((nrnpll ICaui i>rl|nnl ffiibraty Cornell University Library KF 8925.P3B62 Law and practice in accident cases 3 1924 020 127 506 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020127506 LAW AND PRACTICE IN ACCIDENT CASES INCLUDING A Statement of General Principles; Action, Parties Thereto; Pleadings and Forms; Com.m.on Law and Code; Evidence and Proof; Dam.ages for Personal Injuries and for Causing Death; Questions of Law and Fact; Defenses; Contributory Negligence; Fellow Servants; Requests to Charge and Charges by Trial Judges. BY CHARLES C. BLACK AUTHOR OF "NEW JERSEY LAW OF TAXATION' NEWARK, N. J. SONEY & SAGE 1900 Entered, according to act of Congress, to the year 1900, by CHAELES C. BLACK, In the office of the Librarian of Congress, at Washington. J. B. LYON COMPANY PRINTERS AND BINDERS ALBANY, N. Y. PREFACE. " Proof and Pleadings in Accident Cases " was a pioneer in the field then sought to be covered. The success of that book suggested the need of another one, on a somewhat similar plan, but with its scope enlarged and the limitations extended, and brought down to date, by a citation of the recent cases. The object in view, in the first book has been preserved in pre- paring " Law and Practice in Accident Cases," viz. : A practice book, in distinction from those standard works on the law of negligence; a book for ready reference and use at the trial of cases; a book that will render assistance in bringing, main- 'taining and defending accident cases, in the courts. To give completeness to the plan of the book, the general principles underlying the law of negligence, have been stated in the first two chapters, with a citation of the leading cases and of the standard works on the subject of negligence. It is needless to say that there has been no attempt to cite all the reported negli- gence cases; but rather a selection of important cases. Both the common law and Code forms of pleadings have been added. Some charges in full, by trial judges, have been given for the purpose of showing, the precise application made by the courts, of the principles of negligence, to the trial of accident cases; as in no other branch of the law, is it so literally true as in the law of negligence, that it is one thing to understand a principle of law, and quite a different matter, to define it accurately and apply it correctly. Jersey City N. J., January 1, 1900. 0. C. E. 3 TO THE MEMORY OF MY SISTER ANNA THIS BOOK IS INSCRIBED TABLE OF CONTENTS. PART I — GENERAL PRINCIPLES. CHAPTER I. GENERAL PRINCIPLES. Definitions; Distinctions. § 1. Accident and negligence dis- tinguished. 2. Negligence and torts distin- guished. 3. Negligence defined. 4. Negligence is divisible into two classes — Scope of the book. 5. Negligence is a negative and not a positive term. 6. Negligence is a relative and not an absolute term. 7. Negligence and fraud distin- guished. 8. Negligence and accident dis- tinguished — Illustrations. 9. Negligence, heedlessness, and willful mischief distin- guished. 10. Negligence and misfeasance distinguished. 11. Nonfeasance, misfeasance, and malfeasance defined and distinguished. 12. Negligence and nuisance dis- tinguished. 13. Invitation and license distin- guished. 14. Negligence is divisible into three degrees — Denied. § 15. Negligence is divisible into three degrees. 16. Legal duty defined — Duty and right distinguished. 17. A breach of legal duty is of the essence of negligence. 18. A breach of legal duty must be shown — Burden of proof. 19. Ordinary care, reasonable care, utmost care defined. 20. Intent and design are not elements of negligence. 21. Negligence— Proximate cause — Injury resulting from two causes. 22. Violation of duty imposed by statute. 23. Failure to comply with re- quirements of ordinances by railroad companies. 24. Dangerous or illegal work done under contract. 25. Federal and State courts — When not bound by each other's decisions. 26. No contribution between joint tort-feasors. vm Table of Contents. CHAPTER II. statement of general principles— continued. Common Law and Statutory Liability, as Applied by the Courts in the Trial of Accident Cases. Liability of street railway companies to vehicles and pedestrians. The rule stated — New York. The rule stated — Pennsyl- vania. Railroad crossings. Duty of traveller to look and listen. Construction and mainte- nance of crossings. Statutory signalSu Landlord and tenant. Landlord and tenant — Tene- ment or apartment-houses. When tenant is liable. When lessor and tenant are jointly liable. Master and servant — Lia- bility of master for ser- vant's acts,. The relation of master and servant must exist. Liability of master to ser- vants—Negligence of fel- low servants — Statutes. Master does not insure ser- vants against risks. Safe place to work — Tools — Machinery — Appliances. Inspection. Duty to select competent and sufficient fellow servants — To make rules. Inexperienced and youthful servants — Instructions and warnings. Delegation by master of his personal duties. Liability of servants to third persons or to fellow ser- vants. 27. Common carriers of pas- § 52. sengers — Utmost care. 28. Liability is independent of contract. 53. 29. Liability of street railway 54. companies to passengers — Starting and stopping. 55. 30. Liability of common carriers 56. for injuries at depots, sta- tions and platforms. 57. 31. Liability of common carriers to strangers and tres- 58. passers. 59. 32. Contractors — Statutes. 60. 33. Electricity and electrical ap- pliances. 61. 34. Elevators. 62. 35. Domestic animals. 36. Negligent use of firearms. 63. 37. Explosion of fireworks. 38. Liability of those engaged in games and sports. 64. 39. Infants, idiots and lunatics. 40. Parents not liable for torts of 65. infants — Statutes. 41. Innkeepers — No presumption of negligence from fire. 66. 42. Highways — Abutting own- ers. 67. 43. Injuries received on streets. 44. License to interfere with 68. highways. 69. Gas companies. Temporary use of highways for building or trade. 70. Turnpike and plank-road companies — Statutes. Bridges — Statutes. 71. 49. Wharves and piers. 50. Riding and driving. 72. 51. Bicycles. 45. 46. 47. 48. Table of Contents. ix 73. Liability of municipal cor- porations — Common law — Statutes. 74. Liability of municipal corpo- rations — Highways. 75. Liability of municipal corpo- rations — Notice. 76. Liability for injuries from the use of private prem- ises. 77. Explosions — Blasting. 78. Unwholesome and offensive occupations. 79. Licensees — Trespassers. § 80. Spring guns. 81. Children — Conflicting decis- ions. 82. Public officers. 83. Public trustees. 84. Physicians and surgeons — Dentists. 85. Eeceivers. 86. Liability of the State. 87. Liability for injuries on ves- sels — Act of Congress. 88. Vendors and manufacturers of dangerous articles — Druggists. PART II — PROCEDURE — EVIDENCE — DAMAGES — QUESTIONS OF LAW AND FACT. V CHAPTER III. ACTIONS FOR PERSONAL INJURIES. Actions fob Causing Death. 89. Style of action — Trespass — Case — Civil Action — Pleading. 90. Election to sue In contract or tort — Parties — Dam- ages. 91. When the action will lie at common law. 92. When the action will lie by statute — Municipal ordi- nance. 93. Two actions from same wrongful act — Husband — Parent — Master. 94. Right of action over against wrongdoer — Practice. 95. Where the action may be brought — Lew fori — Fed- eral courts. 96. Death of parties — Abate- ment of right of action. 97. Right of action — Assign- ment. 98. No action at common law for causing death of a human being. 99. Action at common law for incidental loss resulting from death. 100. Lord Campbell's Act — American statutes. 101. Special statutory provisions. 102. Distinguishing features of the action. 103. The statute creates a new right of action. 104. Liberal or strict construc- tion. 105. The constitutions and the statutes. 106. Where the action may be brought — Federal courts — Courts in admiralty. 107. Death and action in dif- ferent States — Lex fori. X Table of Contents. § 108. Death and action, in dif- § 110. Distribution. ferent States — Lea! fori 111. There can be but one action — Continued. and one recovery. 109. Survival of beneficiaries necessary. CHAPTER IV. PARTIES PLAINTIFF. i 112. Parties plaintiff In gen- eral. 113. Husband and wife — Joined as parties — Add- ing claims by husband. 114. Husband and wife — Death of wife or husband. 115. Husband and wife — Di- vorce. 116. Husband and wife — Ameri- can statutes. 117. Master and servant. 118. Infants — American stat- utes. 119. Infants — American stat- utes — Continued. 120. Infants — Injury to — Pa- rents' right of action. § 121. Insane persons — Idiots and lunatics. 122. Partners. 123. Bankrupts. 124. Stockholders In corporations — Travellers on highways. 125. Action for causing death of a human being. 126. Where action is brought un- der a foreign statute. 127. Foreign executors or ad- ministrators. 128. Assignment of action for personal Injuries. 129. Survival of action for per- sonal injuries — Statutes. CHAPTER V. PABTIBS DEFENDANT. 130. Parties defendant, in gen- eral. 131. Joint wrongdoers. 132. Applications of the rule — Illustrative cases. 133. Joint wrongdoers — Rail- road companies. 134. Husband and wife. 135. Husband and wife — Di- vorce — Separation. 136. Master and servant — Joint liability. 137. Master and servant — Joint liability — Continued. 138. Independent contractors. 139. Landlord and tenant — Joint liability. § 140. Corporations — Dissolution. 141. Joint-stock companies. 142. Receivers — Permission to sue — Practice — Statutes. 143. Partners. 144. Infants. 145. . Lunatics and Idiots. 146. Death by wrongful act, neglect — Parties defend- ant. 147. Death of wrongdoer extin- guishes liability at com- mon law — American stat- utes. 148. Nonjoinder, or misjoinder of plaintiffs or defend- ants. Table of Contents. 21 CHAPTER VI. PLEADINGS. § 149. Pleadings In general. 150. Requisites in pleading a cause of action in acci- dent cases. 151. A general averment of neg- ligence is sufBcient. 152. The real ground of com- plaint should be dis- tinctly stated. 153. Allegation that plaintiff is free from contributory negligence. 154. Pleadings which have been held sufficiently specific. 155. Pleadings which have been held not sufficiently spe- cific. 156. Injuries to persons and property — Joinder of causes of action — Hus- band and wife. 157. Pleadings in actions against municipal corporations — Notice. § 158. Actions for causing death — Existence of beneficia- ries must be alleged. 159. Appointment of plaintiff as administrator or executor must be alleged. 160. Action based on a foreign statute — Such statute must be alleged. Bill of particulars. Allegation of damages un- der the statute. Special — Exemplary dam- ages — In common-law ac- tions. Greneral denial — Plea — Answer — Contributory negligence. Special pleas — Release — Statute of Limitations. 166. DemuiTers. 167. Miscellaneous forms of com- plaints, declarations and petitions in the reports — For complete forms see chapter XV " Forms." 161. 162. 163. 164. 165. CHAPTER Vn. EVIDENCE — PROOF. i 168. Essentials of proof in acci- dent cases — Burden of proof. 169. Contributory negligence — Burden of proof — Con- flicting decisions. 170. Contributory negligence — Burden of proof — Con- tinued. 171. Contributory negligence — Presumptions. § 172. Action based on foreign statute — Such statute must be proved. 173. What facts are essential to prove negligence. 174. The evidence need not be di- rect and positive — Pre- ponderance of evidence. 175. Illustrative cases — Applica- tions of the rule. Xll Table oi" Contents. § 176. Essentials of proof in ac- tions by servants. 177. Proof of specific acts of neg- ligence by servants. 178. The same subject continued — The rule in Pennsylva- nia. 179. Collisions at steam rail- road crossings — Proof of negligence. 180. Essentials of proof in ac- tions against municipali- ties for defective high- ways. 181. Presumptions of negligence — Res ipsa loquitur. 182. Presumptions of negligence — Common carriers of passengers. 183. Illustrative cases — Applica- tions of the rule. 184. Presumptions of negligence in cases other than those of common carriers. 185. Illustrative cases — Appli- cations of the rule. 186. Other presumptions — Illus- trations. 187. Presumption that streets and sidewalks are free from pit-falls. 188. Evidence of precautions talien after an accident, is not admissible. 189. Evidence of precautions taken after an accident, is not admissible — Con- tinued. 190. Evidence of previous simi- lar accidents — Conflict- ing decisions. 191. Is admissible agEiinst muni- cipal corporations to prove notice. 192. Former safety of a struc- ture, appliance or ma- chine. 193. A custom cannot justify or prove negligence. § 194. Usual practice — Course of business — Experiments. 195. Admissions and declarations — In general. 196. Admissions and declarations by agents — Husbands and wives. 197. Declarations as part of the res gestae — The rule stated. 198. Declarations as part of the res gestae — Continued — In statutory actions for causing death. 199. Declarations as part of the res gestae — Applications of the rule. 200. Dying declarations are not admissible in civil ac- tions. 201. Expert and opinion evidence — In general. 202. Who are experts — Illustra- tive cases. 203. Who are not experts. 204. What is the subject of ex' pert testimony — Injuries. 205. What Is not the subject of expert testimony. 206. Photographs — X-Rays — Maps — Diagrams, as evi- dence. 207. Exhibits of physical objects — Injured parts of the person. 208. Physical examination of the plaintiff — Before the trial — Statutes — How en- forced. 209. Physical examination of the plaintiff — At the trial. 210. Books of inductive science. 211. Books of exact science — Standard mortuary tables. 212. Failure to perform a duty Imposed by statute. 213. Violation of ordinances, as evidence. Table of Contents. Xlll 214. Evidence of the speed of railroad trains. 215. Evidence of injury and damages. 216. Expressions of pain — Made to pliysicians or other persons. 217. Actions for causing death. 218. Testimony of deceased wit- nesses. § 219. Verdict of coroners' or petit juries — Police records. 220. Impeaching witnesses. 221. Miscellaneous points — Kules, reports, time-tables of i-ailroad companies. 222. Allegations and proof. 223. Relevancy of the evidence. 224. Sufficiency of the evidence — New trial. CHAPTER VIII. DAMAGES FOR PERSONAL INJtfRIES i 225. Damages and evidence ger- mane — Three classes of cases. 226. Damages and Injury dis- tinguished. 227. There can be but one re- covery for an injury from a single wrong. 228. Damages as the natural and proximate effect — Bur- den of proof. 229. The rule of recovery is com- pensation — Three princi- pal items. 230. Medical expenses — Nurs- ing — Gratuitous services. 231. Physical and mental pain — Fnght — Miscarriage — Question for the jury. 232. Loss of physical and men- tal capacity — Earnings — Profits. 233. Earnings of plaintiff cannot be capitalized by the jury. 234. Loss of time — Past and future. 235. Prospective or future dam- ages. 236. Injury aggravated by dis- ease — Disease developed by injury. 237. Plaintiff must use reason- able efforts to mitigate injury. § 238. Deformity — Anguish of mind — Inconvenience. 239. Mitigation or damages — Accident insurance. 240. Character of plaintiff or de- fendant not in issue. 241. Special damages — Exem- plary damages distin- guished. 242. Special damages —Pleading. 243. Punitive — Vindictive — Ex- emplary damages. 244. Damages resulting indi- rectly from injuries to the person. 245. Damages to husband from injury to wife. 246. Damages to parent from in- jury to child. 247. Damages to master from in- jury to servant. 248. Interest. 249. Reduction of verdict by the court. 250. Verdict may be set aside if damages awarded are in- adequate. 251. Verdicts for personal in- juries — Excessive. 252. Verdicts for personal in- juries — Not excessive. XIY Table of Contents. CHAPTER IX. DAMAGES FOR CAUSING DEATH. ( 253. Damages in actions for causing death — Statutes — Ckinstitutions. 254. Pecuniary loss the basis of damages. 255. Elements of proof to be considered in estimating damages. 256. Standard mortuary tables as evidence. 257. Damages cannot be given as a solatium. 258. Injury to deceased — Phy- sical and mental suffer- ing. 259. Exemplary — Punitive — Damages — Statutes. 260. Funeral expenses — Family mourning. 261. Mitigation of damages — Insurance money. 262. Nominal damages. 263. Question of fact for the jury. § 264, 265, 266. 267. Seven classes of eases. Action by wife for causing death of husband — Wife living in open adultery — Divorce. Action by husband for caus- ing death of vcife — Re- marriage of husband. Action by parent for caus- ing death of minor child — Question, for the jury. 268. Action by parent for caus- ing death of adult child, 269. Action by minor child for causing death of parent. 270. Action by adult for causing death of parent. 271. Action by beneficiaries for causing death of collat- eral relatives. 272. Verdicts for causing death — Excessive. 273. Verdicts for causing death — Not excessive. CHAPTER X. QUESTIONS OF LAW AND FACT. J 274. Negligence — When a ques- tion of law or fact. 275. Province of the court and jury — The rule stated. 276. Test of the right to go to the jury — Not what the court would find. 277. Scintilla of evidence — Not sufl5cient. 278. Applications of the rule — Illustrative cases. 279. Contributory negligence — When a question of law or fact. § 280. Proximate cause— Question of fact for the jury. 281. Master and servant — Ques- tions of fact. 282. Streets and public highways — Questions of fact. 283. Damages — Personal inju- ries — Death. 284. Other question of fact ger- mane to the issue of neg- ligence. Table of Contents. XX CHAPTER XI. QUESTIONS OF LAW i 285. Questions of law — Illus- trative eases. 286. The same subject apntin- ued — Illustrations. 287. The same subject contin- ued — Illustrations. 288. The same subject contin- ued — Illustrations. 289. Questions of fact— Illus- trative cases. AND FACT — CONTINUED. § 290. The same subject contin- ued — Illustrations. 291. The same subject contin- ued — Illustrations. 292. The same subject contin- ued — Illustrations. 293. The same subject contin- ued — Illustrations. 294. The same subject contin- ued — Illustrations. PART III — DEFENSES — CONTRIBUTORY NEG- LIGENCE—FELLOW SERVANTS. CHAPTER XII. DEFENSES — IN GENERAL. ! 295. Violation of law by plain- tiff — Not a defense. 296. Violation of law contrib- uting to plaintiff's Injury. 297. Violation of law — Travel- ling on Sunday — Massa- chusetts rule. 298. Travelling on Sunday — Massachusetts rule repu- diated. 299. Contracts limiting liability for negligence. 300. In some States such con- tracts are legal. 301. In some States the legality of such contracts is limited. 302. Contracts waiving liability of masters — Statutes — Relief funds. 303. Statute of Limitations — At common law — Torts — Statutes. 304. The statute, when it begins to run. 305. To toll the statute one dis- ability cannot be tacked to another. 306. 307. The Statute of Limitations must be pleaded. The same subject continued — Lex loci — Led! fori. 308. Who may plead the statute. 309. Limitations in statutes giv- ing a right of action for causing death. 310. Such limitations differ from pure Statute of Limita- tions. 311. Such limitations need not be specially pleaded. 312. Releases for personal in- juries. 313. Releases by parents — Hus- band and wife. Release or payment for per- sonal Injury — Bar to suit for causing death. Release or payment for causing death. Releases — How impeached. 317. Sealed and unsealed re- leases — Distinction. 314. 315. 316. XVI Table of Contents. § 318. Payment — Judgment — Re- § 319. Actions for causing death lease of one joint tort- — Defenses — Civil and feasor releases all. criminal action — • Merger. CHAPTER XIII. CONTRIBUTORY NEGLIGENCE. 1 320. General statement — Scope of chapter. 321. Definitions. 322. Elements of contributory- negligence. 323. Ordinary care — Reasona- ble care. 324. Cause — Proximate cause — Remote cause — Condi- t i o n — Occasion — De- fined and distinguished. 325. Knowledge of the danger — Absent-mindedness. 326. Reasons for the rule of con- tributory negligence. 327. Pleading contributory neg- ligence — Under the com- mon lavr and Code. 328. Burden of proof — Conflict- ing decisions. 329. Question of law or fact. 330. May be proved by direct or ' circumstantial evidence. 331. Not a defense for willful in- juries. 332. Actions for causing death — Beneficiaries. 333. Master and servant -^As- sumption of risks. 334. Comparative negligence — Illinois rule prior to 1894. 335. The rule of identification or imputable negligence — Passenger and carrier. 336. Applications of the rule. 337. The rule applied to husband and wife — - Conflicting de- cisions. 338. The rule applied to parent and child — Conflicting de- cisions. § 339. Care exacted from children —Contributory negligence — Question of fact. 340. Presumptions from age. 341. The two opposing rules stated by Mr. Justice Bailey. 342. Care exacted from idiots — Lunatics — Contributory negligence. 343. Care exacted from persons physically infirm — Con- tributory negligence. 344. Intoxication as an element. 345. Sudden danger created by defendant — By plaintiff. 346. Trespass as an element. 347. Violation of a statute or an ordinance as an element. 348. Danger incurred to pre- serve life — Question for the jury. 349. Knowledge of defects in streets, roads, etc., ques- tion of fact. 350. Boarding or alighting from moving trains — Question of fact. 351. Boarding or alighting from electric cars in motion. 352. Riding on platforms of elec- tric cars. 353. Riding on platforms of steam cars. 354. Riding in baggage ' car or other exposed position on steard cars. 355. Riding on freight trains. 356. Resting arm on window sill — Standing or leaning against seat. 357. At railroad crossings — Duty to look and listen. Table of Contents. ivu CHAPTER XIV. MASTER AND SERVANT — FELLOW SERVANTS. i 358. Master and servant — Gen- § 366. erally — Fellow servants. 