eminent domain power, 962. SECOND MORTGAGE BONDS, when may have priority over first mortgage bonds, 500. SECRET AGREEMENTS, effect of those made with promoters, 11, n. when subscriber can not take advantage of, 126. when render subscription fraudulent, 131. to release subscriber is invalid, 176, n. with stockholders, fraud, 181. INDEX. 3105 [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SECEETABY, notice to is notice to corporation, when, 226, n. authority and powers of, 295. attaching seals to contracts, 345, n. affidavit by in support of change of venue, 615, n. is not laborer within lien law, 1070, n. service of notice on, 1071. SECRETARY OF STATE, filing articles of association with, 18, 326. declaring forfeiture of corporate charter, 54, n. filing map of location with, 926. SECTION AGENT, authority to employ surgeon, 222. See Agents. SECTION FOREMAN, authority to invite person to ride on hand-car, 221. service of process on, 621. when vice-principal and when fellow-servant, 1319. SECTION MEN, assuming risks from running of trains, 1298. as fellow-servants of trainmen, 1324, 1332. SECUNDUM ALLEGATA ET PROBATA, plaintiff can recover only, 1628. SECURED CREDITORS, appointment of receiver upon application of, 549. how affected by appointment of receiver, 563. See Cebditoes. SECURITIES, implied power to take and dispose of, 42. rights of innocent holder, 351. See Railroad Securities. SEIZURE UNDER LEGAL PROCESS, as excuse for failure to deliver, 1537. SELLER, when still liable on stock, 95. See Vendor. 3106 INDEX. [^Beferences are to Sections."] Vol. I, §§ 1-3^1, Vol. II, §§ S23-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SENIOR MORTGAGEE, appointing receiver when he is in possession, 549. duty to junior mortgagee, 549. SENSES, duty of traveler to use, 1157. See Crossings. SEPARABLE CONTROVERSY, in removal of causes, 650. question of determined from pleadings, 650. can not be raised by answer, 650. SEPARATE ACTIONS, to enforce contract of subscription, 105. SEPARATE CARS, for ladies and escorts, 200. for colored passengers, 200. SEQUESTRATION, of corporate property, 73. appointing receivers taking place of, 73. SEQUESTRATOR, how distributes money received, 73. discharge of when debts are paid, 73. power to sell corporate property, 73, n. See Receivers. SERVANTS, corporate power to choose, 203. authority to employ, who has, 225. president's power to employ and discharge, 285. distinguished from intermediate agents, 301. when lessor liable to lessee's, 472. liability for torts of, 617, n. distinguished from corporate representatives or officers, 1266. power to waive obedience to rules, 1282. duty to employ competent ones, 1284. notice of incompetency of, 1322. See Master AND Servant; EmpLOYiis; Injuries to Employes. SERVICE OF NOTICE, in actions against corporations, 621. return of, 622, in appropriation cases, 1023. following statutory mode, 1023. on agent, when sufficient, 1023. INDEX. 3107 [Beferences are to Sections.] Vol. I, §§ 1-3^1, Vol. II, §§ 332-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SERVICES, paying for with watered stock, 88. payment of sabscription by, 106, 110. compensation for those rendered by directors, 272. right of receiver to compensation for, 584. company can not be compelled to render gratuitous, 672. SET-OFF, when stockholder entitled to against personal liability, 186. against claim for dividends, 310. by stockholder to action by receiver, 569. garnishee may set up defense of, 625, n. of damages against freight charges, 1558. SEWER, local assessment to pay for, 786. SHAREHOLDERS, vested right in property, 43. when not bound by new charter, 43. how repeal of charter affects, 59. holders of preferred stock are, 83. asking cancellation of gratuitous stock, 89. lien on stock of, 100. right to inspect corporate records, 265. relation of president to, 291. remedy for where directors fail to declare dividend, 314. how rights of affected by repeal of charter, 611. right to share with other creditors on dissolution, 614. when may be treated as partners, 619. See Stockholders. SHARES OF STOCK, state may own, 2. stating in charter number taken by subscribers, 36. certificates of, 78. personal property, 79. issue of fraudulent and spurious, effect, 79, n. issuing new ones on increase of capital stock, 87. purchasing and cancelling, 87. purchase of reissued, 87, n. sale and transfer of, 92. personal property, 92. who may own and transfer, 93. married woman may own, 93. 3108 INDEX. \^Beferences are to Sectioua .'\ Vvl. 7, §§ 1-321, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-170S. SHARES OF WIOGK— Continued. purchase with trust funds, 94. purchase for benefit of cestui que trust, 94. when corporation can buy and sell its own, 95. corporation taking in payment of debts, 95. acceptance of constituting one a shareholder, 103. forfeiture of for nonpayment of calls and assessments, 149. forfeiture of on failure to pay subscriptions, 109, n. liability of transferee for calls and assessments, 150, n. each one usually entitled to one vote, 160. by-law forfeiting is invalid, when, 193, n. when by-law can provide for forfeiture of, 197. enforcing lien against by set-off or counter-claim to dividends, 310. receiving bonds in payment for, 483. when may be reached by attachment, 626. when stockholder may enjoin voting of, 634. when stockholder may enjoin forfeiture of, 634. when mandamus proper to compel transfer of, 637, n. taxation of, 743. See Stock; Stockholdbes. SHEEP, duty to fence against, 1190. duty to furnish double deck cars for shipping, 1551, n. SHERIFF, assisting receiver to obtain possession, 565 as interested party, 1024. SHIPMENT, liability for delay in, 1409. issuing bills of lading after, 1423. SHIPPERS, discrimination in favor of, 364. when may be enjoined from bringing suits, 632. mandatory injunction to secure conveniences for, 635. mandamus to compel company to treat all alike, 640. effect of requirement that they shall load, 1405. delivery by agent of, 1408. need not sign bill of lading, 1417. effect of acceptance of bill of lading by, 1417. making out bill of lading, 1417, n. disclosing value of goods shipped, 1421. deceiving carrier as to value of goods, 1421. misdirecting goods, liability of carrier for loss, 1432. INDEX. 3109 [^Beferences are to Sections.] Vol. I, §§ 1-321, Vol. II, §§ 322-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SHIPPERS— Continued. effect of where bill of lading made to shipper's order, 1427. change of consignment by, 1431. failure to read bill of lading, 1438. duty to obey instructions of, 1440, 1462, 1490 notice to of connecting carrier's refusal to receive goods, 1440. paying connecting carrier additional compensation, effect, 1451. liability of connecting carriers for, 1447, 1448. making initial carrier a forwarding agent, 1451. suing initial carrier, 1452. when connecting carriers liable to as partners, 1452. goods lost through fault of, 1454. notice to of legal proceedings, 1461. must be treated alike as to rates, 1467. burden of proof on to show unjust discrimination, 1467, n. duty to treat all alike, 1468. giving notice that cars are required, 1476. selection of cars by, 1480. notice to of delay, 1487. delay in transportation caused by, 1489. fraud of, 1491. negligence in packing and loading goods, 1492. placing goods in an exposed position, 1493. bound by printed conditions in bill of lading, 1494. not bound by general notice limiting liability, 1501. effect of their knowledge of general notice limiting liability, 1501. when required to sign contract of shipment, 1501. bound by conditions in bill of lading, 1502, n. option to accept reduced rate, 1504. power of their agents to agree to contract limiting liability, 1507, effect of insurance taken by, 1509. when insurance company subrogated to rights of, 1509. when bound by stipulation as to value, 1510. when estopped by value given, 1510. when must show freedom from negligence on their part, 1516. when burden of proof as to loss rests on, 1516. carrier not liable for loss caused by fraud of, 1534. non-delivery caused by acts of, 1535. negligence or mistake of in marking goods, 1535. right to change directions or instructions, 1536. accompanying shipment of live stock, 1549. negligence of in loading live stock, 1550. efiect where they select cars, 1551. giving them opportunity to load and unload stock, 1552. Corp. 197 3110 INDEX. [^lieferences arc to Sections.] Vol. I, ^U-SSl, Vol. II, §§ 32-2-918, Vol. Ill, §§ 919-1S90, Vol. IV, ^^1391-1703. SHIPPERS — CoJUiftwed. feeding and watering stock, 1553. when may recover excess freight charges, 1560. tendering reasonable charges, 1564. right to recover rebates, 1565. effect of granting privilege to, 1676. effect of furnishing cartage to some, 1678. rates where they have side-tracks and switches, 1678. unreasonable classification of, 1678. effect of giving rebates to, 1680. notice and demand for cars, 1691. duty of on refusal to carry goods of, 1691. See Consignor. SHIPPING DIRECTIONS, effect of countermanding, 1536. SHIPPING NOTE, construed with bill of lading, 1424. SHIPPING RECEIPT, in effect the same as a bill of lading, 1415, n. SHOOTING AT CAR, as a crime, 731. SHOPS, right to acquire real estate for, 393. land may be condemned for, 960. condemning land for construction of, 971. SHORT HAUL, freight rates for, 1682. See Long and Short Haul; Intbhstate Commerce. SHRINKAGE, effect on freight charges, 1561. SICK PERSON, refusal to carry as passenger, 1577. SIDE-TRACKS, real estate, 31. power to build, 42. not required to be completed in limited time, 47, n. stipulation that none shall be built is void, when, 386. INDEX. 3111 {^Beferences are to Sections.'\ Vol. I, §§ 1-3^1, Vol. II, §§ 323-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SIDE-TRACKS— CoMfireued. right to acquire real estate for, 393. construction of compelled by mandatory injunction, 635. land may be condemned for, 960. right to locate and construct, 923. ■when land can not be condemned for, 961. leading to manufacturing establishments, 961. condemning land for one leading to turn-table, 971. condemning land for construction of additional, 971. condemning land for, generally, 973. when contractor not entitled to extra pay for building, 1060. when not a part of depot grounds, 1194, n. loading freight in cars on does not constitute delivery, 1411. when delivery upon is sufficient, 1521. rates where shippers have, 1678. discrimination in granting use of, 1678. SIDEWALK. constructing railroad on, 1080. SIGNALMEN, relation to company, 1328. SIGNALS, when lessee must give, 461, n. duty of lessee to give, 471. indictment for failure to give at crossings, 718, 721, 1158, duty to give, 721. crime to alter, 730. requiring by law passed after road built, 1102. at highway crossings, 1114. by ringing bell or sounding whistle, 1114. failure to give causing injury, 1114. when required at private crossings, 1150. for whose benefit they are required, 1150, 1158, 1264. when not required at private crossings, 1154. at highway crossings, 1156. effect where ineffectual, 1156. failing to heed those of flagman, 1157. on approach to crossings, 1158. effect of negative evidence as to giving, 1158. at what highways required, 1158. where train is being backed, 1162. failure to give where party sees trains, 1168. when omission amounts to an invitation to cross, 1171. 3112 INDEX. \_Befere7ir,es are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 333-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. ^IG^AIB— Continued. omission not an invitation to cross, 1171. where animals are on the track, 1206. proof of omission as evidence of negligence, 1206. omission not negligence per se, 1206. omission must be proximate cause of injury, 1206, 1264. negligence in recklessly giving, 1207. effect of custom to give, 1252. whether trespassers entitled to, 1257. while making up trains in yards, 1258. frightening horses, liability, 1264. to whom owing, 1264. negligence in giving, 1264. when not intended for benefit of employes, 1310, n. duty to give for protection of passengers, 1589. SIGNATURES, to bonds, 485. SIGN-BOARDS, requiring company to keep at highways, 724. cost as element of damage where street is opened, 1103. when required at crossings, 1114, 1157. SILENCE, when constitutes waiver of conditions in subscriptions, 115. ratification by, 227. consent to reorganization scheme by, 533, n. estoppel by, 871. SIX-MONTHS' RULE, in reference to preferred claims, 528. SLANDER OF TITLE, stockholder can not enjoin against the corporation, 634. SLEEPING-CAR, porter not fellow-servant of trainmen, 1320, rule requiring first-class tickets to ride on, 200. rights of persons holding passed to be carried in, 1614. contracting contagious disease on, 1618. injuries caused by defects in, 1618. who entitled to ride in, 1619. duty to heat, 1621. relation of railroad company to passenger on, 1625. injury to passengers received in, 1640. See Berths ; Sleeping Car Companies. INDEX. 3113 [Beferences are to Sections.] Vol. I, §§ 1-Sn, Vol. II, §§ SS2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 _ SLEEPING-CAR COMPANIES, levying privilege tax on, 762, n. employe of as a passenger, 1578. general nature of, 1616. neither common carriers nor inn-keepers, 1616. effect of lease by, 1616, n. duty to furnish accommodations, 1617. judicial notice of what they undertake, 1617. duties not as broad as carriers', 1617. refusing to receive unfit person, 1617. liability for assaults committed by porters, 1618. duties and liabilities of, 1618. liability for defects in cars, 1618. as instruments of interstate commerce, 1618. how affected by public policy, 1618. taxation of, 1618, n. refusal to furnish berth, 1619. right of railroad company to determine on what trains or tickets sleep- ing-car berths shall be furnished, 1619. tickets, 1620. berths, 1620. how many berths may sell to one passenger, 1620. admitting insane persons, 1621. liability for assaults by employes of, 1621. duty to awaken passengers, 1621. illustrative cases of duties to passengers, 1621. duties to passengers, 1621. duty as to property of passengers, 1622. duty as to employment of servants, 1622. liability for theft on its cars, 1622. baggage of passengers, 1623. when have burden of proof where baggage is lost, 1623. liability of for loss of property of passengers, 1623. contributory negligence of passenger in loss of baggage or property, 1624. relation of railroad to passenger traveling in sleeping-car, 1625. railroad companies requiring compensation for sleeping-car accommo- dations, 1626. limiting liability, 1627. when employes regarded as employes of railroad company, 1640. SLEEPING-CAE PORTEES, passengers while riding on passes, 1604. See PoETEEs. 3114 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-381, Vol. II, §§ S82-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SLIGHT DEVIATIONS, not ground for forfeiture of charter, 48. SMOKE, right of adjoining owner to complain of, 418. when not a nuisance, 718. compensation for damages by, 978. damage caused by, 995. obstructing view at crossings, 1170. SMOKING, prohibiting in street cars, 1082, n. SNOW, obstructing cattle-guards, 1198. SNOW DRIFTS, no duty to remove from fences, 1196, n SNOW STOEM, excusing carrier's delay, 1555. SOLDIER, as a passenger, 1578, n. SOLICITING AGENT, when no power to contract for extra-terminal liability, 1437, n. SOLICITOR, authority to emploj' surgeon, 222. complainant's should not be appointed receiver, 561, n. See Attorney ; Counsel. SOVEREIGNTY, eminent domain an attribute of, 950. SPARK ARRESTERS, duty of company in reference to, 1224. effect where most improved are used, 1224. duty to keep in repair, 1224. duty to inspect, 1224. immaterial where fire started in combustibles, 1226, burden of proof in showing condition of, 1242. negligence in failing to use, 1244. See Fires Set by Railway Companies. INDEX. 3115 [Beferences are to Sections.'] Vol. I, §§ 1-321, Vol. II, ^S2S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SPARKS, appliances to prevent escape of, 1224. negligent emission of, 1225. emission as evidence of negligence in iire cases, 1244. SPECIAL ACT, forbidden by constitution, 18. amending special cliarter, 34, n. construction of one authorizing public aid, 836. when invalid, 843, n. SPECIAL APPEARANCE, effect of, 654. SPECIAL ASSESSMENT, is not civil action within removal act, 646. referable to taxing power, 950, n. See Local Assessments. SPECIAL BENEFITS, deducting in fixing compensation and damages, 982. from opening railroad, 987. distinguished from general, 989. definition of, 989. SPECIAL CHARTER, creation of corporation by, 16. acceptance of, 16, n., 35. must be accepted, 17. presumption of acceptance, 17. express acceptance not required, 17. how derived, 34. constitution prohibiting, 34. amending by special act, 34, n. when may be amended, 43. repeal of by general laws, 60. right to forfeit stock given by, 150, n. fixing location of road in, 919. change of route authorized by, 930. SPECIAL CONTRACT, for carriage of passengers, 364. limiting carrier's liability, 1394. express companies do business under, 1394. to carry beyond end of road, 1436. right to limit liability by, 1500. 