359. Fellovr servants — Classifi- cation of the principle. 367. 360. Confusion in the application of the principle — Stat- utes. 368. 361. Illustrative cases — Who are fellow servants. 369. 362. The same subject contin- ued — Who are fellow ser- vants. 370. 363. The same subject contin- ued — Who are fellow ser- vants. 371. 364. The same subject contin- ued — Who are fellow ser- vants. 372. 365. The same subject contin- ued — Who are fellow ser- vants. The same subject contin- ued — Who are fellow ser- vants. The same subject contin- ued — Who are fellow ser- vants. Illustrative cases — Who are not fellow servants. The same subject contin- ued—Who are not fellow servants. The same subject contin- ued — Who are not fellow servants. The same subject contin- ued — Who are hot fellow servants. The same subject contin- ued — Who are not fellow servants. PART IV — FORMS — PRACTICE — REQUEST TO CHARGE — CHARGE BY THE TRIAL JUDGE. CHAPTER XV. FORMS. (See Pleadings, Chapter 6.) COMPLAINTS. ! 3/3. Complaint by a servant against a master. 374. The same by one injured at a steam railroad crossing. 375. The same by a servant against a master. 376. The same by a servant against a master. § 377. The same by a servant against a master. 378. The same by one injured by a wagon on a street. 379. The same by a brakeman against a railroad. 380. The same by a servant, an infant, against a master. 381. Answers. 382. Answers — Continued. ivm Table of Contents. DECLARATIONS. "383. Declaration for causing death of a boy at a steam railroad crossing. 384. The same for causing death of a boy, while working at dangerous machinery. 385. The same for an Injury to a passenger on a ferry- boat 386. The same for an injury to a passenger on an electric street car. 387. The same against a street railway company, for frightening horses. 388. The same for causing a col- lision. 389. The same for causing a col- lision of a steam car with an electric car. 390. The same for causing death at a steam railroad cross- ing. 391. The same for causing a col- lision. 392. The same for an injury to a passenger. 393. The same by a guardian of a minor servant, a brake- man. 394. The same for ejecting a pas- senger. 395. The same by a servant against a master. 396. The same by a passenger on an electric street car. 397. The same for a collision at a steam railroad crossing. 398. The same by husband and wife, for injuries to the wife, while a passenger. 399. The same by a passenger against a steam railroad. 400. The same by a passenger against a steamboat com- pany. 401. The same by husband aad wife, for injuries to the wife, while a passenger on an electric car. 402. The same against a street railway company. 403. The same by a servant against a master. 404. The same against an elec- tric street railway com- pany. 405. The same for causing a col- lision. 406. The same by a minor for injuries caused in a col- lision. 407. The same for causing a collision. 408. The same for injuries re- ceived at a public cross- ing. 409. The same for tearing up a public street. 410. The same against a ferry company. 411. The same by husband and wife, for injuries to the wife, from a fall on the stairs of an apartment house. 412. The same for negligently placir^g obstructions on a street. 413. The same by a passenger for negligence against the owners of a steam- boat. 414. The same averring special injury and damage to the plaintiff. 415. The same against the owner of a coach for negligence of his servant. 416. The same against the own- ers of a stage coach, for overloading and improp- erly driving the same. Table of Contents. iix 417. The same where plaintiff's wife was so much hurt, that after being 111 for some time, she died. 418. The same in an action by a brakeman of a railway company against the company. 419. The same by the servant of the purchaser of an elevator against the man- ufacturer. 420. The same in actions of neg- ligence in Massachusetts — Public Statutes, 1882 — Negligence of railroad corporations — Maryland. 421. The same — Negligence of a town. § 422. The same by a servant against a master. 423. The same by husband and wife, for injuries to the wife, by falling into an open area. 424. The same for injuries re- ceived by falling into an excavation near a street. 425. The same for injuries re- ceived on a pier. 426. Form of an indictment against a railroad com- pany for negligently kill- ing a person at a high- way crossing. 427. Pleas — General issue — Special pleas — Statute of Limitations — Pay- ment — Release. CHAPT R XVI. PRACTICE — EXCEPTIONS — REQUESTS TO CHARGE CHARGES IN FULL BY TRIAL JUDGES. 428. Dismissing complaint — Nonsuit — Directing a verdict — Exceptions. 429. Requests to charge. 430. Charges by the trial judge — Exceptions. 431. Charge by Mr. Justice Knapp, of the Supreme Court of New Jersey, ac- tion for causing the death of a minor, a ser- vant. 432. Charge by Mr. Justice Dixon, of the Supreme Court of New Jersey, ac- tion by a servant. 433. A like charge by Mr. Jus- tice Dixon. 434. A like charge by Judge Wallace, of the United States Circuit Court. § 435. Charge by Mr. Justice De- pue, of the Supreme Court of New Jersey, ac- tion by a servant. 436. Charge by Mr. Chief Jus- tice Magie, of the Su- preme Court of New Jer- sey, action for an acci- dent at a grade crossing. 437. Charge by Judge Child, of the Circuit Court of New Jersey, action brought by husband and wife, for an injury to the wife. 438. Charge by Mr. Justice Dixon, of the Supreme Court of New Jersey, ac- tion for injuries sus- tained by a collision of a locomotive with an elec- tric car. XX Table of Contents. 439. Charge by Mr. Justice Dixon, of the Supreme Court of New Jersey, ac- tion for the death of a person killed at a crossing by a collision of a locomo- tive with an electric car. 440. A like charge by Mr. Jus- tice Dixon, for an accident at a grade crossing. 441. Charge by Mr. Justice Dixon, of the Supreme Court of New Jersey, ac- tion for injuries caused by a collision of an elec- tric car with an omnibus. 442. Charge by Mr. Justice Garrison, of the Supreme Court of New Jersey, ac- tion for causing the death of a father and husband, by a trolley car. 443. Charge by Mr. Justice Law- rence, of the Supreme Court of New York, ac- tion for causing death of a young child, on a pub- lic street. • 444. Charge by Mr. Justice Dixon, of the Supreme Court of New Jersey, ac- tion by husband and wife, for injuries to the wife, caused while riding on an electric car. 445. Charge by Mr. Justice Lip- pincott, of the Supreme Court of New Jersey, ac- tion by a postal agent. 446. Charge by Mr. Justice Dixon, of the Supreme Court of New Jersey, ac- tion for injuries caused to the plaintiff, while alighting from a car of a street railroad. 447. Charge by Mr. Justice Dickey, of the Supreme Court of New York, ac- tion for injuries received while crossing the ti-acks of a steam railroad. TABLE OF CASES. I, References are to sections.] Abbitt, V. Lake Erie &c. Ry. Co. (150 Ind. 498), 430. Abbot V. MeOadden (81 V/is. 563), 265. Abbott V. Jackson (84 Me. 449), 61. Abbott V. Johnstown &c. R. R. Co. (80 N. Y. 27), 133. Abel V. Delaware &c. Canal Co. (103 N. Y. 581). 69. Abend v. Terre Haute &c. R. R. Co. (Ill 111. 202), 364. Abendroth v. Town of Greenwich (29 Conn. 356), 74. Aberles v. Branfield (19 Kan. 16), 120. Abraham v. Reynolds (5 Hurlst. & N. 143), 79. Achtenhagen v. City of Watertown (18 Wis. 347), 170, 171, 339. Ackart v. Lansing (48 How. Pr. 374), 281. Ackerson v. Brie Ry. Co. (2 Vr. 309), 95. Ackert v. Lansing (59 N. Y. 646), 79. Adams v. Fitchburg R. R. Co. (67 Vt. 76), 107, 108. Adams v. Hall (2 Vt. 9), 182. Adams v. Northern Pacific Ry. Co. (95 Fed. Rep. 938), 103, 299. Adams v. Inhabitants of Carlisle (21 Pick. 146), 169. Addicks v. Christoph (43 Atl. Rep. 196), 70, 71. Agricultural &c. Assn. v. State (71 Md. 86), 267. Ahern v. Oregon Tel. Co. (24 Or. 276), 33. Ahern v. Steele (48 Hun, 517; 1 N. Y. Supp. 259), 49. Ahern v. Steele (115 N. Y. 203), 59, 60. Ainley v. Manhattan Ry. Co. (47 Hun, 206), 245. Airey v. Pullman Palace Car Co. (50 La. Ann. 648), 133. Alabama &c. R. R. Co. v. Arnold (84 Ala. 159; 80 Ala. 600), 163, 216, 241, 243. Alabama &c. R. R. Co. v. Burgess (116 Ala. 509), 15, 338. Alabama &c. R. R. Co. v. Carroll (97 Ala. 12(i). 95, 108. Alabama &c. R. R. Co. v. Fulghum (87 Ga. 263), 95. Alabama &e. R. R. Co. v. Hawk (72 Ala. 112), 196, 198, 353. Alabama &c. R. R. Co. v. Hill (90 Ala. 71; 93 Ala. 514), 183, 204, 208, 236, 243. Alabama &c. R. R. Co. v. Sellers (93 Ala. 9), 243. Alabama &c. R. R. Co. v. Shaken (116 Ala. 302), 156. Alabama &c. R. R. Co. v. Waller (48 Ala. 459), 158. Alabama &c. Ry. Co. v. Cbggins (88 Fed. Rep. 455), 27, 30. Alabama &c. Ry. Co. v. Davis (69 Miss. 444), 335. Alabama &c. Ry. Co. v. Purnell (69 Miss. 652), 243. Alabama Mineral R. R. Co. v. Mar- cus (115 Ala. 389), 70, 174. Albert v. State (66 Md. 325), 60. Alberti v. New York &c. R. R. Co. (118 N. Y. 77), 206. Alberts v. Bache (69 Hun, 255), 262. Alberts v. Village of Vernon (96 Mich. 549), 191. Albrecht v. Milwaukee &c. Ry. Co. (87 Wis. 105). 312. Albro V. Agawam Canal Co. (6 Oush. 75), 361. Alden v. New YorK Central R. R. Co. (26 N. Y. 102), 183. Aldrich v. Concord &c. R. R. Co. (29 Atl. Rep. 408), 189. Aldrick v. Monroe (60 N. H. 118), 194. Aldridge v. Midland Blast Furnace- Co. (78 Mo. 559), 199. Alexander v. Maryland Steel Co. (189 Penn. St. .582). 274. Alexander v. Pennsylvania Co. (4& Ohio St. 623), 95. Alger V. City of Lowell (3 Allen,, 402), 344. xxii Table of Cases. [References are to sections.] Allan V. State S. S. Co. (132 N. Y. Arkansas Telephone Co. v. Eat- 91), 22, 88, 168. teree (57 Ark. 429), 33. Allen V. Atlantic &c. R. R. Co. (54 Arkerson v. Dennlson (117 Mass. Ga. 503), 319. 407), 281, 291. Allen V. Central Rl, R. Oo. (43 Armstrong v. Lancashire Ry. Co. Iowa, 683), 142. (L. R., 10 Bxch. 47), 335. Allen V. Goodwin (92 Tenn. 385), Ash v. Baltimore &c. R. R. Co. (72 361. Md. 144), 108. Allen V. New Gas Oo. (L. R., 1 Ashborn v. Town of Waterbury (70 Exch. 251), 286. Conn. 551), 169. Allen V. Willard (57 Penn. St. 347), Ashmore v. Pennsylvania Steam 170, 171, 175, 294. Towing &c. Co. (9 Vr. 13), 199. Allison V. Chicago &c. R. R. Co. Ashworth v. Kittridge (12 Oush. (42 Iowa, 274), 236. 193), 210. Alpern v. Churchill (53 Mich. 607), Ashworth v. Stanwix (3 El. & El. 174. 'ioj.j, 143. Althorf V. Wolfe (22 N. Y. 355), Atchison &c. R. R. Co. v. Ader- 239, 261, 265. hold (58 Kan. 293), 170, 171. Alton V. Midland Ry. Co. (19 C. B. Atchison &c. R. R. Co. v. Brown [N. S.] 213), 90. (26 Kan. 443), 272. American Express Co. v. Risley Atchison &c. R. R. Oo. v. Cross (58 (179 111. 295), 280. Ark. 424), 13, 267. American Steamboat Co. v. Chase Atchison v. Dullum (16 111. App. (16 Wall. 522), 106, 107. 42), 36. American Steamship Oo. v. Lan- Atchison &c. R. R. Co. v. Gants dreth (102 Penn. St. 131), 199. (38 Kan. 608), 31. Amerine v. Porteous (105 Mich. Atchison &c. R. R. Oo. v. Henny 347), 34. (57 Kan. 154), 334. Ames V. Union Ry. Co. (117 Mass. Atchison &c. R. R. Co. v. Johns 541), 93, 117. (36 Kan. 760), 216. Anderson v. Chicago &c. Ry. Co. Atchison &c. R. R. Oo. v. McOlurg (87 Wis. 195), 189. (59 Fed. Rep. 860), 55. Anderson v. Cape Fear Steamboat Atchison &c. R. R. Co. v. McKee Oo. (64 N. 0. 399), 274. (37 Kan. 592), 95, 188, 360, 364. Amderson v. Ogden & Oo. (8 Utah, Atchison &c. R. R. Co. v. Powers 128), 170. (58 Kan. 544), 56, 430. Anderson v. Minneapolis Street Atchison &c. R. R. Co. v. Smith Ry. Co. (42 Minn. 490), 52. (28 Kan. 541), 338. Anderson v. Milwaukee &c. Ry. Atchison &c. R. R. Co. v. Thul (29 Oo. (37 Wis. 321), 95. Kan. 466), 208. Anderson v. Taft (39 Atl. Rep. 191), Atchison &c. R. R. Oo. v. Thul (32 190. Kan. 255), 201. Andrews v. Boedecker (126 111. Atchison &c. R. R. Oo. v. "V^'^ilson 605), 131. (4 U. S. App. 25; 48 Fed. Rep. Andrews v. Chicago &c. Ry. Co. 57), 266. (86 Iowa, 677), 263. Atkinson v. Abraham (45 Hun, Andrews v. Hartford &c. R. R. Oo. 238), 60. (34 Conn. 57), 309. • Atkinson v. Goodrich Transp. Oo. Angus V. Lee (40 111. App. 304), 150, (60 Wis. 141), 280, 324. 168. Atlanta &c. R. R. Oo. v. Yenable Annaker v. Chicago &c. Ry. Co. (67 Ga. 697), 218, 268, 269. / (81 Iowa, 267), 224. Atlanta Consolidated Street Ry. Annas v. Milwaukee &c. R. R. Co. Co. v. Bates (103 Ga. 333), 29. (67 Wis. 46), 265, 273, 300, 301. Atlanta Cons. Street Ry. Co. v. Archambeau v. New York &c. R. Foster (33 S. E. Rep. 880), 213. R. Co. (170 Mass. 272), 85. Atlanta Cotton Factory Co. v. Archer v. New York &c. R. R. Co. Speer (69 Ga. 137), 367. (106 N. Y. 589), 206. Atlanta Street R. R. Oo. v. Walker Arkansas &c. Ry. Oo. v. Griffith (93 Ga. 462), 216, 347. (63 Ark. 491), 183, 211. Table oe Cases. XXlll [References are to sections.] Atlantic &c. By. Oo. v. Dunn (19 Ohio St. 162; lb. 590), 243. Atlantic &c. R. R. Co. v. Ironmon- ger (95 Va. 625), 230, 244, 335, 336, 337. Atlantic City R. R. Co. v. Goodin (33 Yv. 394), 56. Atlantic Coast Electric R. R. Co. V. Rennard (6 Am. Neg. Rep. 125), 52. Atlas Engine Works v. Randall (100 Ind. 293), 176, 281. Atz V. Newark Lime &c. Mfg. Co. (30 Vr. 41), 68. Auclimuty v. Ham (1 Den. 495), 132. Augusta &c. R. B. Co. v. Darsey (68 Ga. 228), 204. Augusta &c. B. B. Co. v. Randall (79 Ga. 304), 183, 243. Augusta Factory v. Barnes (72 Ga. 217), 367. Augusta Factory v. Davis (87 Ga. 648), 260, 267. Aurora Branch R. R. Co. v. Grimes (13 111. 585), 169. Austin &c. R. B. Co. v. Beatty (73 Tex. 592), 19. Austin V. Great Western By. Co. (L. B., 2 Q. B. 442), 28. Austin V. Manchester &c. By. Co. (10 C. B. 474), 167. Avilla V. Nash (11 ( Mass. 318), 281, 291. Aycrigg v. New York &c. B. B. Co. (1 Vr. 460), 276, 281. Ayres v. Delaware &c. B. B. Co. (158 N. Y. 254), 30, 91, 204, 231, .235. Ayres v. Bichmond &c. B. B. Co. (84 Va. 679), 359. Babbage v. Powers (130 N. Y. 281), 12, 43. Babcock v. Town of Guilford (47 Vt. 519), 180. Bahel v. Manning (112 Mich. 24), 36. Bahr v. Lombard &c. Oo. (24 Vr. 223), 168, 181, 182, 184, 185. Baird v. Citizens By. Co. (146 Mo. 265), 158, 166, 430. Baird v. Daly (68 N. Y. 54'o. 189. Baird v. Shipman (3>j 111. App. 503; 1.32 111. 16), 72. Baisley v. St. Louis &c. B. B. Co. (119 111. 68), 133. Bajies v. Syracuse «fec. E. B. Co. (34 Hun, 153), 280. Baker v. Bailey (16 Barb. 54), 102. Baker v. Bolton (1 Campb. 493), 96. 98, 99. Baker v. City of Portland (58 Me. 199), 295. Baker v. City of Worcester (139 Mass. 74), 297. Baker v. Fehr (97 Penn. St. 70), 170. Baker v. Hagey (177 Penn. St. 128), 131. Baker v. Haldeman (24 Mo. 219), 40. Baker v. Hannibal &c. B. B. Co. (91 Mo. 86), 157. Baker v. Manhattan R. B. Co. (118 N. Y. 533), 91. Baker v. Metropolitan B. B. Oo. (118 N. Y. 533), 234. Baker v. North East Borough (151 Penn. St. 234), 74. Baker v. Tibbetts (162 Mass. 468), 79. Baker v. Town of Perry (67 Iowa, 146), 206. Baker v. Western &c. B. B. Co. (68 Ga. 699), 367. Baker v. Westmoreland &c. Gas Co. (157 Penn. St. 593), 170, 196, 274, 275. Baldwin v. Barney (12 B. I. 392), 297, 298. Baldwin v. Western E. B. 0<5. (4 Gray, 333), 242. Ballou V. Farnum (11 Allen, 73; 9 id. 47), 85, 232. Baltimore City Pass. By. Co. v. Kemp (61 Md. 74), 236, 244. Baltimore City Pass. By. Co. v. Knee (83 Md. 77), 220. Baltimore City Passenger By. Co. V. Nugent (86 Md. 349), 27. Baltimore Elevator Co. v. Neal (65 Md. 438), 364. Baltimore &c. By. Co. v. Oonoyer (149 Ind. 524), 22, 169. Baltimore &c. By. Co. v. Kemp (61 Md. 74), 236. Baltimore &c. By. Co. v. Little (149 Ind. 167), 65. Baltimore &c. B. B. Oo. v. McDon- ald (43 Md. 534), 338. Baltimore &c. B. E. Co. v. Baugh (149 V. S. 368), 25, 95, 359, 360, 368. Baltimore &c. B. B. Co. v. Boteler (38 Md. 568), 240. Baltimore &c. B. E. Co. v. Carr (71 Md. 135), 90. XXIV Table of Cases. [References are to sections.] Baltimore &c. E. K. Co. v. Cham- bers (81 Md. 371), 197, 221, 344. Baltimore &c. R. R. Co. v. Cum- berland (12 App. Oas. [D. C] 598), 339. Baltimore &e. R. R. Co. v. Depew (40 Ohio St. 121), 325. Baltimore &c. R. R. Co. v. Pitz- patrick (35 Md. 44), 274. Baltimore &c. R. R. Co. v. .Tones (95 U. S. 442), 91. Baltimore &c. R. R. Co. v. Joy (1<8 U. S. 226), 25. Baltimore &c. R. R. Co. v. Kane (69 Md. 11), 349. Baltimore &c. R. R. Co. v. Kelly (24 Md. 271), 255. Baltimore &c. B. R. Co. v. Mackey (157 U. S. 72), 66, 430. Baltimore &c. R. R. Co. v. McKen- zie (81 Va. 71), 372. Baltimore &c. R. R. Co. Mahone (63 Md. 135), 254. Baltimore &c. B. R. Oo. v. Noell (3z Gratt, 394), 109, 183, 257. Baltimore &c. R. R. Co. v. Reaney (42 Md. 117), 21, 130. Baltimore &c. R. R. Co. v. Rowan (104 Ind. 88), 66. Baltimore &c. R. R. Co. v. Sher- man (30 Gratt. 602), 109, 150. Baltimore &c. R. R. Co. v. Skeele (3 W. Va. 556), 300. Baltimore &c. R. R. Oo. v. Stanley (54 111. App. 215), 269, 273. Baltimore &c. R. R. Co. v. State (29 Md. 252), 213. Baltimore &c. R. R. Co. v. State (33 Md. 542), 254. Baltimore &c. R. R. Oo. v. State (6Q Ind. 449), 170. Baltimore &c. B. R. Oo. v. State (62 Md. 479), 125. Baltimore &c. B. R. Co. v. State (63 Md. 135), 183. Baltimore &c. R. R. Oo. v. State (71 Md. 591), 173. Baltimore &c. R. R. Oo. v. Sulphur Springs (96 Penn. St. 65), 21. Baltimore &c. R. R. Oo. v. Trainor (33 Md. 542), 269. Baltimore &c. R. R. Oo. v. Whit- acre (35 Ohio St. 627), 170, 325. Baltimore &c. R. R. Oo. v. Whit- tington (30 Gratt. 805), 153, 170. Baltimore &c. R. K. Co. v. Wight- man (29 Gratt 431), 27, 109, 158, 183, 261. Baltimore &c. Tui-p. Co. v. Cas- sell (66 Md. 418), 47. Baltimore &e. Turnpike Co. v. Grimes (71 Md. 573), 265,. 267. Baltimore &c. Turnp. Road v.- Parks (74 Md. 282), 47. Baltimore &c. Turnpike Road v. State (71 Md. 573), 2.58, 269. Baltzer v. Chicago &c. R. R. Oo> (83 Wis. 459), 345. Bamberger v. Citizens' Street Ry. Co. (95 Tenn. 18), 170, 338. Bancroft v. Boston &c. R. R. Cb. (j.1 Allen, 34), 101. Banfield v. Whipple (10 Allen, 27), 195. Bank of Hartford County v. Waterman (26 Conn. 324), 306.. Banks v. Highland Street By. Ck>. U36 Mass. 485), 295, 331. Banks v. Wabash Western Ry. Oo. (40 Mo. App. 458), 371. Bannon v. Lloyd (64 Md. 48), SOU. Barber v. Dixon (1 Wils. 45), 164, 165. Barber v. Town of Essex (27 Vt, 62), 169. Barbour County v. Horn (48 Ala. 566), 229, 240. Bardwell v. Town of Jamaica (i5' Vt. 438), 237. Barker v. Hannibal &c. B. R. Cto. (91 Mo. 86), 158. Barker v. Savage (45 N. Y. 191), 19, 50. Barker v. Town of Parry (67 Iowa, 140), 207. Barley v. Chicago &c. B. R. Co. (4 Biss. 430), 111. Barnes v. District of Columbia (91 U. S. 540), 73. Barnes v. Hund (11 Mass. 59), 244. Barnes v. Keene (132 N. Y. 13; IS App. Div. 205), 240, 246. Barnes v. Town of Newton (46 Iowa, 567), 205. Barnes v. Ward (9 O. B. 392; 2 O. & K. 661), 158, 167. Barnett v. Leonard (66 Ind. 422), 116. Barnett v. Lucas (6 Ir. O. L. 247> 111. Barnum v. Chicago &c. Ry. Co. (30 Minn. 461), 158, 162. Barrett v. Southern Pacific Co. (91 Oal. 296), 81. Barrett v. Third Avenue R. R. Co. (45 N. Y. 628), 131, 318. Barrow v. Illinois Cent. R. R. Oo. (1 Biss. 412), 162. Barry v. Edmunds (116 U. S. 550), 243. Table op Cases. XXV [References are to sections.] Barry v. Terkildsen (72 Cal. 254), 42, 187. Barstow v. City of Berlin (34 Wis. 362), 171, 292. Barth v. Kansas City Elevated Ey. Co. (142 Mo. 535), 29. Bartnolomew v. Dlghljon (Cro. Eliz. 424), 118. Bartlett v. Cicero &c. Co. (177 111. 68), 85. Bartlett v. Keim (21 Vr. 260), 85, 303, 308. Bartlett v. Town of Clarksburg (W. Va., 5 Am. Neg. Rep. 492), 37. Bartlett Coal &e. Co. v. Roach (68 111. 174), 212. Barton v. Barbour (104 U. S. 1261, 142. Barton v. City of Springfield (110 Mass. 131), 349. Barton v. McDonald (81 Cal. 265), 44. Barton v. St. Louis &c. R. R. Co. (32 Mo. 253), 289, 293, 356. Bartram v. Town of Sharon (Conn., 6 Am. Neg. Rep. 10), 335. Bassett v. Fish (75 N. Y. 303), 83, 325. Bateman v. Ruth (3 Daly, 378), 282. Batterson v. Chicago &c. Ry. Co. (*9 Mich. 184), 151, 418. Bauer v. City of Indianapolis (99 Ind. 56), 190. Baulec v. New York &e. R. R. Co. (59 N. Y. 356), 173, 177. Baxter v. Second Ave. R. R. Co. (3 Robt. 510), 14. Baxter v. Troy &c. R. R. Co. (41 N. Y. 502), 325. Bayley v. Eastern K. R. Co. (125 Mass. 62), 205. Beach v. Bay State Steamboat Co. (30 Barb. 433), 160, 104, 107. Beal V. South Devon Ry. Co. (3 H. & C. 337), 14. Beard v. Connecticut &c. R. R. Co. (48 Vt. 101), 30. Beard v. Guild (107 Iowa, 476), 189. Beard v. Skeldon (13 111. App. 54), 215. Beardslee v. Columbia Township (188 Penn. St. 496i), 205, 206. Beardsley v. Swann (4 McLean, 333), 170. Beatty v. Cent. Iowa Ry. Co. (58 Iowa, 242), 56. Beatty v. Gilmore (16 Penn. St. 463), 170. Beauchamp v. Saginaw Mining Cb. (50 Mich. 163), 168, 281. Beaulieu v. Portland Co. (48 Me. 2'Jl), 285. Beck V. Hood (185 Penn. St. 32), 16. Beck V. Pennsylvania R. R. Co. (Vr. 43 Atl. Rep. 908), 302, Becke v. Missouri Pacific Ry. Co. (102 Mo. 544), 335. Beclier v. Albany Ry. Co. (35 App. Div. 46), 251. Becker v. Koch (104 N. Y. dt»4), 220. Beckham v. Hilllei- (18 Vr. 12), 70. Bedell v. Berkey (76 Mich. 435), 79. Bedford &c. R. R. Co. v. Rainbolt (99 Ind. 551), 183, 184. Beem v. Tama &c. Light Co. (104 Iowa, 563), 52. Beeson v. Green Mountain &c. Co. (57 Cal. 20), 359. Behm v. Armour (58 Wis. 1), 167. Belding v. Black Hills &c. R. R. Co. (9 So. Dak. 369), 258. Belknap v. Boston &c. R. R. Co. (49 N. H. 358), 240. Bell V. Hannibal &c. Ry. Co. (86 Mo. 599), 217. Bell V. Josleyn (3 Gray, 309), 11. Bell V. New York &c. R. R. Co. (29 Hun, 560), 294. Bellefontaine &c. R. R. Co. v. Bailey (11 Ohio St. 333), 202, 204. Bellefontaine Ry. Co. v. Hunter (33 Ind. 335), 199. Bellefontaine &c. R. R. Co. v. Sny- der (18 Ohio St. 399), 338. Bellville Stone Co. v. Oomben (32 Vr. 353), 194. Belt V. Gulf &c. Ry. Co. (4 Tex. Civ. App. 231), 108. Benford &c. R. R. Co. v. Rainbolt (99 Ind. 551), 153. Benjamin v. Eldridge (50 Cal. 612), 310. Benner v. Atlantic Dredging Co. (134 N. Y. 156), 77. Bennett v. Fifleld (13 R. 1. 139), 74. Bennett v. Louisville &c. R. R. Co. (102 U. S. 577), 13, 30, 43. Bennett v. Lovell (12 R. I. 106), 74. Bennett v. New Jersey &c. Co. (7 Vr. 225), 335. Benson v. Baltimore Traction Co. (77 Md. 535), 79. Benson v. Goodwin (147 Mass. 237), 361. IXVl Table op Cases. [References are to sections.] Benson v. Titcomb (72 Me. 31), 169. Benton v. Chicago &c. R. K. Co. (55 Iowa, 496), 246, 267, 350. Benton v. Central R. R. Co. (42 Iowa, 192), 169. Benton v. North Carolina R. R. Co. (122 No. Car. 1007), 133. Benton v. Trustees of Boston City Hospital (140 Mass. 13), 83. Benzing v. Steinway (101 N. Y. 547), 67. Berea Stone Co. v. Kraft (31 Ohio St. 287), 359. Berg V. Parsons (84 Hun, 60), 32. Bergen County Traction Co. v. Heitman (32 Vr. 682), 52. Berquist v. City of Minneapolis (42 Minn. 471), 366. Ber^tronn v. Staples (82 Mich. 654), 362. Besson v. Green &c. Co. (57 Cal. 20), 257. Best V. Town of Kinston (106 No. Oar. 205), 310. Bethel v. Otis (92 Iowa, 502), 36. Bettle V. Camden i&c. R. R. Co. (26 Vr. 615), 22. Beuhring v. Chesapeake &e. Ry. Co. (37 W. Va. 502), 359, 364. Bieling v. City of Brooklyn (120 N. Y. 98), 74. Bier v. JefCersonville &c. R. R. Co. (132 Ind. 78), 362. Bier v. Standard Mfg. Co. (130 Penn. St. 446), 34. Bierbach v. Goodyear Rubber Co. (54 Wis. 208), 282, 290. Biernaur v. New York Central R. R. Co. (15 Hun, 559; 77 N. Y. 588), 273. Big Creek Stone Co. v. Wolf (138 Ind. 496), 66. Bigelow V. Inhabitants Randolph (14 Gray, 541), 73. Bigelow V. Reed (51 Me. 325), 295. Bigelow V. Nickerson (70 Fed. Rep. 113), 106. Bilbee v. London &c. Ry. Co. (18 C. B. [N. S.] 584), 289. Bill V. Smith (39 Conn. 206), 169. Billings V. City of Worcester (102 Mass. 320), 282. Binford v. Johnston (82 Ind. 426), go Bird V. Randall (3 Burr. 1353), 165. Bird V. Southern Ry. Co. (99 Tenn. 719), 299, 301. Birkett v. Knickerbocker Ice Co. (110 N. Y. 504), 267. Birmingham v. Duluth &c. Ry. Co. (70 Minn. 474), 166. Birmingham v. Rome &c. R. R. Co. (137 N. Y. 13), 192. Birmingham Union Ry. Co. v. Hale (90 Ala. 8), 168, 173, 174, 205, 338. Birmingham Ry. &c. Co. v. Bow- ers (110 Ala. 328), 15, 343. Birmingham Union Ry. Co. v. Smith (90 Ala. 60), 29. Bisaillon v. Blood (64 N. H. 565), 338. Bishop V. Ely (9 Johns. 294), 132. Bishop V. St. Paul City Ry. Co. (48 Minn. 26), 236. Bishop V. Village of Goshen (120 N. Y. 387), 74. Bishop V. Weber (139 Mass. 411), 88, 167. Bissell V. New York Central R. B. Co. (25 Barb. 442), 300. Bitting V. Township of Maxa- tawny (177 Penn. St. 213), 21. Bixby V. Dunlop (56 N. H. 456), 243. Black V. Burlington &e. Ry. Co. (38 Iowa, 515), 55. Black V. City of Lewiston (2 Idaho, 254), 298. Blackburn v. Morton (18 Ark. 384), 307. Blackman v. Gardiner Bridge (75 Me. 214), 234. Blackman v. Thomson-Houston Electric Co. (102 Ga. 64), 67, 370. Blackmore v. Toronto Street Ry. Co. (38 U. C. Q. B. 172), 173, 289. Blackstone v. Chelmsford Foundry Co. (170 Mass. 321), 79. Blackwell v. Uynchburg &c. R. R. Co. (Ill No. Car. 151), 77. Blair v. Brie Ry. Co. (66 N. Y. 313), 301. Blair v. Madison County (81 Iowa, 313), 204, 211. Blair v. Pelham (118 Mass. 420), 190, 206. Blake v. Maine Central R. R. Co. (70 Me. 60), 362. Blake v. Midland Rv. Co. (18 Q. B. 93; 18 Ad. & e"i. [N. S.] 93), loo, 161, 254, 257. Blaustein v. Guindon (83 Hun, 5), 282. Blazenie v. Iowa &c. Coal Co. (102 Iowa, 706), 71. Bledsoe v. Stokes (1 Baxt. 312^ 304. Blessington v. City of Boston (153 Mass. 409), 74. Table op Cases. xxvu [References are to sections.] Blewett V. Wyandotte &c. Ry. Go. (72 Mo. 5S3), 174. Bliss V. New York &c. B. R. Co, (160 Mass. 447), 91, 227. Blosser v. Harshbarger (21 Gratt. 214), 224. Bloxam v. Hubbard (5 Bast, 407), 148. Bloyd V. St. Louis &c. Ry. Co. (58 Ark. 66), 359, 360, 370. Blue V. Brlggs (12 Ind. App. 105), 72. Blythe v. Birmingham Water- Works (11 Excb. 784), 3, 12, 286. Board of Commissioners v. Legg (93 Ind. 523), 245, 273. Board of Shelby Co. v. Scearce (2 Duv. 576), 104, 105. Boardman v. Lake Shore &c. R. R. Co. (84 N. Y. 157), 308. Boardman v. Creighton (Me. 44 Atl. Rep. 721), 151. Boatwright v. Northwestern R. B. Co. (25 So. Car. 128), 359, 372. Bohan v. Port Jervis &c. 303), 206, Brockvill Borough v. Arthurs (152 232. Penn. St. 334), 94. Bruce v. Cincinnati &c. E. E. Co. Brodeur v. Valley Falls Co. (16 (83 Ky. 174), 126, 107. E. I. 448), 359, 367. Brunsden v. Humphrey (L. E., 14 Bromley v. Birmingham &c. E. E. Q. B. D. 141; 11 ib. 712), 91, Co. (95 Ala. 403), 179. 227. Bronson v. Fitzhugh (1 Hill, 185), Brunswig v. White (70 Tex. 504), 318. 88, 231, 267, 283. Brooke v. Chicago &c. Ry. Co. (81 Brush Electric Co. v. Kelley (126 Iowa, 504), 192. Ind. 220), 185. Brooks V. Boston &c. E. E. Co. Bryan v. Town of Branford (50 (135 Mass. 21), 350. Conn. 246), 202. Brooks V. Eochester.Ry. Co. (156 Bryant v. Inhabitants of Biddeford N. Y. 244), 2i;7, 245. (39 Me. 193), 297. Brooks V. Schwerln (54 N. Y. 343), Brymer v. Southern Pacific Co. (90 244, 245. Cal. 497), 66, 429. Brookville &c. Turnp. Co. v. Buchanan v. New Jersey R. R. Co. Pumphrey (59 Ind. 78), 47. (23 Vr. 265), 231. Broschart v. Tuttle (59 Conn. 1), Bucher v. Cheshire R. E. Co. (125 295, 296, 298, 347. U. S. 555), 25, 95, 298. Brosnan v. Sweetser (127 Ind. 1), Bucner v. Fitchburg E. E. Co. (131 79. Mass. 156), 297. Brown v. Bufitalo &c. E. E. Co. (22 Bucher v. New York &c. E. R. Co N. Y. 191), 101, 213. (98 N. Y. 128), 286, 350. Table of Cases. XXIX [References are to sections.] I Buel V. New York Central E. R. Button v. Frink (51 Conn. 342), 168, Co. (31 N. Y. 314), 350, 353. 169. Buenennann v. St. Paul Ry. Co. Button v. Hudson River R. R. Co. (32 Minn. 390), 30. (18 N. Y. 248), 169, 322. Bueschlng v. St. Louis Gas Light Buzzell v. Laconia Mfg. Co. (48 Co. (73 Mo. 219; 6 Mo. App. Me. 113), 153. 85), 139, 170, 171, 174, 175, 286. Byrne v. Boadle (2 H. & O. 722), Buhrens v. Dry Dock &c. R. R, Co. 170, 185. (53 Hun, 571), 53. Bullock V. Babcock (3 Wend. 391), 39, 144. Bullock V. Mayor &c. New York (99 N. Y. 654), 282. Bulman v. Furness Ry. Co. (32 L. J. Exch. [N. S.] 430), 167. Bunting v. Hogsett (139 Penn. St. 363), 335. Burbank v. Illinois Cent. R. R. Co. (42 La. Ann. 1156), 30. Burke v. Witherbee (98 N. Y. 562), 192, 286. Burleson v. Village of Reading (110 Mich. 512), 216, 245. Burlington &c. R. R. Co. v. Crock- ett (17 Neb. 570), 158, 159, 359. Calumet Iron &c. Co. v. Martin Burlington &c. R. R. Co. v. Wendt (115 111. 368), 153, 169. Byrne v. New York &e. R. R. Co. (14 Hun, 322), 224. C. Cahill V. Cincinnati &c. Ry. Co. (92 Ky. 345), 335, 336. Caldwell v. Brown (53 Penn. St. 453), 267. Caldwell v. New Jersey Steamboat Co. (47 N. Y. 282), 87, 182, 183. Caldwell v. Slade (150 Mass. 84), 61. Callahan v. Bean (9 Allen, 401), 338 Callanan v. Gilman (107 N. Y. 360), 46, 282. (12 Neb. 76), 15. Burnard v. Haggis (14 C. B. [N. S.] 45), 144. Burns v. City of Bradford (137 Penn.' St. 361), 74, 75, 180. Burns v. Grand Rapids &c. R. R. Co. (113 Ind. 169), 107. Burns v. Pethel (75 Hun, 437; 27 N. Y. Supp. 499), 11, 72, 137. Camden &c. R. R. Co. v. Hoosey (99 Penn. St. 492), 353. Camden &c. R. R. Co. v. Williams (32 Vr. 646), 211, 25^, 430. Cameron t. Bryan (89 Iowa, 214), 243. Cameron v. Kenyon-Connell Co. (Mont., 5 Am. Neg. Rep. 647, 771), 140. Burns v. Poulson (8 O. P. 562), Camp v. Barney (4 Hun, 33), 85. 281. Burr V. Pennsylvania R. R. Co. (Vr.), 356. Burrell Township v. Uncapher (117 Penn. St. 353), 282. Burrows v. Village of Lake Crys- tal (61 Minn. 357), 191. Burrows v. Erie Ry. Co. (63 N. Y. 556), 186, 279, 350. Burton V. Wilmington &c. R. R. Co. (82 No. Car. 504j, 255. Bussey v. Charleston &c. Ry. Co. (52 So. Car. 438), 65. Bussian v. Milwaukee &c. Ry. Co. (56 Wis. 335), 312, 316. Butler V. Boston &c. S. Co. (130 U. S. 527), 106. Butler V. Manhattan Ry. Co. (143 N. Y. 417), 198, 231, 245. Butler V. Regents of the University (32 Wis. 124), 312. Buttelli V. Jersey City &c. Ry. Co. (30 Vr. 302), 53, 279. Butterfield v. Forrester (11 East, 60), 320. Camp V. Hall (39 Fla. 535), 67, 70, 71, 166. Campbell v. Atlanta R. R. Co. (53 Ga. 488; 56 Ga. 586), 169. Campbell v. Harris (4 Tex. Civ. App. 686), 245. Campbell v. Portland Sugar Co. (62 Me. 552), 136. Campbell v. Louisville &c. R. R. Co. (109 Ala. 520), 68. Campbell v. Rogers (2 Handy, 110), 108. Campbell v. Stakes (2 Wend. 137), 39, 144. Campbell v. United States Foun- dry Co. (73 Hun, 576), 78. Canadian Pac. Ry. Co. v. Robinson (14 Can. Sup. Ct. 105), 257. Canavan v. Stuyvesant (7 Misc. 113), 60. Caney v. Campbell (Minn., 6 Am. Neg. Rep. 97), 35. Candee v. Kansas City &c. Ry. Co. (130 Mo. 142), 343. Candot v. Barney (63 N. Y. 281), 85. TSX Table of Cases. [References are to sections.] Canning v. Inhabitants of Wil- liamstown (1 Gush. 451), 231. Capel V. Powell (34 L. J. C. P. [N. S.] 168), 135. Capitol Traction Co. v. Lusby (12 App. Cas., D. C. 295), 52. Capper v. Louisville &c. Ry. Co. (103 Ind. 305), 362. Carey v. Berkshire &c. R. R. Co. ,(1 Cush. 475), 98. Carey v. Day (36 Conn. 152), 258. Carlisle v. Town of Sheldon 1,38 Vt. 440), 337. Carlson v. Phoenix Bridge Co. (132 N. Y. 273), 66, 67. Carlson v. Sioux Falls Water Co. (8 S. Dak. 47), VO. Carlson v. Stocking (91 Wis. 432) 281. Carman v. Steubenville &c. R. R. Co. (4 Ohio, 399), 136. Carmody v. Boston Gas Light Co. (162 Mass. 539), 185. Carpenter v. Blake (60 Barb. 488), 84. Carpenter v. Buffalo &c. R. R. Co. (38 Hun, 116), 272. Carpenter v. Boston &c. R. R. Co. (97 N. Y. 494), 30. Carples v. New York &c. R. R. Co. (44 N. Y. Supp. 670), 241. Carrigan v. Washburn &c. Mfg. Co. (170 Mass. 79), 66. Carrell v. Burlington &c. R. R. Co. (38 Iowa, 120), 212. Carroll v. Missouri Pacific Ry. Co (88 Mo. 239), 261. Carroll v. Staten Island R. R. Co (58 N. Y. 126), 27, 28, 87, 183, 298. Carter v. Columbia &c. R. R. Co (19 So. Car. 20), 170. Carter v. Harden (78 Me. 528), 88. Carter v. Mayor &c. Rahway (26 Vr. 177), 73. Carter v. Towne (103 Mass. 507), 88. Casey v. New York &c. R. R. Co (78 N. Y. 518), 193, 198. Casey v. Smith (152 Mass. 294). 338. Cass V. Boston &c. B. R. Co. (14 Allen, 448), 194. Cassidy v. Angell (12 B. I. 447), 170, 171, 174, 175, 294. Cassidy v. Oregon &c. Nav. Co. (14 Or. 551), 193. Cassidy v. Town of Stockbridge (21 Vt. 391), 282, 344. Oastello V. Landwehr (28 Wis. 522), 174, 255, 257. Caswell V. Worth (5 El. & Bl. 849), 92. Central Branch Union Pacific R. R. Co. V. Hotham (22 Kan. 41), 276. Central Branch Union Pacific R. R. Co. V. Pate (21 Kan. 539), 175. Central R. R. Co. v. Brinson (64 Ga. 475), 183. Central R. R. Co. v. Crosby (74 Ga. 737), 249, 256, 272. Central R. R. Co. v. Curtis (87 Ga. 416), 23, 213. Central R. R. Co. v. De Bray (71 Ga. 406), 193, 205. Central R. R. Co. v. Freeman (75 Ga. 331), 183. Central R. R. Co. v. Gastineau (83 Ky. 119), 258. Central R. R. Co. v. Glass (60 Ga. 441), 278. Central R. R. Co. v. Keegan (160 U. S. 259), 368. Central R. R. Co. v. Kelly (58 Ga. 107), 199, 205, 215. Central R. R. Co. v. Kenney (58 Ga. 485), 169, 224. Central Passenger Ry. Co. v. Kuhn (86 Ky, 578), 183, 230, 231. Central R. B. Co. v. Miles (88 Ala. 256), 350. Central R. R. Co. v. Moore (61 Ga. 151), 169, 219, 265. Central R. R. Co. v. Moore (4 Zabr. 268, 824), 6, 170. Central R. B. Co. v. Saunders (73 Ga. 513), 183. Central R. R. Co. y. Sears (59 Ga. 436), 169. Central R. R. Co. v. Sears (66 Ga. 499), 248. Central R. R. &e. Co. v. Sims (80 Ga. 749), 66. Central R. R. Co. of N. J. v. Smalley (32 Vr. 277), 56. Central R. B. Co. v. Smith (69 Ga. 26S), 350. Central R. R. Co. v. Sutton (42 111. 438), 216. Central R. R. Co. v. Swint (73 Ga. 651), 107. Central R. R. Co. v. Thompson (76 Ga. 770), 256. Central Trust Co. v. St. Louis &c. R. R. Co. (40 Fed. Rep. 426), 142. Chaddock v. Plummer (88 Mich. 225), 40. Chaffee v. Boston &c. R. R. Co. (104 Mass. 108), 169. Chamberlain v. Milwaukee &c. R. R. Co. (7 Wis. 428), 170. Table of Cases. XXXI [References are to sections.] Chamberlain v. Milwaukee &c. R. R. Co. (11 Wis. 238), 372. Chamberlin v. Murphy (41 Vt. 110), 317. Chandler v. New Haven &c. R. R. Co. (159 Mass. 589), 108. Channon v. Sanford Co. (70 Conn. 573), 67. Chapman v. Milton (31 W. Va. 384), 75, 157. Chapman v. RothweU (El. B. & 13. 168), 167. Chapman v. State (104 Cal. 690), 86. Chase v. American Steamboat Co. (10 R. I. 79), 104. Chase v. Cabot &c. Bridge Co. (6 Alien, 512), 48. Chase v. Maine Central R. R. Co. (77 Me. 62), 169, 170, 179. Chase v. McDonald (25 U. C. C. P. 129), 167. Chattanooga &c. R. R. Co. v. Lid- dell (85 Ga. 482), 243. Chesapealie &c. R. R. Co. v. Hen- dricks (88 Tenn. 710), 273. Chesapeake &c. Ry. Co. v. Cloues (93 Va, 189), 214. Chesapeake &c. R. R. Co. v. Hig- gins (85 Tenn. 620), 109. Cherokee &c. Co. v. Lamb (47 Kan. 469), 268, 272. Chicago &c. Bottling Co. v. Tietz (37 111. App. 599), 267. Chicago &c. Coal Co. v. Peterson (39 111. App. 114), 302, 312. Chicago &c. R. R. Co. v. Adler (28 111. App. 102), 273. Chicago &c. R. R. Co. v. Adler (129 111. 340), 19, 277. Chicago &c. R. R. Co. v. Amol (144 111. 261), 19, 27. Chicago &c. R. R. Co. v. Austin (69 111. 426), 269. Chicago &c. R. R. Co. v. Becker 84 111. 483), 273. Chicago &c. R. R. Co. v. Bell (70 111. 102), 344. Chicago &c. R. R. Co. v. Bills (118 Ind. 221), 331. ' Chicago &c. R. R. Co. v. Bockoven (53 Kan. 279), 81. Chicago &c. R. R. Co. v. Boggs (101 Ind. 522), 22, i^6, 286. Chicago &c. R. R. Co. v. Brady (51 Neb. 758), 429. Chicago &c. R. R. Co. v. Casey (9 111. App. 632), 64. Chicago &c. R. R. Co. v. Clark (108 111. 113), 334. Chicago &c. R. R. Co. v. Clark (11 111. App. 104), 284, 291. Chicago &c. R. R. Co. v. Clausen (173 111. 100), 150, 207. Chicago &c. R. R. Co. v. Coss (73 111. 394), 153, 166. Chicago &c. R. R. Co. v. Dougherty (110 111. 521), 22. Chicago &c. R. R. Co. v. Dougherty (12 111. App. 181), 213. Chicago &c. R. R. Co. v. Doyle (18 Kan. 58). 312, 316. Chicago &c. R. R. Co. v. Doyle (60 Miss. 977), 107. Chicago &c. R. R. Co. v. DriscoU (176 111. 330), 183. Chicago &c. R. R. Co. v. Dunn (61 111. 385), 334. Chicago &c. R. R. Co. v. Fletsam (123 111. 518), 334. Chicago &c. R. R. Co. v. Gregory (58 111. 272), 168, 169. Chicago &c. R. R. Co. v. Gunderson (174 111. 495), 262, 271. Chicago &c. R. R. Co. v. Harwood (80 111. 88), 257. Chicago &c. R. R. Co. v. Harwood (90 111. 425), 155. Chicago &c. R. R. Co. v. Hazzard (26 111. 373), 153. Chicago &e. R. R. Co. v. Henny (7 111. App. 322), 367. Chicago &c. R. R. Co. v. Holland (122 111. 461), 199, 208. Chicago &c. R. R. Co. v. Hoyt (122 111. 369), 359, 370. Chicago &c. R. R. Co. v. Hines (45 111. App. 299), 238. Chicago &c. R. R. Co. y. Kellogg (55 Neb. 748), 151, 176. Chicago &c. R. R. Co. v. Kelly (127 111, 637), 370. Chicago &c. R. R. Co. v. Kelly (80 111. App. 575), 56. Chicago &c. R. R. Co. v. Johnson (103 111. 512), 334 Chicago &e. R. R. Co. v. Lee (87 111. 454), 55. Chicago &c. R. R. Co. v. Maroney (170 111. 520), 71. Chicago &c. R. R. Co. v. May (108 111. 288), 265. Chicago &c. R. R. Co. v. McKean (40 111. 218), 174. Chicago &c. R. R. Co. v. McLallen (84 111. 109), 368. Chicago &c. R. R. Co. v. Mehlsack (131 111. 61), 31. Chicago &c. R. R. Co. v. Michie (83 111. 427), 297. Chicago &c. R. R. Co. v. Mont- gomery (15 111. App. 205), 176. xxxii Table of Cases. [References are to sections.] Chicago &c. R. R. Co. v. Moranda Chicago &c. Ry. Co. v. Carpenter (93 111. 302), 265, 359. (12 U. S. App. 392), 3, 193, 194, Chicago &c. R. R. Co. v. Moranda 333. (108 111. 576), 205, 281, 370, Chicago &c. Ry. Co. v. Carey (115 Chicago &c. R. K. Co. v. Morris 111. 115), 162. (26 111. 400), 257. , Chicago &c. Ry. Co. v. Chambers Chicago &c. R. R. Co. v. Murowskl (68 Fed. Rep. 153; 15 C. C. A. (78 111. App. 661), 89. 327), 21, 55, 65. Chicago &c. R. R. Co. v. O'Connor Chicago &c. Ry. Co. v. Clark (108 (119 111. 586), 96, 111, 249, 314. 111. 113), 194. Chicago &c. R. R. Co. v. Packwood Chicago &c. Ry. Co. v. Dimick (96 (59 Miss. 280), 175. 111. 42), 334. Chicago &c. R. R. Co. v. Pillsbury Chicago &e. Ry. Co. v. Gillam (27 (123 111. 9), 27. 111. App. 386), 265. Chicago &c. R. R. Co. v. Pollard Chicago &c. Ry. Co. v. Gillison (173 (52 111. 730), 55. 111. 264), 66, 166. Chicago &c. R. R. Co. v. Pondrom Chicago &c. Ry. Co. v. Hansen (51 111. 333), 278, 334. (166 111. 623), 56. Chicago &c. R. R. Co. v. Pounds Chicago &c. Ry. Co. v. Hedges (118 (11 Lea, 127), 105. Ind. 5), 179. Chicago &c. R. R. Co. v. Randolph Chicago &c. Ry Co. v. Henry (62 (53 111. 510), 350. 111. 142), 240. Chicago &c. R. R. Co. v. Ransom Chicago &c. Ry. Co. v. Hinds (56 (56 Kan. 559), 133, 221. Kan. 758), 171, 185. Chicago &e. R. R. Co. v. Robinson Chicago &c. Ry. Co. v. Howard (6 (106 111. 142), 224. 111. App. 560), 199, 200. Chicago &c. R. R. Co. v. Rouse Chicago &c. Ry. Co. t. Hunerber- (178 111. 132), 95. ger (16 111. App. 387), 231. Chicago &c. R. R. Co. v. Sanderson Chicago &c. Ry. Co. v. Ingraham (174 111. 495), 171. 131 111. 659), 156, 164, 227, Chicago &c. R. R. Co. v. Scanlan 430. (170 111. 106), 176. Chicago &c. Ry. Co. v. Kowalski Chicago &c. R. R. Co. v. Schroeder (92 Fed. Rep. 310), 338. (18 111. App. 328), 160. Chicago &c. Ry. Co. v. Lundstrom Chicago &c. R. R. Co. v. Shannon (16 Neb. 254), 359. (43 111. 338), 263, 273, 283. Chicago &c. Ry. Co. v. Miller (46 Chicago &c. R. R. Co. v. Spilker Mich. 532), 154. (134 Ind. 380), 337. Chicago &c. Ry. Co.. v. Mills (Kan., Chicago &c. R. R. Co. v. Spring- 1 Am. Neg. Rep. 242), 127. field &c. R. R. Co. (67 111. 142), Chicago &c. Ry. Co. v. Netolicky 202. (67 Fed. Rep. 665; 14 C. C. A. Chicago &c. R. K. Co. v. Starmer 615), 179. (26 Neb. 630), 234. Chicago &c. Ry. Co. v. Ross (112 Chicago &c. R. R. Co. v. Sweet (45 U. S. 377), 359, 360, 368. 111. 197), 263. Chicago &c. Ry. Co. v. Ryan (131 Chicago &c. R. R. Co. v. Trotter (60 111. 474), 340. Miss. 442), 183. Chicago &c. Ry. Co. v. Scates (90 Chicago &c. R. R. Co. v. Warner 111. 586), 350 (108 111. 538), 166, 215, 222, 231, Chicago &c. Ry. Co. v. Sweeney 283, 290. (52 111. 330), 334. Chicago &c. R. R. Co. v. Warner Chicago &c. Ry. Co. v. Tuite (44 111. (123 111. 38), 334. App. 535), 370. Chicago &c. R. R. Co. v. Wilson (63 Chicago &c. Ry. Co. v. Whitton (13 111. 167), 230. Wall. 270), 106. Chicago &c. R. R. Co. v. Wilson (35 Chicago &c. Ry. Co. v. Wilcox (138 111. App. 346), 267. 111. 370), 338, 339, 341. Chicago &c. R. R. Co. v. Wool- Chick v. Southwestern R. R. Co ridge (174 111. 330), 254. (57 Ga. 357), 98. Chicago &c. Ry. Co. v. Bayfield Chiles v. Drake (2 Mete 146^ 243 (37 Mich. 205), 240, 272. 306, 309, 310. ' Table of Cases. xxxiii [References are to sections.] Chilton V. City of St. Joseph (143 City of Brooklyn v. Brooklyn City Mo. 192), 235. R. R. Co. (47 N. Y. 475), 94. Chipman v. Palmer (77 N. Y. 51), City of Centralla v. Kruse (64 111. 131, 132. 19), 342. Chopin V. Badger Paper Co. (83 City of Chicago v. Hesing (83 111. Wis. 192), 281. 207), 267. ■Christie v. Griggs (2 Camp. 79),. City of Chicago v. Jones (66 111. 183. ^349), 282, 234. Ghristianson v. Chicago &c. Ry. City of Chicago v. Kelly (69 111. Co. (67 Minn. 94), 21. 475), 243. Christner v. Cumberland &c. Coal City of Chicago v. Mayor (18 111. Co. (146 Penn. St. 67), 22. 349), 109, 125, 169, 252. Chrystal v. Troy &c. R. R. Co. (124 City of Chicago v. O'Brennan (65 N. Y. 519), 22. 111. 160), 242. Church V. City of Milwaukee (31 City of Chicago v. Robbins (2 Wis. 512), 206. Black, 418), 94. Churchill v. Holt (127 Mass. 165), City of Chicago v. Scholton (75 111. 94. 468), 257, 267, 273. Cicero &c. Ry. Co. v. Meixner (160 City of Chicago v. Steams (105 111. 111. 320), 34, 351. 554), 334. Cincinnati &c. R. R. Co. v. Chester City of Columbus v. Strassner (124 (57 Ind. 297), 93, 113, 120, 153, Ind. 482), 230, 238, 244. 167, 227. City of Crete v. Childs (11 Neb. Cincinnati &c. R. R. Co. v. Cooper 252), 237. (120 Ind. 473), 344. City of Denver v. Dunsmore (7 Cincinnati &c. R. R. Co. v. Mc- Colo. 328), 170. Mullen (117 Ind. 439), 95, 107, City of Denver v. Sherret (88 Fed. 160, 169, 172, 174, 359, 369, Reo. 226), 228, 233. 370. City of Detroit v. Blakeby (21 Cincinnati &c. R. R. Co. v. Peters Mich. 84), 73. (80 Ind. 168), 153, 167, 350. City of Detroit v. Corey (9 Mich. Cincinnati &c. R. R. Co. v. Smith 165), 32, 138. (22 Ohio St. 227), 202, 204. City of Elgin v. Riordan (21 111. Cincinnati Street Ry. Co. v. Alt- App. 600), 237. meier (Ohio St., 6 Am. Neg. City of Evansville v. Senhenn (151 Rep. 179), 221, 254, 255, 257. Ind. 42), 338. Citizens' Gas Light &c. Co. v. City of Flora v. Pruett (81 111. App. O'Brien (118 111. 174), 185. 161), 21. Citizens' Nat. Bank v. Third Nat. City of Fort Scott v. Peck (57 Kan. Bank (19 Ind. App. 69), 193. App. 593), 171. Citizens' Street Ry. Co. v. Hobbs City of Fort Wayne v. DeWitt (47 (15 Ind. App. 610), 237. Ind. 391), 151, 153, 167 Citizens' Street Ry. Co. v. Lowe City of Freeport v. Isbell (83 111. (12 Ind. App. 47), 267. 440), 74. Citizens' Street Ry. Co. v. Twi- City of Freeport v. Isbell (93 111. name (11 Ind. 587), 29. 381), 209, 215. Citizens' Street Ry. Co. v. Twi- City of Friend v. Burleigh (53 Neb. name (121 Ind. 375), 245. 674), 110, 158, 334. City of Anderson v. Hervey (67 City of Galesburg v. Benedict (22 Ind. 420), 153. III. App. 114), 208, 209. City of Atchison v. Twine (9 Kan. City of Galveston v. Barbour (62 350), 159. Tex. 172), 246, 267. City of Aurora v. Hillman (90 111. City of Galveston v. Poswainsky 61), 344. (62 Tex. 118), 73. City of Bloomington v. Legg (151 City of Goshen v. England (119 111. 9), 190, 191. Ind. 368), 191. City of Boston v. Worthington (10 City of Goshen v. Myers (119 Ind. Gray, 496), 94. 196), 48. City of Bradford v. Downs (126 City of Hartford v. Talcott (48 Penn. St. 622), 198, 237. Conn. 525), 42, 92. iii XXXIV Table of Cases. [References (ire to sections.] City of Highlands v. Raine (23 Colo. 295), 349. City of Huntington v. Breen (77 Ind. 29), 153. City of Independence v. Jekel (38 Iowa, 427), 282. Citv of Independence v. Ott (135 Mo. 301), 131. City of Indianapolis v. Cook (99 Ind. 10), 74, 274. City of Indianapolis v. Bmmelman (108 Ind. 530), 43, 190. City of Indianapolis v. Gaston (58 Ind. 224), 230, 231, 232, 234. City of Joliet v. Conway (119 111. 489), 232, 244. City of La Salle v. Porterfleld (138 111. 114), 75. City of Lexington v. Lewis (10 Bush, 677), 155. City of Leavenworth v. Hatch (57 Kan. 57), 335. City of Lincoln v. Walker (18 Neb. 224), 170. City of Madison v. Baker (103 Ind. 41), 157, 167. City of Michigan v. Boeckling (122 Ind. 39), 74. City of Newport v. Miller (93 Ky. 22), 282. City of North Vernon v. Voegler (103 Ind. 314), 91, 111, 226, 227. Citv of Norwich v. Breed (30 Conn. ■535), 43. City of Parson v. Lindsay (26 Kan. 426), 243. City of Peoria v. Simpson (110 III. 294), 59, 131, 132. City of Peru v. French (55 111. 