3116 INDEX. [Beferences are to Sections.'] Vol. I, §§ l-sn, Vol. II, §§ 32S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SPECIAL CONTRACT— ao)i«inMed. nature of one required to limit carrier's liability, 1501. limiting liability, embodied in receipt or bill of lading, 1502. limiting liability, burden of proof to show, 1516. as to feeding, watering and caring for live stock, 1553. to carry merchandise as baggage, 1649. as defense to tort, 1693. See Contracts; Contracts Limiting Liability. SPECIAL DAMAGE, as ground for enjoining company from occupying street, 630. to abutting owner from railroad in street, 1085. from building street railway, 1088. must be averred, 1691, n. must be alleged and proved, 1696. SPECIAL ELECTION, to grant public aid, 850. SPECIAL LAWS, can not be passed against railway companies, 660. singling out railroads, 679. when legislature may enact, 845, n. statute prohibiting employment of females, 1336. SPECIAL LEGISLATION, curing defective corporate organization, 20, n. against railway companies, 669. employers' liability acts, 1335. SPECIAL MEETINGS, stockholders should be notified of, 164. of board of directors, 261. of board of directors, notice, 262. when municipal officers can not grant public aid at, 850. SPECIAL ORDERS, to work outside line of duty, 1304. SPECIAL PLEA, of contract limiting liability, 1438. SPECIAL PRIVILEGES, when pass to new company on consolidation, 330. when do not pass on consolidation, 331. SPECIAL PROPERTY, common carrier has in freight, 1404. INDEX. 3117 [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. 11, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SPECIAL BATE, effect where contract for is void, 1566, n. effect of, 1680. when carriers may make, 1687, n. SPECIAL SEEVICES, compensation for, 1566. SPECIAL STOCK, issue of sometimes authorized, 77. SPECIFIC ENUMERATION, effect in employers' liability acts, 1342. SPECIFIC FUND, municipal aid bonds payable out of, 892. SPECIFIC PEEFORMANCE, of contract to sell real estate, 422. of contract to give mortgage trustees possession, 514. reorganization agreement, 534. rule where it would be inequitable, 935. rules governing, 935. may be granted where there is remedy at law, 935. of agreement to sell right of way, 935. when equity will not decree, 936. of conditions subsequent, 942. will not be decreed of construction contracts, 1062. of contract in reference to railroad crossing, 1118. of contract to grant private crossings, 1141. of contract to construct private crossing, 1145. of contract to give passes, 1611. SPECIFIED DIVIDEND, guaranteed, 86. SPECULATION, real estate can not be acquired for, 394. receiver should not be permitted to expend money for purposes of, 590. land can not be condemned for purpose of, 962. SPEED OF TRAINS, regulating in towns and cities, 668. legislature regulating, 670. penalty for unlawful, 723. ordinance limiting rate of, 1082. 3118 INDEX. [Beferences are to Sections.} Vol. I, §§ 1-3S1, Vol. II, ^^3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SPEED OF TRAINS - Continued. when high rate of negligent, 1094. excessive as negligence, 1095. regulating that at crossings, 1156. when rate of is negligent, 1160. company fixing rate of, 1204. statutes regulating rate of, 1204. great and unusual as evidence of negligence in fire cases, 1244. negligence in maintaining excessive, 1589. SPOONS, when are not baggage, 1647, n. SPRINGS, condemning for purpose of securing water, 960. when company not liable for draining, 977. SPUR TRACK, when land can not be condemned for, 961, n. See Side-Teacks. STAGE COSTUMES, as baggage, 1647, n. STATE, owning shares of railway stock, 2. waiving defective corporate organization, 20. quo warranto proceedings by, against corporations, 20, 644. permitting foreign corporations to do business in, 22. authority over federal corporations, 25. railroads in more than one, 26. imposing restrictions upon railways, 27. n. concurrent action of several in creating corporations, 28. revoking license, 29. imposing conditions upon foreign corporations, 30. granting franchises to competing companies, 32. levying taxes to aid railway, 33. its right to amend charter not affected by contracts of company, 43. power to amend or repeal charter, 43, n. waiving breach of corporate charter, 52. what one stockholders' meeting must be held in, 164. validating unauthorized corporate acts, 270. attacking consolidation, 323, n. right to object to ratification of contract, 353. power to prevent corporation from exceeding its authority, 376. granting power to foreign corporation to hold real estate, 398. INDEX. 3119 \^Beferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STATE— Continued. questioning right of corporation to hold real estate, 405. leases where parties are corporations of different ones, 443. when can not intervene in mortgage foreclosure suit, 511. sale of road in two on foreclosure, 515. rule of comity as to receivers, 555. appointing receiver for railway extending into more than one, 554. when must accept surrender of corporate charter, 608. quo warranto proceedings on behalf of, 644. can not deprive foreign corporation of right of removal, 649. how commerce clause of federal constitution affects power of, 658. can not regulate interstate commerce, 658, 667,!l664. power over railway companies, 662. can not make federal corporation a domestic one, 673. power over property of a public nature, 674. power to establish railroad commission, 674, n. when estopped by decision of railroad commission, 696. party to action to enforce schedule of rates, 698. when suits may be brought against it, 700. power to tax railroad property, 735. can not obstruct interstate commerce, 754. taxing railroad property used in interstate commerce, 755. can not tax interstate commerce, 755. taxation of railroad in more than one state, 757. when may levy an excise tax, 762. when may withdraw exemption from taxation, 770. must give equal protection of the laws, 772. power to regulate domestic commerce, 780. when trustee for railway company, 793. imposing conditions in land grants, 797. when regarded as private individual, 806. how bound by acta of its oflBcers, 806. when may be estopped, 806. preventing performance of conditions in land grant, effect, 807. when has lien for guarantying bonds, 813. when can not take stock in railway company, 818. effect where prohibited from itself granting public aid, 818. questioning rights of de facto corporation, 957. what property of may be taken under eminent domain, 965. police power of, duty to fence, 1182. scope of its police power, 1183, n. effect of employers' liability acts where lines in different ones, 1340. can not exclude jurisdiction of the federal courts, 1362. power to regulate rate of fare, 1593. acting where congress refuses to act, 1663. 3120 INDEX. IBeferences are to Sections. '\ Vol. I, §§ 1-SSl, Vol. II, ^^33-2-918, Vol. Ill §§ 919-1390, Vol. IV, §§ 1391-1703. ^TAT^— Continued. no power to regulate interstate commerce, 1664. power of to pass police regulations is limited, 1668. power to provide for safety of interstate passengers, 1668, n. power to regulate right to contract, 1670. power to regulate consolidation of companies, 1670. can not encroach upon powers of federal government, 1670, n. STATE AID, by levying taxes, 33. to railway companies, 812. . STATE AID BONDS, how enforced, 503. See Public Aid. STATE COURT, will not foreclose on property in control of federal court, 553. when federal court refuses to recognize decrees of, 553, n. how jurisdiction affected by application for removal from, 654. can not determine jurisdiction of federal courts, 654. federal court following rules of, 656. removing causes from, 708. federal courts following decisions of, 768, 915, 977, 1663. STATE LEGISLATURE, power to prohibit business on Sunday, 1668. See Legislature. STATE RAILROAD COMMISSIONERS, introductory, 674. general powers of, 674. nature of state railroad commissions, 675. power to create railroad commissions, 676. strictly judicial powers can not be conferred upon, 677. granting authority to make regulations not a delegation of legislative power, 678. legislature can not authorize them to make unjust discriminations, 679. are public officers, 680. qualification of, 681. compelling company to operate lines, 682. power over crossings, 682. controlling location of stations, 682. illustrative cases of powers of, 682. powers of, generally, 682. jurisdiction of, 683. INDEX. 3121 [^Befereiices are to Sections.] Vol. I, §§ l-SZl, Vol. II, §§ 3.?3-91S, Vol. HI, §§ 919-1390, Vol. IV, §§ 1391-1103 STATE EAILEOAD COMMISSIONERS- Coniimted. possess gMasf-judicial power, 683. jurisdiction not extended by implication, 684. incidental powers of a railroad commission, 685. right of railroad companies to a hearing before, 686. orders of are not contracts, 687. certificates of that rates are reasonable, 688. regulation of charges for transporting property and passengers, 689. can not regulate interstate commerce, 689. regulating domestic commerce, 690. determining reasonableness of freight and fare tariff of rates, 691. regulation of charges, test of reasonableness, 692. tariff of rates, tests of reasonableness, 693. power to order company to provide stations, 694. procedure before them, 695. duty to keep record, 695. effect of secretary's action, 695. when must give notice, 695. effect of decision that company not subject to forfeiture, 696. enforcing orders of, 697. mandamus to enforce order of, 698, 699. illustrative cases of mandamus to enforce order of, 699. penalty for violating order of, 699. effect of suits against, 700. remedy for illegal acts of, 701. rule where there is specific statutory remedy, 702. parties to suits against, 708. certiorari to review proceedings of, 704. injunction against, 705. injunction to prevent them exceeding jurisdiction, 706. vacating order on ground of fraud, 707. subject to equity jurisdiction, 707. federal question, removal from state courts, 708. prescribing size of station building, 720. STATED MEETINGS, of board of directors, 261. STATIONS, displaying rules and regulations in, 198. rules regulating use of, 199. rules requiring trains to stop at certain ones, 200. contracts for location of, 362. when contracts for location of against public policy, 386. mandamus does not lie to compel location at particular point, 638, n. mandamus to compel the company to maintain, 641. 3122 INDEX. \_Ileferences are to Sections.'] Vol. I, §§ 1-3£1, Vol. II, §§ 3'2g-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. HTATWSS— Continued. requiring railway company to maintain, 662. posting rules and schedules in, 662. mandamus to compel maintenance of, 662, 720. compelling trains to stop at for designated time, 668. power of railroad commission to control location of, 682. power to order company to provide, 694. power of legislature to compel establishment of, 694. mandamus to compel location or construction of, 698, 720. contract for location, validity, 699. failure to maintain accommodations at, 720. negligence in failure to properly keep, 720. requiring blackboards and bulletins at, 722. duty to announce, 724. validity of agreement as to location of, 941. condemning land for, 973. duty to construct, 1056. duty at to person inquiring about freight, 1256. person meeting passengers, 1256. duty to persons at, generally, 1256. strangers at, 1256. delivery must be made at as a rule, 1411. as proper place of delivery, 1519. duty to provide means of reaching cars at, 1628. effect of announcement of, 1628. when passengers can only be ejected at, 1637. duty to provide lights at, 1641. duty to keep approaches to in repair, 1641. duty to trespassers and licensees at, 1641. injuries to passengers received at, 1641. grouping for freight rates, 1683. See Depots. STATION ACCOMMODATIONS, no extra charge for furnishing, 1566. STATION AGENT, authority to bind company by bill of lading, 303. agreeing to furnish cars at other stations, 303. judicial notice of powers of, 303. when notice to is notice to company, 303, n. service of notice on, 1071, 1100, n. as fellow-servant of trainmen, 1346. assumption that he has authority to receive freight, 1406. when no authority to contract for extra-terminal liability, 1437, n. INDEX. 3123 [^References are to Sections.] Vol. I, §§ 1-321, Vol. II, §§ S22-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STATION BUILDINGS, liability for negligence in constructing, 467. requiring company to light and heat, 668, n. rule for ascertaining whether they are required, 1479. duty to light, 1590. duty as to maintenance, 1590. STATION FACILITIES, duty of company to provide, 1479. STATION GROUNDS, rules regulating use of, 199. duty to fence at, 1194. See Depot Grounds. STATION-HOUSES, real estate, 31. railroad commission prescribing size of, 720. a crime to break into, 732. purchasing land for, 933. STATION-MASTER, authority to employ surgeon, 222. when vice principal and when fellow-servant, 1326. See Station Agent. STATION PLATFORM, action for injury because of defective, 573. See Platforms. STATUTE, authorizing condemnation strictly construed, 6, n. complying with in organizing corporation, 18, n. railway companies "persons" within, 21. preventing removal of causes void, 23, n. requiring appointment of agent in foreign state, 24. fixing rolling stock as realty or personalty, 31. ' practical construction of, 40. allowing corporation to buy its own stock, 95. giving corporation lien on stock, 99. requiring subscriptions to be made in specified manner, 103. requiring cash deposit to complete subscription, 106. limiting power to make calls and assessments, 138. how to construe that authorizing leases, 433, 435. authorizing leases must be strictly followed, 438. when may amount to a mortgage, 503. 3124 INDEX. IBeferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STATUTE— Continued. defining duties of mortgage trustees, 514. giving stockholders' riglits in new corporation upon reorganization, 532. authorizing appointment of receiver on application of stockholders, 550. giving receivers authority to maintain and defend suits, 568. making railway companies liable, when apply to receivers, 577. fixing compensation to which receivers entitled, 584. authorizing receiver's certificates, 593. preferring employes, 605. exempting railroad employes' wages from garnishment, 627. authorizing removal of causes, 645. validity of that making police regulations, 665. when must provide for hearing, 666. validity of those creating railroad commissions, 676. seeking intention in construction of, 683. are part of a system, 697. construction of penal statutes, 710. remedial liberally construed, 715. part valid and part void, 786. strict construction of those exempting property from taxation, 750. decisions becoming a part of, 768, 915. construction of those granting land to railways, 794. publication before enactment of, 815. construction of those authorizing aid to railway companies, 831. effect where they are vague and indefinite, 834. are not to be considered in fragments, 834. implied powers in construction of, 834. requisites of curative, 845. conferring authority to issue aid bonds, 875, 876. following in issuing municipal aid bonds, 879. construing so as not to conflict with constitution, 889. validity of aid bonds issued beyond limit of, 890. governing dedication, 947, n. construction of those granting right to condemn lands, 955. regulating procedure in appropriation cases, 1009. must be followed in appropriation cases, 1010. following in cases of appeals, 1053. authorizing liens, 1067. following in acquiring lien, 1071. requiring construction of crossings, 1102. imposing duty to restore highways, 1105. preventing construction of grade crossings, 1122. regulating expense of constructing railway crossings, 1128. requiring watchmen and flagmen at railroad crossings, 1129. requiring railroads to stop trains at crossings, 1131. INDEX. 