317), 115. City of Portland v. Richardson (54 Me. 46), 94. City of Providence v. Clapp (17 How. 161),, 282. City Ry. Co. v. Lee (21 Vr. 435), 279, 352. City of Richmond v. Long (17 Gratt. 375), 82, 136. City of Ripon v. Bittel (30 Wis. 614), 210, 234. City of Rochester v. Campbell (123 N. Y. 465), 42, 92. City of Rochester v. Montgomery (72 N. Y. 65), 94. City of Rock Island v. Vanland- schoot (78 111. 485), 337. Citv of Boflrlhousp V. Christian ■ (158 111. 137), 131. City of Salem v. Harvey (29 111. App. 483), 273. City of Sterling v. Thomas (60 IlL 264), 282, 290. City of Vandalia v. Huss (41 111, App. 517), 74. City of Vicksburg v. Hennessy (54 Miss. 391), 169. City of Vicksburg v. McLalin (67 Miss. 4), 254, 271, 272, City of Washington v. Small (86 Ind. 462), 167. City of Zanesville v. Fannan (53" Ohio St. 605), 74, 92. Claflin V. Wilcox (18 Vr. 605), 50. Clancy v. Byrne (56 N. Y. 129),. 59. Clapp V. Hudson River R. R. Co.. (19 Barb. 461), 249, 251. Clapp V. Minneapolis &c. R. R. Co. (36 Minn. 6), 223. Clapper v. Town of Waterford (131 N. Y. 382), 196. Claraln v. Western U. Tel. Co. (40- La. Ann. 178), 125. Clare v. Sacramento Electric &c. Co. (122 Cal. 504), 229. Clark V. Bayer (32 Ohio St. 299), 134. Clark V. Bennett (123 Cal. 275), 52, 430. Clark V. Chambers (L. B., 3 Q. B. D. 327), 280. Clark V. Chicago &c. R. R. Co. (15 Fed. Rep. 588), 151. Clark V. Chicago &c. Ry. Co. (28' Minn. 69), 154. Clark V. Manchester (62 N. H. 577), 258, 309. Clark V. Fry (8 Ohio St. 58), 282. Clarke v. Holmes (7 Hurlst. & N. 937), 281. Clark v. Pennsylvania Co. (132 Ind.. 199), 345, 362. Clark V. Village of Davison (Mich., 5 Am. Neg. Rep. 43), 164. Clarkin v. Bewablk-Bes.«emer Co. (6S Minn. 483), 77. Clayards v. Detrick (12 Q. B. 439),- 167, 282. Cleavy v. City R. R. Co. (76 Cal.. 240), 257. Cleghorn v. New YorK &c. R. R. Co. (56 N. Y. 44), 243. Clemens v. Hannibal &c. R. R. Co. (53 Mo. 366), 280. Cleveland v. Spier (16 C. B. [N. S.J 399), 289. Cleveland v. New .Tersey Steam- boat Co. (5 Hun, 523), 193. Cleveland &c. R. R. Co. v. Bad- delay (150 111. 328), 264, 266. Table of Cases. XXXV [References are to sections.] Cleveland &c. R. R. Co. v. Craw- ford (24 Ohio St. 631), 170, 179. Cleveland &c. R. R. Co. v. Doerr (41 111. App. 530), 188. Cleveland &c. R. R. Co. v. Manson (30 Ohio St. 451), 338. Cleveland &c. R. R. Co. v. Mare (26 Ohio St. 185), 198, 199. Cleveland &c. R. R. Co. v. Newell (104 Ind. 264), 183, 193, 204, 205, 216. Cleveland &c. R. R. Co. v. Rowan (66 Penn. St. 393), 170, 171, 186, 259, 260, 267. Cleveland &c. R. R. Co. v. Tenny (8 Ohio St. 570), 343. Cleveland &e. R. R. Co. v. Walrath (38 Ohio St. 461), 133, 183. Cleveland &c. Ry. Co. v. Berry (Ind., 6 Am. Neg. Rop. 45), 152 Cleveland &e. Ry. Co. v. Elliott (28 Ohio St. 353), 326. Cleveland &c. Ry. Co. v. Gray (148 Ind. 266), 55, 232. Clifford V. Damm (81 N. Y. 52), 12, 43. Clifford V. Old Colony R. R. Co. (141 Mass. 564), 361, 362. Cline V. Crescent City R. R. Co. (43 La. Ann. 327), 2r2. Clore V. Mclntire (120 Ind. 262), 158. Clothier v. Webster (12 C. B. [N. S.] 790), 83. Clyne v. Helmes (32 Vr. 358), 150. Coal Creek Mining Co. v. Davis (90 Tenn. 711), 367, 372. Coal Run Coal Co. v. Jones (127 111. 379), 22. Coates V. Burlington &c. Ry. Co. (62 Iowa, 486), 193, 205, 211. Coddington v. Brooklyn Crosstown R. R. Co. (102 N. Y. 66), 55. Cogswell V. New York &c. R. R. Co. (103 N. Y. 10), 78. Cole V. Fisher (11 Mass. 137), 37. CoUey V. Inhabitants of Westbrook (57 Me. 181), 282. Collier v. Simpson (5 Car. & P. 37), 210. Collins V. City of Council Bluffs (32 Iowa, 324), 237, 252. Collins V. Davidson (19 Fed. Rep. 83), 254. Collins V. Leafey (124 Penn. St. 203), 231, 283. Collins V. St. Paul &c. R. R. Co. (30 Minn. 31), 362, 366. Collis V. Selden (L. R., 3 0. P. 495), 88. Colorado Coal Co. v. Lamb (6 Colo. App. 255), 267. Colorado Mortg. &e. Co. v. Rees. (21 Colo. 435), 34. Colorado &c. R. R. Co. v. Nayloa (17 Colo. 501), 359. Colorado Cent. R. R. Co. v. Ogden (3 Colo. 499), 66. Columbia &c. R. R. Co. v. Haw- thorne (144 U. S. 202), 188. Columbus &c. Ry. Co. v. Arnold (31 Ind. 174), 362. Columbus &c. Ry. Co. v. Bradford (86 Ala. 574), 158. Columbus &c. Ry. Co. v. Bridges (86 Ala. 448), 243. Columbus &c. Ry. Co. v. Froesch (57 111.), 224. Columbus &c. Ry. Co. v. Froesch (68 111. 545), 176. Columbus &c. Ry. Co. v. Webb (12 Ohio St. 475), 14. Cotton V. Onderdonk (69 Cal. 155), 77. Colvill V. Langden (22 Minn. 565), 116. Colvin V. Peabody (155 Mass. 104), 37. Comben v. Bellvllle Stone Co. (30 Vr. 226), 67, 68, 274, 281. Comminge v. Stevenson (76 Tex. 642), 131. Commonwealth v. Boston &c. R. R. Co. (121 Mass. 36), 104, 109, 158. Commonwealth v. Boston &c. R. R. Co. (129 Mass. 500), 350. Commonwealth v. Eastern R. R. Co. (5 Gray, 473), 109, 158. Commonwealth v. Forrest (170 Penn. St. 40), 52. Commonwealth v. Louisville &c. R. R. Co. (80 Ky. 291), 298. Commonwealth v. M'Pike (3 Cush. 181), 197. Commonwealth v. Metropolitan R. R. Co. (107 Mass. 236), 169. Commonwealth v. Passmore (1 Serg. & R. 217), 46. Commonwealth v. Sturtlvant (117 Mass. 123), 202, 210. Commonwealth v. Vermont &c. R. R. Co. (108 Mass. 7), 274, 301. Commonwealth v. Wilson (1 Gray, 3.37), 210. Oonant v. Griffin (48 111. 410), 150, 158, 164, 217. Condict V. Mayor &c. of .Jersey City (17 Vr. 157), 73. Condiff V. Kansas City &c. R. B. Co. (45 Kan. 256), 348. XXXYl Table of Cases. [References are to sections.] Condon v. Missouri Pacific Ry. Co. (78 Mo. 567), 369. Condran v. Chicago &c. Ry. Co. (67 Fed. Rep. 522), 31. Congdon v. City of Norwich (37 Conn. 414), 282. Congreve v. Morgan (18 N. Y. 84), 43, 44. Congreve v. Smith (18 N. Y. 79), 12, 24. Conklin v. Thompson (29 Barb. 218), 37, 39, 144. Conley v. Cincinnati &c. Ry. Co. (89 Ky. 402), 55. Connecticut Mut. Life Ins. Co. v. Ellis (80 111. 516), 210. Connecticut Mut. Life Ins. Co. v. New York &c. R. R. Co. (25 Conn. 265), 98. Connells v. Chesapeake &c. Ry. Co. (93 Va. 44), 27. Connelly v. Minneapolis &c. Ry. Co. (38 Minn. 80), 362, 366. Connelly v. Trenton Pass. Ry. Co. (27 Vr. 700), 345. Conner v. Barfield (102 Ga. 485), 55. Connerton v. Delaware &c. Co. (169 Penn. St. 339), 179. Connolly v. Davidson (15 Minn. 519), 143. Connolly v. Knickerbocker Ice. Co. (114 N. Y. 104), 212, 347. Connor v. Electric Traction Co. (173 Penn. St. 602), 23. Conradt v. Clauve (93 Ind. 476), 36. Conroy v. Oregon Construction Co. (23 Fed. Rep. 71), 153, 169, 170. Conroy v. Vulcan Iron Works (62 Mo. 35), 281. Consolidated Coal Co. v. Bokamp (III., 54 N. E. Rep. 567), 212. Consolidated Coal Co. v. Haenni (146 111. 614), 70, 232. Consolidated Coal Co. v. Seniger (179 111. 370), 177. Consolidated Coal Co. v. Wom- bacher (134 111. 57), 370. Consolidated Gas Co. v. Crocker (82 Md. 113), 284. Consolidated Coal Co. v. Worn- bacher (134 111. 57), 153. Consolidated Ice Machine Co. v. Kelfer (134 111. 481), 131, 132, 217. Consolidated Street Ry. Co. v. Bates (103 Ga. 333), 343. Consolidated Traction Co. v. Chen- owith (29 Vr. 416), 52. Consolidated Traction Co. v. Glynn (30 Vr. 432), 52. Consolidated Traction Co. v> Haight (30 Vr. 577), 52, 430. Consolidated Traction Co. v. Hone (30 Vr. 275; 31 id. 444), 260, 332, 338. Consolidated Traction Co. v. Lam- bertson (30 Vr. 297), 52, 204, 231. Consolidated Traction Co. v. Scott (29 Vr. 686), 276, 279. Consolidated Traction Co. v. Thal- heimer (30 Vr. 474), 183. Consolidated Tract. Co. v. Whelan (31 Vr. 154), 93, 113, 156. Consumers' Gas Trust Co. v. Per- rego (144 Ind. 350), 45. Continental &c. Co. v. Stead (95 U. S. 161), 55. Conway v. Grant (88 Ga. 40), 35. Conway v. Reed (66 Mo. 346), 39. Cook V. Adams (27 Ala. 294), 118. Cook V. Central R. R. Co. (67 Ala. 533), 429. Cook V. Clay Street Hill R. R. Co, (60 Cal. 604), 273. Cook V. Pogarty (103 Iowa, 500),^ 52. Cook V. Hannibal &c. R. R. Co, (63 Mo. 397), 293. Cook V. New York Cent. R. R. Co. (5 Lans. 401), 218. Cook V. Western &c. B. R. Co. (72 Ga. 48), 302. Cooke V. Baltimore Tract. Co. (80' Md. 551), 6, 52. Cooley V. Philadelphia Traction Co. (189 Penn. St. 563), 430. Coombs V. New Bedford Cordage Co. (102 Mass. 572), 70, 281, 286. Coon V. Syracuse &c. R. R. Co. (5 N. Y. 492), 362. Cooper V. Lake Shore &c. Ry. Co. (66 Mich. 261), 256, 267, 273. Cooper V. Lyons (9 Lea, 596), 165, 311. Coppins V. New York &c. R. R. Co. (122 N. Y. 557), 21, 65, 69, 251. Corcoran v. Boston &c. R. R. Co. (133 Mass. 507), 169, 217. Covcoran v. Village of Peekskill (108 N. Y. 151), 188, 189. Cordell v. New York &c. R. R. Co. (64 N. Y. 535), 282. Cordell v. New York &c. R. R. Co. (75 N. Y. 330), 169, 172. Corey v. Path (35 N. H. 530), 298. Corey v. Silcox (6 Ind. 39), 210. Corliss V. Worcester &c. R. R. Co. (63 N. H. 404), 258. ■Cortland County v. Herkimer County (44 N. Y. 22), 196. Table of Cases. xxxvii [References are to sections.] Cornish v. Toronto St. Ry. Co. (23 Craven v. Central Pacific R. R. Co. U. C. C. P. 355), 170. (72 Cal. 345), 350. Cornman v. Eastern Counties Ry. Crawford v. Soutliern Ry. Co. (Ga., Co. (4 Hurlst. & N. 781), 289. 33 S. E. Rep. 826), 340. Correll v. Burlington &c. R. R. Co. Creed v. Hartman (29 N. Y. 591), (38 Iowa, 120), 23, 278. 24, 43, 131. Cosullch V. Standard Oil Co. (122 Creed v. Pennsylvania R. R. Co. N. Y. 118), 77, 184, 185, 186. (86 Penn. St. 139), 27. Cotchett V. Savannah &c. Ry. Co. Cregin v. Brooklyn &c. R. R. Co. (84 Ga. 687), 353. (83 N. Y. 595), 266. Cottingham v. Weeks (54 Ga. 275), Cregin v. Brooklyn Cross Town R. 219. R. Co. (75 N. Y. 192), 96, 99. Cotton Oil Co. V. Shamblin (101 Cremer v. Town of Portland (36 Tenn. 263), 150. Wis. 92), 15, 282. Cotton V. Wood (8 C. B. [N. S.] Crew v. St. Louis &c. Ry. Co. (20 568), 167, 173, 277, 286. Fed. Rep. 87), 170, 224. Couch V. Watson Coal Co. (46 Crine v. East Tenn. &c. Ry. Co. Iowa, 17), 189. (84 Ga. 651), 356. Coughti-y v. Globe Woolen Co. (56 Crispin v. Babbitt (81 N. Y. 522), N. Y. 124), 63. . 359. Coulter V. Pine Township (164 Crissey v. Hestonville &c. Ry. Co. Penn. St. 543), 239. (75 Penn. St. 83), 294. Coulter V. The American Mer- Crities v. City of New Richmond chants' Union Ex. Co. (56 N. (98 Wis. 55), 279. Y. 585), 220. Crocker v. Schureman (7 Mo. App. County Commissioners of Prince 358), 193. George County v. Burgess (61 Crockett v. St. Louis &c. Co. (52 Ind. 29), 170. Mo. 457), 125. Courtney v. Baker (60 N. Y. 1), 281. Crogan v. Schiele (53 Conn. 186), Covey V. Hannibal &c. R. R. Co. 43. (86 Mo. 635), 368. Cronan v. Crescent City R. R. Co. Covington Street Ry. Co. v. Packer (49 La. Ann. 65), 29. (9 Bush, 455), 93, 99, 120. Cross v. Guthery (2 Root, 90), 98. Covington Transfer Co. v. Kelly Cross v. Lake Shore &c. R. R. Co. (36 Ohio St. 86), 335. (69 Mich. 363), 30. Cowan V. Umbagog Pulp Co. (91 Crouch v. Charleston &c. Ry. Co. Me. 26), 67. (21 So. Car. 495), 153. Cowden v. Wright (24 Wend. 429), Crowhurst v. Amersham Burial 93, 120. Board (L. R., 4 Exch. 25), 18. Cowlev V. People (83 N. Y. 464), Crowley v. Panama R. R. Co. (30 206. Barb. 99), 98, 99, 108. Cox V. New York &c. R. R. Co. Crown v. Orr (140 N. Y. 450), 66, (11 Hun, 621), 129. 176. Cox V. Norfolk &c. R. R. Co. (123 Cruse v. Aden (127 111. 231). 92. No. Car. 604), 168, 170. Crutchfleld v. Richmond &c. R. R. Cox V. Syenite Granite Co. (39 Mo. Co. (76 No. Car. 320), 8. App. 424). 371. Cuddy v. Horn (46 Mich. 596), 335. Coyne v. Manhattan Ry. Co. (42 N. Cuff v. Newark &c. R. R. Co. (6 Y. Supp. 617), 204. Vr. 37, 574), 32. Crafter v. Metropolitan Ry. Co. Culhane v. New York &c. R. R. (L. R.. 1 C. P. 300), 30, 286. Co. (60 N. Y. 133), 224. Crafts V. City of Boston (109 Mass. Cumberland &c. R. R. Co. v. State 519), 169. (45 Md. 229), 291. Cramer v. City of Burlington (43 Cumberland &c. R. R. Co. v. State Iowa, 627), 189. (73 Md. 74), 213. Crane v. Town of Northfield (33 Cumberland Valley R. R. Co. v. Vt. 124), 205. Mangans (61 Md. 53), 350. Crane Elevator v. Lippert (63 Fed. Cuming v. Brooklyn City R. R. Co. Rep. 942; 11 C. C. A. .o21), 236. (109 N. Y. 9.5), 246. Cratty v. City of Bangor (75 Me. Cummings v. Centre Harbor (57 N. 423), 297. H. 17), 282. xxxviii Table of Cases. [References are to sections. J Cummings v. National Furnace Co. Daniels v. Chesapeake &c. Ry. Co. (60 Wis. 603), 185, 294. (36 W. Va. 397), 361, 371. Cunningham v. Bath Iron WorliS Daniels v. Clegg (28 Mich. 32), 50. (92 Me. 501), 66, 70. Daniels v. New York &c. R. R. Co. Cunningham v. Fair Haven &e. R. (154 Mass. 349), 81. R. Co. (Conn., 43 Atl. Rep. Danner v. South Carolina R. R. 1047), 190, 206. Co. (4 Rich. 329), 170. Cunningham v. International R. R. Darling v. Oswego Falls Mfg. Co. Co. (51 Tex. 503), 82, 138. (30 Hun, 276), 199. Cunningham v. Lyness (22 Wis. Darmstaetter v. Moynanan (27 245), 834. Mich. 188), 138. Cunningham v. Union Pacific Ry. Darrigan v. New York &c. R. R. Co. (4 Utah, 206), 207. Co. (52 Conn. 282), 360, 868. Curley v. Illinois Cent. R. R. Co. Davenport v. Receivers of Ala- (40 La. Ann. 810), 22, 125. bama &c. R. R. Co. (2 Woods, Currier v. Boston Music Hall Assn. 519), 85. (135 Mass. 414), 79. Davenport v. Ruckman (10 Bosw. Curtis V. Rochester &c. R. R. Co. 20), 282. (18 N. Y. 534), 183. Davenport v. Ruckman (37 N. Y. Cusick V. Adams (115 N. Y. 55), 16, 568), 60. 79. Davey v. Chamberlain (4 Esp. 229), Cutting V. Seabury (1 Sprague, 132. 522), 98. Davey v. London &c. Ry. Co. (L. Czech V. General Steam Nav. Co. R., 11 Q. B. D. 213), 170. (L. R., 3 C. P. 14), 174. David v. Waters (11 Or. 448). 158. Davidson v. City of Portland (69 D. Me. 116), 295. Daester v. Mechanics &c. Mill Co. Davies v. Mann (10 M. & W. 546), (11 Mo. App. 598), 281. 822. Dahl V. Milwaukee City Ry. Co. Davis v. Central Cong. Soc. (129 (62 Wis. 652), 294. Mass. 367), 79, 292. Dahlberg v. Minneapolis Street Ry. Davis v. Chicago &c. Ry. Co. (93 ■ Co. (32 Minn. 404), 856. Wis. 470), 301. Dailey v. Burlington &c. R. R. Co. Davis v. Gray (16 Wall. 203), 142. (Neb., 6 Am. Neg. Rep. 112), Davis v. Guarnleri (45 Ohio St. 822. 470), 266, 837. Dalay v. Savage (145 Mass. 38), 59. Davis v. Lamoille &c. Plank Road Dale V. Atchison &c. R. R. Co. (57 Co. (27 Vt. 602), 47. Kan. 661), 108. Davis v. London &c. Ry. Co. (2 M. Dale V. Delaware &c. R. R. Co. (73 & G. 74), 167. N. Y. 468), 189. Davis v. New York &c. R. R. Co. Dale V. St. Louis &c. Ry. Co. (63 (148 Mass. 301), 108. Mo. 455), 281. Davis v. Oregon &c. R. R. Co. (8 Daley v. Norwich &c. R. R. Co. (26 Or. 172), 189, 844. Conn. 591), 224, 822, 838, 846. Davis v. State (38 Md. 15), 210. Dallas City R. R. Co. v. Beeman Davis v. St. Louis &c. Ry. Co. (53 (74 Tex. 291), 15. Ark. 117), 96, 99, 125, 246, 267. Dallas &c. Ry. Co. v. Spicker (61 Dawson v. Manchester &c. Ry. Co. Tex. 427). 125, 170, 273. (7 Hurlst. & N. 1087), 183. Dallinard v. Saalfeldt (175 111. 310), Day v. Akeley Lumber Co. (54 171. Minn. 522), 188. Daly V. Hinz (113 Cal. 866), 838. Day v. City of Mt. Pleasant (70 Daly V. Stoddard (66 Ga. 145), 104. Iowa, 193), 282. Dalton V. Southeastern Ry. Co. (4 Day v. Edwards (5 T. R. 648), 89. C. B. [N. S.] 296), 254, 260. 271. Day v. Highland Street Ry. Co. Damon v. Inhabitants of Scituate (135 Mass. 113), 297. (119 Mass. 66), 347. Day v. Toledo &c. Ry. Co. (42 Danbe v. Tennison (154 111. 210), Mich. 523), 362. 338. Dayharsh v. Hannibal &e. R. R. Daniel v. Metropolitan Ry. Co. (L. Co. (103 Mo. 570), 871. R.. 3 C. P. 216), 21, 168, 173, Dean v. Pennsylvania R. R. Co. 174. (129 Penn. St. 514), 335, 836. Table of Cases. xxxix [References are to sections.] De Benedetti v. Mauehin (1 Hilt. Deppe v. Chicago &c. R. R. Co. (36 "■*"' ''"" Iowa, 52), 95, 360. 213), 195. Debevoise v. New York &e. R. R. Co. (98 N. Y. 377), 107, 160, 172. De Costa v. Hargrave's Mills (170 Mass. 375), 70. Deford v. State (30 Md. 179), 118, 125. Dehring v. Comstock (78 Mich. 153), 43, 185. Deisen v. Chicago &c. Ry. Co. (43 Minn. 454), 256. Delamatyr v. Milwaukee &c. R. R. Co. (24 Wis. 578), 350. Delaney v. Bochereau (34 La. Ann. 1123), 11, 136. Detroit &c. R. R. Co. v. Van Stein- burg (17 Mich. 99), 169, 214, 274, 279. Deverill v. Grand Trunk Ry. Co. (25 U. C. Q. B. 517), 173, 286. Devlin v. Bain (11 U. C. C. P. 523), 282. De Voe v. Van Vracken (29 Hun, 201), 255. Dewire v. Bailey (131 Mass. 169), 329. Dewire v. Boston &c. R. R. Co. (148 Mass. 343), 353. Delaware &c. Canal Co. v. Carroll ^^^\f ^'- McCready (54 Conn. 171), (89 Penn. St. 374), 363. r^-i^i xt -t^ , o ^ „ ^ Delaware &c. R. R. Co. v. Jones ^'^^ItZ^ ^^^^^.olf o.t'^- ^- ^- '^*- (128 Penn. St. 308), 266. .^. y° X^J?' *^'^^',.'* „ Delaware &c. R. R. Co. v. Roalefs ^"^^,J- Indianapolis &c. R. R. Co. (70 Fed. Rep. 21), 216. "** *J'i'° ^t- 3°^)' ^69. Delaware &c. R. R. Co. v. Napheys Dickins v. New York &c. R. R. Co. (90 Penn. St 135), 182, 183. (23 N. Y. 158), 98, 109. Delaware &e. R. R. Co. v. Reich Dickinson v. Mayor &e. New York (32 Vr. 635), 13, 81. (92 N. Y. 584), 12, 303. Delaware &c. R. R. Co. v. Traut- Dickinson v. Northeastern Ry. Co. wein (23 Vr. 169), 28, 298. Delong V. Curtis (35 Hun, 94), 318. Demarest v. Little (18 Vr. 28), 254, 255, 257, 270, 272. Denby v. Miller (59 Wis. 240), 43, 282. Deneck v. Pennsylvania R. R. Co. (30 Vr. 415), 43. Deni v. Pennsylvania R. R. Co. (181 Penn. St. 525), 125, 271. Dennick v. Central R. R. Co. (103 U. S. 11), 106, 107, 125, 126. Denning v. State (123 Cal. 316), 86. Denver Consolidated Electric Co. V. Simpson (21 Colo. 371), 14, 184, 185. Denver &c. R. R. Co. v. Driscoll (12 Colo. 520), 359. Denver &c. R. R. Co. v. Lorentzen (79 Fed. Rep. 291), 230. Denver &c. R. R. Co. v. Morton (3 Colo. App. 155), 189. Denver &c. R. R. Co. v. Pickard (3 Colo. 163), 350. Denver &c. R. R. Co. v. Smock (23 Colo. 456), 164. Denver &c. R. R. Co. v. Harris (122 IT. S. 597), 140, 243. (2 Hurl. & C. 735), 109. Dickinson v. Port Huron &c. Ry. Co. (33 Mich. 43), 353. Dickson v. Hollister (123 Penn. St. 421), 236. Dickson v. Missouri Pacific Ry. Co. (104 Mo. 491), 335. Dickson v. Omaha &c. R. R. Co. (124 Mo. 140), 345. Dietrich v. Northampton (138 Mass. 14), 109. Dimmey v. Wheeling &c. R. R. Co. (27 W. Va. 32), 125, 266. Ding V. Hoare (13 M. & W. 494), 131. District of Columbia v. Armes (107 U. S. 519), 190, 191. District of Columbia v. Dempsey (13 App. Cas. [D. C] 533), 132. District of Columbia v. Payne (13 App. Cas. [D. C] 500), 75, 180. District of Columbia v. Woodbury (1.36 U. S. 450), 73, 75, 231, 232. Ditberner v. Chicago &c. Ry. Co. (47 Wis. 138), 284. Dixon V. Chicago &c. R. R. Co. (109 Mo. 413), 371. Dixon V. Pluns (98 Cal. 384), 185. Denver Sec. Ry. Co. v. Woodward Dobbin v. Richmond &c. R. R. Co. (4 Colo. 1), 183, 184. (81 No. Car. 446), 368. Denver &c. Ry. Co. v. Woodward Dobbins v. Brown (119 N. Y. 188), (4 Colo. 162), 105. 168, 173. Denver Tramway Co. v. Reid (4 Dobbins v. Missouri &c. Ry. Co. Colo. App. 53), 29, 183. (91 Tex. 60), 79, 81. xl Table of Cases. [References are to sections.] Dodge V. Boston &c. Steamship Co. Doyle v. Missouri &c. Trust Co. (148 Mass. 207), 19, 27. (140 Mo. 1), 66, 67. Dodge V. Burlington &c. R. R. Co. Doyle v. Union Pacific Ry. Co. (147 (34 Iowa, 276), 22, 23. ' U. S. 413), 59. Doggett V. Richmond &c. R. R. Co. Drake v. Gilmore (52 N. Y. 389), (78 No. Car. 305), 169. 109. Dogget V. Richmond &c. R. R. Co. Drake v. Mount (4 Vr. 441) 167 (81 No. Car. 459), 214. 170. Dobm V. Dawson (84 Hun, 110; 32 Dreher v. Town of Fltchburg (22 N. Y. Supp. 59; 90 Hun, 271; wis. 675), 14, 15. 35 N. Y. Supp. 984), 185. Dressier v. Davis (7 Wis. 527), 170. ^'*^''.S, \ ^-S^^^K^^^"- ^^°^ ^'*- I'l'e^ ^- Sixth Avenue R. R. Co. (71 N. Y. 285), 56. (26 N Y 49) 120 ^"^^^TJ-Jo^^"'^''^ ^^^ ^"'''' I^'-ew V. Town 'of Sutton (55 Vt. 4(4), do, -^lo. * - 586^ 282 ''°"«nMfi''^''"'' ^'"^ ""• ^- ^'^^' ^^'^^^ ^'- J^^ederlck (57 Tex. 70), bO, Z^b. 240 Donahu|v^|tate^of New York (112 ^riess v. Frederick (73 Tex. 461), ^°''iTsV' '^^™''^^'' ^'°^ ^^- Drinkout v. Eagle Mach. Works Donaldson v. Mississippi &c. R. B. _ . ^?^ ^'^^- ^2^^'. ^^2. Co. (18 Iowa, 280), 104, 169, ^''''fZ''^oL\?.'''^'^°'-'^ ^^" ^- ^- 203 255 256 257 258 oyu;, ^oO, zd4. Donley' V. Douglierty' (174 111. 582), Drymala v. Thompson (26 Minn. j^Y4 40), 372. Donnegan v. Kriiardt (119 N. Y. ^u Bols v. Decker (130 N. Y. 325), 468), 211. 84- Donnelly v. Brooklyn City R. R. Duckworth v. Johnson (4 Hurlst. Co. (109 N. Y. 16), 336. & N. 653), 262. Donnelly v. Hufschmldt (79 Cal. Dudley v. Camden &c. Ferry Co. 74), 230. (13 Vr. 25; 16 lb. 368), 15, 322. Donnelly v. Jenkins (58 How. Pr. Duffy v. Howard (77 Ind. 182), 153, 252), 139. 167. Donnelly v. St. Paul City Ry. Co. Dugan v. Chicago &c. Ry. Co. (85 (70 Minn. 278), 204. Wis. 609), 170. Donovan v. Hartford Street Ry. Duggins v. Watson (15 Ark. 118), Co. (65 Conn. 201), 183. 335. Donovan v. McAlpin (85 N. Y. 185), Duke v. Missouri Pacific Ry. Co. 82. (99 Mo. 347), 230. Dorsey v. City of Racine (60 Wis. Dumas v. Hampton (58 N. H. 134), 292), 180. 282. Doss v. Missouri &c. R. R. Co. (39 Duncan v. Findlater (6 CI. & Fin. Mo. 27), 350. 894), 83. Dougan v. Champlain Transporta- Dunn v. Grand Trunk Ry. Co. (58 tion Co. (56 N. Y. 1), 107, 189. Me. 187), 27, 354. Dougherty v. Chicago &c. R. R. Co. Dunn v. McNamee (30 Vr. 498), 70. (86 111. 467), .850. Dunn v. Seaboard &c. R. R. Co. Dougherty v. Missouri R. R. Co. (78 Va. 645), 356. (81 Mo. 331), 6. Dunham Towing &c. Co. v. Dan- Douglass V. Chicago &c. Ry. Co. delin (143 111. 409), 345. (100 Wis. 405), 194. Durant v. Palmer (5 Dutch. 544), Douney v. Chesapeake &c. Ry. Co. 59, 61, 62, 74, 139, 170 187 (28 W. Va. 732), 243. Durkin v. Shai-p (88 N. Y. 225), 85. Dowell V. Guthrie (99 Mo. 653), 37, Dui-yee v. Mayor &c. of New York 168. (96 N. Y. 477), 248. Downes v. Harper Hospital (101 Dutton v. Weare (17 N. H. 34), 298. Mich. 555), 83. Duval v. Hunt (34 Fla. 85), 271. Doyle V. Lynn &c. R. R. Co. (118 Dygert v. Schenck (23 Wend. 446), Mass. 195), 297. 12, 44. Table of Cases. xli [References are to sections.] Dysou V. New York &c. R. R. Co. (57 Conn. 9), 58, 206. Dyster v. Battye (3 B. & Aid. 448), 306. Dwinelle v. New York &c. R. R. Co. (120 N. Y. 117), 133. B. Eagle Packet Co. v. Defrles (94 111. 598), 183, 215, 240, 312. Eakin v. Brown (1 E. D. Smith, 36), 62, 139. Barhart v. Youngblood (27 Penn. St. 331), 35. Earl V. Crouch (16 N. Y. Supp. 770), 43 193. Earl V. Tiipper (45 Vt. 275), 96. East End Oil Co. v. Pennsylvania Torpedo Co. (190 Penn. St. 353), 181, 182. Eastman v. Grant (34 Vt. 387), 317, 318. Eastman v. Meredith (36 N. H. 284), 73. East St. Louis Ry. Co. v. Allen (54 111. App. 27), 164, 199. East Tennessee &c. Ry. Co. v. Aiken (89 Tenn. 245), 334. East Tennessee &c. R. R. Co. v. Bayliss (74 Ala. 150), 274, 290. East Tennessee &c. R. R. Co. v. Clark (74 Ala. 443), 170. East Tennessee &c. R. R. Co. v. Collins (85 Tenn. 227), 372. East Tennessee &c. R. R. Co. v. Eanes (8 Baxt. 221), 199. East Tennessee &c. R. R. Co. v. Fain (12 Lea, 35), 334. East Tennessee &c. Ry. Co. v. Gur- ley (12 Lea, 46), 334. East Tenn. &c. R. R. Co. v. Hart- ley (73 Ga. 5), 183. East Tennessee &c. Ry. Co. v. HuU (88 Tenn. 33), 334. East Tennessee &c. Ry. Co. v. Lee (90 Tenn. 570), 243. East Tennessee &c. R. R. Co. v. Maloy (77 Ga. 237), 200, 367. Bast Tennessee &e. Ry. Co. v. Mar- kens (88 Ga. 60), 335, 336. Bast Tennessee &c. R. R. Co. v. Mitchell (11 Heisk. 400), 183. Bast Tennessee &c. R. R. Co. v. Rush (15 Lea, 145), 367. Bast Tennessee &c. R. it. Co. v. Smith (94 Ga. 580), 216. East Tennessee &c. Ry. Co. v. Smith (89 Tenn. 114), 367. East Tennessee &c. R. R. Co. v. Stewart (13 Lea, 432), 170. Eastwood V. Kentucky (44 Md. 563), 310. Baton V. Boston &c. R. R. Co. (11 Allen, 500), 26, 148. Baton V. Crips (94 Iowa, 176), 295. Baton V. Delaware &c. R. R. Co. (57 N. Y. 382), 354. Baton V. New York &c. R.- R. Co. (14 App. Div. [N. Y.] 20), 363. Ebsery v. Chicago City Ry. Co. (164 111. 518), 222. Eckerd v. Chicago &c. Ry. Co. (70 Iowa, 23), 230. Eckert v. Long Island R. R. Co. (43 N. Y. 502), 348. Eckert v. St. Louis &c. Ry. Co. (13 Mo. App. 352), 193, 202, 204. Eden v. Lexington &c. R. R. Co. (14 B. Mon. 165), 98. Bdens v. Hannibal &c. R. R. Co. (72 Mo. 212), 152. Edgar v. Castello (14 So. Car. 20), 125. Edgerly v. Concord (62 N. H. 8), 73. Edgerton v. New York &c. R. R. Co. (35 Barb. 193), 284. Edgerton v. New York &c. R. R. Co. (39 N. Y. 227), 27, 183, 354. Edgeworth v. Wood (29 Vr. 463), 141. Edward Hines Lumber Co. v. Ligas (172 HI. 315), 67. Edwards v. New York &c. R. R. Co. (98 N. Y. 245), 59, 60, 286. Eggleston v. Columbia Turnp. Road Co. (82 N. Y. 278), 47. Bhrgott V. Mayor &c. New York (96 N. Y. 264), 21, 90, 150, 228, 232, 236, 252, 280. Ehrisman v. East Harrisburg Citv Pass. Ry. Co. (150 Penn. St. 180), 54, 278. Biekhof v. Chicago &c. Ry. Co. (77 111. App. 196), 183. Bilert v. Green Bay &c. R. R. Co. (48 Wis. 606), 224. Eldridge v. Minnesota &c. Ry. Co. (32 Minn. 253), 184, 293. Eliason v. Grove (85 Md. 215), 243. Elkhart v. Wickwire (87 Ind. 77), 94. Blkins V. McKean (79 Penn. St. 493), 88, 198. Ell V. Northern Pacific R. R. Co. (1 No. Dak. 336), 248, 359. Ellet V. St, Louis &c. Ry. Co. (76 Mo. 518), 167. Elliott V. Field (21 Colo. 378), 31. xlii Table of Cases. [References are to sections.] Ellis V. Essan (50 Wis. 198), 317, 318. Ellis V. Great Western Ky. Co. (L. R., 9 C. P. 551), 286. Ellis V. Lake Shore &c. R. R. Co. (138 Perm. St. 506), 56. Ellis V. Sheffield Gas Co. (2 El. & B. 767), 24, 32. Ely V. St. Louis &e. Ry. Co. (77 Mo. 34), 189. Ely V. Wilbur (20 Vr. 685), 84. Elyton Land Co. v. Mingea (89 Ala. 521), 335. Emblem v. Myers (6 Hurlst. & N. 54), 243. Embler v. Town of Wallkill (132 N. Y. 222), 74. Engel Y. Eureka Club (137 N. Y. 100), 32. Ennis v. Gray (87 Hun, 355), 33, 91, 92. Enright v. City of Atlanta (78 Ga. 288), 282. Entwistle v. Feighner (60 Mo. 214), 195, 198, 217. Eppendorf v. Brooklyn &c. R. R. Co. (69 N. Y. 195), 193, 279. Bpps V. State (102 Ind. 539), 210. Erie City v. Schwingle (22 Penn. St. 384), 180. Erie City Pass. Ry. Co. v. Schuster (113 Penn. St. 412), 338. Ernst V. Hudson River R. R. Co. (35 N. Y. 9), 19. Ernst V. Hudson River R. R. Co. (24 How. Pr. 97), 169, 294. Brslew v. New Orleans &c. R. R. Co. (49 La. Ann. 86), 149. Erwin v. Davenport (9 Heisk. 44), 85. Erwin v. Neversink S. S. Co. (88 N. Y. 184), 218. Erwin v. Neversink Steamboat Co. (23 Hun, 578), 248, 273. Ester V. City of Seattle (18 Wash. St. 304), 190, 191. Eureka Springs Ry. Co. v. Tim- mons (51 Ark. 459), 183. Evans v. City of Huntington (37 W. Va. 601), 75, 157. Evans v. Concord R. R. Co. (66 N. H. 194), 179. Evans v. Keystone Gas Co. (148 N. Y. 112), 45. Evans v. Murphy (87 Md. 498), 32. Evans v. Newland (34 Ind. 112), 102. Evanston v. Gunn (99 U. S. 660), 180, 221. Evansville &c. R. R. Co. v. Griffin (100 Ind. 221), 79, 91. Evansville &c. R. R. Co. v. Hen- derson (134 Ind. 636), 66, 70, 362. Evansville &c. R. R. Co. v. Krapf (143 Ind. 647), 153, 167, 168. Evansville &c. R. R. Co. v. Mad- dux (134 Ind. 571), 70. Evansville &c. R. R. Co. v. Wolf (59 Ind. 89), 338. Eveleigh v. Hainsfield (34 Hun, 140), 180. Everett v. Los Angeles &c. Ry. Co. (115 Cal. 105), 52. Ewald V. Chicago &c. Ry. Co. (70 Wis. 420), 366. Ewan V. Lipplncott (18 Vr. 192), 363. Ewell V. Chicago &c. Ry. Co. (29 Fed. Rep. 57), 309. Ewen V. Cliicago &c. Ry. Co. (38 Wis. 613), 159, 162, 165, 267, 273. Excelsior Electric Co. v. Sweet (28 Vr. 224), 33, 181, 185, 202. Exton V. Central R. R. Co. (33 Vr. 7), 30, 284. Eyre v. Jordan (111 Mo. 424), 61. Faber v. Carlisle Mfg. Co. (126 Penn. St. 387), 361. Faber v. St. Paul &c. Ry. Co. (29 Minn. 465), 150, 213. Fairbank Canning Co. v. Innes (24 111. App. 33; 125 111. 410), 185. Fairbanks v. Kerr (70 Penn. St. 86), 21, 280, 294, 324. Fairmount &c. R. R. Co. v. Stutler (54 Penn. St. 375), 90, 93, 117. Falk V. New York &c. R. R. Co. (27 Vr. 384), 153. Fall Brook Coal Co. v. Hewson (158 N. Y. 150), 220. Fallon V. City of Boston (3 Allen, 38), 19. Faren v. Sellers (39 La. Ann. 1011), 132, 359. Farls V. Hoberg (134 Ind. 269), 79, 168. Farley v. Philadelphia Traction Co. (132 Penn. St. 58), 170, 183. Farlow v. Kelly (108 U. S. 288), 356. Farwell v. Boston &c. R. R. Co. (4 Mete. 49), 65, 358, 361. Favre v. Louisville &c. R. R. Co. (91 Ky. 541), 164, 166. Fay V. Minneapolis &c. Ry. Co. (30 Minn. 231), 362, 369. Fay V. Parker (53 N. H. 342), 226, 243. Table of Cases. xliii [References are to sections.] Peam v. West Jersey Ferry Co. (143 Penn. St 122), 183, 218. Feather v. Reading (155 Penn. St. 187), 74. Featherston v. Prest. Newburgh &e. Co. (71 Hun, 109), 318. Federal Street &c. Ry. Co. v. Gib- son (96 Penn. St. 83), 170, 183. Feeney v. Long Island R. R. Co. (116 N. Y. 375), 56, 235. Feital v. Middlesex R. R. Co. (109 Mass. 398), 297. Feltham v. England (4 Fost. & F. 460), 289. Feltham v. England (L. R., 2 Q. B. 33), 286. Fenderson v. Atlantic City R. R. Co. (27 Vr. 708), 176. Fenton v. Second Ave. R. R. Co, (126 N. Y. 625), 52. Ferguson v. Columbus &c. Ry. Co. (77 Ga. 102), 338. Ferguson v. Davis County (57 Iowa, 601), 231. Ferguson v. Hubbell (97 N. Y. 507), 201. Fernandes v. Sacramento City Ry. Co. (52 Cal. 45), 279, 290. Ferris v. Union Ferry Co. (36 N. Y. 312), 186. Perry Companies v. White (99 Tenn. 256), 27. Fetter v. Beale (1 Salk. 11; 1 Ld. Raym. 339), 227. Fickett V. Lisbon Falls Fibre Co. (91 Me. 268), 66, 322, 324. Field V. Davis (27 Kan. 400), 190. Field V. French (80 111. App. 78), 34. Fifield V. City of Phoenix (36 Pac. Rep. 916), 37. Filer v. New York &c. R. R. Co. (49 N. Y. 42), 227, 231, 235, 245, 250. Files v. Boston &c. R. R. Co. (149 Mass. 204), 354. Finley v. Chicago &c. Ry. Co. (71 Minn. 471), 337. Finn v. Vallejo St. Wharf Co. (7 Cal. 253), 170. Finnell v. Southern Kans. Ry. Co. (33 Fed. Rep. 427), 307. Firkins v. Chicago &c. Ry. Co. (61 Minn. 31), 195. Fisher v. Cook (125 111. 280), 131. Fisher v. Jansen (128 111. 549), 228, 232. Fisher v. Pond (1 Hill, 672), 306. Fisher v. Rankin (78 Hun, 407), 186. Fisher v. Southern Pacific R. R. Co. (89 Cal. 399), 27, 210. Fisk V. Wait (104 Mass. 71), 292. Fitts V. Cream City R. R. Co. (591 Wis. 323), 202, 204. Fitts V. Wildeck (51 Wis. 567), 154, 167. Fitz V. City of Boston (4 Oush. 365), 282. Fitzgerald v. Honkomp (44 111. App. 365), 361. Fitzgerald v. St. Paul City &c. Ry. Co. (29 Minn. 336), 338. Fitzgerald v. Town of Weston (52 Wis. 354), 196, 199, 344. Fitzpatrick v. Great Western Ry. Co. (12 Up. C. Q. B. 645), 231. Flaherty v. Minneapolis &c. Ry. Co. (39 Minn. 328), 133, 335. Fleckenstein v. Dry Dock &c. R. R. Co. (105 N. Y. 655), 53. Fleming v. Beck (48 Penn. St. 309). 21. Flamming v. Western Pacific R. R. Co. (49 Cal. 253), 274. Fletcher v. Atlantic &c. R. R. Co. (64 Mo. 484), 274. Fletcher v. Boston &c. R. R. Co. (1 Allen, 9), 281. Fletcher v. Rylands (L. R., 1 Exch. 2te; affirmed, L. R., 3 H. L. 330), 18, 76. Fletcher v. Smith (L. R., 7 Exch. 305; 2 App. Cas. 781), 76. Flike v. Boston &c. R. R. Co. (53 N. Y. 549), 368. Flori V. City of St. Louis (3 Mo. App. 231), 275, 293, 337. Florida &c. R. R. Co. v. Williams (37 Fla. 406), 21, 58, 334, 343. Florida Ry. &c. Co. v. Webster (25 Fla. 394), 249, 355. Florida Southern Ry. Co.. v. Hirst (30 Fla. 1), 243. Flourney v. Shreveport &c. Ry. Co. (50 La. Ann. 632), 53. Flower v. Pennsylvania R. R. Co. (69 Penn. St. 210), 363. F'lynn v. Beebe (98 Mass. 575), 286. Flynn v. Canton Co. of Baltimore (40 Md. 312), 42, 92. Flynn v. Central R. R. Co. of N. ,T. (142 N. Y. 439), 55, 79. Flynn v. City of Salem (134 Mass. 351), 361. Flynn v. Kansas City &c. R. R. Co. (78 Mo. 195), 171. xliv Table of Cases. [References are to sections.] Foels V. Town of Tonawanda (59 Hun, 567; 14 N. Y. Supp. 46), 237, 252. Foley V. Chicago &c. Ry. Co. (64 Iowa, 644), 364. Foley V. New York (1 App. Div. 586; 37 N. Y. Supp. 465), 180. Folsom V. Town of Underbill (36 Vt. 580), 215, 230. Fonda v. St. Paul City Ry. Co. (71 Minn. 438), 177. Fones v. Phillips (39 Ark. 17), 70. Forbes v. Snyder (94 111. 374), 217. Ford V. Fitchburg R. R. Co. (110 Mass. 240), 368. Ford V. Monroe (20 Wend. 210), 98, 99. Fordyce v. McCants (51 Ark. 509), 268. Fordyce v. St. Louis &c. Ry. Co. (144 Mo. 519), 209, 252. Fort V. Whipple (11 Hun, 586), 294. Fort Worth &c. Ry. Co. v. Floyd (Tex. Civ. App., 21 S. W. Rep. 544), 265. Fort Worth &c. Ry. Co. v. Thomp- son (75 Tex. 501), 202. Foster v. Inhabitants of Dixfleld (18 Me. 380), 169. Foster v. Minnesota Central Ry. Co. (14 Minn. 360), 366. Foster v. Missouri Pacific Ry. Co. (115 Mo. 165), 252, 365, 371. Foulkes V. Metropolitan Dist. Ry. Co. (L. R., 4 C. P. D. 267), 72. Foulkes V. Metropolitan Dist. Ry. Co. (L. R., 5 C. P. D. 157), 28. Fowler v. Baltimore &c. R. R. Co. (18 W. Va. 579), 153. Fowler v. Chicago &c. Ry. Co. (61 Wis. 159), 366, 372. Fowler v. Chichester (26 Ohio St. 9), 134. P'owler V. Lewis (25 Tex. 380), 210. Fowlkes V. Nashville &c. R. R. Co. (9 Heisk. 829), 304. Fowlkes V. Southern Ry. Co. (96 Va. 742), 228, 280. Frank v. New Orleans &c. R. R. Co. (20 La. Ann. 25), 263. Frankford &c. Turnpike Co. v. Philadelphia &e. R. R. Co. (54 Penn. St. 345), 281. Frankfort Bridge Co. v. Williams (9 Dana, 403), 48. Franklin v. Low (1 Johns. 396), 136. Franklin v. Southeastern Ry. Co. (3 Hurlst. & N. 211), 120, 254, 258. Fraser v. Red River Lumber Co. (45 Minn. 235), 359, 366. Frassi v. McDonald (122 Cal. 400), 42. Frazer v. South. &c. R. R. Co. (81 Ala. 185), 325, 429. Frazier v. Pennsylvania R. R. Co. (38 Penn. St. 104), 177, 178. Freeh v. Philadelphia &c. R. R. Co. (39 Md. 574), 168, 170. Freeholders of Sussex County v. Strader (3 Harr. 108), 47, 92. Freeman v. Minneapolis &c. Ry. Co. (28 Minn. 443), 133. French v. Inhabitants of Bruns- wick (21 Me. 29), 169. Frick V. St. Louis &c. Ry. Co. (75 Mo. 595), 284. Friess v. New York &c. R. R. Co. (67 Hun, 205), 58. Frink v. Potter (17 111. 406), 90, 350. Frink v. Schroyer (18 111. 416), 231. Frost V. Eastern R. R. Co. (64 N. H. 220), 81. Frost V. Milwaukee &c. R. R. Co. (96 Mich. 470), 58. Fry V. Dubuque &c. Ry. Co. (45 Iowa, 416), 231. Fulger V. Bothe (43 Mo. App. 44), 171. Fuller V. Boston &c. R. R. Co. (133 Mass. 491), 153, 167. Fuller V. Citizens' Nat. Bank (15 Fed. Rep. 875), 274. Fuller V. Jewett (80 N. Y. 46), 85. Fuller V. Naugatuck R. R. Co. (21 Conn. 557), 27, 183, 194, 244. Fulton Bag &c. Mills v. Wilson (89 Ga. 318), 301, 302. Fulton Iron &c. Works v. Town- ship of Kimball (52 Mich. 146), 189. Fumey v. Curtis (78 CaJ. 498), 35. Funston v. Chicago &c. Ry. Co.. (61 Iowa, 452), 198, 202, 205. Furnish v. Missouri Pacific Ry. Co. (102 Mo. 438), 27, 183. Gaagg V. Vetter (41 Ind. 254), 274. GafCney v. New York &e. R. R. Co. (15 R. I. 456), 366. Gahagan v. Aerometer Co. (67 Minn. 252; 1 Am. Neg. Rep. 92), 251. Gahagan v. Boston &e. R. R. Co. (1 Allen, 187), 170. Gale V. New York &c. R. R. Co. (76 N. Y, 594), 249. Table of Cases. xlv [References are to sections.] Galena &e. R. R. Co. v. Dill (22 111. Gates v. Latta (117 No. Car. 189), 264), 55. 77. Galena &c. R. R. Co. v. Fay (16 Gates v. Pennsylvania R. R. Co. 111. 558), 350. (150 Penn. St. 50), 131. Galena &c. R. R. Co. v. Jacobs (20 Gates v. State (128 N. Y 221) 70 111. 478), 169, 334. Gatliright v. Wheat (70 Tex. 740), Galena &c. R. R. Co. v Yai'wood 306. (15 111. 468), 350. Gault v. Humes (20 Md. 297), 8. Gall V. Beekstein (173 111. 187) 65, Gavigan v. Atlantic Refining Co 69. (186 Penn. St. 604), 78. Gallagher v. Market Street Ry. Co. Gay v. City of Cambridge (128 (67 Cal. 13), 210. Mass. 87), 180. Galloway v. Western &c. R. R. Co. Gay v. Winter (34 Cal. 153), 162, (57 Ga. 512), 302. 170, 260. Galveston &c. R. R. Co. v. Legierse Gaynor v. Old Colony &c. R. R. Co. (51 Tex. 189), 163. (100 Mass. 208), 169, 171, 175, Galveston &c. Ry. Co. v. Evanisch 293. (63 Tex. 54), 190. Gee v. Metropolitan Ry. Co. (L. R., Galveston &c. Ry. Co. v. Gormley 8 Q. B. 161), 183. (91 Tex. 398), 19. Geer v. Dai-row (61 Conn. 220), 185. Galveston &c. Ry. Co. v. Hynes George v. Chicago &e. R. R. Co. (51 (Tex. Civ. App.), 252. Wis. 603), 165, 166, 310, 311. Galveston &c. Ry. Co. v. Kutac George v. City of Haverhill (110 (72 Tex. 643), 335. Mass. 506), 232. Galveston &c. Ry. Co. v. Kutac (76 George v. St. Louis &c. Ry. Co. Tex. 473), 337. (34 Ark. 613), 27, 183. Galveston &c. Ry. Co. v. Moore (59 Georgia Pacific Ry. Co. v. Hughes Tex. 64), 388. (87 Ala. 610), 212. Galveston &c. Ry. Co. v. Ryan (80 Georgia Pacific Ry. Co. v. Love (91 Tex. 59), 343. Ala. 432), 183. Galveston &c. Ry. Co. v. Smith (39 Georgia R. R. &c. Co! v. Garr (57 Tex. 406), 350. Ga. 277), 125, 265, 266. Galveston &c. Ry. Co. v. Smith (76 Georgia &c. Co. v. Oaks (52 Ga. Tex. 611), 359, 365. 410), 105, 152, 256. Galveston &c. Ry. Co. v. Sweeney Georgia R. R. &c. Co. v. Miller (90 (14 Tex. Civ. App. 216), 280. Ga. 571), 867, 372. Galveston Oil Co. v. Morton (70 Georgia R. R. &c. Co. v. Pittman Tex. 400), 79. (73 Ga. 325), 256, 258. Galvin v. Mayor &c. of New York Georgia R. R. &c. Co. v. Williams (112 N. Y. 223), 171, 217. (74 Ga. 723), 221. Gann v. Railroad Co. (101 Tenn. Gerke v. California Steam Nav. Co. 380), 66, 367. (9 Cal. 251), 275. Gandy v. Chicago &c. R. R. Co. (30 Gerke v. Fancher (158 111. 375), 153, Iowa, 421), 175. 169. Gannon v. Laclede Gas Light Co. Germania Fire Ins. Oo. v. Mem- (145 Mo. 502), 33, 184. phis &c. R. R. Co. (72 N. Y. 90), Garland v. Towne (55 N. H. 55), 312. 42. Germantown Pass. Ry. Co. v. Gardner v. Bennett (6 Jones & S. Brophy (105 Penn. St. 38), 294, 197), 195. 356. Gardner v. Heartt (3 Den. 237), 7, Geroux v. Graves (62 Vt. 280), 158. Gardner v. Michigan Cent. R. R. Gerry v. Eastern R. R. Co. (135 Co. (150 U. S. 361), 276. Mass. 363), 338. Garretty v. Chicago &c. R. R. Co. Getty v. Town of Hamlin (127 N. (36 Iowa, 123), 175. Y. 636), 188. Gas Fuel Co. v. Andrus (.50 Ohio Gheens v. Golden (90 Ind. 427), 153. St. 695), 45. Gibbs v. City of Hannibal (82 Mo. Gaskins v. City of Atlanta (73 Ga. 143), 125. 746), 74. Gibbs v. Liverpool Docks (3 Gates V. Fleischer (67 Wis. 504), 84. Hurlst. & N. 164), 83. xlvi Table of Cases. [References are to sections.] Gibney v. Lewis (68 Conn. 392), 243 Gibney' V. State (137 N. Y. 1), 348. Gibson v. Gibson (43 Wis. 23), 113. Gibson v. Leonard (37 111. App. 344), 150. Gibson V. Western &c. R. R. Co. (164 Penn. St. 142), 312. Gilbert v. Schwenek (14 M. & W. 488), 247. Gilbert v. Trinity House (L. R., 17 Q. B. D. 795), 83. Gillespie v. McGowan (100 Penn. St. 144), 174, 175. Gillett V. Detroit Board of Trade (46 Mich. 309), 152. Gilligan v. New York &c. R. R. Co.. (1 E. D. Smith, 453), 162. Gillis V. Pennsylvania B. R. Co. (59 Penn. St. 129), 30. Gillrie v. City of Lockport (122 N. Y. 403), 190. Gillvon V. Reilly (21 Vr. 26), 60. Gilman v. Eastern R. R. Co. (10 Allen, 233), 361. Gilman v. Noyes (57 N. H. 627), 280. Gllmartin v. Lackawanna &c. Transit Co. (186 Penn. St. 193), 54. Gilmore v. Federal Street &c. Ry. Co. (153 Penn. St. 31), 52. Gilshannon v. Stony Brook R. R. Co. (10 Cush. 228), 361. Giraudi v. Electric Imp. Co. (107 Cal. 120), 33. Givens v. Kentucky Central Ry. Co. (89 Ky. 281), 243. Gleason v. Boehn (29 Vr. 475), 60. Gleason v. Inhabitants of Bremen (50 Me. 222), 251. Gleeson v. Virginia &c. R. R. Co. (340 U. S. 435), 27, 183. Gleeson v. Virginia &c. R. R. Co. (5 Mackay, 356), 183. Goff V. Norfolk &c. R. R. Co. (36 Fed. Rep. 299), 106. Golden v. City of Clinton (54 Mo. App. 100), 191. Goldsboro v. Central R. R. Co. (31 Vr. 49), 206. Goldstein v. Chicago &c. Ry. Co. (46 Wis. 404), 325. Goldthrope v. Hardman (13 M. & W. 377), 167. Gonsiov V. Jlinneapolis &c. Ry. Co. (36 Minn. 385), 366. Good V. Towns (56 Vt. 410), 109. Goodhart v. Pennsylvania R. K. Co. (177 Penn. St. 1), 229, 230, 231, 232, 233, 239, 251. Goodno V. City of Oshkosh (22 Wis. 300), 230, 234. Goodrich v. New York &c. R. R. Co. (116 N. Y 398), 68. Goodsell V. Hartford &c. R. R. Co. (33 Conn. 51), 254, 258. Goodsell V. Taylor (41 Minn. 207),. 34, 186. Goodwin v. Nickerson (17 R. I. 478), 125. Gordon v. City of Richmond (83 Va. 437), 170, 429, 430. Gorham v. Kansas City &c. Ry. Co. (113 Mo. 408), 235. Gormley v. Ohio &c. Ry. Co. (72 Ind. 31), 362. Goshen &c. Tump. Co. v. Sears (7 Conn. 86), 47. Gothard v. Alabama &c. R. R. Co. (67 111. 114), 23, 331, 334. Gould V. Cayuga County Nat. Bank (86 N. Y. 75), 316. Gould V. McKenna (86 Penn. St. 297), 324. Gould V. Schermer (101 Iowa, 582), 205. Gould V. Slater Woolen Go. (147 Mass. 315), 88. Government Street R. R. Co. v Hanlon (53 Ala. 70), 153, 164,. 338. Govett V. Radnidge (3 East, 62). 148. Graham v. Chapman (33 N. Y. St Rep. 349), 85. Graham v. Consolidated Traction Co. (33 Vr. 90), 249, 272. Graham v. Manhattan Ry. Co (149 N. Y. 336), 329. Graham v. Pennsylvania Co. (139 Penn. St. 149), 205. Grand Rapids &c. R. R. Co. v. Huntley (38 JTich. 537), 190, 201, 204, 205, 214, 216, 223. Grand Trunk Ry. Co. v. Cummings (106 U. S. 700), 21, 65, 296. Grand Trunk Ry. Co. v. Ives (144 U. S. 408), 19, 217. Grand Trunk Ry. Co. v. Jennings (L. R., 13 App. Cas. 800), 261, 265. Grand Trunk Ry. Co. v. Latham (63 Me. 177), 94. Grand Trunk R. R. Co. v. Richard- son (91 U. S. 454), 194. Table of Cases. xlvii [References are to sections.] Grant v. Baker (12 Or. 329), 169, Greysby v. Chappell (5 Rich. L/. 170. 443), 48. Grant v. Raleigh &c. R. R. Co. (108 Gridley v. City of Bloomington ^68 No. Car. 462), 205, 223. III. 47), 43. Grant v. Slate Mill &c. Co. (14 R. I. Griffin v. Town of Auburn (58 N. 380), 212. H. 121), 282. Granville v. Minneapolis &c. Ry. Griffin v. Town of Willow (43 Wis. Co. (10 Fed. Rep. 153), 3. 509), 205. Graves v. City of Battle Creek (95 Griffin v. United &c. Co. (164 Mass. Mich. 266), 208. 492), 33. Graves v. Thomas (95 Ind. 361), Griffith v. Baltimore &c. R. R. Co. 43, 215. ((44 Fed. Rep. 574), 336 Graville v. Manhattan R. R. Co. Griffiths v. Earl of Dudley (L. R., (105 N. T. 525), 353. 9 Q. B. D. 357), 302, 314. Gray v. Boston Gas Light Co. (114 Griffiths v. Wolfram (22 Minn. 185),. Mass. 149), 59, 94. 72. Gray v. Hallister (50 Iowa, 497), Griggs v. Frankenstein (14 Minn. 97, 128. 81), 282, 293. Gray v. McDonald (104 Mo. 303), Grill v. General Iron Screw Col- 219, 259, 319. lier Co. (L. R., 1 C. P. 600), 5, Gray v. Scott (66 Penn. St. 345), 14, 167. 324. I Grindle v. Milwaukee &c. R. R. Co. Great Southern R. R. Co. v. Hawk (42 Iowa, 376), 149, 151. (72 Ala. 112), 199. Grinnell v. Wells (8 Scott N. R. Great Western Ry. Co. v. Braid (1 741), 120. Moore P. O. [N. S.] 101), Grippen v. New Vork &c. E. E. Co. 183, 184, 284. (40 N. Y. 34), 58. Greef v. Brown (7 Kan. App. 394), Griswold v. New York &e. R. R. 70, 333. Co. (53 Conn. 371), 300. Greeley &c. Ry. Co. v. Yeager (11 Griswold v. New York &c. R. R. Colo. 345), 243. Co. (115 N. Y. 61), 204.- Green v. Hudson River R. R. Co. Groesbeck v. Chicago &e. Ry. Co. (2 Keyes, 294), 98. (93 Wis. 505), 179. Green v. Middlesex R. R. Co. (10 Grogan v. Broadway Foundry Co. Misc. 473), 208. (87 Mo. 321), 61. Green v. Southern Pacific Co. (122 Gross v. Pennsylvania &c. R. R. Cal. 563), 240, 254, 257. Co. (65 Hun, 191), 26, 131, 133, Green v. Thompson (26 Minn. 500), 318. 96, 147. Grosso v. Delaware &c. R. R. Co. Green v. Town of Danby (12 Vt. (21 Vr. 317), 98, 264, 266. 338), 282. Grote v. Chester &c. Ry. Co. (2 Greenberg v. Whitcomb Lumber Kxch. 251), 183. Co. (90 Wis. 225), 70, 72. 136. Grove v. City of Ft. Wayne (45 Greenleaf v. Illinois Central R. R. Ind. 429), 74. Co. (29 Iowa, 14), 169, 174, Guldager v. Rockwell (14 Colo. 274. 