3125 {Jteferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ SB3-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. ^TA.TVT'E— Continued. regulating priority of passage at crossings, 1133. giving right to private crossings, 1138. requiring flagmen at crossings, 1157. imposing duty to fence, 1181. imposing duty to fence rests upon the police power, 1182. imposing duty to fence, constitutionality, 1183. prescribing kind of fence for company to erect, 1184. requiring maintenance of cattle-guards, 1198. regulating speed of trains, 1204. requiring signals at crossing, 1206. allowing recovery of double damages, 1219. requiring removal of combustibles from right of way, 1226. changing burden of proof in fire cases, 1242. giving attorney's fees in fire cases, 1246. validity of employers' liability acts, 1335. giving right of action for injuries causing death, 1359. retrospective operation, 1360. have no extra-teritorial effect, 1364. taking away defense of contributory negligence, 1374. imposing duty to transport cars of other companies, 1394. governing rights and duties of railroad companies, 1454. prohibiting limiting of liability, 1499. requiring contract limiting liability to be in writing, 1501. providing for enforcement of carrier's lien, 1571. violating as to speed, 1589. to prohibit brokerage and scalping of tickets, 1599. prohibiting the granting of passes, 1613. fixing place of ejecting passengers, 1637. regulating amount of baggage, 1650. of states regulating interstate commerce, 1664. held to be regulation of interstate commerce, 1669. held not to be regulation of interstate commerce, 1670. regulating pleading of ordinances, 1698. See Employees' Liability Acts. STATUTE OF FRAUDS, when subscription to stock is within, 103. promise to pay corporate debts is within, 190. corporate record entries taking case out of, 265. when contract to give pass not within, 1611. STATUTE OF LIMITATIONS, when begins to run on dividends, 311. governing right to recover dividend paid by insolvent corporation, 315. CoEP. 199 3126 INDEX. [Beferences are to Sections.'] Vol. I, §§ l-Sn, Vol. II, §§ SS2-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STATUTE OF LIMITATIONS— Coneirewed. applicable to interest coupons, 486. application to receivers, 577, n. garnishee may set up as a defense, 625, n. as affecting title by adverse possession, 948. governing condemnation proceedings, 1007. as affecting payment of compensation and damages, 1007. actions for injuries to animals, 1183. actions for injuries causing death, 1373. actions between connecting carriers, 1452. where excessive freight charges are made, 1564, n. barring action in tort, 1693. STATUTORY AUTHORITY, requisite to enable company to hold real estate, 390. for sale of necessary property and franchises, 519. to receivers to maintain suits, 568. when necessary to grant of public aid, 827. validity of bonds issued without, 895. crossings of railroads secured under, 1118. private crossings secured under, 1142. STATUTORY CONSTRUCTION, of statutes in favor of employes liberal, 605. federal courts following state courts, 768. See Statute; Liberal Construction; Strict Construction. STATUTORY DUTY, violation as negligence, 711. can not be escaped by hiring independent contractor, 1063. explaining omission of, 1155. contributory negligence where there is breach of, 1155, 1315. proximate cause where there is breach of, 1155^ breach of as negligence per se, 1155. breach of as evidence of negligence, 1155. violation as negligence, 1155. double damages for failing to perform, 1183. can not be escaped by contract, 1190. damages for failure to perform, 1207, n. contributory negligence where there is breach of, 1214. STATUTORY LIABILITY, of stockholders, 185. stockholders' defenses to actions to enforce, 186. stockholders', who may institute action to enforce, 187. how enforced against stockholders, 188. stockholders', when must be preceded by judgment and execution, 188. for fires, 1222. INDEX. 3127 \^Beferences are to Sections.'] Vol. I, §§ 1-3^1, Vol. II, §§ 32J-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STATUTOKY LIENS, operative after foreclosure sale, 526. STATUTORY MODE, must be pursued in forfeiture of stock, 152. must be pursued in consolidation, 323. STATUTORY MORTGAGE, what will amount to, 603. STATUTORY PENALTY, recovering by indictment or information, 712. STATUTORY PREFERENCE, employes', who entitled to benefit of, 605. in favor of employes, 605. STATUTORY PRIVILEGES, bestowed on agents, 205. STATUTORY PROVISIONS, authorizing amendments, 46. for forfeiture of corporate charter, 47. for consolidation, 326. STATUTORY REGULATIONS, power of legislature to enact, 709. as to carriage of live stock, 1554. STATUTORY SIGNALS, See Signals. STAY OF EXECUTION, injunction to secure, 1049, n. STEAM, implied authority to use as motive pow'er, 41. negligence in using unnecessary amount of, 1225. frightening horses by letting oft, 1264. STEAM RAILWAYS, street railways distinguished from. 6. street railways crossing, 1135. See Railroads. STEAMBOATS, power of railway company to own and operate, 374. when not covered by general railroad mortgage, 495. 3128 INDEX. {References are to Sectinnn.'] Vol. I, §§ 1-SSl, Vol. II, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STEAMBOAT LINE, power to contract with, 435. STEPS OF CAR, standing on those of street car, 1630. injury to passenger riding on, 1630. rules and regulations against standing on, 1630, n. as place of danger, 1630, n. STIPULATIONS LIMITING LIABILITY, how discrimination affects, 1469. STOCK, amount subscribed as condition precedent to organization, 18. definition of, 76. classes of corporate, 77. shares of, 78. certificates of, 78. how far certificates of negotiable, 79. shares of are personal propert)', 79. may be sold on execution, 79, n. new certificates in place of lost ones, 80. effect of fraud in issuing shares of, 80. when new certificates not overissue of, 80. preferred, 81. rights and remedies of stockholders dissenting to issue of preferred, 82. when preferred may be issued, 82. holder of preferred not a creditor, 83. rights of preferred stockholders after payment of guaranteed divi- dend, 84. future dividends, 84. assignment of carriers' dividends, 84. rights of preferred stockholders on dissolution, 85. guaranteed, 86. interest-bearing, 86. income, 86. debenture, 86. increase and reduction of, 87. watered, 88. watered not absolutely void, 89. rights of creditors and liabilities of holders of watered stock, 90. paid for by overvalued property, 91. sale of on market, 91. Bale of that forfeited for non-payment of calls, 91. can only be transferred on books of corporation, 92. sale and transfer of, 92. INDEX. 3129 [JBe/erences are to Sections.} Vol. I, §§ 1-sn, Vol. II, §§ S^S-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. STOCK— Continued. who may own and transfer shares of, 93. buying and selling by agent, 93. purchase and sale by trustees and fiduciaries, 94. right of corporation to buy and sell, 95. corporation reselling that transferred to it, 95. held by corporation can not be voted, 95. held by corporation can not draw dis'idends, 95. authority to consolidate gives power to purchase, 95, n. enjoining purchase of in another corporation, 95, n. gifts and bequests of, 96. may be transferred by will, 96. blank: assignment of, 97. formality of transfer, 97. registry of transfer of, 98. manner of registering transfer of, 98, n. effect of failure to register transfer of, 98. refusal of corporation to register transfer of, 98. lien of corporation on, 99. when and to what lien on attaches, 100. enforcement of lien on, 101. waiver of lien on, 101. preliminary agreement to take, 102. form of subscription to, 103. who may subscribe for, 107. municipal corporations taking, 107. sale for less than par value, 110. conditional subscription, when not to be counted, 111. subscribed upon condition as to location, 121. effect of false representations in securing subscription to, 128. assessments on can not exceed par value of, 147. corporation levying execution on, 149, n. rigl^t of administrator or executor to vote, 156. partner's right to vote, 156, n. right to vote that issued as dividends, 157. when required to be registered certain time before voting, 157. right of trustees and receivers to vote, 158. transferring to render one competent as a witness, 173. restraining one from voting, 174. when may be paid for in property, 175. liability of stockholder where it is transferred, 178. when person seeking to be a director must own, 241. paying corporate indebtedness in, 251. when may be acquired in other corporations, 251. liability of directors for issuing fraudulent, 282. 3130 INDEX. l^Beferaices are to Sections.'] Vol. I, §§ 1-S^l, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. B10GK.— Continued. president purchasing from stockholder, 291, n. assigning without assigning dividends, 305. power to purchase that of other corporation, 323, n. purchase of by consolidated company, 327. when may purchase that of other company, 374. company can not acquire in order to prevent competition, 385. converting bonds into, 483. when not subject to garnishment, 626. when state can not take in railroad, 818. compelling municipal corporations to take in railway, 824. municipalities taking in branch roads, 826. how change in municipality affects that takep in railway company, 853. legislative control over that subscribed for by municipality, 868. dividing among taxpayers, 868. county owning and voting, 873. municipal corporation enforcing delivery of, 873. general power to subscribe for, 875. estoppel by retention of, 904. exchanging municipal aid bonds for, 907. when purchaser of bonds entitled to, 910. See Shakes of Stock; Live Stock. STOCK CAR, passenger riding in, 1629, n. STOCK DIVIDENDS, increasing capital stock by, 87. right to, life tenant, 307. effect of on shareholders' interest, 307. power to declare, 313. effect of, 320. definition of, 320. STOCK GAPS, contractor not entitled to extra pay for, 1060. STOCK PENS, injury on defective chute at, 1404. injury to live stock by defective, 1548. duty to furnish, 1551. liability for defects in, 1551. STOCK SUBSCRIPTIONS, receiver suing to recover unpaid, 537, n. INDEX. 3131 [ije/erences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ 3£^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STOCK YARD, compelling delivery of stock at, 636. condemning land for tracks leading to, 960, n. condemning land for, 960, n. child injured by defective gate in, 1260. STOCKHOLDERS, perfecting organization, 19. consent to charter amendments, 45. can not compel forfeiture, 47. amount of interest in corporate property, 76, n. ratifying isfeue of preferred stock, 82. objecting to issue of preferred stock, 82. increasing or decreasing capital stock, 87. first right to take new stock, 87. when participating estopped, 89. reselling stock transferred to the corporation, 95. not recognized unless stock is registered, 98. estoppel to deny that one is, 103. presumption that subscriber is, 108. evidence that one is, 108. money paid on stock is trust fund for creditors, 110. power to make calls, 135. voting to make calls and assessments, 138. asking subscriber for calls constitutes one, when, 140, n. notice to of calls and assessments, 141. waiving notice of calls and assessments, 143. extent of liability for assessments, 147. when may be liable for further assessments on stock, 147. remedy against for failure to pay calls and assessments, 149. entitled to surplus on sale of shares on forfeiture, 150. liability of in foreign corporation, 150, n. rights after forfeiture of stock, 151. when obligation to pay calls and assessments terminates, 151. when one becomes a, 155. pledgee is not, 155, n. rights of, 156. who has the right to vote, 157. how right of to vote determined, 157. when can not make oath as to ownership of stock, 157, n. right of trustees and receivers to vote as, 158. right of corporations and voting trusts to vote as, 159. number of votes to which they are entitled, 160. when may vote cumulative, 161. quorum must be present at meeting of, 161. 3132 INDEX. [References are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 3Sg-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STOCKHOLDERS— Continued. voting by proxy, 162. general powers of, 163. rights of minority, 163. when may give written consent to enactment of by-laws, 164. meeting of, 164. bringing mandamus to compel calling of meeting, 164. bound to take notice of stated meetings, 164. when may bring suit on behalf of the corporation, 165. remedies of, 165. unregistered assignees can not sue as, 166. when may sue in federal court, 166. third persons can not sue as, 166. when they may sue or become parties, 167. when may set up defenses for the corporation, 167. when may recover insurance, 168. rights and remedies of, 169. when service on is service on corporation, 170. as agents of the corporation, 170. effect of notice to, 171. right to inspect books, 172. disqualified to serve as judges or jurors where corporation is inter- ested, 173. unlawful combinations and conspiracies to vote or prevent voting, 174. one can not control or direct vote of another, 174, n. denying liability where corporation is not regularly organized, 175. liability for unpaid subscriptions, 175. release of, 176. withdrawal of, 176. compromises with, 177. liability where stock is transferred, 178. when can not escape liability by transfer of stock, 178, n. when creditors may enforce unpaid subscriptions against, 179. must pay subscriptions promptly, when, 179. can not set off claim as creditor against liability on stock, 179, n. when may attack judgment against the corporation, 180. how affected by judgment against corporation, 180. when may defend, 181. method of enforcing their liability, 182. contribution among, 183. when entitled to have all stockholders made parties, 183. bringing suit to compel payment of unpaid subscriptions, 183. suits by assignees and receivers against, 184. statutory liability of, 185. when are severally and jointly liable for debts, 185. INDEX. 3133 [iJe/erences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STOCKHOLDEES— ConfmMcd. defenses to actions to enforce statutory liability against, 186. release from several or joint liability, 186, n. who may institute action to enforce statutory liability, 187. how statutory liability is enforced, 188. priority among those who are creditors, 189. when liable as partners, 190. power to make by-laws resides with, 194. notice to the corporation, 226. relation to the corporation, 237. when may act for the corporation, 237. usually choose directors, 240. what powers belong to, 250. when may have action of directors set aside, 250, n. when must accept amendments to charter, 252, n. right of majority to remove director, 271. relation of directors to, 273. directors are trustees for, 274. attacking contract with director, 276. becoming creditor of the corporation, 276, n. when can not elect president, 283, n. rights of in reference to dividends, 304. when dividends belong to, 305. right to dividends as against creditors, 309. effect of failure to claim dividends in reasonable time, 309. recovering dividends paid when corporation was insolvent, 315. right to enjoin payment of dividends, 317. right to sue directors, 318. when may be declared, 320. granting stock dividend to, 320. applying dividends to their indebtedness, 321. right to question consolidation, 323, n. when all must consent to consolidation, 325. ratifying agreement of consolidation, 326. relation to new company formed by consolidation, 327. remedies of old ones on consolidation, 328. when may make contract, 349. when estopped to question validity of contract, 349. ratifying acts of corporate officers, 353. enjoining performance of ultra vires contract, 372. right to prevent corporate officers from deviating from corporate ob- ject, 376. non-assenting assailing ultra vires contracts, 380. title to real estate does not vest in, 395. when may convey corporate real estate, 395. 3134 INDEX. [Beferences are to Sectioiis.J Vol. I, §§ 1-3S1, Vol. II, §§ Sn-918, Yul. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STOCKHOLDEES— CoJiMnwed. enjoining purchase of property which corporation has no right to hold, 406. entitled to property which corporation not authorized to hold, 420. consenting to lease, 439. concurrence of necessary to execution of leases, 440. what number must assent to leases, 441. waiving formal execution of lease, 442. enjoining execution of unauthorized lease, 479. when may object to execution of mortgage, 491. ratifying unauthorized or improperly executed mortgage, 492. enjoining ultra vires mortgage, 493. becoming parties when directors refuse to act, 511. when may attack fraudulent foreclosure sale, 529. right to prosecute suit for redemption, 530. right to become members of new corporation after foreclosure sale, 532. combining with bondholders to purchase at foreclosure sale, 533. right to purchase at foreclosure sale, 535. appointment of receiver at request of, 538, n. equity protecting by appointment of receivers, 539. receiver not appointed for dissatisfied, 540. when left to remedy of electing new otBcers, 540, n. receiver to protect rights of, 543. receiver where they fail to act, 547. appointing receiver upon application of, 550. when directors become trustees for, 557. when should not be appointed as receivers, 561. right to make collateral attack on appointment of receiver, 564. right to set off judgment against action by receiver, 569. receivers suing for unpaid subscriptions, 569, n. right to inspect books of receivers, 583. consent of not necessary to voluntary assignment, 602. corporation preferring as creditors, 604. single one acquiring entire stock does not work dissolution, 606. authorizing dissolution of the corporation, 608. right to secure dissolution of corporation, 609. duty of directors to account to on dissolution, 612. not bound by contract made after repeal of charter, 612. right to surplus after dissolution, 613. bound by action of directors in reference to suits, 618. when may appeal cases, 618, n. when may sue to enforce corporate rights, 620. laches defeating their right to an injunction, r,34. injunction at suit of, 634. right to remove suit to federal court, 616. INDEX. 