459), 315. Greenlee v. East Tenn. &c. R. R. Gulf &c. Ry. Co. v. Campbell (76 Co. (5 Lea, 418), 315. Tex. 174), 354. Greenwood v. Seymour (4 Law Gulf &c. Ry. Co. v. Compton (75 Times [N. S.] 835), 137. Tex. 667), 256, 267. Gregan v. Marston (126 N. Y. 568), Gulf &c. Ry. Co. v. Evanisch (61 67. Tex. 3), 193. Gregg V. Wyman (4 Oush. 322), Gulf &c. Ry. Co. v. Finley (11 Tex. 296. Civ. App. 64), 265, 430. Gregory v. New York &c. R. R. Co. Gulf &c. Ry. Co. v. Kizziah (86 (55 Hun, 303), 233. Tex. 81), 176, Gregory v. Ohio River R. R. Co. Gulf &c. Ry. Co. v. McGoiva (65 (37 W. Va. 606), 64. Tex. 640), 301. xlviii Table of Cases. [References are to sections.] Gulf &c. Ry. Co. V. McGowan (73 Tex. 355), 189. Gulf &c. Ey. Co. V. Norfleet (78 Tex. 321), 209. Gulf &c. Ry. Co. V. Pendery (14 Tex. Civ. App. 60), 23, 208. Gulf &c. Ry. Co. V. Schwabbe (1 Tex. Civ. App. 573), 365. Gulf &c. Ry. Co. V. Southwlck (Tex. Civ. App., 30 S. W. Rep. 592), 260, 266. Gulf &c. Ry. Co. V. Smitli (87 Tex. 348), 55. Gumb V. Twenty-third Street Ry. Co. (114 N. Y. 411), 28. Guy V. New York &e. R. R. Co. (30 Hun, 399), 293. H. Haas V. Missionary Society (6 Misc. 281), 83. Haden v. Sioux City &c. Ry. Co. (92 Iowa, 226), 232. Hadley v. Baxendale (9 Bxch. 341), 3. Hadley v. Taylor (L. R., 7 C. P. 53), 43. HafE V; Minneapolis &c. Ry. Co. (14 Fed. Rep. 558), 133. Hagan v. Hoboken &c. Electric Ry. Co. (N. J. L. J., March, 1898, p. 82), 208. Hagan v. Providence &c. R. R. Co. (3 R. I. 88), 243. Hagenlocher v. Coney Island &c. R. R. Co. (99 N. Y. 136), 216. Hager v. Southern Pae. Co. (98 Cal. 309), 188. Haggerty v. Central R. R. Co. (2 Vr. 349), 103, 104, 109, 110. Haggerty v. Powers (66 Cal. 368), 40. Haigh V. Royal Mail &c. Co. (52 L. .7. Q. B. D. [N. S.] 640), 314. Hale V. Kearly (8 Baxt. 49), 217. Haley v. Mobile &c. R. R. Co. (7 Baxt. 239), 259. Haley v. Keim (151 Penn. St. 117), 363. Hall V. City of Fond du Lac (42 Wis. 274), 232. Hall V. City of Lowell (10 Cush. 260), 282. Hall V. Corcoran (107 Mass. 251), 297. Hall V. Hollander (4 B. & C. 660; 7 Dow. & Ry. 133), 120, 247. Hall V. Missouri Pacitic Ry. Co. (74 Mo. 298), 154, 371. Hall V. Northeastern Ry. Co. (L. R., 10 Q. B. 437), 300. Hall V. Ogden City Ry. Co. (13 Utah, 243), 280. Hall V. Ripley (119 Mass. 155), 295. HaU V. St. Joseph Water Co. (48 Mo. App. 356), 359, 371. Hall V. Tillson (81 Me. 362), 49. Hall V. Union Pacific Ry. Co. (16 Fed. Rep. 744), 290. Hamden v. New Haven &c. R. R. Co. (27 Conn. 158), 94. Hamilton v. City of Boston (14 Allen, 475), 297. Hamilton v. Delaware &c. R. R. Co. (21 Vr. 263), 319. Hamilton v. Goding (55 Me. 419), 295. Hamilton v. Jones (125 Ind. 176), 92, 96, 103, 104, 147. Hamilton v. Hannibal &c. R. R. Co. (39 Kan. 56), 107, 108. Hamilton v. Morgan &c. S. S. Co. (42 La. Ann. 824), 259. Hamm v. Romaine (98 Ind. 77), 116. Hammill v. Pennsylvania R. R. Co. (27 Vr. 370), 21. Hammock v. White (11 C. B. [N. S.] 588), 285. Hammond v. Town of Muckwa (40 Wis. 35), 14, 15, 231, 282. Hankins v. Watkins (77 Hun, 360), 36. Hankins v. New York &c. R. R. Co. (55 Hun, 51), 361. Hanlon v. South Boston Horse R. R. Co. (129 Mass. 310), 213. Hanna v. Grand Trunk Ry. Co. (41 111. App. 116), 95, 107. Hanna v. Jeffersonville R. R. Co. (32 Ind. 113), 165, 166, 309, 310, 311. Hannibal &e. R. R. Co. v. Fox (31 Kan. 586), 364. Hannibal &c. R. R. Co. v. Martin (11 111. App. 386), 133, 353. Hannibal &c. R. R. Co. v. Swift (12 Wall. 262), 28. Hanover R. R. Co. v. Coyle (55 Penn. St. 396), 197, 199, 232. Hanrahan v. Cochran (12 App. Div. 91), 131. Hansley v. Jamesville &c. R. R. Co. (115 No. Car. 602), 243. Hardcastle v. South Yorkshire Ry. Co. (4 Hurlst. & N. 67), 43. Harding v. Town of Townsend (43 Vt. 536), 239. Table of Cases. ilix [References are to sections.] Hardy v. Keene (52 N. H. 370), 167, Hatfield v. St Paul &c. R. R. Co. 282. (33 Minn. 130), 209. Hardy v. Milwaukee Street Ry. Co. Hathaway v. Toledo &c. Ry. Co. (89 Wis. 183), 235. (46 Ind. 25), 338. Hare v. Mclntire (82 Me. 240), 72. Haucke v. Hooper (7 Carr. & P. 81), Harkins v. Pliiladelphia &c. R. R. 84. Co. (15 Phila. 286), 109. Haughey v. Hart (62 Iowa, 96), 43. Harper v. Erie Ry. Co. (3 Vr. 88), Hauser v. Centi-al R. R. Co. of N. 350. J. (147 Penn. St. 440), 224. Harper v. Newport News &c. Co. Hawes v. Burlington &c. Ry. Co. (90 Ky. 359), 133. (64 Iowa, 315), 169. Harper v. Norfolk &c. R. R. Co. Hawes v. Knowles (114 Mass. 518), (36 Fed. Rep. 102), 106, 109, 158. 243. Harriman v. Pittsburgti &c. Ry. Co. Hawkesworth v. Thompson (98 (45 Ohio St. 32), 21. Mass. 77), 131, 132. Harriman v. Stowe (57 Mo. 93), 72, Hawkins v. Front Street Cable Ry. 198. Co. (3 Wash. St. 592), 93, 113, Harrington v. Heath (15 Ohio, 485), 116, 281, 245. 89. Hawkins v. Johnson (105 Ind. 29), Harris v. Board of Commissioners 79. (Ind., 23 N. B. Rep. 92), 150. Hawley v. WilUams (90 Ind. 160), Harris v. Cameron (81 Wis. 239), 167. 40. Hawver v. Whalen (49 Ohio St. Harris v. Cohen (50 Mich. 324), 61. 69), 24, 138. Harris v. Hannibal &c. R. R. Co. Hawxhurst v. Mayor &c. of New (89 Mo. 233), 356. York (43 Hun, 588), 132. Harris v. Panama R. R. Co. (3 Hay v. Cohoes Co. (2 N. Y. 159), Bosw. 7), 210. 77, 78, 185. Harris v. Township of Clinton (64 Hayden v. Smithville Mfg. Co. (29 Mich. 447), 329. Conn. 548), 291. Harris v. Uebelhoer (75 N. Y. 169), Hayes v. Forty-second Street &c. 336. R. R. Co. (97 N. Y. 259), 173. Harris v. Union Pacific Ry. Co. (4 Hayes v. Michigan Cent. R. R. Co. McCrary, 454), 290. (Ill U. S. 228), 18. Harrison v. Detroit &c. R. R. Co. Hayes v. Williams (17 Colo. 465), (79 Mich. 409), 359, 362, 369. 104, 265, 304. Hart V. Charlotte &c. R. R. Co. (33 Hayes v. West Bay City (91 Mich. So. Car. 427), 230, 243. 418), 24. Hart V. Devereux (41 Ohio St 565), Hayes v. Western R. R. Co. (3 325. Cush. 270), 361. Hart V. Hudson River Bridge Co. Haynan v. Pennsylvania R. R. Co. (80 N. Y. 632), 169, 175, 276. (118 Penn. St 508), 183. Hart V. Lancashire &c. Ry. Co. (21 Haynes v. Raleigh Gas Co. (114 No. L. T. [N. S.] 261), 188. Car. 203), 33, 185. Hartigan v. Southern Pacific Co. Haynie v. Chicago &c. R. R. Co. (86 Cal. 142), 111, 315. (9 111. App. 105), 151. Hartfield v. Roper (21 Wend. 615), Hays v. Gallagher (72 Penn. St 118, 120, 145, 338. 136), 174, 175. Hartford Deposit Co. v. Sollitt (172 Hayward v. Merrill (94 111. 349), 111. 222), 34. 334. Hartwig v. Chicago &c. Ry. Co. Hazard Powder Co. v. Volger (52 (49 Wis. 358), 174, 224. Fed. Rep. 152), 232, 245. Harvey v. Eastern R. R. Co. (116 Head v. Briscoe (5 Car. & P. 484), Mass. 269), 350. 134, 135. Harvey v. New York Central &c. Heaney v. Long Island R. R. Co. R. R. Co. (19 Hun, 556), 189. (112 N. Y. 122), 56, 279. Harvey v. New York &c. R. R. Co. Heaven v. Pender (L. R., 11 Q. B. (88 N. Y. 484), 367. D. 503), 3, 16, 91. Hastings v. Stetson (91 Me. 229), Hecht v. Ohio &c. Ry. Co. (132 Ind. 84. 507), 314. iv Table of Cases. [References are to sections,] Hector v. Boston &c. Co. (161 Mass. 558), 33. Heddles v. Chicago &e. Ry. Co. (77 Wis. 228), 179, 238, 252. Hedges v. City of Kansas (18 Mo. App. 62), 337. Hedges v. Frazier (31 Arl^. 58), 118. Heeg V. Licht (80 N. Y. 579), 77. Hegeman v. Western R. R. Co. (13 N. Y. 9), 183. Hegerick v. Keddie (99 N. Y. 258), 9G, 147. Heil V. Glanding (42 Penn. St. 493), 231, 283. Heilner v. Union County (7 Or. 83), 152. Heine v. Cliicago &e. Ry. Co. (58 Wis. 525), 366. Heinemann v. Heard (62 N. Y. 448), 168. Heinlein v. Boston &c. R. E. Co. (147 Mass. 136), 30. Heintz v. Caldwell (16 Ohio C. C. 630), 237. Heirn v. M'Caughan (32 Miss. 17), 143, 244. Heixon v. City of Lowell (13 Gray, 59), 74. Helman v. Peoria &c. Ry. Co. (58 Ohio St. 400), 217. Henehey v. City of Chicago (41 111. 136), 315. Hendrick v. Ilwaco Ry. &c. Co. (4 Wash. St. 400), 93, 111. Hendrickson v. Great Northern Ry. Co. (49 Minn. 245), 55, 179, 245. Henderson v. Walker (55 Ga. 481), 85. Henkel v. Murr (31 Hun, 28), 60, 189. Hennessy v. Brooklyn City R. R. Co. (73 Hun, 569), 337. Henny v. Klopfer (147 Penn. St. 178), 245. Henry v. Grand Ave. Ry. Co. (113 Mo. 537), 1. Herbert v. Southern Pacific Co. (121 Cal. 227), 276. Heriot's Hospital 'p* Ross (12 CI. & Fin. 507), 83. Hermann v. New Orleans &c. R. R. Co. (11 La. Ann. 51), 98. Herrick v. Minneapolis &c. Ry. Co. (31 Minn. 11), 95. Herrick v. Wixom (Mich., 80 N. W. Rep. 117), 346. Hess V. Lake Shore &c. R. R. Co. (7 Penn. Co. Ct. Rep. 565), 208. Hess V. Lowrey (122 Ind. 225), 207,. 208, 209, 210. Hess V. Rosenthal (160 111. 621), 67,. 150. Hesse y. Columbus &c. R. R. Co. (58 Ohio St. 167), 149. Heucke v. Milwaukee City Ry. Co. (69 Wis. 401), 19, 27, 29, 52, 189, 252. Hewett V. Swift (3 Allen, 420), 136,. 137. Hewitt V. Eisenbart (36 Neb. 794), 2.30. Hewlett V. Ragsdale (68 Miss. 703),. 40. Hexamer v. Webb (101 N. Y. 377), 32, 64, 138. Hlckey v. Boston &c. R. R. Co. (14 Allen, 429), 353. Hickey v. TaafCe (105 N. Y. 26), 67, 7«. Hickman v. Missouri Pacific Ry. Co. (22 Mo. App. 344), 272. Higgins V. Butcher (Yelverton, 89), 98. Higgins V. Central &c. R. R. Co. (155 Mass. 176), 108. Higgins V. Deeney (78 Cal. 578), 338. Higgins V. Missouri Pacific Ry. So. (43 Mo. App. 547), 371. Higgins V. Wilmington City Ry. Cq, (1 Marvel, 352), 50. Higgs V. Maynard (1 Harr. & R. 581), 285. Higgs V. Maynard (14 L. T. [N. S.] 332), 285. Highland Ave. &c. R. R. Co. v.- Swope (115 Ala, 287), 15. Highland Ave. &c. R. R. Co. v. Winn (93 Ala. 306), 152. Higley v. Gilmer (3 Mont. 90), 190. Hildebrand v. Toledo &c. R. R. Co. (47 Ind. 399), 151, 153, 167. Hildreth v. Camp (12 Vr. 306), 134. Hill V. Board of Suprs. of Living- ston Co. (12 N. Y. 52). 48. Hill V. City of Boston (122 Mass. 344), 73. Hill V. Meyer Brothers' Drug Co. (140 Mo. 433), 164. Hill V. Portland &c. R. R. Co. (55 Me. 438), 205, 284. Hill V. Schneider (13 App. Dlv. 299; 43 N. Y. Supp. 1), 77. Hill V. Town of New Haven (37 Vt. 501), 169, 310, 311. Hill V. Winsor (118 Mass. 251), 295. Hills V. Parker (111 Mass. 508), 142^ Table of Cases. U [References are to sections. J Bilsenbeck v. Guhring (131 N. Y. 674), 60. Hinckley v. Cape Cod R. R. Co. (120 Mass. 262), 171. Hinckley v. Inhabitants of Barn- stable (109 Mass. 126), 193. Hinckley v. Inhabitants of Penob- scot (42 Me. 89), 297. Hindry v. Holt (24 Colo. 464), 98, 109. Hinds V. Harbou (58 Ind. 121), 137, 202. Hines v. City of Lockport (50 N. Y. 236), 180. Hlnton V. Dibbin (2 Q. B. 661), 14. Hissong V. Richmond &c. R. R. Co. (91 Ala. 514), 302. Hoag V. New York Central &e. R. R. Co. (Ill N. Y. 199), 336, 337. Hoar V. Maine Central R. R. Co. (70 Me. 65), 354. Hoar V. Merritt (62 Mich. 386), 362. Hobbs V. London &c. Ry. Co. (L. R., 10 Q. B. Ill), 3. Hobbs V. Memphis &c. R. R. Co. (12 Heisk. 526), 107, 160. Hobson V. New Mexico &c. R. R. Co. (11 Pac. Rep. 545), 170. Hocum V. Weitherick (22 Minn. 152), 153, 170. Hodges V. Percival (132 111. 53), 34, 189. Hodges V. Southern Ry. Co. (122 No. Car. 992), 174. Hodgkins v. Eastern R. R. Co. (119 Mass. 419), 366. Hodsell V. Stallbrass (11 Ad. & E. 301), 227, 235. Hoelzel v. Crescent City R. R. Co. (49 La. Ann. 1302), 52, 56. Hoffman v. American Foundry Co. (18 Wash. St. 287), 67. Hoffman v. Northern Pacific R. R. Co. (45 Minn. 53), 243. Hogan V. City of Chicago (168 111. 551), 74. Hogan V. Manhattan Ry. Co. (149 N. Y. 23), 185. Hoke V. St. Louis &e. Ry. Co. (88 Mo. 360), 371. Holbrook v. Aldrich (168 Mass. 16), 13. Holbrook v. Utica &c. R. R. Co. (12 N. Y. 236), 168, 182, 183, 356. Holcomb V. Town of Danby (51 Vt. 428), 297. Holden v. Liverpool New Gas &c. Co. (3 C. B. 1; 3 Man., Gr. & S. 1), 164, 170. Holder v. Nashville &c. R. R. Co. (92 Tenu. 141), 315., Hole V. Sittingbourne '&c. Ry. Co. (6 Hurlst. & N. 488), 24. Holland v. Bartch (120 Ind. 46), 51. Holland v. Brown (35 Fed. Rep. 43), 106, 261. Hollenbeek v. Berkshire R. R. Co. (9 Cush. 478), 98, 101. Hollenbeek v. City of Marshall- town (62 Iowa, 21), 205. Hollenbeek v. Inhabitants of Row- ley (8 Allen, 473), 206. Hollenbeek v. Missouri Pacific Ry. Co. (Mo., 1 Am. Neg. Rep. 101), 252. Hollenbeek v. Winnebago County (95 111. 148), 155, 167. Holly V. Bennett (46 Minn. 386), 43. Holly V. Boston Gas-Light CO. (8 Gray, 123), 45, 131, 194, 338. Holly V. Town &c. of Torrington (63 Conn. 426), 131. Holman v. Galveston &c. Ry. Co. (14 Tex. Civ. App. 499), 85. Holman v. Kempe (70 Minn. 422), 67. Holmes v. Carolina Central R. R. Co. (94 No. Car. 318), 243. Holmes &c. Co. v. Commercial Nat. Bank (23 Colo. 210), 150. Holmes v. Northeastern Ry. Co. (L. R., 4 Exch. 254; 6 id. 123), 79. Holmes v. Oregon &c. R. R. Co. (5 Fed. Rep. 75), 2, 106. Holmes v. Wakefield (12 Allen, 581), 137. Holt V. Whatley (51 Ala. 569), 153, 170. Holton V. Daly (106 111. 131), 84, 96, 110, 111, 158, 217. Holyoke v. Grand Trunk Ry. Co. (48 N. H. 541), 231. Homersky v. Winkle Terra Cotta Co. (178 111. 562), 66. Honey v. Chicago &c. Ry. Co. (59 Fed. Rep. 423), 337. Hoosier Stone Co. v. McCain (133 Ind. 231), 148, 370. Hopkins v. Atlantic &c. R. R. Co. (36 N. H. 9), 245. Hopkins v. Utah Northern Ry. Co. (2 Idaho, 277), 170. Hoppe V. Chicago &c. Ry. Co. (61 Wis. 357), 205, 273. Horton v. Homer (14 Ohio, 437), 307. Horton v. Norwalk Tram. Co. (66 Conn. 272), 298. lii Table of Cases. [References are to sections.] Hot Springs Street By. Co. V. Joha- Hoye v. Chicago &c. Ky. Co. (62 son (64 Ark. 430), 52. Wis. 666), 274, 276, 279. Hoth V. Peters (55 Wis. 405), 153, Hoyt v. City of Hudson (41 Wis. 166, 361. 105), 170. Hough V. Texas &c. Ry. Co. (100 V. Hubbell v. City of Yonkers (104 N. S. 213), 66, 170. Y. 434), 190. Houghkirk v. Delaware &c. Canal Hubgh v. New Orleans &c. R. R. Co. (92 N. Y. 219), 263, 267, 273, Co. (6 La. Ann. 495), 98. 287. Huckshold v. St. Louis &e. Ry. Co. Houston V. Brush (66 Vt. 331), 67. (90 Mo. 548), 179, 212. Houston V. Traphagen (18 Vr. 23), Hudson v. Chicago &c. R. R. Co. 62, 139, 236. (59 Iowa, 581), 189. Houston V. Vlcksburg &c. R. B. Co. Hudson v. Houser (123 Ind. 309), (39 La. Ann. 796), 214. 217. Houston &c. B. R. Co. v. Baker (57 Hudson v. Wabash &c. Ry. Co. (32 Tex. 419), 243. Mo. App. 667), 170. Houston &c. Ry. Co. v. Boehm (57 Hudson v. Wabash &c. Ry. Co. (101 Tex. 152), 234. Mo. 13), 153, 164, 170. Houston &c. R. R. Co. v. Clem- Huddleston v. Lowell Machine mons (55 Tex. 88), 354. Shops (106 Mass. 282), 281, 291. Houston &c. Ry. Co. v. Cowser (57 Huey v. Gahlenbeck (110 Penn. St. Tex. 293), 170, 194, 268, 272. 238), 185. Houston &c. Ry. Co. v. Gorlett (49 HufC v. Ames (16 Neb. 139), 338, Tex. 573), 334. 339. Houston &e. Ry. Co. v. Hook (60 Huff v. Austin (46 Ohio St. 386), Tex. 403), 127. 185, 186. Houston &c. Ry. Co. v. Leslie (57 Huffman v. Click (77 No. Car. 53), Tex. 83), 236, 350. 210, 211. Houston &c. Ry. Co. v. Moore (49 Hughes v. City of Fon du Lac (73 Tex. 31), 111, 354. Wis. 380), 180. Houston &c. Ry. Co. v. Reason (61 Huizega v. Cutler Lumber Co. (51 Tex. 613), 344. Mich. 278), 230, 233, 281. Houston &c. By. Co. v. Rider (62 Hulbert v. City of Topeka (34 Fed. Tex. 267), 298, 362. Rep. 510), 96, 111, 127. Houston &c. Ry. Co. v. Simpson (60 Hulehan v. Green Bay &c. R. E. Tex. 10.3), 339. Co. (68 Wis. 520), 65, 372. Houston &c. By. Co. v. Wilson (60 Hull v. Town of Eichmond (2 Tex. 142), 278. Woodb. & M. 337), 170. Hover v. Pennsylvania Co. (25 Ohio Hume v. Mayor &c. of the City of St. 667), 108. New York (47 N. Y. 639), 293. Howard v. Delaware &c. Co. (40 Humphreys v. Cousins (L. R., 2 G. Fed. Rep. 195), 25, 95, 158), 271, P. D. 239), 18. 362. Hunn v. Michigan Cent. R. R. Co. Howard v. Chesapeake &c. Ry. Co. (78 Mich. 513), 211, 256, 368. (11 App. Cas. [D. C] 300), 133, Hunt v. City of Salem (121 Mass. 313. 294), 282. Howard v. Crowther (8 M. & W. Hunt v. Conrad' (47 Minn. 557), 97, 604), 123. 128. Howard Oil Co. v. Davis (76 Tex. Hunt v. Mayor &c. of New York 630), 23t. (109 N. Y. 134), 74, 180. Howd V. Mississippi Cent. E. R. Huntington &c. R. B. Co. v. Decker Co. (50 Miss. 178), 367. (82 Penn. St. 119), 199, 254. Howe V. Ohmart (7 Ind. App. 32), Huntoon v. Trumbull (2 McCrary, 79. 314), 337. Howes V. Bose (13 Ind. App. 674), Huntress v. Boston &c. B. E. Co. 88. (66 N. H. 185), 89. Howser v. Cumberland &c. B. B. Hurley v. New York &c. Brewing- Co. (80 Md. 146), 185. Co. (43 N. Y. Supp. 259), 236. Table of Cases. liii [References are to sections.] Hurt V. St Lonis &c. Ry. C!o. (94 Ma 255), 334. Hurst V. Detroit &c. Ry. Co. (84 Mich. 539), 111, 162, 217, 254, 262, 267. Hutchins v. St. Paul &c. Ry. CO. (44 Minn. 5), 272. Hutton V. Windsor (34 Up. C. Q. B. 487), 272. Hyatt V. Adams (16 Mich. 180), 98, 99, 319. Hyde v. Town of Jamaica (27 Vt 443), 73. Hyde v. Wabash &c. Ry. Co. (61 Iowa, 441), 107, 160. Hygienic Plate Ice Manuf. Co. v. .Raleigh &c. R. R. Co. (122 No. Car. 881), 184. Idell V. Mitchell (158 N. Y. 134), 60. lUingsworth v. Boston &c. Co. (161 Mass. 583), 33. Illinois Central R. R. Co. v. Ashline (171 111. 313), 171, 213, 214, 221. Illinois Central R. R. Co. v. Barron (5 Wall. 90), 263, 271, 273. Illinois Central R. R. Co. v. Batson (81 111. App. 142), 56. Illinois Central R. R. Co. v. Beebe (174 111. 13), 299, 301. Illinois Central R. R. Co. v. Cozby (174 111. 109), 171, 330. Illinois Central R. R. Co. v. Cragin (71 111. 177), 174, 344. Illinois Central R. R. Co. v. Crudup (63 Miss. 291), 107, 126. Illinois Central R. R. Co. v. Dick (91 Ky. 434), 298. Illinois Central R . R. Co. v. Greaves (75 Miss. 360), 221. Illinois Central R. R. Co. v. Green (31 111. 19), 350. IlUnois Central R. R. Co. v. Hutch- inson (47 111. 408), 344. Illinois Central R. R. Co. v. Morri- son (19 111. 136), 301. Illinois Central R. R. Co. v. Phillips (55 111. 194), 185. Illinois Central B. R. Co. v. Price (72 Miss. 862), 70. Illinois Central R. R. Co. v. Read (37 111. 484), 301, 312. Illinois Central R. R. Co. v. Slater (129 111. 91), 174, 267, 429. Illinois Central R. R. Co. v. Sutton (42 111. 438), 195. Illinois Central R. R. Co. v. Wie- land (179 111. 609), 151, 153. Illinois Central R. R. Co. v. Welch (52 111. 183), 312. Illinois Central R. R. Co. v. Weldon (52 111. 290), 272. Illinois Central R. R. Co. v. Whalen (42 111. 396), 175. Indiana &c. Ry. Co. v. Bamhart (115 Ind. 399), 22, 212. Indiana &c. Ry. Co. v. Burdge (94 Ind. 46), 152. Indiana &c. Ry. Co. v. Greene (106 Ind. 279), 169, 171, 179. Indiana &c. Ry. Co. v. Overton (117 Ind. 253), 152. Indiana Car Go. v. Parker (100 Ind. 181), 207. Indiana Mfg. Co. v. Millican (87 Ind. 87), 153, 332. Indianapolis &c. Ry. Co. v. Bush, (101 Ind. 582), 240. Indianapolis &c. R. B. Co. v. Horst (93 U. S. 291), 27, 28, 170, 355. Indianapolis &c. Ry. Co. v. John- son (102 Ind. 352), 154, 167. Indianapolis &c. B. R. Co. v. Keely (23 Ind. 133), 158. Indianapolis &c. R. R. Co. v. Para- more (31 Ind. 143), 153. Indianapolis &c. Ry. Co. v. Pitzer (109 Ind. 179), 9, 81. Indianapolis &c. R. R. Co. v. Ru- therford (29 Ind. 82), 356. Indianapolis &c. R. R. Co. v. Stables (62 111. 313), 231. Indianapolis &c. R. R. Co. v. Stout (53 Ind. 143), 111, 218, 314. Ingalls V. Bills (9 Mete. 1), 27, 350. Ingersoll v. Mangan (84 N. Y. 625), 145. International &e. Ry. Co. v. Brazzil (78 Tex. 314), 316. International &c. Ry. Co. v. Cock (68 Tex. 713), 354. International &c. Ry. Co. v. Cul- pepper (Civ. Ct. App. Tex.) 365. International &c. Ry. Co. v. Gray (65 Tex. 32), 181, 193. International &c. Ry. Co. v. Hen- zie (82 Tex. 623), 301, 302. International &c. R. R. Co. v. Ir- vine (64 Tex. 529), 27. International &e. R. R. Co. v. Kin- dred (57 Tex. 491), 101, 281. International &c. R. R. Co. v. Kuehn (70 Tex. 532), 111, 125, 133, 314. International &c. Ry. Co. v. Mc- Donald (75 Tex. 41), 259. liv Table of Cases. [References are to sections. J International &c. Ry. Co. v. Rvan Jameson v. San Jose &C. R. R. Co. (82 Tex. 565), 365. (55 Gal. 593), 6. International &c. R. R. Co. v. Jamison v. New York &c. Ry. Co. Sauthwhite (15 Tex. Civ. App. (42 N. Y. Supp. 915), 248. 102), 350. Jansen v. Mayor &c. of Jersey City International &c. R. R. Co. v. Tele- (32 Vr. 243), 65. phone &c. Co. (69 Tex. 277), Jaques v. Great Falls Mfg. Co. (66 243. N. H. 482), 68. International &c. Ry. Co. v. Un- Jarrett v. Atlanta &c. R. R, Co. (83 derwood (64 Tex. 463), 208, ^09. Ga. 347), 350. Ireland v. Oswego &c. Planli lioad Jefferson v. Birmingham &e. Elec- Co. (13 N. Y. 526), 47. trie Co. (116 Ala. 294), 167. Iron Co. V. Pace (101 Tenn. 476), 66. Jefeersonville R. R. Co. v. Hen- Iron R. R. Co. V. Mowery (36 Ohio dricks (26 Ind. 228), 127, 278 St. 418), 183, 350. JefCersonville &c. R. R. Co. v. Hen- Irvin V. Fowler (4 Robt. 138; 5 id. dricks (41 Ind. 48), 150, 158, 165 482), 62, 139. 311. Irvine v. Wood (51 N. Y. 224), 12, Jeffersonville &c. R. R. Co. v. Riley 43. (39 Ind. 568), 280. Isaacs V. Boyd (5 Port. 388), 313. Jeffrey v. Keokuk &c. Ry. Co. (56 Isabel V. Hannibal &c. R. R. Co. Iowa, 546), 194. (60 Mo. 475), 213. Jeffs v. Rio Grande Western Co. (9 Isham V. Dow (70 Vt. 588), 324. Utah, 374), 280. Isola V. Weber (147 N. Y. 329), 253. Jenkins v. French (58 N. H. 532), Ivory V. Town of Deer Park (116 99. N. Y. 476), 205. Jenne v. Sutton (14 Vr. 257), 12. Jennings v. St. Louis &c. Ry. Co. J. (112 Mo. 268), 56. Jackson v. Consolidated Traction Jennings v. Van Schaick (108 N. Y Co. (30 Vr. 25), 267, 283. 530), 43, 60. Jackson v. Crllly (16 Colo. 103), 218. Jenson v. Chicago &c. Ry. Co. (86 Jackson v. Hyde (28 Up. C. Q. B. Wis. 589), 238. 294), 173, 290. Jernee v. Chosen Freeholders (23 Jackson v. Indianapolis &c. R. R. Vr. 553), 48. Co. (47 Ind. 454), 153, 167. Jetter v. New York &c. R. R. Co. Jackson v. Norfolk &c. R. R. Co. (43 (2 Keyes, 154), 213. W. Va. 380), 359, 361. Jewell v. Chicago &c. Ry. Co. (54 Jackson v. Pittsburg &c. Ry. Co. Wis. 610), 350. (140 Ind. 241), 95. Jewell v. Colby (N. H., 24 Atl. Rep. Jackson v. St. Louis &c. Ry. Co. 902), 243. (87 Mo. 422), 104. Jewett v. Keene (62 N. H. 701) Jackson v. Wisconsin Tel. Co. (88 301. Wis. 243), 21, 33. Jewett v. Klein (12 C. E. Gr. 550). Jackson County v. Nichols (139 56. Ind. 611), 216. Jochem v. Robinson (72 Wis. 199) Jacksonville Street Ry. Co. v. Chap- 46, 193, 194, 282. pell (21 Fla. 175), 18, 181, 183. Johnson v. Armour (18 Fed Rep Jacksonville Street Ry. Co. v. Chap- 490), 281. pell (22 Fla. 616), 90, 129, 167. Johnson v. Ashland Water Co. (71 Jacob V. Louisville &c. R. R. Co. Wis. 553; 77 Wis. 51), 363. (10 Bush, '263), 321. Johnson v. Boston Tow' Boat Co Jacobus V. St. Paul &c. Ry. Co. (20 (135 Mass. 209), 67, 281. Minn. 125), 301, 354. Johnson v. Bruner (61 Penn St 58) James v. Christie (18 Mo. 162), 98. 281, 294. ' ' James v. Great Western Ry. Co. (L. Johnson v. Central Vermont R R R., 2 C. P. 634), 289. Co. (56 Vt. 707), 204. James v. Rapides Lumber Co. (50 Johnson v. Chicago &c. Ry Co (64 La. Ann. 717), 70. Wis. 425), 267 273 " James v. Richmond &o. R. R. Co. .Tohnson v. Oitv of Boston rilS (92 Ala. 231), 255, 257, 258, 259. Mass. 114), 361. Table of Cases. Iv [References are to sections.] Johnson v. First National Bank Jones v. Old Dominion Cotton Mills (79 Wis. 414), 372. Johnson v. Glidden (S. Dak., 5 Ann. Neg. Rep. 97), 40. Johnson v. Hudson River R. R. Co. (20 N. Y. 65), 169, 170, 293. Johnson v. Lindsey (L. R., App. Cas. 371), 65. Johnson v. Louisville &c. R. R. Co. (91 Ky. 651), 343. (82 Va, 140), 150. Jones V. Snow (56 Minn. 214), 74. Jones V. St. Nicholas (49 Fed. Rep. 671), 106, 142. Jones V. Vroom (8 Colo. App. 143), 84. Jones V. White (90 Ind. 255), 151. Jonesboro &e. Turnp. Co. v. Bald- win (57 Ind. 86), 167. Johnson v. Manhattan Ry. Co. (52 Jordan v. Bowen (14 Jones & S Hun, 111), 232. 