3135 [References are to Sections. "] Vol. I, §§ 1-Sn, Vol. II, §§ S^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STOCKHOLDERS— Confrnwed. citizenship immaterial in removal of causes, 649. right to resist illegal taxes, 742. how affected by failure of corporation to make tax return, 743. rights and liabilities of stockholders as, 869. rights of municipal corporation as, 873. authority of municipal corporation to become, 875. consolidation releasing, 886. estoppel created by voting as, 903. competency as an appraiser, 1017. engineer may be, 1059. when liable for wages of laborers, 1065. See SHAKBHOLDaR. STOCKHOLDERS' MEETINGS, in foreign state, 24, n. of consolidated corporation, 28. when should be duly assembled, 164. in what state should he held, 164. where must be held, 164. STOLEN BONDS, who entitled to enforce, 484. STOLEN PROPERTY, by sleeping-car company's employes, 1622. STOLEN TICKET , title to, 1593. STOP, LOOK AND LISTEN, when traveler must, 1095, 1167. duty of street railway employes to, 1135. See Look and Listen ; Travblbes. STOP-OVER PRIVILEGES, must be expressly given, 1593. proof of, 1593. effect of conditions annexed to, 1595. power of conductor to grant, 1595. when passenger entitled to, 1595. conferred by conductor's checks, 1602. STOP-OVER TICKETS, required for broken trips, 200. 3136 INDEX. [ije/erences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ SSg-918, Vol. Ill, §§ 919-1390, Vol. IV, ^^1391-1703. STOPPAGE IN TRANSITU, how affected by prior attachment, 1538. general doctrine as to, 1539. effect where vendor knows of vendee's insolvency, 1539. effect of insolvency of vendee, 1539. rule where rights of third persons intervene, 1539. carrier yielding to demands of vendor, 1539. who may exercise right of, 1540. assignee of vendor may exercise right of, 1540. against whom right of may be exercised, 1541. termination of right of, 1542. mode of exercising right of, 1542. duty of carrier to give notice of, 1542. effect of part delivery on right of, 1543. what is sufficient delivery to defeat right of, 1543. right of distinguished from recaption, 1543. none after goods have reached consignee, 1543. STOPPING AT CROSSINGS, duty imposed by contract, 1180. not required where there are interlocking switches, 1131. STOPPING TRAINS, where animals are on track, 1204. STOPS, enforcing agreement to make, 936. at railway crossings, not element of damage, 1127. STORAGE, effect of that by direction of consignor, 1464. carrier not required to furnish for goods to be shipped in the future, 1479. when company entitled to compensation for, 1533. See Demurrage. STORAGE TRACKS, street may be laid out across, 1104. STORM, liability where fences destroyed by, 1209. carrier not liable for loss by, 1455. preventing feeding and watering live stock, 1554. duty to provide against, 1584. when carrier not liable for injuries caused by, 1584. STOVES, may be prohibited in cars, 668. INDEX. 3137 \_Beferences are to Sections.'\ Vol. I, §§ 1-SSl, Vol. n, §§ SH3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STEANGEE, no right on right of way, 1152. at stations, 1256. duty to at stations, 1256. liability for assault on by employe, 1265. liability to for willful acts of employes, 1265. can not become servant by merely volunteering, 1305. placing obstructions on the track, 1636. STEEAM, railroad along bed of, 41, n. effect of diversion of, 937. condemning land for purpose of diverting, 960. damages for changing course of, 977. STEEET, elevated roads in, 7. cable road not additional burden in, 9. compelling removal of tracks from, 630. enjoining company from occupying, 630. enjoining construction of across depots and yards, 632. municipal tax as compensation for use of, 767. local assessments where track is laid in, 787. levying local assessment on right of way for, 786. company covenanting to pave and repair, 945. obtaining permission to cross, 954. condemning, 966, n. can not be extended through depot buildings, 966, n. abutting landowner may use, 987. authority to use, 1076. when landowner may eject company from, 1049. when abutters may enjoin use of, 1049. when abutting owner entitled to remedy by injunction, 1049, n. damages for leaving in a negligent condition, 1057. obtaining consent of municipality to use, 1076. power and control of legislature over, 1076. can not be taken for freight yard, 1076. when trains may be made up in, 1076. franchise to use distinguised from corporate franchise, 1077. municipality consenting to use of, 1078. abutting owners consenting to use of, 1079. license fee for use of, 1081. police power over, 1082. enjoining digging into, 1082. rights of rival companies in, 1083. effect of colorable possession by one rival company, 1083. 3138 INDEX. \_Beferences are to Sections.} Vol. I, §§ 1-321, Vol. 11, ^^SUS-giS, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STREET— Continued. compensation for vacation of, 1086. commercial railroad as an additional burden, 1087. when street railways are additional burden, 1088. railroads in narrow ones, 1089. held in trust for the public, 1089. obstruction by cars, 1090. repairing at cost of railway company, 1092. duty of company to restore and repair, 1092. duty to travelers upon, 1094. remedies for unlawful use of, 1096. mandamus to compel restoration of, 1096. power to lay out across railways, 1098. laying out across yards and switches, 1098. parties to proceeding to open, 1100. damages from opening across railroad, 1103. injunction to prevent opening through railway property, 1104. when can not be laid out through permanent structures, 1104. impairing rights by taking company's property for, 1104. See Local Assessments; Highways; Railroads in Stekets. STREEf ASSESSMENTS, rule as to priority of payment, 528, n. STREET CAR, prohibiting smoking in, 1082, n. collisions with, 1178. transfer tickets on, 1602. standing on steps or platform of, 1630. riding on platform of, 1636. STREET DRAIN, local assessment to pay for, 786. STREET RAILROADS, definition of, 6. distinguished from railroads, 6. motive power does not determine, 6. may consolidate, 6. subject to penalties for charging excessive fares, 6. laborers' liens against, 6. exercising right of eminent domain, 6. are g'Masi-public corporations, 6. are common carriers of passengers, 6. may build elevated track, 7, n. electric roads classed as, 8. INDEX. 3139 [Befereiices are to Sections.] Vol. I, §§ 1-S31, Vol. II, §§ SS2-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STREET RA.ILEOADS— CoJitmMed. cable roads classed as, 9. local assessment against, 786, n. subject to right of eminent domain, 964. when there may be lien upon, 1067. when right in streets is perpetual, 1077. what motive power may use, 1080. when tracks are and are not additional burden, 1088, 1135. duty to restore and repair streets, 1092. must not impede or endanger travel, 1094. stopping trains at crossing of, 1131. crossing steam railways, 1135. ordering to construct overhead crossing, 1135. injunction to prevent tearing up of track, 1135. duty to stop, look and listen at tracks of, 1135. STREET RAILWAY COMPANY, will not be enjoined from crossing steam railway, 632. right to enjoin interference with its tracks, 632. mandamus to compel it to operate its road, 638. municipality fixing rate of fare, 1081. requiring it to sprinkle its tracks, 1082. suing it and railroad company together, 1178. effect of employers' liability acts on, 1334, n. presumption of negligence as applied to, 1402. degree of care required of, 1402. as common carrier, 1402. negligence of must be proximate cause, 1402, n. contributory negligence as applied to injuries by, 1402, n. STREET RAILWAY TRACKS, condemning line across, 966. STEEETAGE, effect of charging, 1518. STRICT CONSTRUCTION, of corporate charter, 38. > of statutes authorizing leases, 434. of statutes forbidding lease of competing lines, 447. statutes authorizing appointment of receivers, 538. of laws relating to mandamus, 637. of railway aid statutes, 831. of statutes authorizing railway aid, 850. of grants of corporate power, 906. given conditions subsequent, 943. 3140 INDEX. \_Beferences are to Sections.] Vol. I, §§ 1-3^1, Vol. II, ^% 33^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. STRICT CONSTRUCTION— ConJiniied. of statutes granting power of eminent domain, 955. of grants by city, 1080. of statutes giving right of action for death, 1361. of bill of lading against the carrier, 1424. of contracts limiting liability, 1505. when should be given to Interstate commerce act, 1667. STRIKE, when does not amount to contempt of court, 575. when lawful and when not, 633. stipulating against liability from delay caused by, 1513. deviation from route on account of, 1459. liability for loss or delay caused by, 1459. STRIKERS, injunction against unlawful acts of, 575. who bound by injunction against, 633. when may be punished for contempt, 633. grounds on which they may be enjoined, 633. enjoining, 633. rule where they are composed of employes, 1459. diligence to supply place of, 1459. STRUCK JURY, competency of person to fill vacancy on, 1017. STRUCTURES NEAR THE TRACK, injuring employes, 1269. effect of employe's knowledge of, 1269. employes assuming risk of, 1269. permanent and temporary, 1269. SUBAGENTS, authority to employ, 225. SUBCONTRACTOR, not entitled to statutory preference, 605, n. definition of, 1061. distinguished from laborers, 1061. distinguished from material men, 1061. when entitled to lien, 1061. when excused from performance, 1061. when may recover for loss of profits, 1061. relation to company, 1061 . relation to contractor, 1061. INDKX. 3141 [References are to Sections.'] Vol. I, §§ l-.3n. Vol. II, §§ S-22-918, Vol. III. §§ 919-1390, Vol. IV, §§ 1S91-170.S. SUBCONTRACTOR— ConJinued. liability for negligence of, 1061. can not obtain lien as laborer, 1070. right to lien independent of contractor, 1070. giving notice to owners, 1070. creditor of not entitled to lien, 1070. when estopped from enforcing lien, 1075. SUBORDINATE AGENTS, authority to employ, 225. SUBORDINATE EMPLOYES, as applied to cases of negligence, 1316. authority to create relation of carrier and passenger, 1580. SUBORDINATION, doctrine of as applied to fellow-servants, 1330. SUBROGATION, to lien on stock, 101. when director has right of against corporation, 318. of holder of invalid bonds, 910. where insured property destroyed by fire, 1233, 1234. in case of insurance on goods destroyed during transit, 1509. SUBSCRIBERS TO STOCK, residence of, stating in articles of incorporation, 18. signing charter, 36. paying for stock in worthless property, fraud, 91. when persons become liable as, 102. contract of is several not joint, 105. right to modify subscription, 108. waiving conditions to subscription, 115. paying subscriptions as work progresses, 118. material alterations in route, release, when, 122. showing material alterations, 122. limiting subscription to a single company, 126. relying on fraudulent representations, 127. must be damaged by fraudulent representations, when, 127. must be free from negligence to take advantage of fraud, 130. must take advantage of fraud in reasonable time, 132. making call against is acceptance as stockholder, 140, n. notice to 6f call by publication, 142. suit against for unpaid assessment, 149. notice to before forfeiture of stock, 153. Corp. 200 3142 INDEX. \_RefereHces are to Sections.'] Vol. I, §§ 1-321, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391^1703. SUBSCRIBERS TO STOCK— Confinited. when become stockholders, 155. compromising with, 177. when may act as appraisers, 1017. SUBSCRIPTION, taken by promoters, 10. by person not signing articles of association, 18, n. conditional ones, 36, n. in bad faith cause for forfeiture, 49. preliminary agreements to subscribe, 102. when preliminary may be made, 102. generally, 103. form of, 103. intention determining, 103. when must be made in specified manner, 103. construction of contract, 104. contracts of are several, 105. enforcing against trustee, 105. effect of statutes requiring cash deposit to complete, 106. payment of by check, 106. payment of by promissory note, 106. who may subscribe for stock, 107. presumption that one whose name is subscribed is a stockholder, 108. implied promise to pay, 109. consideration for, 109. consideration implied by, 109. payment of, generally, 110. trust fund doctrine, 110. in what may be paid, 110. conditional. 111. conditions to will be held to be subsequent if possible, 111. valid and invalid conditions to, 112. can not be varied by separate written contract, 112. conditional mere offer until accepted, 113. recalling before acceptance, 113. in escrow, 114. on separate paper, when to be annexed to books, 114. suit to recover from real parties in interest, 114. waiver of conditions, 115. when conditional ones become payable, 116, 121. performance of conditions, 116, 126. when payable in cash, 116. construction of conditional ones, 117. INDEX. 3143 [Beferences are to Sections.'] Vol. I, §§i-5fi, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. SUBSCEIPTION— Con«TO«ed. what is a sufficient compliance with condition as to time of beginning and completing road, 117. payable as work progresses, or upon expenditure o£ certain amount, 118. absolute on completion o£ certain part of road, 117. failure to perform parol condition will not defeat, 119. conditions in notes for, 120. conditioned upon location or construction of the road, 121. effect of alteration in route fixed by charter, 122. effect of abandonment or sale of road, 123. condition as to terminus, 124. what is sufficient compliance with condition as to terminus or location of depot at certain place, 125. general rule of construction, 126. fraudulent representations in obtaining, 127. courts are inclined to uphold, 127. misrepresentations in prospectus and by agents generally, 128. adopting those taken without authoritj', 128. fraud may be shown by parol evidence, 129. subscriber must be free from negligence to escape on ground of fraud, 130. induced by fraud voidable, 131. ratification and estoppel, 132. rescission, 132. waiver of fraud in securing, 132. when payment of must be made, 133. may be ordered paid in installments, 137. may be required to be paid at once, 137. payable on demand, 140. assignment of right to collect, 145. remedy where stockholder fails to pay, 149. when payment of constitutes one a stockholder, 155. when stockholders may sue to compel payment of, 167. liability of stockholders for unpaid, 175. when consolidated corporation can not enforce, 325. consolidated company enforcing unpaid ones, 327. defense to after consolidation, 328. right of consolidated company to recover, 329. to contemplated corporation valid, 409, n. right of receiver to enforce, 569. when unpaid subject to garnishment, 626. when municipalities may make to railroads, 820. to aid railroad outside the state, 826. statutory authority to make necessary, 827. how many may be made by municipality, 828. 3144 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. 11, ^^3^3-918, Vol. Ill, §§ 919-1390,Vol. IV, §§ 1391-1703. SUBSCRIPTION— Co>i«foite(J. when one to railway company becomes complete, 832. mandamus to enforce one to railway company, 836. power to aid by does not authorize execution of bonds, 839. public aid by, 841. to unorganized company, 848. validity of one to de facto corporation, 848. validity of conditions annexed to, 851. to railroad on conditions, 852. when complete, 861. effect where commissioners annex conditions to, 862. contract created by, 863. enforcing contract of, 863. presumption as to acceptance of, 866. ratification of, 867. liability of municipal corporation for unpaid, 869. defenses to municipal, 870. tax-payers defending against, 870. estoppel to defend against, 870. tax-payers enjoining payment of, 872. rescission of, 873. SUBSEQUENT EEPAIBS, evidence of, admissible to show antecedent negligence, 1177, 1349, 1697 SUBSTITUTED PARTIES, right to remove causes to federal court, 647. SUBSTITUTION, of one subscriber for another, 177. of consolidated company as a party, 338. of municipal aid bonds, 906. SUBWAY, action to enjoin closing of, 629. damages for filling up, 1140. under railroad track, 1147. SUCCESSION, distinguished from consolidation, 324. definition and effect of, 324. SUDDEN JERKS, passenger injured by, 1629, n. SUDDEN PERIL, as aftecti-ag duty of traveler at crossings, 1173. INDEX 3145 {^References are to Sections.'] Vol. I, §§ 1-331, Vol. II, §§ 32S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SUDDEN STAET, negligence in making, 1589, n. SUFFERANCE, does not amount to license, 1252. SUI JURIS, when child becomes, 1261. See NoN Sui Juris. SUITS, removal to federal courts, 23. where to bring against railways, 24. in federal court is not "doing business," 30. for calls and assessments, 144. effect of corporation refusing to bring, 165. when stockholders may maintain on behalf of the corporation, 167. by assignees and receivers against stockholders, 184. effect of consolidation upon, 338. by and against receivers, 537. necessary to appointment of receiver, 540. authority of foreign receivers to maintain, 555. must generally be pending to authorize appointment of receiver, 560. do not abate by appointment of receiver, 563. when receivers may maintain in their own name, 568. by receivers, 568. when receivers may maintain, 569. defenses to receiver's, 569. right of receiver to maintain in other jurisdictions, 570. obtaining leave to maintain against receivers, 571. against receivers, 571. maintaining in court of law against receivers, 573. rule where they have been begun before appointment of receiver, 574. when may be brought on receiver's certificates, 597. dissolution does not preclude, 608. by and against corporations after dissolution, 612. abatement on dissolution, 612. power of corporation to maintain, 615. when must be authorized by directors, 615. dismissal after removal to federal court, 655. against railroad commissioners, 700. See Removal of Causes ; Actions By and Against Corporations ; Actions Against Carriers. 