355), 207, 246. Johnson v. Missouri Pacific Ry. Jordan v. Cincinnati R. R. Co (11 Co. (18 Neh. 690), 298. Ky. L. J. 204), 109. Johnson v. Northern Pacific Ry. Jordan v. City of Asheville (112 No Co. (46 Fed. Rep. 347), 90. Oar. 743), 164, 169, 170. Johnson v. Patterson (14 Conn. 1), Jordan v. New York &c. R. R. Co SO. (165 Mass. 346), 297. Johnson v. Ramberg (49 Minn. 341), Jorgensen v. Squires (144 N. Y. 79. Johnson v. Richmond &c. K. R. Co. (84 Va. 713), 359. Johnson v. Richmond &c. R. R. Co. (86 Va. 975), 301, 302. 280), 43. Joslin V. Grand Rapids Ice Co. (50 Mich. 516), 215. Joyce V Martin (15 R. I. 558), 60, 62, 139. Johnson v. Salem Turnp. &c. Co. Jucker v. Chicago &c. Ry. Co. (52 (109 Mass. 522), 47. Johnson v. St. Paul &c. R. R. Co. (31 Ind. 283), 154. Johnson v. St. Paul City Ry. Co. Wis. 150), 228. Judd v. Ballard (66 Vt. 668), 36. Judson V. Central Vt R. R. Co. (158 N. Y. 597; 91 Hun, 1), 56. (Minn., 1 Am. Neg. Rep. 93), Judson v. Giant Powder Co. (107 Cal. 549), 77, 182, 184. Tillson (36 Iowa, 89), Justice v. Pennsylvania Co. (130 Ind. 321), 362. 251. Johnson v 334. Johnson v. Town of Haverhill (35 N. H. 74), 282. K. Johnson v. Town of Irasburgh (47 Kaare v. Troy Street &c. Co. (139 Vt. 28), 297. Johnson v. Wells &c. Co. (6 Nev. 224), 231, 240. Johnson v. West Chester &c. R. B. Co. (70 Penn. St. 357), 350. N. Y. 369), 66. Kahl V. Love (8 Vr. 5), 7, 16, 169. Kahl V. Memphis &c. B. R. Co. (95 Ala. 337), 95, 107, 108, 160. Kain v. Larkin (56 Hun, 79), 98. Joliet V. Conway (119 111. 489), 240. Kain v. Smith (80 N. Y. 458), 85. Joliet Steel Co. v. Shields (146 111 603), 167, 176. Joliet Street Ry. Co. 111. 177), 208, 209. Jones V. Boyce (1 Stark. 493), 345, 350, Kane v. Bloodgood (7 Johns. Ch. 90), 308. '' V Call (143 Kane v. Chester Traction Co. (186 Penn. St. 145), 312. Kane v. Mitchell Transp. Co. (90 Hun, 65), 263. Jones ;. Chicago &c. Ry. Co. (43 ^^^tl ^^^I'L^'^ ^- l'''Kl± Minn. 279), 354. Jones V. Inhabitants of Andover (10 Allen, 18), 297. Jones v. Louisville &c. R. R. Co. (82 Ky. 610), 331. Kansas City &c. R. R. Co. v. Camp- bell (6 Kan. App. 417), 15. Kansas City &c. R. R. Co. v. Crocker (95 Ala. 412), 164, 367. Kansas City &c. R. R. Co. v. Daughtry (88 Tenn. 721), 259. Jones V. Mfg. Co. (92 Me. 565), 66, Kansas &c. Ry. Co. v. Dorough (72 70. Tex. 108), 164, 350. Jones V. New York Central &c. R. Kansas City Ry. Co. v. Fitzslm- R. Co. (28 Hun, 364), 174, 276. mons (22 Kan. 686), 81. Ivi Table of Cases. [References are to sections.] Kansas City v. Slaughstrom (53 Kelly v. Bennett (132 Penn. St Kan. 431), 131. 218), 42. Kansas &c. R. R. Co. v. Phllllbert Kelly v. Detroit Bridge Works (17 (25 Kan. 583), 170. Kan. 558), 224. Kansas Pac. Ry. Co. v. Cutter (16 Kelly v. Hannibal &c. R. R. Co. Kan. 568), 127. (70 Mo. 604), 174, 350. Kansas Pacific Ry. Co. v. Miller (2 Kelly v. Manhattan Ry. Co. (112 Colo. 442), 27, 174, 183, 189. N. Y. 443), 27, 30, 185. Kansas Pacific Ry. Co. v. Peavey Kelly v. New York &c. R. R. Co. (29 Kan. 169), 302. (109 N. Y. 44), 183. Kansas Pacific Ry. Co. v. Pointer Kelly v. Southern Minn. Ry. Co. (14 Kan. 50), 14, 15. (28 Minn. 98), 188. Kansas Pacific Ry. Co. v. Salmon Kelly v. Twenty-third Street Ry. (14 Kan. 512), 224. Co. (14 Daly, 418), 271, 273. Kaples V. Orth (64 Wis. 535), 182, KeUy v. West (80 N. Y. 139), 128, 274. Kelsey v. Town of Glover (15 Vt. Karle v. Kansas City &c. R. R. Co. 708), 282. (55 Mo. 476), 213, 278. Keim v. Union &c. Co. (90 Mo. 314), Karr v. Parks (40 Cal. 188), 93, 120, 23. 246, 287, 345. K^eim v. Union Ry. &c. Co. (15 Mo. Karr Supply Co. v. Kroenig (167 App. 393), 206. 111. 560), 66. Keitel v. St. Louis &c. Ry. Co. (28 Kavanaugh v. City of Janesville Mo. App. 657), 164. (24 Wis. 618), 245. Kendall v. Brown (74 111. 232) 19. Kay V. Pennsylvania R. B. Co. (63 Kendall v. City of Albia (73 Iowa, Penn. St. 269), 338. 241), 230. Kearney v. Boston &c. R. R. Co. Kendall v. City of Boston (118 (9 Cush. 108), 98, 101. Mass. 234), 185, 287. Kearney Electric Co. v. Laughlin Kendlg v. Overhulser (58 Iowa, (45 Neb. 390), 70, 149, 162. 195), 164. Kearney v. London &c. Ry. Co. (L. Kennedy v. Burrier (36 Mo. 128), R., 5 Q. B. 411), 43. 309. Kearney v. London &c. R. R. Co. Kennedy v. Chase (119 Cal. 637), (L. R., 6 Q. B. 759), 185. 16, 67. Keating v. Detroit &c. R. R. Co. Kennedy v. Rochester City &c. R> (104 Mich. 418), 151. R. Co. (130 N. Y. 654), 216. Keegan v. Western R. R. Co. (8 N. Kennedy v. Standard Sugar Re- Y. 175), 181. finery (125 Mass. 90), 101. Keenan v. Brooklyn City R. R. Co. Kenney v. Hannibal &c. R. R. Co (145 N. Y. 348), 267. (80 Mo. 573), 184. Kehoe v. Allen (92 Mich. 464), 67. Kenney v. Morley (2 Up. O. C. P. Kehoe v. AHentown &c. Traction 226), 167. Co. (187 Penn. St. 474), 430. Kennon' v. Gilmer (4 Mont 433), Kelleher v. City of Keokuk (60 153 KellerT'N?^ York &c. R. R. Co. ^^"^^ ^ «"-» ^' ^-^ 257), Kel/''v''°srourCity'&c'R: R. Co. ^^2? /,1 'l^?^"'' ^''' ^^ ^^ ''^• (27 Minn. 178), 196. „ ''^^' '^'^}i ^°^- , „ Kelley v. Chicago &c. Ry. Co. (50 ^^^"^"^ ^- ^^^ ^ork &c. R. R. Co. Wis. 381), 153, 162. (49 Hun, 533), 162. Kelley v. Chicago &c. Ry. Co. (60 ^^^^ ^- Town of Lincoln (32 Vt. Wis. 480), 170. 591), 180. Kellny v. Missouri Pac. Ry. Go. Kentucky &c. Co. v. Gastineau (8S (101 Mo. 67), 186. Ky. 119), 15, 81, 259. Kellogg V. Chicago &c. Ry. Co. (26 Kentucky Central R. R. Co. v. Wis. 223), 280. Thomas (79 Ky. 160), 170, 321, Kellogg V. New York Cenitral &c. 322, 354. R. R. Co. (79 N. Y. 72), 261, Kentucky Hotel Co. v. Camp (97 265. Ky. 424), 34. Table of Cases. Ivii [References are to sections.] Kentucky Central Ry. Co. v. Smith Klander v. McGrath (35 Penn. St. (93 Ky. 449), 334, 339. 128), 131, 132. Keown v. St Louis R. B. Co. (141 Klanowski v. Grand Trunk Ry. Co. Mo. 86), 19. (57 Mich. 525), 325. Kern v. Bridwell (119 Ind. 226), Klatt v. N. C. Foster Lumber Co. 208. Kersey v. Kansas City &c. B. Co. (79 Mo. 362), 167. (97 Wis. 641), 22. R. Klein v. Jewett (11 C. E. Gr. 474), 85 113 142 231 232 244 245- Kesler v. Smith (68 No. Car. 154), Klein 'v. Thompson (19* Ohio St. 255. 569), 230. Kessler v. Leeds (51 Ind. 212), 153, Klepsch v. Donald (4 Wash. St. 154, 167. Ketchum v. Texas &c. R. R. (38 La. Ann. 777), 252. 436), 259. Co. Klinker v. Wheeling &c. Iron Co. (43 W. Va. 219), 276. Keteltas v. Keteltas (72 N. Y. 312), Kllpper v. Coffey (44 Md. 117), 295, 109. 347. Keystone Bridge Co. v. Newberry Knapp v. Roache (94 N. Y. 329), (96 Penn. St. 246), 363. 317. Khron v. Brook (144 Mass. 516), Knapp v. Sioux City &c. Ry. Co. 185. (71 Iowa, 41), 211, 230, 252, 324. Kibele v. City of Philadelphia (105 Knauss v. Brua (107 Penn. St. 85), Penn. St. 41), 294. 59, 60. Kimball v. City of Boston (1 AUen, Knight v. Cooper (36 W. Va. 232), 417), 112. 66, 176. King V. Ford River Lumber Co. Knight v. West Jersey R. R. Co. (93 Mich. 172), 70. (108 Penn. St. 250), 107. King V. Great Western Ry. Co. (24 Knights v. Quarles (2 Brod. & B. L. T. C. P. [N. S.] 583), 167. i02), 99. King V. Hoare (13 M. & W. 494), Kn^n y. giate (55 Wis. 249), 210. 318. King V. Missouri Pacific Ry. Co. (98 Mo. 235), 205. Knott V. McGllvray (Cal., 6 Am. Neg. Rep. 7), 109. Knott V. Wagner (16 Lea, 481), 36. King V. New York &c. R. B. Co. (4 Knowlton v. Milwaukee City Ry.' Hun, 769), 189. King V. New York &c. R. R. Co. (66 N. Y. 181), 64. King V. New York &c. R. R. Co. (72 N. Y. 607), 207. Kinney v. Central R. R. Co. (4 Vr. 407), 300. Kinney v. City of Springfield (35 Mo. App. 97), 208, 209. Kinney v. Corbin (132 Penn. St 341), 362. Kinney v. Crocker (18 Wis. 75), 142. Co. (59 Wis. 278), 298. Knox V. City of SterUng (73 111. 214), 147. KnoxvlUe &c. R. B. Co. v. AcufT (92 Tenn. 26), 315. Knupfie V. Knickerbocker Ice Co. (84 N. Y. 488), 89, 213. Koelsch V. Philadelphia Co. (152 Penn. St 355), 45. Kolsti V. Minneapolis &c. Ry. Co. (32 Minn. 133), 194, 202. Kinney v. Folkerts (84 Mich. 616), Korrady v. Lake Shore &c. Ry. Co. 192, 233. (131 Ind. 261), 162. Kinney v. Koopman (116 Ala. 310), Koster v. Noonan (8 Daly, 231), 204. r^. '^'^- „ j.^ ^ ,. T. ^ r, Kramer v. Market Street R. R. Co. °n^?o\'^°J^* ^oJi^ Tqq -,?Q (25 Cal. 434), 98, 109. 119, 125. (122 ^o. Car. 961) 133 183. ^ '{^-^^^^ ^ Co. (123 Kirby v. Boylston Market Assn. (14 n Y 1) 67 trir.S^^\^«^]l ^'Jtx ^ T? T? Pn Kreuziger v. Chicago &c. Ry. Co. Klrby v. Lake Shore &c. R. R. Co. /yo xvi« i«>si 210 240 (14 Fed Rep 261) 308 ('** ^^^- ^^°'' "' "" Klrkpatrick v. New York Central Krogg v Atlanta &c. R. R Co. (7T &c. R. R. Co. (79 N. Y. 240), Ga. 202), 95, 196, 199, 307, 310, 293. 367. Kistner v. City of Indianapolis Kyne v. Wilmington &c. R. R. Co. (100 Ind. 210), 21. (8 Houst. 185), 338. ivm Table of Cases. [References are to sections.] L. Lane v. Town of Hancock (142 N. Y. 510), 3, 74. Lang V. Houston &c. R. K. Co. (75 Hun, 151), 104. Lang V. New York &c. R. R. Co. (51 Hun, 603), 246. Lang V. Sanger (76 Wis. 71), 189. Lackawanna &c. R. R. Co. v. Doak (52 Penn. St. 37«), 174. Laethem v. Fort Wayne &c. R. R. Co. (100 Mich. 297), 52. Lafayette &c. R. R. Co. v. Ehman (30 Ind. 83), 199, 222. Laflin v. BufEalo &c. R. R. Co. (106 Lange v. Schoettler (115 Cal. 388), N. Y. 136), 30, 192. 259. Laflin &c. Powder Co. v. Teamey Lange v. State (95 Ind. 114), 36. (131 111. 322), 12, 77. Laidlaw v. Sage (158 N. Y. 73), 21, 173. Laing v. Colder (8 Penn. St. 479), 183, 284, 356. Lake Erie &c. R. R. Co. v. Carson (4 Ind. App. 185), 186. Lake Erie &c. Ry. Co. v. Loffinger (107 111. 199), 278. Lake Roland Elev. Ry. Co. v. Mc- Kewen (80 Md. 593), 52. Lake Shore &c. R. R. Co. v. Miller (25 Mich. 274), 55, 56, 58, 169, 325 357. Lake Shore &c. R. R. Co. v. O'Con- ner (115 111. 254), 150. Lake Shore &c. Ry. Co. v. Bangs (47 Mich. 470), 350. Lake Shore &c. Ry. Co. v. Fitz- Langhoff v. Milwaukee &c. Ry. Co. (19 Wis. 497), 289. Langley v. Sixth Ave. R. R. Co. (16 Jones & S. 542), 251. Langworthy v. Township of Green (95 Mich. 93), 207. Lansing v. Stone (37 Barb. 15; 14 Abb. Pr. 199), 195. Lankford v. Barrett (29 Ala. 700), 319. La Pleine v. Morgan &c. Co. (40 Ra. Ann. 661), 236. Lapsley v. Union Pacific R. R. Co. (50 Fed. Rep. 172; 51 Fed. Rep. 174), 335. Larkin v. BurUngton &c. Ry. Co. (85 Iowa, 492), 335, 336." Larkin v. O'Neill (119 N. Y. 221), 79. Patrick (31 Ohio St. 479), 294. Larson v. Central R. R. Co. (56 111. Lake Shore &c. Ry. Co. v. Johnson (135 111. 641), 235, 334. Lake Shore &c. Ry. Co. v. Parker (131 111. 557), 22. Lake Shore &c. Ry. Co. v. Prentice (147 TJ. S. 101), 243. Lake Shore &c. Ry. Co. v. Roseuz- weig (113 Penn. St. 519), 243. Lake Shore &c. Ry. Co. v. Spangler App. 263), 185. Larmore v. Crown Point Iron Co. (101 N. Y. 391), 79, 80, 90. Larson v. Metropolitan Street Ry. Co. (110 Mo. 234), 32. Larzelere v. Kirchgessner (73 Mich. 276), 259. Last Chance Mining &e. Co. v. Ames (23 Colo. 167), 66. (44 Ohio St. 471), 301, 302, 369. Latham v. Roach (72 111. 179), 79. Lake Shore &c. Ry. Co. v. Sunder- Lavelle v. St. Paul &c. Ry. Co. (40 land (2 111. App. 307), 272. Minn. 249), 95, 360, 36^, 372. Lake Shore &c. Ry. Co. v. Lavalley Lawless v. Connecticut River R. R. (36 Ohio St. 221), 369. Co. (136 Mass. 1), 368. Lamb v. City of Cedar Rapids Lawrence v. Hudson (12 Heisk. (Iowa, 2 Mun. Corp. Cas. 32), 671), 193. 174. Lawrence v. Inhabitants of Mt. Lambeth v. North Carolina R. R. Co. (66 No. Car. 494), 350. Lamphear v. Buckingham (33 Conn. 237), 85, 104, 158, 258. Lanark v. Dougherty (153 111. 163), 334. Vernon (35 Me. 100), 282. Lawrenceburg &c. R. R. Co. v. Montgomery (7 Ind. 474), 27. Lazelle v. Town of Newfane (69 Vt. 306), 169, 171, 330. Leame v. Bray (3 East, 593), 50. Lane v. Atlantic Works (107 Mass. Leasam v. Maine Central R. R Co. 104), 293. (77 Me. 85), 169. Lane v. Atlantic Works (111 Mass. Leavenworth Coal Co. v. Ratchford 136), 21, 213. (5 Kan. App. 150), 33. L,ane v. Bryant (9 Gray, 245), 199. Lebanon Natural Gag Light &c. Co. Xane v. Bryant (100 Ky. 138), 134. v. Leap (139 Ind. 443), 45. Table of Cases. lix [References are to sections.] Le Barron v. East Boston Ferry Letts v. St. Lawrence &c. Ry. Co, Co. (11 Allen, 312), 183. (11 Ont. App. 1), 254. Lechman v. Hooper (23 Vr. 253), 91. Lewis v. Babcock (18 Johns. 443),. Lechner v. Village of Newark (44 N. Y. Supp. 556), 52. Lederman v. Pennsylvania R. R. Co. (165 Penn. St. 118), 189. Lee V. Publishers Co. (55 Mo. App. 390), 34. Lee V. Troy Citizens' Gas Light Co. (98 N. Y. 115), 153, 169. Lee V. Union R. R. Co. (12 R. I. 383), 37, 153. Lee V. Vacuum Oil Co. (54 Hun, 156), 77. Lee V. Woolsey (109 Penn. St. 124), 170. Leeds v. Metropolitan Gas Light 244. Lewis V. Eastern R. R. Co. (60 N. H. 187), 293. Lewis V. Fllnt&c. By. Co. (54 Mich- 55), 8. Lewis V. London &c. Ry. Co. (L. K., 9 Q. B. 66), 287. Lewis V. McDaniels (82 Mo. 577), 129. Lewis V. Seifert (116 Penn. St. 623),. 71, 369. Lewis V. State of New York (9» N. Y. 71), 86. Lewis V. St. Louis &c. R. R. Co. (59 Mo. 495), 129. Co. (90 N. Y. 26), 91, 228, 229, Libby v. Seherman (146 111. 540), 66, 231 234. Legg V. Britton (64 Vt. 652), 99, 111. Leggett V. Great Northern Ry. Co. L. R., 1 Q. B. D. 599), 99, 1U3. 111. Lehigh Iron Co. v. Rupp (100 Penn. St. 95), 267. Lehigh Valley Coal Co. v. Jones (86 Penn. St 432), 362. Lehigh Valley R. R. Co. v. Greiner (113 Penn. St. 600), 21. Lehigh Valley R. R. Co. v. Me- Keen (90 Penn. St. 122), 280. Lehman v. City of Brooklyn (29 Barb. 234), 174, 175, 272, 288. 150, 167, 429. Lichtenstein v. Mayor &c. of New York (159 N. Y. 500), 74. Life Association v. Goode (71 Tex. 90), 140, 142. Limekiller v. Hannibal &c. R. R. Co. (33 Kan. 83), 127. Lincoln Rapid Transit Co. v. Nich- olas (37 Neb. 332), 345. Lincoln Street Ry. Co. v. McClellan (54 Neb. 672), 29. Lindsey v. Town of Danville (46 Vt. 144), 245. Lindvall v. Woods (41 Minn. 212), 359, 364. Line v. Nelson (9 Vr. 358), 317, 318. Lehman v. Farwell (95 Wis. 185), Linfleld v. Old Colony R. R. Co. (10 97, 129. Cush. 562), 282. Leicester v. Town of Pottsford (6 Link v. Philadelphia &c. R. R. Co. Vt. 245), 282. (165 Penn. St. 75), 56. Leighton v. Sargent (27 N. H. 460h Link v. Sheldon (136 N. Y. 1), 84. Linnehan v. Sampson (126 Mass. 506), 348. Lissak v. Croker Estate Co. (119 Cal. 442), 199. Little V. Dusenberry (17 Vr. 614), 85, 104, 142. Little V. Hackett (116 U. S. 3C6). 335. Little Miami R. B. Co. v. Fitz- patrick (42 Ohio St. 318), 362. Little Miami R. R. Co. v. Stevens (20 Ohio, 415), 359. Little Rock &c. Ry. Co. v. Atkins (46 Ark. 423), 170, 350. Leslie v. Wabash &c. Ry. Co. (88 Little Rock &c. Ry. Co. v. Barker Mo. 50), 27, 350. (33 Ark. 350), 98, 260, 267, 272. liester v. Town of Plttsford (7 Vt. Little Rock &c. Ry. Co. v. Caven- 158), 169, 201, 205. esse (48 Ark. 106), 170. 84. Leonard v. Boston &c. R. R. Co. (170 Mass. 318), 31. Leonard v. Columbia Steam Nav. Co. (84 N. Y. 48), 107, 126. Leonard v. Decker (22 Fed. Rep. 741), 2, 62. Leonard v. Kinnare (174 111. 532), 67. Leonard v. Southern Pacific B. R. Co. (21 Or. 555), 192, 223. Leonard v. Storer (115 Mass. 86), 59. Leslie v. City of Lewlston (62 Me. 468), 338. Ix Table of Cases. [References are to sections.] Little Rock &c. R. B. Co. v. Bubanks (48 Ark. 460), 170, 223. Little Rock &c. Ry. Co. v. Leverett (48 Ark. 333), 170. Little Rock &c. Ry. Co. v. Miles (40 Ark. 298), 354. Little Rock &c. Ry. Co. v. Town- send (41 Ark. 382), 158. Littleton v. Richardson (32 N. H. 59), 280. Littlewood. v. Mayor &c. of New York (89 N. Y. 24), 103, 111, 261, 314. Livermore v. Board of Freeholders of Camden (2 Vr. 507), 73. Livezy v. Philadelphia (64 Penn. St. 106), 185. Livingston v. Adams (8 Cow. 175), 76. Lloyd V. Hannibal &e. R. R. Co. (53 Mo. 509), 208, 350. Locke V. Sioux City &c. R. B. Co. (46 Iowa, 109), 206. Locke V. State of New York (140 N. Y. 480), 86. Lockhart v. Lichtenthaler (46 Penn. St. 151), 335. Lockwood V. New York &c. R. R. Co. (98 N. Y. 523), 254, 263, 265, 270. Loeser v. Humphrey (41 Ohio St. 378), 237. Lofton V. Vogles (17 Ind. 105), 319. Loftus V. Union Ferrying Co. (84 N. Y. 455), 192. Lohr V. Phillipsburg Borough (156 Penn. St. 246), 74. Lombar v. East Tawas (86 Mich. 14), 189, 190. Londrigan v. New York &c. R. R. Co. (5 Civ. Pro. Rep. 76), 310. Long V. Doxey (50 Ind. 385), 167. Long V. Morrison (14 Ind. 595), 113, 116, 245, 258, 313. Longnecker v. Pennsylvania R. B. Co. (105 Penn. St 328), 224, 294. Looney v. McLean (129 Mass. 35), 60. Loop v. Litchfield (42 N. Y. 351), 88. Lopez V. Central Arizona Mining Co. (1 Ariz. 464), 153, 170. Lord V. Pueblo &c. Refining Co. (12 Colo. 390), 189. Lorenzo v. Wirth (170 Mass. 596), 60. Losee v. Buchanan (31 N. Y. 476), 16, 18, 76, 77, 185. Losee v. Clute (51 N. Y. 494), 88. Loucks V. Chicago &c. Ry. Co. (31 Minn. 526), 282. Loughlin v. State of New York (105 N. Y. 159), 86. Louisville &c. Canal Co. v. Murphy (9 Bush, 522), 170. Louisville &c. R. R. Co. v. Berry (96 Ky. 604), 254. Louisville &c. R. B. Co. v. Blnion (107 Ala. 645), 70, 215, 231. Louisville &c. R. R. Co. v. Bisch (120 Ind. 349), 353. Louisville &c. R. R. Co. v. Bowler (9 Heisk. 866), 368. Louisville &c. R. R. Co. v. Brooks (83 Ky. 129), 259, 273. Louisville &c. R. B. Co. v. Burke (6 Coldw. 45), 258. Louisville &c. B. B. Co. v. Case (9 Bush, 728), 258, 335. Louisville &c. B. B. Co. v. Cavens (9 Bush, 559), 372. Louisville &c. R. R. Co. v. Chaffln (84 Ga. 519), 127. Louisville &c. R. R. Co. v. Collins (2 Duvall, 114), 15. Louisville &c. R. B. Co. v. Com- monwealth (80 Ky. 143), 190. Louisville &c. R. R. Co. v. Copas (95 Ky. 460), 164. Louisville &c. B. B. Co. v. Creek (130 Ind. 139), 335. Louisville &c. B. R. Co. v. Crunk (119 Ind. 542), 350. Louisville &c. B. B. Co. v. Falvey (104 Ind. 409), 237. Louisville &c. E. B. Co. v. Filbern (6 Bush, 580), 15. Louisville &c. B. B. Co. v. Goetz (79 Ky. 442), 55, 179. Louisville &c. B. B. Co. v. Gower (85 Tenn. 465), 367. Louisville &c. B. B. Co. v. Graham (98 Ky. 688), 107, 273. Louisville &c. B. E. Go. v. Howard (90 Tenn. 144), 258. Louisville &c. B. B. Co. v. Hurt (101 Ala. 34), 152. Louisville &c. B. B. Co. v. Jones (83 Ala. 376), 174, 183. Louisville &c. B. E. Co. v. Johnson (92 Ala, 204), 31. Louisville &c. E. E. Co. v. Kelly (92 Ind. 371), 353. Louisville &c. E. B. Co. v. Lickingft (3 Bush, 1), 356. Louisville &c. B. E. Co. v. Mat- tingly (Ky., 1 Am. Neg. Rep. 58), 251. Table of Cases. ki [References are to sections.] Louisville &c. B. E. Co. v. McBl- Louisville &c. Ry. Co. v. Lynch wain (98 Ky. 700), 111. (147 Ind. 165), 151. Louisville &c. R. R. Co. v. Mitchell Louisville &c. Ry. Co. v. Pedigo (87 Ky. 327), 151, 243, 252. (108 Ind. 481), 183. Louisville &c. R. R. Co. v. Moore Louisville &c. Ry. Co. v. Rush (127 (83 Ky. 675), 252. Ind. 545), 257, 267. Louisville &c. R. R. Co. v. Murphy Louisville &c. Ry. Co. v. Thompson (9 Bush, 522), 15. (107 Ind. 442), 217. Louisville &c. R. R. Co. v. North- Louisville &e. Ry. Co. v. Wolfe ington (91 Tenn. 56), 236. (128 Ind. 347), 243. Louisville &c. R. R. Co. v. Orr (91 Lovegrove v. London &c. Ry. Co. Ala. 548), 259, 262, 302, 348. (16 0. S. [N. S.] 669), 168, 173. Louisville &c. R. R. Co. v. Rich- Lovis v. Burelia Club (56 N. Y. ardson (66 Ind. 43), 196. Supp. 66), 42. Louisville &c. R. R. Co. v. Ritter Lowell v. Boston &c. R. R. Co. (23 (85 Ky. 368), 183. Pick. 24), 94. Louisville &c. R. R. Co. v. Robin- Lower v. Segel (30 Vr. 66), 107, 126, son (4 Bush, 509), 15. 127, 160, 221. Louisville &c. R. R. Co. v. Sanders Lowery v. Manhattan Ry. Co. (99 (86 Ky. 259), 309, 311. N. T. 158), 37, 185, 324. Louisville &c. R. R. Co. v. Schmidt Lubrano v. Atlantic Mills (32 Atl. (106 Ind. 73), 166. Rep. 205), 111. Louisville &c. R. R. Co. v. Snyder Luby v. Chicago &c. R. R. Co. (52 (117 Ind. 435), 27, 181, 183, 204, Iowa, 168), 167. 236. Lucas v. Detroit City Ry. Co. (92 Louisville &c. R. R. Co. v. Staclier Mich. 412), 230, 244. (86 Tenn. 348), 258, 272. Lucas v. Michigan Central R. R. Louisville &c. R. R. Co. v. Taylor Co. (98 Mich. 1), 243. (126 Ind. 126), 183. Lucas v. Milwaukee &c. R. R. Co. Louisville &c. R. R. Co. v. Tram- (33 Wis. 41), 27. mell (93 Ala. 350), 95, 159, 164, Lucas v. New Bedford &c. R. R. 165. Co. (6 Gray, 64), 350. Louisville &c. R. R. Co. v. Wolfe Lucas v. Pennsylvania Co. (120 (80 Ky. 82), 153, 164, 322. Ind. 205), 133. Louisville &c. R. R. Co. v. Wood Lucas v. Wattles (49 Mich. 380), (113 Ind. 544), 204, 205, 207. 151. Louisville &c. R. R. Co. v. Yniestra Luce v. Chicago &c. Ry. Co. (67 (21 Fla. 700), 170. Iowa, 75), 364. Louisville &c. Ry. Co. v. Boland L^gk v. City of Ripon (52 Wis. 196), (53 Ind. 398), 153. 242. Louisville &c. Ry. Co. v. Bryan Luebke v. Chicago &c. Ry. Co. (63 (107 Ind. 54), 331. Wis. 91), 366 Louisville &c.Ry. Co. J. Buck (116 ^^^^^ ^ Inhabitants of Tyngsbor- Ind 566), 162, 298, ^70. ^^gjj (g q^^^i. 36), 197, 205. Louisville &c. Ry. Co. v. Creek (130 L^ndin v. Kajisas Ry. Co. (4 Colo. Ind 139), 337. 433^ 1Q5 (104 !nf i09)^-204''-276 23^""^ ^""^^ Chung v. Northern Pacific LouLmfic'S'. Co.' V Vawley f^: ^o- (19 Fed. Rep. 254), 106, (110 Ind. 18), 298. ^ /"'• _, . p t, r. /-r-. Louisville &c.- Ry. Co. v. Graham Ousted v. Chicago &c. Ry. Co. (71 (124 Ind. 89), 370. Wis. 391), 312, 316. Louisville &c. Ry. Co. v. Hendricks Lustig v. New York &c. R. B. Co. (128 Ind. 462), 205, 214. (20 N. Y. Supp. 477), 160. Louisville &c. Ry. Co. v. Howard Lutz v. Atlantic &c. R. R. Co. (6 (90 Tenn. 144), 334. N. Mex. 496), 89. Louisville &c. Ry. Co. v. Jones Luke v. Calhoun Co. (52 Ala. 115), (108 Ind. 551), 236. 217. Ixii Table or Cases. [References are to sections.] Ivydecker v. Brintnell (158 Mass. Magnin v. Dinsmore (56 Barb. 168), 292), 60. 300. Lyman v. Boston &c. R. R. Co. (66 Maguire v. Middlesex R. R. Co. N. H. 200), 171. (115 Mass. 239), 344. Lyman v. Central Vt. R. R. Co. Mahar v. Steuer (170 Mass. 454), 46. (59 Vt. 167), 85, 142. Maher v. Philadelphia Traction Co. Lyman v. Inhabitants of Amherst (181 Penn. St. 391), 258. 107 Mass. 389), 282. Maher v. Thropp (30 Vr. 186), 67. Lynch v. McNally (73 N. Y. 347; Mahler v. Norwich &c. Transp. Co. 7 Daly, 126), 35. , (35 N. Y. 352), 107. Lynch v. New York &c. R. R. Co. Mahnken v. Freeholders of Mon- (28 Vr. 4), 309. mouth (33 Vr. 404), 48, 279. Lynch V. Nurdin (1 Q. B. 29), 9, 81, Malcom v. Richmond &c. R. R. Co. f6T, 290. (106 No. Car. 63), 353. Lynch v. Smith (104 Mass. 52), 338. Mallory v. Griteey (85 Penn. St Lyndsay v. Connecticut &c. R. R. 275), 170. Co. (27 Vt. 643), 181. Malloy v. New York Real Estate Lynn &c. R. R. Co. v. Boston &e. R. R. Co. (114 Mass. 88), 52. Lyons v. Erie Ry. Co. (57 N. Y. 489), 215, 237. Lyons v. Manhattan Ry. Co. (7 Misc. 401), 208. Lyons v. Manhattan Ry. Co. (142 N. Y. 298), 208. Lyons v. Rosenthal (11 Hun, 46), 294. Lyons v. Terre Haute &c. R. R. Co. (101 Ind. 419), 169. Lyons v. Woodward (49 Me. 29), 98. Lyttle V. Chicago &c. Ry. Co. (84 Mich. 289), 369. M. Mace V. Reed (89 Wis. 440), 221. Macfadzen v. Olvant (6 East, 387), 165. Mack V. South Bend R. R. Co. (52 So. Car. 323), 231, 243. Mack V. St. Louis &c. Ry. Co. (77 Mo. 232), 151. Mackay v. Central R. R. Co. (14 Blatchf. 