3146 INDEX. [Beferences are to Sections.'] Vol. I, §§ l-Sn, Vol. II, ^%S^2-91S, Vol. Ill, §§ 919-1S90, Vol. IV, §§ 1391-1703. SUMMONS, use of "railway" and "railroad" in, 3, n. on toreign railways, 24. waiver of defects in, 654. See Notice; Process. SUNDAY, prohibiting trains running on, 1668, 1673. power to prohibit business on Sunday, 1668. SUNDAY LAWS, effect of violation of, 717. SUPEEINTENDENT, not entitled to benefit of personal liability of stockholders, 186. power to make rules and regulations, 199, n. judicial knowledge as to powers of, 208, n. authority and powers of, 297. authority to offer reward, 297. service of process on, 621. claim on company for wages, 1065, n. as fellow-servant with employes, 1321. when foreman regarded as, 1352. within meaning of employers' liability acts, 1352. what constitutes negligence on part of, 1353. SUPERINTENDENT OF CONSTRUCTION, example of authority of, 296, n. SUPERIOR AGENTS, now recognized in negligence cases, 1316. views of the authors as to, 1317. definition of, 1317. illustrative cases of who are, 1318. when inspectors are, 1327. telegraph operators are not, 1328. when foremen are, 1329. when conductors regarded as, 1330. foremen of gangs of men are not, 1333. SUPPLIES, when six months' rule applies to, 528. receiver purchasing from officers of road of which he is receiver, 579. liability of receiver for, 580. issuing receiver's certificates to pay for, 590. INDEX. 3147 [References are to Sections.'] Vol. I, ^U-3S1, Vol.11, ^3S2-918, Vol. Ill, ^ 919-1390, Vol. IV, ^ 1391-1703. SURETY, when waiver of Hen on stock will not release, 101. when liable on officers' bonds, 232. on bonds of officers and agents, 233. rights of those on appeal bonds where mortgage is foreclosed, 528. efiect of insolvency of one on construction contract, 1058. SURFACE "WATER, what is, 632. SURGEON, duty to furnish competent, 222. authority to employ in emergency, 222. authority to employ other surgeon, 222. authority of agents to employ, 222. care to be used in selecting, 223. effect of negligence in selecting, 1388. when liable for negligence of one in hospital, 1389. how paying affects question of liability, 1697. SURGICAL ATTENDANCE, furnishing to employes, 1388. SURGICAL EXAMINATION, when plaintiff must submit to, 1699. SURPLUS, after sale of stock on forfeiture, 150. after forfeiture of shares, to whom it belongs, 151. SURPLUS EARNINGS, who entitled to stock purchased with, 307. SURPLUS LAND, power to mortgage, 488, n. SURRENDER, of certificate of stock on transfer, 97. SURRENDER OP CHARTER, when can take place, 608. SURVEY, basing public aid on preliminary, 857. filing of proposed route, 926. See Preliminahy Sdkvet. 3148 INDEX. ISeferences are to Sections.'] Vol. I, §§ l-SSl, Vol. II, §§ 33^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SUSPENSION OF BUSINESS, as cause for forfeiture, 49. does not work dissolution, 606. SWINDLBE, liability for delivery to, 1535. SWINE, duty to fence against, 1190. SWITCH CONNECTION, mandamus to compel restoration of, 639. SWITCH YARDS, duty to fence, 1194. duty of employer to make safe, 1272. SWITCHES, real estate, 31. limited time for completing road not applicable to, 47, n. contracts in reference to location of, 363. right of receiver to remove, 579. law fixing kind of, 724. right to locate and construct, 923. map of proposed route need not show, 926. covenant to construct, 945. leading to private manufactories, 961 when land can not be condemned for, 961. condemning land for one leading to turn-table, 971. using those of another company, 974. right to construct in street, 1076. - laying out streets across, 1098, 1104. when not part of depot grounds, 1194, n. company not required to block against trespassers, 1258. duty in reference to blocking, 1272. duty of opening and closing may be delegated, 1276. person charged with opening not a vice-principal, 1318. duty to properly close owing to passengers, 1589. placing cars on so as to obstruct main track, 1636. rates where shippers have, 1678. discrimination in granting use of, 1678. SWITCHING COMPANIES, as common carriers, 1398. INDEX. 3149 [^Beferences are to Sections.'\ Vol. I, §§ 1-3S1, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. SWITCHMEN, fellow-servants with brakemen, 1276, n. knowledge of defective track, effect, 1290. as fellow servants of trainmen, 1332. TAKING OF PROPERTY, compensation for, 976. what constitutes, 976, 976, n. illustrative cases of what constitutes, 977. when is complete, 985. compensation preceding, 985. preliminary survey is not, 986. market value before and after taking, 995. when compensation and damages must precede, 1048. when highway crossing is, 1101. when construction of railroad crossing is, 1126. See Eminent Domain. TARIFF OF RATES, how reasonableness of determined, 691. courts can not make, 691. tests of reasonableness, 693. entire line considered in fixing reasonableness, 693. joint under interstate commerce act, 1686 See Rates. TAX, See Taxes. TAX DEED, holder of as party to condemnation proceedings, 1025. TAX PROCEEDINGS, due process of law in, 771. TAX RECEIPTS, in payment of fare and freight charges, 640, n. TAXATION, of railways in foreign states, 24. on railway bonds of foreign company, 27. on real estate or personalty, 31. of franchise, 67. to what extent exemption from passes to consolidated corporation, 330. 3150 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. 11, §§ 3^2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TAX ATION— Continued. shares in consolidated company, 330, n. effect of leases on, 456. when exemption from passes under foreclosure sale, 525, n. immunity from does not survive dissolution, 613. constitution protecting railway companies against, 660. must be for public purpose, 847. distinguished from power of eminent domain, 950. proving assessment for in condemnation proceedings, 1036, n. of sleeping and parlor car companies, 1618, n. of interstate railroads, 1664, n. TAXATION OF KAILROAD PROPERTY, general power to tax, 735. legislative power, 736. appropriate method of assessing, 737. methods of, 738. statutory method of assessment exclusive, 739. legislative discretion in, 740. classification of property, 740. equality and uniformity, 741. duties of corporation as to return, 742. rights of stockholders, 742. failure of corporation to make tax return, effect, 743. discrimination in, 744. lien of assessment, 745. relinquishment of the power of taxation, 746. exemption from taxation on consolidation, 747. right of exemption non-assignable, 748. immunity from taxation not a. franchise, 749. exemption of property used in operating road, 750. remedies against illegal taxes, 751. injunction as remedy against illegal taxes, 751. when tender of amount of taxes owing is required, 752. TAXATION AS AFFECTED BY FEDERAL CONSTITUTION, taxing interstate commerce railroads, 753. obstruction of interstate commerce, 754. railroad property used in interstate commerce is taxable by the states, 755. taxation of property brought from one state into another. 756. railroad in more than one state, 757. mileage basis of valuation, 758. license tax, when valid, 759. privilege tax on interstate railroads, 760. INDEX. 3151 [^Eeferences are to Sections. "i Vol. I, §§ 1-SSi, Vol. II, §§ 3^^-913, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TAXATION AS AFFECTED BY FEDERAL CONSTITUTION— Conttnusd. privilege tax discriminated from a property tax, 761 . excise tax, 762. tax on passengers carried, 763. tax on interstate freight, 764. on gross receipts of interstate commerce corporations, 765. fees for the right to be a corporation not taxes, 766. municipal tax as compensation for use of streets, 767. impairing obligation of a contract, 768. impairing obligation of contracts by tax on bonds, 769. exemption of railroad property, 770. due process of law in tax proceedings, 771. equal protection of the laws, 772. equal protection of the laws, corporations as persons, 773. what is a denial of equal protection of the laws, 774. unequal taxation, fourteenth amendment, 775. classification not a denial of equal protection, 776. tax for salaries of railroad commissioners, 777. of corporations deriving rights from the United States, 778. taxation of land grants, 779. of domestic commerce, 780. TAXES, on interest coupons, 1, n. on street railway, 6. railway company paying as "person," 21, n. in aid of railway construction, 33. duty of life tenant to pay, 308. lien of superior to mortgage lien, 500. how failure to pay affects right to foreclose mortgage, 505. rule as to payment after foreclosure, 528, n. failure to pay as ground for appointment of receiver, 545. on property in hands of receiver, 565. liability of corporation for pending receivership, 581. issuing receivers' certificates to pay, 590. lien of superior to receiver's certificates, 592. power of legislature to levy, 736. courts have no power to levy, 736. lien for on railroad property, 745. effect of irregularity in levying, 751. interstate commerce can not be restricted by, 756. definition of, 767, n. for salaries of railroad commissioners, 777. distinguished from local assessments, 781. theory on which they are levied, 781. 3152 INDEX. [Eeferences are to Sections.] Vol. I, §§ 1-S^l, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TAXES— Continued. definition of, 781, n. constitutional limitation of power of municipal corporations to levy, 816, n. levying to meet subscription to railway, 836. enjoining levy of illegal, 872. enjoining levy of excessive, 872. can not be levied for private purpose, 877. duty to levy a continuing one, 918. mandamus to compel levy of, 918. courts appointing ministerial agents to levy, 918. TAXING DISTRICTS, creating to vote for public aid, 846. local officers can not organize, 862. legislature may organize, 878. TAXING POWER, as affected by the federal constitution, 753. power to levy local assessments rests on, 782. TAXPAYER, right to mandamus to compel levy of tax to pay for public aid, 820, n. voting on question of public aid, 823. enjoining levy of tax to pay for public aid, 857. number to sign petition for public aid, 858. how to count in petition for public aid, 858. dividing railway stock among, 868. defending against subscriptions, 870. estoppel to defend against municipal subscriptions, 870. estoppel in reference to municipal aid, 871. remedies against public aid, 872. injunction as remedy for on question of public aid, 872. laches defeating right to injunction, 872. enjoining issue of railway aid bonds, 893. estoppel by standing by, 903. TECHNICAL TERMS, parol evidence admissible to explain, 1425. TELEGRAPH COMPANY, validity of contract conveying to it exclusive right in right of way, 388. power to make rules and regulations, 1576, n. TELEGRAPH LINES, implied authority to erect, 41. as additional burden on right of way, 977. INDEX. 3153 [_Iieferences are to Sections. "l Vol. I, §§ 1-3S1, Vol. II, §§ 3£S-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TELEGRAPH MESSAGES, penalty for failure to deliver, 1670. TELEGRAPH OPERATORS, as fellow-servants of trainmen, 1328. judicial knowledge as to employment of, 1328. duty to use ordinary care in selecting, 1328. negligence of in causing collision, 1635. TELESCOPES, as baggage, 1647, n. TELLERS, can not determine who has right to vote, 157. TEMPESTS, carrier not liable for loss by, 1455. when carrier not liable for injuries caused by, 1584. See Storms. TEMPORARY INTERRUPTION OF CORPORATE FUNCTIONS, not ground for forfeiture, 51. TEMPORARY STRUCTURES, part of "ways and works," 1338. TEMPORARY STRUCTURES NEAR TRACK, injuries to employes, 1269. See STE0CTUBBS Near Track. TEMPORARY TRACK, right to acquire real estate for, 394. when not covered by general railroad mortgage, 495. subject to lien of mortgage, 498. when land can not be appropriated for, 972. extra pay for building, 1060. TENANT, how affected by condemnation proceedings, 1025. when entitled to private crossing, 1137. See Life Tenant. TENANTS IN COMMON, effect of conveyance from one, 934. as parties to condemnation proceedings, 1025. appeal by in appropriation cases, 1053, n. 3154 INDEX. \^Beferences are to Sections.'] Vol. I, §§ 1-S31, Vol. II, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TENDER, of stock certificates on rescission, 132. to prevent forfeiture of stock, 154. in suit to restrain collection of taxes, 752. of compensation in appropriation cases, 1048. what a suflicient one in condemnation proceedings, 1051. in appropriation cases, 1051. must be made in money, 1051. deposit as, 1051, n. in suit to avoid release or compromises, 1377, 1697, n. by carrier to consignee, 1530. of reasonable compensation, 1564. TERMINAL CHARGES, for handling live stock, 1551. right to make, 1566. TERMINAL FACILITIES, contracts in reference to, 358. contracts with municipal corporations for, 360. condemning land for, 952. securing under power of eminent domain, 971. using those of another company, 974. bridge company furnishing, 1400, n. TERMINAL POINTS, stating in articles of incorporation, 18. TERMINAL SERVICES, right to charge extra compensation for, 1551, 1566. See Dbmukbagb. TERMINALS, allowing other companies to use, 42. conditions as to location of, 125. ' TERMINI OF ROAD, stating in charter, 36. description of, 36. authority to locate, 41. changing is material amendment, 45, n. changing under general statutory authority, 46. change of cause for forfeiture, 49. voting aid on conditional location of, 117, n. effect of material alteration in on subscriptions, 122. location of as condition to subscription, 124. complying with condition as to location, 125. INDEX. 3155 l^Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ S^S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-1703. TERMINI OF 'ROA.'D— Continued. legislature fixing, 919. discretion as to location of, 919. effect of authority to construct road between, 1101. no duty to carry freiglit beyond, 1432. illustrative cases of contracts to carry beyond, 1436. TERRITORIES, congress chartering railroads in, 15, n., 25. when may exercise power of eminent domain, 950. right to condemn lands through, 980. TESTS, See Inspections. TEXAS CATTLE, refusing to transport, 1669. THEFT, liability for that on sleeping car, 1622. THEORY OF COMPLAINT, plaintiff must recover according to, 1396, n., 1628. recovery must be had on, 1594. See Secundum Alleqatb et Probata. THIEVES, are not public enemies, 1458. stipulating against liability from loss by, 1513. THIRD PERSONS, fraud of directors on, 282. duty to fence can not be delegated to, 1186. not bound by contract in reference to fences, 1188. how affected by waiver of duty to fence, 1189. how affected by right of stoppage in transitu, 1539. taking away right of stoppage in transitu, 1540. duty to protect passengers from injury by, 1591. causing injuries to passengers, 1639. THROUGH RATE, effect where initial carrier collects, 1435. under interstate commerce act, 1686. THROUGH TICKET, stop-over privileges, 1595. effect of, 1596. nature^of contract contained in, 1596. 3156 INDEX. [Beferences are to Sections.'} Vol. I, §§ 1-3^1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TICKETS, rules and regulations regarding surrender of, 199. right to regulate purchase of, 200. affording reasonable opportunity to purchase, 200. charging extra fare for passengers without, 200. redemption of unused, 662. sale of without authority, effect, 728. effect of counterfeiting, 734. when mere purchase of does not create relation of carrier and passen- ger, 1579. definition of, 1593. token or receipt and not contract, 1593. effect of conditions and limitations on face of, 1593. not negotiable as commercial paper, 1593. when carrier can sell at reduced rate, 1593. not good for passage in opposite direction, 1593. effect where secured by fraud, 1593, n. as evidence of passenger's rights, 1594. effect of loss of, 1594. passenger refusing to produce may be expelled, 1594. as conclusive evidence between conductor and passenger, 1594. giving passenger reasonable time to seach for lost, 1594, n. stop-over privileges, 1595. through tickets, 1596. coupon, 1596. effect of time limit in, 1596. effect where coupons are detached, 1596. round-trip tickets, 1597. effect where coupons detached by accident, 1597. when must be stamped at destination, 1597. limited tickets, 1598. limiting to particular train, 1598. construing strictly against the carrier, 1598. when journey regarded as commenced, 1598. non-transferable tickets, 1599. when may be forfeited, 1599, n. commutation and mileage tickets, 1600. when passenger must sign his name to, 1600. excursion tickets, 1601. conductor's checks, 1602. fare paid on train, 1603. extra fare where passenger does not have, 1603. offering opportunity to purchase, 1603. forsleeping cars, 1620. contradicting by parol, 1620. INDEX. 3157 [References are to Sections.'] Vol. /,"§§ l-SSl, Vol. II, §§ 3S£-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TICKETS— Contomed. rule where passenger loses, 1620. ejection of passenger for failure to produce, 1637. purchase of not necessary to make carrier liable for baggage, 1651. effect of condition in, 1661. effect of notice on back of, 1661. See Fares ; Passes. TICKET AGENT, arrest caused by, 1265. authority of as to sale of tickets, 1593, n. liability for assault of, 1638, n. TICKET BROKERAGE, statutes to prevent, 728, 1599. See Scalpers. TICKET. OFFICE, requiring company to keep open, 662. when a misdemeanor to break into, 732. duty to keep open, 1603. TICKET SCALPING, when prohibited, 728. TIES, as real estate, 31. TIMBER, condemning land for purpose of securing, 960. enjoining destruction of that on land grants, 810. TIME, of corporate existence, 36. in which to construct road not applicable to branches, 42, n. as a condition to granting of corporate charter, 47. to bring forfeiture proceedings, 48, n. of corporate existence, 62. in which to begin and complete road, 117. when subscriptions should be paid, 133. stating in notice of stockholders' meeting, 164. in which to unload freight, 200. for payment of dividends, 304, n. when dividends may be declared, 312. for which railway company acquires real estate, 400. duration of leases, 455. for applying for removal of causes, 653. Corp. 201 3158 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 333-918, Vol. Ill, §§ 919-1390, Vol. IV, IU391-170S. TIMB— Continued. when land grants become effective, 796. as essence of a contract, 851. at which compensation is computed, 985. of payment of compensation, 986. in which to abandon condemnation proceedings, 1033. within which commissioners must report, 1043. for making tender in appropriation cases, 1051. in which to apply for writ of certiorari, 1054. in which to take lien, 1071. limiting for bringing action on injuries causing death, 1362. to bring action for injuries causing death, 1373. for presenting claims, 1512. effect of time limit in ticket, 1596. limiting in railroad ticket, 1598. TIME KEEPER, claim on company for wages, 1065, n. TIME OF DELIVERY, bow determined, 1520. effect of custom and usage, 1522. consignee waiving objections to, 1531. TIME TABLES, duty to prepare can not be delegated, 1281. right to change, 1281. notice of change in, 1281. duty of company to adopt, 1281. disobedience as contributory negligence, 1314, n. TITLE, passed under sale by trustee in mortgage, 514, n. acquired by purchase at foreclosure sale, 525. when purchaser at foreclosure sale takes free from liabilities and liens 526. when receiver's dates from, 563, n. of receivers, 565. time at which receiver's vests, 565. in land grants, 795. present one conferred by land grant, 796. when passes to indemnity lands, 799. conditions precedent to, 940. conditions subsequent to, 940. acquired by railway company by dedication, 947. to right of way by adverse possession, 948. INDEX. 3159 \_Beferences are to iSeciions.] Vol. I, §§ 1-SSl, Vol. 11, §§ SJS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TlT'L^:r- Continued. acquired by condemnation, 972. passes on payment of compensation, 986. when company can not dispute in condemnation cases, 1030. what is evidence oi, 10.30, n. possession as evidence of, 1233, n. effect of delivery to carrier on, 1414. bills of lading as muniments of title, 1426. presumption that it rests in consignee, 1426. to stolen or lost ticket, 1593. TOLL BRIDGE COMPANIES, condemning property of, 964. TOLLS, implied authority to collect, 41. right to take is special franchise, 67, n. receiver to take charge of pending foreclosure, 546. company can not be deprived of, 691. definition of, 767, n. See Fakes ; Fkbight Charges. TOOLS, requiring company to carry, 724. TOP OF CAR, negligence for passenger to ride on, 1632. TORPEDO, child injured by one exploding, 1260. TORT, unpaid subscription may be collected to pay damages for, 175. personal liability of stockholder can not be resorted to to pay damages on, 185. liability for agent's, 213. individual liability of agents for, 231. liability of consolidated company for, 334. holding consolidated company for, 338. lessee liable for, 457, 474. when lessee liable for those committed prior to lease, 459. liability for where lease is unauthorized, 466. liability for can not be escaped by transfer of road, 519, n. receiver not personally liable for those of his employes, 576, n. liability of receivers for, 577. what ones receivers are liable for, 577. 3160 INDEX. [Beferences are to Sections.'\ Vol. I, §§i-5«i, Vol. 11, 1^33^-918, Vol. in, §§ 919-1S90, Vol. IV, §§ 1391-1708. ^OKT— Continued. liability for one committed after expiration of charter, 612. corporations liable for those of employes, 617, n. amount claimed is value in dispute, 648, n. committed by abuse of power of eminent domain, 1031. when lessor liable for lessee's, 1237. when company not liable for that of employe, 1265. of companies constituting union depot company, 1453. carrier liable for those of employes, 1589. liability for those of agent, 1622. liability for in loss of baggage, 1660. statutes of limitations barring action in, 1693. punitive or exemplary damages for, 1693. who may be defendants to action in, 1693. special contract as defense to, 1693. election to sue in, 1693. See Negligence. TOWN LOTS, when not covered by general mortgage, 495. TOWNS, regulating speed of trains, 668. fences in, 1195. cattle-guards in, 1198. See Municipal Corporations. TOWNSHIP, granting aid to railways, 826. may grant public aid, 847. TOWNSHIP AID BONDS, legislature validating, 843, n. TEAOKS, compelling companies to fence, 44. taking up as cause for forfeiture, 49. municipal corporations securing right to use for other companies, 361. when other companies may use, 361. contracts in reference to location, 363. when contracts for location of against public policy, 386. contract for use of not necessarily a lease, 451. liability for negligence in constructing, 467. negligence where there is joint use of, 477. compelling removal from streets, 630. right to injunction to prevent interference with, 632. mandatory injunction to protect and compel restoration, 636. INDEX. 3161 [_Beferences are to Sections.1 Vol. I, §§ 1-3£1, Vol. II, §§ .m-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TRACKS — Continued. mandamus to compel replacing of, 639, n. lighting in cities and villages, 668. compelling company to clear of weeds, 668. one company using those of another company, 682. compelling company to light, 724. penal offense to place obstruction on, 730. when a felony to destroy, 730, n. local assessment where track laid in street, 787. using those of another company, 922. when become a part of the real estate, 949. condemning land for those leading to stock yards, 960, n. how may be located on right of way, 973. • using those of another company, 974, 1084. right to cross those of another company, 975. when become property of landowner, 998. duty to construct, 1056. municipality fixing location in streets, 1081. requiring street railway to sprinkle, 1082. temporarily removing those of street railway company, 1082. legislature authorizing joint use of, 1084. right to exclusive use of, 1093. damages for injury to, 1093. presumption that traveler will leave, 1095, 1153. duty to watch ahead of train, 1095. right to lay parallel at highway crossings, 1099. street may be laid out across collection of, 1104. building bridge over, 1107. crossing those of another company, 1116. right to cross those between designated termini, 1116. damage by constructing other line across, 1127. compensation for restoring after railway crossing, 1127. passways and subways under, 1147. as warning of danger, 1153, 1157, 1163. presumption that person will step from, 1153. judicial knowledge that persons cross in safety, 1165. presumption where young child on, 1172. looking for traveler on, 1175, 1257. duty to keep clear of obstructions, 1192, n. where may be unfenced, 1193, 1194, 1195. when no duty to fence between, 1193. when both sides need not be fenced, 1194. place of entry of animals on, 1201. negligence in allowing animals to stray near, 1209. 3162 INDEX. {^Beferences are to Sections. 1 Vol. I, §§ 1-381, Vol. II, SSS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TRACKS— Continued. no duty to patrol to watch for fires, 1232. maintained under license, keeping free from combustibles, 1237. duty to look out for licensees on, 1250. company not obliged to patrol to keep off trespassers, 1250. when person who goes upon is a trespasser, 1252. when license implied to cross, 1252. injury to trespassers upon, 1257. no duty to keep lookout for trespassers upon, 1257. negligence of child in standing on, 1261. rate of speed injuring person beside, 1263. duty to put in reasonably safe condition, 1268. wrong-doer making unsafe, 1268. structures near, injury to employes, 1269. presumption that adult person will leave, 1272, n. brakeman assuming risk from failure to ballast, 1296. engineers assuming risks of defects in, 1297. charging demurrage for use of, 1567. duty owing to passengers in respect to, 1585. duty of carriers of passengers as to, 1586. sleeping-car companies do not undertake to furnish, 1616. obstructions placed dangerously near to, 1636. negligence in placing close together, 1636. presumption of negligence from giving way of, 1644, n. See Duty to Fence ; Eight of Way ; Railhoadb in Streets. TRACKMEN, duty to extinguish fires, 1232. assuming risk from wild trains, 1290. assuming risks from running of trains, 1298. TRACK REPAIRERS, as fellow-servants, 1332. TRACK-WALKERS, risks assumed by, 1290. as fellow-servants, 1332. TRACKAGE CONTRACT, when may be made, 359. distinguished from lease, 451. TRAFFIC ARRANGEMENTS, power to make, 42. INDEX. 3163 [Sefereiices are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 332-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TRAFFIC CONTRACTS, surrender to competing line, 359. when will be enforced, 359. wlien are valid, 365. not valid if in effect a lease, 452. how affected by interstate commerce act, 1681. TRAINS, effect of failure to run, 48, n., 49. running to comply with conditions in subscriptions, 117, n. rules and regulations for control of, 199. rules requiring stops at particular stations, 200. appointing receiver for failure to run, 539. when number of can not be restricted, 630, n. enjoining violation of agreement to stop, 632. compelling them to stop by mandatory injunction, 635. mandamus to compel running of, 638. mandamus to compel them to stop at certain stations, 641. statute compelling them to stop at certain places, 668. running as "work of necessity," 717. regulating speed in towns and cities, 668, 670, 1082. regulating speed across highways, 668. allowing them to stand on crossings, 719. crime to endanger passage of, 730. covenant to stop at certain places, 945. covenant to run to a certain point, 946. horses taking fright from as element of damages in condemnation pro- ceedings, 991. damage from vibrations caused by, 996. rattle of as element of damages, 996, n. negligence in running during construction of road, 1063. when may be made up in the street, 1076. limiting speed of, 1082. damages for interruption at highway crossings, 1103. priority of passage at railroad crossings, 1130, 1133. duty to stop at railroad crossings, 1130, 1131. need not be stopped at crossing of street railway, 1131. penalty for failing to stop at crossing, 1131. collision at crossings, 1132. order in which they shall pass at crossings, 1132. how to operate at private crossings, 1150. rights at public crossings, 1153. warning travelers of approach of, 1153. running in violation of ordinance, 1155, n. must be provided with sufficient men and proper appliances, 1156. warning traveler of presence of, 1158. 3164 INDEX. \_Iteferences are to Sections.l Vol. I, §§ 1-SSl, Vol. II, §§ SZ^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TEA INS— Continued. duty to keep lookout on, 1159. when no obligation to slacken at crossings, 1160. presumption that traveler at crossing looked for, 1165. watching for where noise is great, 1167. attempting to cross in front of approaching, 1168. fencing grounds where they are made up, 1194. stopping where animals are on the track, 1204. when company need not slacken where animals on track, 1204. negligence in overloading, 1225. flres springing up just after passing, 1244. signals while making up, 1258. child passing in front of, 1261. duties incident to running may be delegated, 1276. failing to supply with sufficient crew, 1287. assumption of risks from running, 1289. assuming risk of changing time of, 1289. risks of jerks from, 1290. brakemen assuming risks of sudden starts and jerks, 1296. enginemen remaining at their post to protect trains, 1297. trackmen assuming risks from running of, 1298. telegraph operators employed in moving, 1328. trainmen operating same train as fellow-servants, 1330. employes on different ones as fellow-servants, 1331. what necessary to constitute, 1354. meaning within employers' liability acts, 1354. no duty to carry passengers on all trains, 1392. strikers preventing moving of, 1459. duty to properly equip, 1478. on which live stock should be shipped, 1555. no duty to carry passengers on all, 1573. presumption as to ownership of, 1573. duty of passenger to ascertain when they stop, 1576, n. person on by mistake, when a passenger, 1578. effect where passenger leaves temporarily, 1578. person on to assist passengers, 1578. person becoming passenger before he enters, 1579. duty to trespasser or intruder on, 1581. duty to provide and equip with modern and improved appliances, 1588. negligence in stopping or starting, 1589. degree of care required in operation of, 1589. passenger has reasonable time to leave, 1592. effect where passenger temporarily leaves, 1592. duty of passenger to ascertain stops, 1593. limiting ticket to particular one, 1598. INDEX. 3165 {Beferences are to Sections.] Vol. I, §§ 1-S^l, Vol. II, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TRAINS— Corefmaed. paying fare on, 1603. when excursion rate may be paid on, 1603. keeping ticket office open before departure of, 1603. what ones sleeping car accommodations shall be furnished on, 1619. negligence in operating, 1625. ^ passengers injured by boarding and alighting from, 1628. stopping for a reasonable time for passengers to alight, 1628. starting while passengers are alighting, 1628. warning of stops and starts, 1628, n. alighting from on wrong side, 1628, n. judicial notice of jerking motion of, 1630. baggage on one and owner on another, 1656. power of state legislature to prohibit running of, 1G6S. prohibiting running on Sunday, 1668. what is an interstate train, 1673. TRAIN DISPATCHER, when and when not a fellow-servant, 1322. relation to company, 1328. negligence of in causing collision, 1635. TRAIN-MASTER, when brakeman fellow-servant with, 1318. when fellow-servant and when vice-principal, 1325. TRAINMEN, ordinarily no authority to employ servants, 1305. porter not fellow-servant of, 1320. when train dispatcher fellow-servant of, 1322. as fellow-servants of sectionmen, 1324. operating same train as fellow-servants, 1330. operating different trains as fellow-servants, 1331. when fellow-servants of sectionmen, 1332. when fellow-servants with laborers, 1332 as fellow-servants of trainmen, 1332. station agent as fellow-servant of, 1346. TRAIN WRECKERS, authority to offer reward for apprehension of, 297. TRAMWAY, when railway company may operate, 961. TRANSCRIPT, remanding cause for failure to file, 655, n. 3166 INDEX. [Heferences are to Sections.'] Vol. I, §§-Z-52i, Vol. II, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, ^^1391-1703. TRANSFER BOOKS, closing, effect on right to dividends, 306. See Books. TRANSFER COMPANY, as agent of initial carrier, 1399. as common carrier, 1399. as connecting carrier, 1399. TRANSFER OF STOCK, formalities required, 92. when does not relieve transferer of liability, 92. effect of unrecorded, 92, n. formalities necessary, 97. registry of, 98. notice of unregistered, 98, n. regulations regarding, 92. TRANSFER TICKETS, on street cars, 1602. TRANSITORY ACTIONS, illustrative cases of, 623, n. definition of, 623, n. actions for injuries causing death, 1371 . TRANSPORTATION, duty to furnish facilities for, 1479. destruction of goods by flre while awaiting, 1488. delay in caused by act of the owner, 1489. See Caeriage of Goods. TRAPS, duty to notify licensee of, 1250. TRAPS AND POCKETS, at oblique approaches to highways, 1197. TRAVELERS, duty to where railroad in the street, 1094. injury to on railroad in street, 1095. presumption that they will leave the track, 1095. duty to stop, look and listen, 1095, 1167. bound to exercise reasonable care, 1095. restoring highway crossing for benefit of, ] 107. rights at highway crossings, 1152. rights and duties at public crossing!-', 11.53. INDEX. 3167 [References are to Sections.'] Vol. I, §§ 1-S21, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TRAVELERS— ConMnwed. must use care at crossings, 1153. relying on company giving signals, 1153. relying on company using care, 1156. duty to guard against injury, 1156. effect of relying on invitation or direction of flagman, 1157. duty to use their senses, 1158. contributory negligence at crossings, 1163. must use ordinary care at crossings, 1163. duty where view of crossing is obstructed, 1164. duty of at crossings, 1165. duty to avoid trains, 1165. ■ effect where flagman signals, 1166. duty to look and listen at crossings, 1166. duty to look in both directions at crossings, 1166. duty to look for wild and extra trains, 1166. duty where there is smoke and like obstructions to view, 1170. effect of misleading, 1171. effect of invitation to cross, 1171. giving no heed to gatemen, 1171. right to rely on direction of employes, 1171. rule where flagman does not see, 1171, n. sudden peril as affecting the duty of, 1173. negligence after discovery of danger of, 1175. duty to try and discover on track, 1175. injury at defective crossing, 1176. causing injury to those on adjacent highways, 1263. See Passbngbhs; Injuries to Passengers. TREASURER, a director may act as, 272, n. definition of, 292. duties of, 293. care of corporate funds, 294 action against to compel payment of dividends, 310. validity of promissory note executed by, 345, n. TREATIES, removing causes which arise under, 652. TREES, right to cut branches oft of along right of way, 1080. TRESPASS, right of corporation to sue for, 615. where taking of property was wrongful, 1048. 3168 INDEX. l^Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ Sn-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. 1RESPAS&— Continued. when lessee or mortgagee may maintain action of, 1049. effect on damages in condemnation proceedings, 1049. civil action against company for, 1055. damages from that in construction of road, 1057. when company liable for that of contractor, 1063. when company and contractor jointly liable for, 1064. remedy at law for redress of, 1125. caused by wandering animals, 1 180. when amounts to contributory negligence, 1254. TRESPASSER, when person is, 215, 1248, 1252. rights as against land grant, 808. person making preliminary survey is not, 925, n. when company held to be, 934. when company is not in entering on land, 998, n. not proper party to condemnation proceedings, 1025, n. when company becomes where proceedings are abandoned, 1033. company is where condemnation proceedings void, 1055. when company is ab initio, 1055, n. person on railroad in street is not, 1094. using private crossing, 1150. duty owing to, 1152, 1154, 1253. injuries to fences by, 1185. can not recover for property destroyed by fire, 1235. person using tracks between stations, 1250. company need not patrol tracks to keep them off, 1250. avoiding willful or wanton injuries to, 1250. person who goes on track in an emergency is not, 1252. is a wrong-doer, 1253. liability for injuries to, 1254. duty to after discovery of, 1254. using reasonable care to discover, 1254. on cars, 1255. no contract duty owing to, 1255. brakeman ejecting from train, 1255. children as, 1255. brakeman may become, 1255. unnecessary force or violence in ejecting, 1255. ejecting at dangerous place, 1255, n. injury to one on railway track, 1257. no duty to keep lookout for, 1257. lookout for on tracks in cities, 1257. whether signals for benefit of, 1257. INDEX. 3169 [Beferences are to Sections.'] Vol. I, §§ 1-SSl, Vol. II, §§ S3S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TRESPASSER— Continued. liability for willfully injuring, 1257. company not obliged to block switches against, 1258. liability for injury to trespassing children, 1259. duty to children who are, 1259. illustrative cases of injuries to children who are, 1260. liability for watchman shooting, 1265. when person assisting passenger is, 1578, n. duty to one on trains, 1581. does not become a passenger, 1581. when person violating rules and regulations is, 1581. person riding on pass secured by fraud, 1604, 1609. placing obstructions on the track, 1686. duty to one at station, 1641. TRIAL BY JURY, when right of can not be denied, 1183. TRIAL DE NOVO, when had in condemnation proceedings, 1053. TRIBUNALS, to determine compensation in condemnation proceedings, 1011. nature of those for assessment of benefits and damages, 1012. legislative power as to creation of in appropriation cases, 1013. ' See Courts ; Commissioneks ; Interstate Commebcb Commission. TROLLEY CAR, not a locomotive, 1338. TROOPS, duty to carry in time of war, 724. TROVER, for conversion of goods by carrier, 1519, n. when demand must precede action for, 1526. where reasonable freight charges are tendered, 1564. See Conversion. TRUST, notice that stock is held in, 94. conveyance taken in for company, 933. streets held in for benefit of public, 1089. federal power over, 1674. 3170 INDEX. [^References are to Sections.1 Vol. I, §§ 1-3^1, Vol. II, §§ 33S-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TEUST COMPANY, operating road liable for stock killed, 1, n. riglit to vote stock held by it, 159. may act as receiver, 537, n. TRUST DEED, when bondholder chargeable with notice of conditions in, 484. possession under, 501. to secure mortgage bonds, 501. providing for sale on default in payment of interest, 522. See Mortgage ; Railroad Sbcdkities. TRUST FUND, money paid on subscriptions is, 110. capital stock is, 175, 600. unpaid subscriptions, 179. when property of consolidating corporation is, 334. doctrine in regard to, 600, 601. corporate property on dissolution, 613. TRUSTEES, promoters subject to disabilities of, 11. purchase and sale of stock by, 94. may invest trust funds in stocks, when, 94. holding stock for benefit of corporation, 95. right to vote as stockholder, 158. directors considered as, 273. directors are for stockholders, 274. illustrative cases of directors as, 275. when president is trustee for shareholders, 291. who may be in trust deed, 501. must sue to foreclose mortgage, 508. effect of refusal to act, 508. bondholders suing when trustee has left the jurisdiction, 509. effect of provision in mortgage giving them right to take possession and sell, 514. equity putting those under mortgage in possession, 514. must take entire property, 514. duties and liabilities of, 514, n. when liability can not be escaped by conveyance to, 519. when may purchase at foreclosure sale, 585. discretion as to time and manner of sale, 524. effect of failure to take possession, 545. duty to pursue remedy for possession, 549. effect of failure to act on right to receiver, 549. directors becoming for creditors and stockholders, 557. INDEX. 3171 IMeferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. 11, §§ SSS-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. TUVSTBES— Continued. notice to of application for appointment of receiver, 558, n. appointing to wind up corporation on dissolution, 612. when state is trustee for railroad company, 793. securing compensation in condemnation proceedings, 1003. when beneficiary bound by judgment against, 1003, n. as parties to condemnation proceedings, 1025. liabQity for injuries to animals, 1208. property-owner as trustee for insurance company, 1234. implied duty to carry passengers, 1393. TUNNEL, railroad crossing by, 1123. injury by ventilation in, 1271, n. TUENOUTS, map of proposed route need not show, 926. land may be condemned for, 930, 960. using those of another company, 974. right to construct in the street, 1076. See Side Tracks ; Switches. TURNPIKE, granting franchises to, 32, n. condemning property of, 964. compensation for crossing, 1101. TURNTABLE, condemning land for, 971. using those of another company, 974. children injured on, 1259. negligence in leaving unlocked, 1259. TWENTY YEARS' POSSESSION, effect on title to real estate, 401. TWENTY YEARS' USER, securing right to private crossing, 1140, n. U ULTRA VIRES, issue of watered stock is not, 88, n. acts which are can not be ratified, 270. agreement to pay specified dividend, 310, n. enjoining consolidation which is, 328. 3172 INDEX. [Beferences are to Sections. 1 Vol. I, §§ 1-SSl, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-170S. ULTRA VIRES— ConJfeMed. burden of proof to show that contract is, 340, n. when acts which are bind stockholders, 350. definition of the term, 368. acts which are may not be unlawful, 368. effect of contracts which are, 369. money or property obtained by acts which are, liability, 369. what contracts are, 370. estoppel by contracts which are, 371. retaining benefit under contract which is, 371. executed and executory contracts which are, 372. when conveyance of real estate is not, 425. when lease is, 448. when traflBc contract is, 452. when may be pleaded against innocent holder, 493. effect where receiver's acts are, 572. no presumption that relief department is, 1379. extra-terminal contracts, 1434. ULTRA VIRES ACTS, right of stockholders to restrain, 165. unregistered assignee can not restrain, 166. expectant owner of stock can not prevent, 166. stockholders may enjoin, 634. ULTRA VIRES CONTRACT, right of stockholder to enjoin performance of, 165. illustrative instances of, 374. rule where statute prescribes consequences of, 375. injunction as a remedy, 376. laches preventing relief on, 377. who may contest, 378. how creditors affected by, 379. non-assenting stockholders assailing, 380. distinguished from illegal contracts, 383. ULTRA VIRES MORTGAGE, when may be made effective, 493. stockholder enjoining, 493. UNANIMOUS CONSENT, of stockholders to amendments, 45. UNAUTHORIZED ACTS, ratification of president's, 289. ratification of, 353. INDEX. 3173 \_References are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-170S. UNAUTHORIZED CONTRACTS, receiver personally liable on, 576, n. UNAUTHORIZED ENTRY ON LAND, effect of, 998. UNAUTHORIZED LEASE, cause for forfeiture, 49. effect of, 448. duties of lessee under, 458. recovery of rent under, 463. improvements by lessee operating under, 464. liability of lessor on, 466. liability of lessor to lessee's employes under, 472. general liability of lessor under, 473. enjoining execution of, 479. UNAUTHORIZED MORTGAGE, stockholders ratifying, 492. UNAUTHORIZED PERSON, effect of delivery to, 1407. UNAVOIDABLE ACCIDENTS, when carrier not excused by, 1481. UNCONSTITUTIONAL STATUTE, effect of process under, 1461, n. UNDERGROUND CROSSING, injunction as remedy to compel construction of, 1125. when landowner entitled to, 1139. UNDERGROUND ROADS, condemning land for, 961. UNDERGROUND WAY, railroad crossing by, 1123. UNDERTAKING, what covered by mortgage on, 496. UNDUE PREFERENCE, is an actionable wrong, 1469. what is under interstate commerce act, 1676. circumstances and conditions affecting, 1676. cartage constituting, 1678. illustrative cases of, 1678. mixed question of law and fact, 1679. See Discrimination. CoKP. 202 3174 INDEX. \^Beferences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ 3S2-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. UNEQUAL TAXATION, validity of, 775. UNFIT CONDITION, no duty to carry goods which are in, 1466. UNFIT PERSONS, carrier refusing to carry, 1577. sleeping car companies may refuse to receive, 1617. UNIFORMITY, in taxing railroad property, 741. UNION DEPOT, making it terminus of line, 41. UNION DEPOT COMPANIES, agent of, authority, 1453. as railroad carriers, 1453. organization, powers and duties, 1458, n. UNITED STATES, when bound by decree foreclosing mortgage, 511. what property of may be taken under eminent domain, 965. proceedings in condemnation by, 980. UNITED STATES COURTS, See Federal Courts. UNITED STATES MARSHAL, can not levy on property in hands of receiver of state court, 553, n. UNJUST DISCRIMINATION, railroad commission no power to make, 679. as applied to express companies, 1453, n. carrier can not make, 1454. what constitutes, 1467. is forbidden, 1467. who has burden of proving, 1467, n. carrier charging different rates, 1560. See Discrimination; Undue Preferences. UNJUST PREFERENCES, circumstances and conditions affecting, 1677. what are not, 1677. by giving rebates, 1680. in long or short hauls, 1682. See Undue Preferences. INDEX. 3175 [Beferences are to Sections. '\ Vol. I, §§ 1-3S1, Vol. II, §§ 3gS-918, Vol. Ill, §§ 919-1390, Vol. TV, §§ 1391-1703. UNJUST RATES, what are, 1684. UNLAWFUL SPEED, penalty for, 723. causing fire, 1225. UNLAWFUL USE OF STREET, remedies for, 1096. UNNECESSARY FORCE, in ejecting trespasser, 1255. must not be used in ejecting passengers, 1637. UNNECESSARY PROPERTY; reserved power to dispose of, 499. UNORGANIZED COMPANY, subscription to, 848. UNPAID STOCK, collecting balance on insolvency, 600. UNPAID SUBSCRIPTIONS, calls for made in foreign state, 24, n. may be collected to pay damages assessed on tort, 175. liability of stockholders for, 175. when creditors may enforce payment of, 179. when may and when may not be reached by garnishment, 182, n. duty of assignee or receiver to collect, 184. suits by receivers for, 569, n. when subject to garnishment, 626. liability of municipal corporation for, 869. UNPRECEDENTED FLOOD, carrier excused from loss by, 1660. UNREASONABLE CHARGES, carrier can not make, 693. remedy against, 1663. See Unreasonable Rates. UNREASONABLE DELAY, when carrier liable for, 1482. what constitutes, 1483. evidence of, 1483. in carriage of live-stock, damages for, 1555. See Delay. 3176 INDEX. \^Beferences are to Sections.'] Vol. I, §§ 1-S21, Vol. II, ^ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1S91-1703. UNEEASONABLE FARES, contracts for are illegal, 366. UNREASONABLE RATES, injunction to prevent enforcement of, 691. what constitutes, 692, 693. See Uneeasonablb Chakgbs. UNREASONABLENESS, when ordinances void for, 1082. UNRECORDED MORTGAGE, validity of, 494. UNREGISTERED ASSIGNEES, can not sue as stockholders, 166. UNSECURED CREDITORS, rights of after reorganization, 532, n. when foreclosure sale fraudulent as to, 535. appointment of receiver upon application of, 648. how share on dissolution, 614. UNSUITABLE CARS, damages for furnishing, 1448, n. UNTRIED INVENTIONS, carrier not bound to adopt, 1588. UNUSUAL FACILITIES, carrier not bound to furnish, 1473. UNUSUAL PRESS OP BUSINESS, effect on carrier's liability, 1473. See Rush op Business; Press of Business. UlilNALS, ordinary care as to maintenance, 1590. USAGE, as evidence of by-law, 195. as tending to show repeal of by-law, 196. as an element in determining validity of corporate action, 259. as an element in determining authority of president, 287. as affecting powers of treasurer, 292. as affecting duty of inspection, 1278. as affecting obligation of transfer companies, 1399. INDEX. 3177 [Beferences are to Sections.'] Vol. I, §§ 1-321, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-n03. USAGE— Continued. as affecting delivery and acceptance, 1403. to explain bill of lading, 1423. as affecting rights, duties and liabilities of connecting carriers, 1452. as affecting duty to furnish refrigerator cars, 1473. effect on manner of delivery, 1521. effect on delivery by the carrier, 1522. will not excuse negligence, 1522, n. requiring notice to consignee, 1527. as element in determining rights and duties of carriers, 1527. as affecting question of reasonable time, 1528. determining amount of freight charges, 1560. See Custom. USE, rule where two uses can stand together, 1098. license implied from, 1248. making crossing a public crossing, 1252. USER, private crossing secured by adverse user, 1140. USER OF CORPORATE POWERS, as evidence of corporate existence, 18. as affecting railway company, 21, n. V VACATION, appointing receiver in, 538, n, 559. VACATION OF STREET, compensation for, 1086. VALUE, representations as to, when fraudulent, 127. evidence of in condemnation proceedings, 1036. what is test of in appropriation cases, 1036. opinions as to in condemnation proceedings, 1038. can not be proven by offers of compromise, 1218, n. shipper deceiving carrier as to, 1421. bills of lading as evidence of, 1421. when shipper bound by stipulation as to, 1510. stipulating in case of loss of freight, 1510. as affecting freight charges, 1563. 3178 INDEX. {Meferences are to Sections.'] Vol. I, §§ 1-321, Vol. II, §§ 3S3-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. VALUATION, for taxation, when may be made on mileage basis, 758. VALUATION OF PEOPERTY, to determine amount of public aid, 855. VARIANCE, use of word "railway" and "railroad," 3. effect of in suits brought against consolidated company, 334. in proof on indictment for death, 716. effect of in cases of injuries to animals, 1215. between pleading and evidence, 1241. effect of, 1694. VENDEE, as party to condemnation proceedings, 1025. how insolvency affects right to stoppage in transitu, 1539. VENDEE IN POSSESSION, notice to in condemnation cases, 1023. VENDOR, when may exercise right of stoppage in transitu, 1539. effect where he knows of vendee's insolvency, 1539. carrier yielding to demand of as to stoppage in transitu, 1539. agent of may exercise right of stoppage in transitu, 1540. VENDOR AND VENDEE, right of to damages in condemnation proceedings, 1000. compensation and damage in condemnation proceedings, 1001. existence of railroad as notice to vendee, 1002. VENDOR'S LIEN, on land conveyed to railroad company, 416, n. mortgage subject to, 497, n. enforcing against purchasing bondholders, 526, n. in appropriation cases, 1048. VENUE OF ACTIONS, against corporations, 623. VERDICT, quotient verdict invalid, 1046. including past, present and future damages in, 1048, n. directing in crossing cases, 1179. directing in cases of injuries to animals, 1215. when double damages may be included in, 1219. INDEX. 3179 \^References are to Sections.] Vol. I, §§ 1-3S1, Vol. II, §§ 322-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. yEUDICT— Continued. directing where employe injured by a risk of the service, 1297. directing where there was contributory negligence, 1313. scintilla of evidence not sufficient to uphold, 1696. contrary to physical facts, 1703. VEEIFICATION, of articles of association, 36. of answer in garnishment, 625, n. of petition for public aid, 858. when necessary to petition for condemnation, 1028. of claim for injuries to animals, 1216. of claim for injury to freight, 1512. waiver of to claim for injury to freight, 1514, n. VESTED EIGHTS, how affected by repeal of by-laws, 196. in charter or corporate property, 43. how affected by appointment of receiver, 563. VIADUCTS, mandamus to compel construction of, 639, 1111. right to construct in the street, 1091. injuring abutting owners, 1113. electric railroad crossing steam railroad by, 1123, n. VIBRATION, compensation for damages by, 978, 996. damages for injury by, 1057. VICE-PRESIDENT, when may be elected, 283, n. VICE-PRINCIPAL. when conductor is not, 1276. liability for negligence of, 1300. test for telling who is, 1316. definition of, 1316, 1317. views of the authors as to, 1317. illustrative cases of who are, 1318. person charged with furnishing safe working place, 1318. as to particular subjects, 1319. superintendent as, 1321. general manager as, 1321. master mechanic as, 1323. road-master as, 1324. 3180 INDEX. [Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. II, §§ 3gS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. VICE-PRINCIPAL— ComMnMed. when train-master is, 1325. when station-master is, 1326. when inspector is, 1327. when telegraph operator is, 1328. VIEW, when court may order, 1040. duty of company where it is obstructed, 1161. rule where it is obstructed, 1164. smoke and other things obstructing at crossings, 1170. VILLAGES, lighting tracks in, 668. may grant public aid, 847. fences in, 1195. cattle-guards in, 1198. VIOLATION OF EULES, effect of, 1282. VIOLENCE, in ejecting trespasser, 1265. VIS MAJOR, liability of carrier for loss caused by, 1481. non-delivery caused by, liability, 1534. VOID CHARTER, effect of entry under, 998. VOLUNTARY ASSIGNMENT, how affects property in foreign jurisdiction, 599. by corporations, 602. See Assignments. VOLUNTARY DISSOLUTION, when can take place, 608. VOLUNTARY PAYMENT, effect of where excessive freight charges are made, 1564. VOLUNTARY RELIEF DEPARTMENT, See Relief Departments and Hospitals. VOLUNTEER, effect of performance of duty to fence by, 1187, n. liability for injuries to, 1305. INDEX. 3181 [^Beferences are to Sections.] Vol. I, §§ 1-SSl, Vol. 11, §§ 3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1103. VOTE, right of stockholders to, 156. how stockholder's right to be determined, 157. number which stockholder is entitled to, 160. right to can not be denied stockholders, when, 174. cast for ineligible person as director, 243. submitting question of public aid to, 822. meaning of in railway aid election, 849. in favor of public aid does not constitute contract, 861. influencing at railway aid election, 860. VOUCHERS, tickets are mere, 1593, n. See Checks; Tickets. w WAGES, when stockholders are personally liable for, 185. receiver reducing employes', 567. liability of receiver for those of employes, 580. exempt from garnishment, 625. garnishment of employes', 627. liability for those of laborers, 1065. WAITING ROOMS, legislature compelling maintenance of, 662. company required to heat and light, 662. WAIVER, of defective corporate organization, 20. of forfeiture of charter, 52. what constitutes of forfeiture of charter, 52. of objections to issue of preferred stock, 82. of registration of stock, 98. of lien on stock, 101. of right to avoid subscription, 106. of conditions to subscription to stock, 114, 115. when implied to conditional subscriptions, 115. of fraud in securing subscriptions, 132. of irregularities in calls, 134, n. of notice of calls and assessments, 143. of objection to notice of stockholders' meeting, 164. of right to resort to personal liability of stockholders, 186. of formalities necessary to action by directors, 259. of notice of special meeting of directors* 262. 3182 INDEX. [Beferences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, ^ 323-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-170S. y^ AIY'ER— Continued. of formal execution of lease, 442. of default in payment of interest on bonds, 505. of right to foreclose mortgage by bringing action at law, 509, n. of default in payment of indebtedness, effect, 545. of rights under receiver's certificates, 597 of right to removal of causes, 653. of defects in summons, 654, 1047. of right to ask that cause be remanded from federal court, 655. of conditions to grant of public aid, 844. of performance of conditions subsequent, 942. of right to compensation and damages, 1008. of constitutional rights, 1008. of jury trial in appropriation cases, 1012. of objections to competency of jurors, 1017. of defective oath in condemnation cases, 1018. of defective description in appropriation cases, 1022. of effort to agree in condemnation cases, 1027. of objections to competency of witnesses, 1037. of defects in report of commissioners, 1041. of objections to procedure in appropriation cases, 1047. of defects in notice, 1047. of defective petition in condemnation proceedings, 1047. of right to payment and tender of damages, 1052. of right to terminate construction contract, 1062. of lien, 1075. of right to private crossings by conveyance of right of way, 1138. of duty to fence, 1189. of obedience to rules, 1282. of benefits in relief association, 1385. of stipulation as to time and manner of presenting claims, 1514. of delivery by carrier, 1531. of lien for freight charges, 1543, n., 1572. of limitation in railway ticket, 1598. WANT OF POWER, definition of, 884. WAR, duty to carry troops in time of, 724. taking or destroying property in time of, 950. WAREHOUSE, right to acquire real estate for, 393. condemning land for track to, 980. storing goods in for connecting carrier, 1412. INDEX. 3183 [Beferences are to Sections.] Vol. I, §§ 1-SZl, Vol. II, §§ 3S2-918, Vol. in, §§ 919-1390, Vol. IV, §§ 1391-1703. WAREHOUSE— Continwed. carrier not required to furnish for storage, 1479. destruction of goods by fire while in, 1488. as proper place of delivery, 1519. WAREHOUSE RECEIPT, effect of delivery of to the company, 1404. WAREHOUSEMAN, when carrier liable as, 1409. where consignee refuses to accept goods, 1425, n. liability as where connecting carrier refuses to receive freight, 1449. no liability as such where immediate shipment asked, 1462. when carrier liable as for loss by fire, 1462. is not an insurer, 1463. railroad company as, 1463, 1464. how to determine when carrier is, 1464. when carrier's liability as begins, 1464, 1527. liability for baggage as after reasonable time to remove it, 1464, n. duty of as to delivery, 1526. carrier liable as after tender to consignee, 1530. liability of carrier as, 1583. carrier entitled to storage charges for services as, 1533. attaching goods in possession of, 1538. stoppage in transitu while goods are in hands of, 1543. extra compensation for services as, 1567. lien of superior to claim of pledgee, 1570. enforcing lien of carrier for freight charges, 1571. liability of carrier as for baggage, 1652. duty to use reasonable care, 1652. no presumption of negligence against, 1652, n. WARFARE, taking and destroying property in time of, 950. WARNING, duty of company to give at crossings, 1153. when negligence to fail to give, 1154. where train is being backed, 1162. of change in time tables, 1281. before starting trains, 1628, n. See Signals. WARRANTY, indorsement of receiver's certificate does not have effect of, 594. WASHOUT, liability for derailment caused by, 1634. 3184 INDEX. [Meferences are to Sections.} Vol. I, §§ 1-SSl, Vol. II, §§ 3ZS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. WATCHMEN, at highway crossings, 1114. compensation for keeping at railroad crossing, 1127. at railway crossings, 1129. paying expense of keeping at railway crossings, 1129. enforcing agreement to keep, 1129. shooting trespasser, liability for, 1265. injured by a risk of the service, 1290. coupling cars, 1342. See Flagmen. WATER, railroads implied authority to secure, 41. condemning land for purpose of securing, 960. right to take for locomotives, 977. damage and compensation for interfering with flow of, 996. damages from changing flow of, 1057. duty to give to live stock being carried, 1549, 1553. WATER CLOSETS, compelling company to maintain, 662. duty to keep safe for use, 1590, 1641. WATER-COURSES, damages for negligent interference with, 1005. injunction to protect rights in, 1049. WATER PIPES, injunction to prevent interference with, 632. WATER TANKS, part of railroad track, 5. real estate, 31. implied authority to maintain, 41. implied power to condemn land for, 42. action for damages for injury caused by, 631. contractor not entitled to extra pay for, 1060. WATERED STOCK, issue of as cause for forfeiture, 49. definition and nature of, 88. fraud in issuing, 88. not absolutely void, 89. liability of holders of, 90. WAY OF NECESSITY, when not released by conveyance of right of way, 937. INDEX. 3185 [Beferences are to Sections.'] Vol. I, ^1-321, Vol. 11, §§ 32^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 "WAYS AND WORKS," whether include temporary structures, 1338. WEEDS, compelling company to clear from tracks, 668. duty to clear from right of way, 1226. on right of way must be cut and destroyed, 1226. WEIGHT, bill of lading as evidence of, 1420. WHARF, right to rent, 378. WHARFAGE, authority of receiver to pay for, 566. WHEEL, presumption of negligence from breaking of, 1644, n. WHISTLE, contractors not required to sound, 1, n. requiring on locomotives, 721. noise of as element of damages, 996, n. requiring company to sound, 1114. duty to sound at crossings, 1206. sounding while making up trains, 1258. frightening horse by excessive sounding, 1264. sounding is not negligence per se, 1264. See Signals. WIDOW, as an heir at law, 1361. rights where husband killed by negligence, 1363. suing for death of husband, 1368. accepting benefits in relief associations, 1387. WIDTH, of right of way, how fixed, 938. legislature fixing that of right of way, 973. of highway crossings, 1097. WIFE, owning and transferring stock, 93. WILD TRAINS, traveler must look out for, 1166. duty of employes to look for, 1281. Itackman assuming risks from, 1290, 1298. 3186 INDEX. [^Meferences are to Sections.^ Vol. I, §§ l-Sgl, Vol. II, §§ 3^^-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 WILL, bequeathing stock by, 96. See Lbvisbs. WILLFUL ACT, liability for agent's, 213, n., 1622. when master liable for, 214. liability to strangers for those of employes, 1254, 1265. master ratifying, 1265. WILLFUL INJURIES, licensor must refrain from, 1250. must not be inflicted on trespasser, 1253. liability for those to trespasser, 1254, 1257. duty to avoid inflicting on intruder, 1305. inflicted by employes upon passengers, 1638. contributory negligence no defense, 1642. WILLFULNESS, as ground for forfeiture of charter, 48. must not show toward trespasser, 1152. in injuries at crossings, 1175. contributory negligence does not apply where there is, 1175. in killing animals, 1194. in injuring animals, 1201. of owner in abandoning animals, 1210. complaint based on, 1251. contributory negligence not a defense to, 1251. distinguished from negligence, 1251, n. what will amount to, 1257. in giving statutory signals, 1264. in frightening horses, 1264. liability for that in ejection of passengers, 1637, n. See Willful Act. WIND, effect on liability for fires set, 1228. as independent agent, 1231. WIND STORM, liability for loss caused by, 1455. See Storms; Tempests. WINDOW, negligence for passenger to lean head out of, 1633. INDEX. 3187 [^Beferences are to Sections. 1 Vol. I, §§ 1-3S1, Vol. II, §§ 333-918, Vol. Ill, §§ 919-1390, Vol. IV, ^^1391-1703 WING FENCES, damage to crops for failure to erect, 996, u. how to locate at oblique approaches to highways, 1197. must be along margin of highway, 1199. definition of, 1199. not required at private crossings, 1199, n. WIPER OF ENGINES, within employer's liability acts, 1344. WIRE FENCES, when company may erect, 1184. animals injured by, 1207. WITHDRAWAL, of stockholders, 176. WITHDRAWING CASE FROM JURY, when must be done, 1702. how may be done, 1702. WITNESS FEES, authority of receiver to pay, 566. WITNESSES, when required to proxies, 162, n. when stockholder is incompetent as, 173. competency in appropriation cases, 1037. when to make objection to competency of, 1037. presumption as to competency of, 1037. cross-examining in condemnation proceedings, 1037. when may give opinions, 1038. jury not bound by opinions of, 1038. right of commissioners to hear, 1039, n. opinions as to value in fire cases, 1239. WOOD, negligence in using in coal-burning engine, 1224, 1244. WORDS AND PHRASES, "railway" and "railroad" interchangeable, 3. necessary to create corporation, 16. "to," "from" and "at" construed, 41. "between" construed, 41. "person," 709. "tax-payers," 858. "void," 895. 3188 INDEX. [Beferences are to Sections.'] Vol. I, §§ 1-3S1, Vol. II, l§3SS-918, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. WORDS AND PHRASES— Continued. "voidable," 895. "house," 924. "public benefit," 952. "public use," 952. "necessity," 974, n. "property," 976. "public property," 980. civil action, 1010. special proceeding, 1010. "jury," 1012. "owners," 1025. "taking," 1126. "ordinary care," 1156, n. "cattle," 1190. "ways and works," 1338. "superintendent," 1352. "cars," 1354. "use and operation of railway," 1355. "charge and control," 1356. "wrongful," 1361. "heirs at law," 1361. "next of kin," 1372. "good order," 1420. construction of in bills of lading, 1425. "inevitable accident," 1481. "inspect" and "inspection," 1528. "commerce," 1663. "regulation of interstate commerce," 1665. See Definitions. WORK AND MATERIALS, when stockholders liable for, 869. WORK OF NECESSITY, when running trains is, 717. WORKING PLACE, duty of employer to furnish reasonably safe one, 1268. bridges as a part of, 1271. duty to inspect, 1278. effect of change in, 1283. loaded cars are apart of, 1301. person charged with is a vice-principal, 1318. WORKMEN, authority of receiver to pay and hire, 566. INDEX. 31 iu) {Beferences are to Sections. ~\ Vol. I, §§ 1-3S1, Vol. II, §§ 3SS-9i8, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703. WRIT OF ASSISTANCE, when will lie in favor of receivers, 553. WRIT OF ERROR, receiver objecting to prosecution of, 27, n. to test validity of public aid, 872. AVRIT OF MANDAMUS, contempt in refusing to obey, 918. See Mandamus. WRITING, when proxy should be in, 162. agent's authority need not be conferred by, 210. report of commissioners must be in, 1041. when contract limiting liability must be in, 1501. when claim for damages must be presented in, 1512. WRITTEN AGREEMENT, oral negotiations merged in, 1423. WRITTEN CONTRACT, of subscription will not be varied by parol, 119. when can not be varied by oral evidence, 1494, 1503. See Bill of Lading. WRONG-DOER, trespasser is, 1253. making track unsafe, 1268. WRONG PERSON, effect of delivery of goods to, 1526. WRONG SIDE, alighting from train on, 1628, n. YARDMASTER, authority to employ surgeon, 222. YARDS, enjoining construction of street through, 632. land may be condemned for, 960. laying out streets across, 1098. railroad crossing through edge of, 1121. 3190 INDEX. [^Beferences are to Sections. ^ Vol. I, §§ 1-SSl, Vol. II, §§ 3JJ-91S, Vol. Ill, §§ 919-1390, Vol. IV, §§ 1391-1703 YA'RDS— Continued. injunction to prevent condemnation of, 1125. what constitutes, 1194. injuries to persons in company's yards, 1258. signals while making up trains in, 1258. license to use, 1258. duty to cover ditches and drains in, 1272. duty of employer to make safe, 1272. effect of failure to light, 1289. when necessary, 1479. YEAR AND A DAY, in action for injuries causing death, 1370. YEARS, as affecting child's discretion, 1261. YOUNG CHILD, presumption where it is on the track, 1172. See Childkbn. Whole number of pages, 3714, KF 2289 EkS Author Vol. Elliott, 5yron Kosciusko T'"« A treatise on the law of ^"^^ railroads .