65), 107. Mackey v. City of Vicksburg (64 Miss. 777), 81. Mackin v. Boston &c. R. R. Co. (135 Mass. 201), 361. Macomber v. Nichols (34 Mich. 212), 91. Macy V. St. Paul &c. R. R. Co. (35 Minn. 200), 362, 369. Assn. (156 N. Y. 205), 34. Malmsten v. Marquette &c. R. R. Co. (49 Mich. 94), 335. Malone v. Burlington &c. Ry. Co. (65 Iowa, 417), 364. Malone v. Hathaway (64 N. Y. 5), 359. Maloy V. New York &c. R. B. Co. (58 Barb. 182), 282. Maloy V. Wabash &c. By. Co. (84 Mo. 270), 342. Mancuso v. Kansas City (74 Mo. App. 138), 59, 60, 61, 62. Manerly v. Union Ferry Co. (56 Hun, 113), 295. Maney v. Chicago &c. B. R. Co. (49 111. App. 105), 302. Mangan v. Atterton (L. R., 1 Bxch. 239), 9, 280, 285. Manhattan &c. Ry. Co. v. Stewart (30 Kan. 226), 202. Manley v. Delaware &c. Canal Co. (69 Vt. 101), 56, 89, 163, 222. Manly v. Wilmington &c. R. R. Co. (74 No. Car. 655), 169. Mann v. Delaware &c. Canal Co. (91 N. Y. 495), 281. Mann v. Weiand (81% Penn. St. 243), 217, 335. Manning v. Dallas (73 Cal. 420)^ 306. Manning v. Port Henry &c. Co. (91 N. Y. 665; 27 Hun, 219), 248. Manning v. West End Street By. Co. (166 Mass. 230), 185. Marble v. Ross (124 Mass. 44), 334. Madden v. Chesapeake &e. R. R. March v. Walker (48 Tex. '372), Co. (28 W. Va. 610), 109, 359. 257. Maddox v. County of Randolph (65 Mark v. St. Paul Ry. Co. (30 Minn. Ga. 216), 166, 180, 428. 493), 345. Maddox v. Cunningham (68 Ga. Marker v. Mitchell (54 Fed. Rep. 431), 43. 637), 34. Table of Cases. Ixiii [References are to sections.] Itlarkhain t. Houston &c. Nav. Co. (73 Tex. 247), 131, 335. Markley v. Whitman (95 Mich. 236), 38. Marks v. Petersburg &c. R. R. Co. (88 Va. 1), 343. Marsh v. Walker (48 Tex. 372), 219. Marshall v. Brown (50 Mich. 14S), 210. Marshall v. Chicago &c. Ry. Co. (48 111. 475), 199, 200. Marshall v. Wabash R. R. Co. (46 Fed. Rep. 269), 108, 109. Marshall v. Welwood (9 Vr. 339), 18, 77. Martin v. Baltimore &c. R. R. Co. (2 Marvel, 123), 171, 179. Martin v. Fowle (59 N. H. 31), 189. Martin v. New Yorli &c. R. R. Co. (27 Hun, 532), 214. Martin v. New York &c. R. R. Co. (103 N. Y. 626), 199. Martin v. Wallace (40 Ga. 52), 297. Martinez v. Gerber (3 Man. & G. 88), 247. Marvin v. City of New Bedford (158 Mass. 464), 190. Marvin v. Maysville Street &c. Co. (49 Fed. Rep. 436), 127. Marvin Safe Co. v. Ward (17 Vr. 19), 150. Marwedel y. Cook (154 Mass. 235), 60. Maryland Central R. R. Co. v. Neubeur (62 Md. 391), 170. Mason v. Inhabitants of Ellsworth (32 Me. 271), 231. Mason v. Missouri Pacific Ry. Co. (27 Kan. 83), 193. Mason v. Richmond &c. R. R. Co. (Ill No. Car. 482), 359, 372. Massey v. Mayor &c. of Columbus (75 Ga. 658), 74. Massoth V. Delaware &e. Canal Co. (64 N. Y. 524), 213. Masters v. Town of Warren (27 Conn. 293), 156, 231. Masterton v. Village of Mt. Ver- non (58 N. Y. 391), 232. Matheny v. Wolffs (2 Duv. 137), 282. Mather v. Rillston (156 U. S. 391), 70. Mathews v. Bensel (22 Vr. 30), 79. Mathews v. Case (61 Wis. 491), 366. Matson v. Chicago &c. By. Co. (68 Iowa, 22), 364. Matta V. Chicago &e. R. R. Co. (69 Mich. 109), 334. Matteson v. New York &c. R. R. Co. (35 N. Y. 487), 216. Matthews v. Delaware &c. R. R. Co. (27 Vr. 34), 133. Matthews v. Warner (29 Gratt. 570), 109, 158, 257, 259. Maxson v. Delaware &c. R. R. Co. (112 N. Y. 559), 303. May V. Hanson (5 Cal. 360), 170. May V. Inhabitants of Princeton (11 Mete. 442), 153. May V. West Jersey R. R. Co. (33 Vr. 63), 254. May V. West Jersey R. R. Co. (33 Vr. 67), 272. Mayer v. Thompson-Hutchinson Building Co. (104 Ala. 611), 72. Mayes v. Chicago &c. JKy. Co. (63 Iowa, 567), 281. Mayhew v. Burns (103 Ind. 328), 93, 99, 111, 134, 267. Maynard v. Buck (100 Mass. 40), 194. Mayo V. Boston &c. B. R. Co. (104 Mass. 137), 169. Mayor &c. of Birmingham v. LtAvIs (92 Ala. 352), 238. Mayor &e. of Birmingham v. Mc- Cary (84 Ala. 469), 32. Mayor &c. Jersey City v. Kiernan (21 Vr. 246), 73. Mayor &c. of New York v. Shef- field (4 Wall. 189), 75. Mayor &c. of New York v. Bailey (2 Den. 433), 19. Mayor &c. Troy v. Troy &c. R. R. Co. (49 N. Y. 657), 94. MacDougal v. Central R. R. Co. (63 Cal. 431), 170. McAdams v. Iron Cliffs Co. (78 Mich. 271), 362. Mc Andrews v. Burns (10 Vr. 117), 363. McArthur v. Green Bay &c. Canal Co. (34 Wis. 139), 298. McAunich v. Mississippi &c. R. R. Co. (20 Iowa, 338), 353. McBride v. Northern Pac. R. R. Co. (19 Or. 64), 171, 179. McCaffrey v. Georgia Southern B. R. Co. (69 Ga. 622), 133. McCaldin v. Parke (142 N. Y 564), 49. McCandless v. McWha (22 Penn. St. 261), 84. McCann v. Consolidated Tract. Co. (30 Vr. 481), 50, 276. McCarrick v. Kealy (70 Conn. 642), 118. Ixiv Table of Cases. [References are to sections.] McCarthy v. Chicago &c. R. R. Co. (18 Kan. 48), 108. McCarthy v. Rood Hotel Co. (144 Mo. 397), 222. McCarty v. New York &c. R. R. Co. (30 Penn. St. 251), 1. McCauley v. Furness Ry. Co. (L. R., 8 Q. B. 57), 300. McCauley v. Mayor &c. of New York (67 N. Y. 602), 185. McClain v. Brooklyn City R. R. Co. (116 N. Y. 459), 204. McCleany v. Frantz (160 Penn. St. 535), 36. McClure v. City of Sparta (84 Wis. 269), 74. McCorkle v. Chicago &c. Ry. Co. (61 Iowa, 555), 350. McCormack v. Molburg (43 Iowa, 561), 312. McCouU V. City of Manchester (85 Va. 579), 74, 150. McCracken v. Smatheres (122 No. Car. 799), 84, 89. McCrillis v. Hawes (38 Me. 566), 317. McOullum V. Long Island R. R. Co. (38 Hun, 569), 336. McCullv V. Clarke (40 Penn. St 399), 3, 275. McCurrie v. Southern Pacific Co. (122 Cal. 558), 27, 183, 274. McDermott v. Iowa Falls &c. Ry. Co. (85 Iowa, 180), 273. McDonald v. Chicago R. R. Co. (26 Iowa, 124), 245, 256. McDonald v. Eagle &e. Mfg. Co. (68 Ga. 839), 367. McDonald v. Mallory (77 N. Y. 546), 107. McDonald v. Massachusetts Gen- eral Hospital (120 Mass. 432), 83. McDougall V. Ashland Fibre Co. (97 Wis. 382), 281. McDowell V. Georgia R. R. Co. (60 Ga. 320), 98. McElroy v. Nashua &c. R. R. Co. (4 Cush. 400), 27, 90. McEwen v. Springfield (64 Ga. 159), 217. McFadden v. Santa Ann &c. Ry. Co. (87 Cal. 464), 337. McFee v. Vicksbarg &c. R. R. Co. (42 La. Ann. 790), 243, 272. McGarry v. Loomis (63 N. Y. 104), 338. McGatrick v. Wason (4 Ohio St. 566), 298. McGearty v. Manhattan Ry. Co. (15 App. Div. 2; 43 N. Y. Supp. 1086), 30, 91. McGee v. Boston Cordage Co. (139 Mass. 445), 361. McGee v. Metropolitan Ry. Co. (L. R., 8 Q. B. 165), 356. McGee v. Missouri Pacific Ry. Co. (92 Mo. 208), 198, 355. McGlove V. New Jersey &c. R. R. Co. (8 Vr. 304), 150, 158, 162. McGovern v. Hope (Vr., 42 Atl. Rep. 830), 208. McGovern v. New York &c. R. R. Co. (67 N. Y. 417), 98. McGowan v. Chicago &c. Ry. Co. (91 Wis. 153), 174. McGowan v. La Plata Mining Co. (9 Fed. Rep. 861), 281. McGown V. International &c. Ry. Co. (85 Tex. 289), 257, 262. McGrath v. City &c. Ry. Co. (93 Ga. 312), 347. McGrath v. Merwin (112 Mass. 467), 297. McGrath v. New York &c. R. R. Co. (59 N. Y. 468; 1 Hun, 437; 3 Thomp. & C. 776), 193. McGrath v. New York &c. R. R. Co. (63 N. Y. 522), 179, 193, 213. McGregor v. Reid &c. Co. (178 111. 464), 21, 34, 66. McGrell v. Buffalo OflSce Building Co. (153 N. Y. 265), 18, 34, 168, 181. McGuff V. State (88 Ala. 147), 208. McHugh V. Schloeser (159 Penn. St. 480), 254, 255, 257. Mclntyre v. Empire Printing Co. (103 Ga. 288), 70, 281. Mclntyre v. New York Central R. R. Co. (37 N. Y. 287), 269, 272, 353. McKay v. Lasher (121 N. Y. 477), 200. McKay v. Southern Bell Tel. Co. (Ill Ala. 337), 132, 164. McKean v. Burlington &c. R. R. Co. (55 Iowa, 192), 193. McKee v. Bidwell (74 Penn. St. 218), 188, 274. McKeever v. New York &c. R. R. Co. (88 N. Y. 667), 224. McKeigue v. City of Janesville (68 Wis. .50), 265, 309. McKenney v. Herrick (66 Iowa, 414), 312. McKenzie v. Cheetham (83 Me. 543), 59, 167. Table of Cases. IXT IReferences are to sections.] McKenzle v. McLeod (10 Bing. McWaugh v. City of Milwaukee 385), 281. (32 Wis. 200), 282. McKimble v. Boston &c. R. R. Co. Meagher v. Cooperstown &c. R. R (139 Mass. 542), 169, 292. McKlnney v. Chicago &c. By. Co. (87 Wis. 282), 343. McKlnney v. Western Stage Co. (4 Iowa, 420), 245. McKlssock V.' Sll Louis &c. Ry. Co. (73 Mo. 456), 174. McKone v. Michigan Cent. R. R. Co. (51 Mich. 601), 30. McKormick v. City of West Bay City (110 Mich. 265), 216. McKune v. California Southern R. R. Co. (66 Cal. 302), 369. McKune v. Santa Clara Valley Mill Co. (75 Hun, 455; 27 N. Y. Supp. 504), 202, 214. Meara v. Holbrook (29 Ohio St. 137), 85, 104, 142. Mearow v. Uttech (46 Wis. 581), 295. Medluny v. Hopkins (3 Conn. 472), 307. Meek v. Pennsylvania Co. (38 Ohio St. 632), 14, 213, 325. Meeks v. Southern Pacific R. R. Co. (52 Cal. 602), 338. Meese v. Fond du Lac (48 Wis. 323), 93, 111, 114. &c. Co. (110 Cal. 480), 93, 113, ^«Tn J" ^J^^^^""- ^^ ^^ ^'^^ ^^ 187. McLane v. Perkins (92 Me. 39), 169, 171. McLaughlin v. City of Corry (77 Penn. St 109), 231, 232. McLean v. Burbank (12 Minn. 530), 102. McLean &c. Co. v. McVey (38 111. App. 158), 267. McLeod V. Connecticut &c. R. R. Co. (58 Vt. 727), 95, 107, 160. McMahon v. Mayor &c. of New York (33 N. Y. 642), 109. McMahon v. Northern Central Ry. Allen, 234), 352. Meeter v. Manhattan Ry. Co. (63 Hun, 533), 231. Meier v. Missouri Pacific Ry. Co. (12 Mo. App. 35), 245. Melvin v. Easbey (1 Jones, 386), 210. Memphis &c. Packet Co. v. Mc- Cool (83 Ind. 392), 183. Memphis &c. R. R. Co. v. Cope- land (61 Ala. 376), 326, 334. Memphis &c. R. R. Co. v. Jones (2 Head, 517), 301. Memphis &c. R. R. Co. v. Martin (117 Ala. 367), 15. Co. (39 Md. 4fe8), 231, 232^ 338. Memphis &C.R.R. Co. y. Whit- McMahon v. Second Ave. R. R. Co. (75 N. Y. 231), 44. McMurtry v. Louisville &c. Ry. Co. (67 Miss. 601), 170, 350. McNamara v. North Pacific R. R. Co. (50 Cal. 581), 274, 290. McNamara v. New York Central R. R. Co. (136 N. Y. 650), 179. McNamara v. Village of Clinton (62 Wis. 207), 170, 282. McNerney v. Reading City (150 field (44 Miss. 466), 231. Mempliis &c. R. R. Co. v. Womack (84 Ala. 149), 219. Memphis &c. Ry. Co. v. Salinger (46 Ark. 528), 353. Memphis &c. Ry. Co. v. Stringfel- low (44 Ark. 322), 290. Menard v. Boston &c. R. R. Co. (150 Mass. 386), 190. Mendota v. Fay (1 111. App. 418), 169. Penn. St. 611), 74, 193, 205, 213. Mercer v. Corbin (117 Ind. 450), 52. McNulta V. Ensch (31 111. App. Merchants &c. Co. v. Borland (8 100), 186. Dick. 295), 25. McNulta V. Lockeridge (137 111. Merchants' Wharf Boat Assn. v. 270), 85, 142, 164, 165, 171, 179, Wood (64 Miss. 661), 298. 217. Meredith v. Reed (26 Ind. 334), 19, McQuigan v. Delaware &c. R. B, ^5. Co. (129 N. Y. 50), 208. McQullkin v. Central Pacific R. B. Co. (50 Cal. 7), 170. Merkle v. Bennington Township (58 Mich. 156), 104. Merkle v. New York &c. R. R. Co. (20 Vr. 473), 56. McPherson v. St. Louis &c. Ry. Co. Merrill v. Inhabitants of Hampden (97 Mo. 253), 269. (26 Me. 234), 282. McRickard v. Flint (114 N. Y. 222), Merritt v. Barle (29 N. Y. 115), 298. 34, 79, 212. Mersey Docks v. Gibbs (L. R., 1 McSwyny v. Broadway &c. R. B. H. L. 93), 83. Ixvi Table of Cases. [References are to sections.] Messinger v. Pate (42 Iowa, 443), 278 Metcalf V. Baker (57 N. Y. 662), 230, 232. Metropolitan Ey. Co. v. Jackson (L. R., 3 App. Cas. 197), 275, 286. Metropolitan R. R. Co. v. Ham- mett (13 App. Cas. [D. C] 52), 276. Metropolitan &c. R. R. Co. v. Ker- sey (80 111. App. 301), 338. Metropolitan Saloon Omnibus Co. V. Hawkins (4 H. & N. 87), 124. Metropolitan Street R. R. Co. v. Johnson (91 Ga. 466), 245. Metropolitan Street R. R. Co. v. Powell (89 Ga- 601), 335. Metz V. Buffalo &c. R. R. Co. (58 N. Y. 61), 85. Mewhirter v. Hatten (42 Iowa, 288), 113. Mexican National Ry. Co. v. Jack- son (89 Tex. 107), 95, 108. Meyer v. Harris (32 Vr. 83), 142. Meyer v. King (72 Miss. 1), 88, 153, 166. Meyer v. Pacific R. R. Co. (40 Mo. 151), 293. Miami &c. Co. v. Baily (37 Ohio St. 104), 208, 209. Michael v. Alestree (2 Lev. 172; 1 Vent. 195; 3 Keb. 650), 137. Michigan Central R. R. Co. v. Cole- man (28 Mich. 440), 19, 169. Michigan Central R. R. Co. v. Gil- bert (46 Mich. 176), 178, 205, 281. Michigan Central R. R. Co. v. Cou- gar (55 111. 503), 199. Middle Georgia &c. Ry. Co. v. Bur- nett (104 6a. 582), 67. Miles V. Atlantic &c. B. R. Co. (4 Hughes, 172), 286. Miles V. Boyden (3 Pick. 213), 118, 144. Miller v. Delaware &c. R. R. Co. (29 Vr. 428), 250. Miller V. Hancock (L. R., 2 Q. B. D. 177), 60. Miller v. Highland Dutch Co. (87 Cal. 430), 131. Miller V. Louisville &c. Ry. Co. (128 Ind. 97), 336. Miller v. Missouri Pacific Ey. Co. (109 Mo. 350), 371. Miller v. New York &c. R. R. Co. (125 N. Y. 118), 61. Miller v. Ocean S. S. Co. (118 N. Y. 199), 183. Miller v. Ohio &c. Ry. Co. (24 IIU App. 326), 364. Miller v. Southern Pa. R. R. Co. (20 Or. 285), 219, 367. Miller v. Southwestern R. R. Co. (55 Ga. 143), 125. Mills V. City of Philadelphia (18r Penn. St. 287), 46. Milwaukee &c. Ry. Co. v. Armes (91 U. S. 489), 14. Milwaukee &c. R. R. Co. v. Hunter (11 Wis. 167), 170. Milwaukee &c. By. Co. v. Kellogg (94 U. S. 469), 280, 324. Mineral R. R. Co. v. Marcus (115> Ala. 389), 174. Minneapolis &c. Ry. Co. v. Beck- with (129 U. S. 26), 243. Missouri Furnace Co. v. Abend' (107 111. 44), 169. Mississinewa Mining Co. v. Patten (129 Ind. 472), 45. Mississippi &c. R. R. Co. v. Ayres (16 Lea, 725), 107. Mississippi Central Bt. R. Co. v. Mason (51 Miss. 234), 169. Missouri Pacific R. R. Co. v. John- son (72 Tex. 95, ib. 165), 208, 209, 243. Missouri Pacific R. R. Co. v. Lyde (67 Tex. 505), 240. Missouri Pacific R. R. Co. v. Mit- chell (75 Tex. 78), 223. Missouri Pacific R. R. Co. v. Texas &c. R. R. Co. (36 Fed. Rep. 879), 350. Missouri Pac. Ry. Co. v. Barber (44 Kan. 612), 158. Missouri Pacific Ry. Co. v. Bond (2 Tex. Civ. App. 104), 372. Missouri &c. Ry. Co. v. Chambers (17 Tex. Civ. App. 487), 68, 2.52. Missouri &c. Ry. Co. v. Collier (62 Tex. 318), 214. Missouri Pacific Ry. Co. v. Dwyer (36 Kan. 58), 249, 251, 364. Missouri &c. Ry. Co. v. Edwards (90 Tex. 65), 79, 81. Missouri &c. Ry. Co. v. Hanning (91 Tex. 347), 19. Missouri Pacific Ry. Co. v. Hen- nessy (75 Tex. 155), 189. Missouri Pacific Ry. Co. v. Henny (75 Tex. 220), 267, 273. Missouri Pacific Ry. Co. v. Hol- comb (44 Kan. 332), 27. Missouri Pacific Ry. Co. v. Humes (115 XJ. S. 512), 243. Table of Cases. Ixvii [References are to sections.] Missouri Pacific Ry. Co. v. Lehm- beig (75 Tex. 61), 273. Missouri Pacific Ry. Co. v. IJewis (24 Neb. 848), 107. Missouri Pacific Ry. Co. v. Mackey (127 U. S. 205), 367. Missouri Pac. Ry. Co. v. McCally (41 Kan. 639), 153, 170. Missouri Pacific Ry. Co. v. Neis- wanger (41 Kau. 621), 192. Missouri &c. Ry. Co. v. Rodgers (89 Tex. 675), 334, 354. Missouri Pacific Ry. Co. v. Wil- liams (75 Tex. 4), 359, 372. Mitchell V. Chicago &c. Ry. Co. (51 Mich. 236), 168, 183. Mitchell V. City of Clinton (99 Mo. 153), 170. Mitchell V. City of Rockland (52 Me. 125), 73. Mitchell V. Crassweller (13 C. B. 237), 167. Mitchell V. Harper (4 Up. C. C. P. 147), 167. Mitchell V. Nashville &c. Ry. Co. (100 Tenn. 329), 185. Mitchell V. New York &c. R. R. Co. (2 Hun, 535), 272. Mitchell V. Prange (110 Mich. 78), 222. Mitchell V. Rochester Ry. Co. (151 N. Y. 107), 231. Mitchell T. Southern Pacific R. R. Co. (87 Cal. 62), 183. Mitchell V. Turner (149 N. Y. 39), 168, 429. Moakler v. Willamette Valley Ry. Co. fl8 Or. 189), 356. Mobile Life Ins. Co. v. Brame (95 V. S. 75.5), 98. Mobile &c. R. R. Co. v. Ashcraft (48 Ala. 15), 190. Mobile &c. R. R. Co. v. Dale (61 Miss. 206), 183. Mobile &c. R. R. Co. v. George (94 Ala. 199). 367. Mobile &c. R. R. Co. v. Hopkins (41 Ala. 486), 301. Mobile &c. R. R. Co. v. Smith (59 Ala. 245), 367. Mobile &c. R. R. Co. v. Thomas (42 Ala. 672), 14, 167, 367. Mobile &e. R. R. Co. v. Watly (69 Miss. 145), 267. Mobile &c. Ry. Co. v. Clauton (59 Ala. 392), 94. Mobile &c. Ry. Co. v. Crenshaw (65 Ala. 566), 170. Moe V. Smiley (125 Penn. St. 136), 147. Moebus V. Becker (17 Vr. 41), 36, 274 293 Mohney v. Cook (26 Penn. St. 342), 298. MoUie Gibson Co. v. Sharp (5 Colo. App. 321), 268. Monroe v. Pacific &c. Co. (84 Cal. 515), 77. Montfort v. Hughes (3 E. D. Smith, 591), 137. Montgomery Gas Light Co. v. Montgomery &c. Ry. Co. (86 Ala. 372), 148, 322. Montgomery &c. Ry. Co. v. Mal- lette (92 Ala. 209), 27, 183, 204, 205, 231, 234, 236. Montgomery &c. Ry. Co. v. Cham- bers (79 Ala. 338), 170. Moody V. Osgood (50 Barb. 628), 230. Moon V. Richmond &c. R. R. Co. (78 Va. 745), 170, 359, 372. Moore v. Cass (10 Kan. 291), 14, 15. Moore v. City of Kalamazoo (109 Mich. 176), 237, 252. Moore v. City of Richmond (85 Va. 538), 74, 190, 429. Moore v. Pitchburg R. R. Co. (4 Gray, 466), 137. Moore v. Gadsden (93 N. Y. 12), 42, 92. Moore v. Kansas City &c. Ry. Co. (126 Mo. 265), 74. Moore v. Keokuk &c. Ry. Co. (89 Iowa, 223), 179. Moore v. Mayor &c. of Shreveport (3 La. Ann. 645), 169. Moore v. Wabash &c. R. R. Co. (84 Mo. 481), 30. Moore V. Wabash &c. Ry. Co. (85 Mo. 588), 371. Morain v. Devlin (132 Mass. 87), 39. Moralsky v. Wirth (67 Minn. 46), 84. Moran v. Eastern Ry. Co. (48 Minn. 46), 366. Moran v. Hollings (125 Mass. 93), 217. Moran v. Pullman Palace Car Co. (1.34 Mo. 641), 92. Moreland v. Boston &c. R. R. Co. (141 Mass. 31), 27, 30. Morenais v. Crawford (51 Hun, 89), 128. Moreton v. Hardern (4 B. & C. 223; 6 Dow. & R. 275), 137, 143. Morgan v. Durfee (69 Mo. 469), 215. Morgan v. Illinois Bridge Co. (5 Dill. 96), 170. Ixviii Table of Cases. [References are to sections.] Morgan v. Sim (11 Moore P. C. MuUaney v. Spence (15 Abb. Pr. 312), 285. [N. S.] 31^), 294. Morgan v. Southern Pac. R. R. Co. Mullen v. Glens Falls (42 N. Y. (95 Oal. 310), 246, 257, 272. Supp. 113), 74. Moriani v. Dougherty (46 Oal. 26), Mullen v. Philadelphia &e. Steam- 250. ship Co. (78 Penn. St. 25), 199, Morley v. Great Western Ry. Co. 281, 294, 359, 370. (16 Up. 0. Q. B. 504), 272. Mullen v. St. John (57 N. Y. 567), Morrell v. Peck (24 Hun, 38), 276. 43, 185, 187. Morris v. Chicago &c. R. R. Co. (45 Muller v. McKesson (73 N. Y. 195), Iowa, 29), 230, 231, 232, 234. 35. Morris v. Chicago &c. Ry. Co. (65 Mulligan v. Montana Union Ry. Co. Iowa, 727), 107. (19 Mont. 135), 364. Morris V. Eighth Ave. R. R. Co. Mulliken v. City of Coruma (110 (68 Hun, 39), 251. Mich. 212), 207, 216. Morris v. Grand Avenue Ry. Co. Mulvey v. Rhode Island Locomo- (144 Mo. 500), 230. tive Works (14 R. I. 204), 294. Morris v. Lake Shore &c. Ry. Co. Munro v. Pacific &c. Co. (84 Cal. (148 N. Y. 182), 173, 277. 515), 103, 110, 111, 159, 164, 257, Morris V. New York &c. R. R. Co. 267. (106 N. Y. 678), 183. Munroe v. Third Ave. R. R. Co. Morris v. Piatt (32 Conn. 85), 1. (18 Jones & S. 114), 278. Morris v. Stanfield (81 111. App. Murdock v. Ward (67 N. Y. 387) 264), 22. 109. Morris v. Strobel &c. Co. (81 Hun, Murphy v. Board of Chosen Free- 1), 43, 185. holders (28 Vr. 244), 104. ^'^'"^^ onoT- Ml'^-^^n ^" ^**' ^^^ Murphy v. Kipp (1 Duer, 659), 161. ^, c!0.i), dd», dDU. Murphy v. New York &c. R. R. Co. ^^7lo Mi^ 4T5r"90^'- """ f' ?5r25TLl? '''■ ''''' ''' Morton V. Smith (48 Wis. 265), 212. ^^ («« J^- \- *45), 260. Moses V. Louisville &c. R. R. Co. Murray v. Board of County Com- (39 La. Ann. 649), 30. missloners (58 Kan. 1), 205. Motrell V. Peck (24 Hun, 37), 189. Murray v. Hudson River R. R. Co. Mount Vernon v. Dusouchett (2 (47 Barb. 200), 251. Ind. 686), 169. Murray v. McShane (52 Md. 217),, Mowry v. Chaney (43 Iowa, 609), 43, 59, 185. 99, 245. Murray v. Missouri Pacific Ry. Co. Moynihan v. Hills Co. (146 Mass. (101 Mo. 236), 23, 230, 252. 586), 361, 368. Murray v. South Carolina R. R. Co. Moysiakan v. Wheeler (117 N. Y. (1 McMull. L. 385), 65, 358. 285), 35. Murray v. Uslier (46 Hun, 404; 117 Muckle V. Rochester &c. Ry. Co. N. Y. 542), 72, 136, 261. (79 Hun, 32), 243. Murtaugh v. New York Central &c. Mugans v. McKay (1 Okl. 59), 35. R. R. Co. (49 Hun, 456), 252. Muhl V. Michigan Southern R. R. Myers v. City of San Francisco (42 Co. (10 Ohio St. 272), 109. Cal. 215), 259. Mulcahey v. Washburn &c. Co. Myers v. Hinds (110 Mich 300) 51 (145 Mass. 281), 101. 52. Muleairns v. City of Janesville (67 Myers v. Holborn (29 Vr. 193), 98. Wis. 24), 185, 273. Myhan v. Louisiana Electric Light Mulchey v. Methodist Religious So- &c. Co. (41 La. Ann 970) 33 ciety (125 Mass. 487), 136, 137. 272. Muldowney v. Illinois Central Ry. Mynning v. Detroit &c. R R Co Co. (36 Iowa, 462), 201, 208. (59 Mich. 257; 64 ib. 93; 67 ib. Mulhado v. Brooklyn City R. E. 677), 169, 171, 179, 186, 254, Co. (30 N. Y. 370), 270. 258. Table of Cases. Ixix [References are to sections.] N. Nelson v. Lake Shore &e. Ky. Co. Nail V. Louisville &c. Ry. Co. (129 (104 Mich. 582), 256, 257, 266, Ind. 260), 370. 272. Nally V. Hai-tford Carpet Co. (51 Nelson v. Liverpool Brewing Co. Conn. 524), 188. (L. R., 2 C. P. D. 311), 59. Nashua &c. Steel Co. v. Worcester Nesbit v. Town of Garner (75 Iowa &c. R. R. Co. (62 N. H. 159), 314), 335. 91> 94. Netherland- American Steam Co. v. Nashville &c. R. R. Co. v. Carroll Hollander (59 Fed Rep 417- (6 Heisk. 347), 133. 8 C. C. A. 169), 246. Nashville &c. R. R. Co. v. Bakin Newark Electric Light &c Co v (6 Coldw. 582), 107, 160. Ruddy (N. J.), 33. Nashville &c. R. R. Co. v. Foster Newark Passenger Ry. Co v Block (10 Lea, 351), 362. (26 Vr. 605), 52, 54, 274 275 Nashville &c. R. R. Co. v. Jones 276. (9 Heisk. 27), 27. Newark &c. R. R. Co. v. McCann Nashville &c. R. R. Co. v. Smith (6 Heisk. 174), 258. Nashville &c. R. R. Co. v. Spray- (29 Vr. 642), 228, 279, 280. Newbury v. Getchel &c. Mfg. Co. (100 Iowa, 441), 70, 238. berry (9 Heisk. 852), 107, 126, Newcomb v. Boston Prot. Dept. 133. (146 Mass. 596), 296, 347. Nashville &c. Ry. Co. v. Wheless Newcomb v. Boston Protective (10 Lea, 741), 367, 372. Dept. (151 Mass. 215), 83. Natchez &c. B. R. Co. v. Cook (63 Newell v. Cowan (30 Miss 492) Miss. 38), 99. 319. Natchez &c. Co. v. Mullins (67 New England Glass Co. v Lovell Miss. 672), 315. (7 Gray, 319), 205. National Tube Works Co. v. Bedell Newhard v. Pennsylvania R. R. Co (96 Penn. St. 175), 363. (153 Penn. St. 417), 214. Nave V. Flack (90 Ind. 205), 8. New Jersey Express Co. v. Nichols Naylor v. New York &c. R. R. Co. (3 Vr. 166; 4 ib. 433), 6, 170, 231, 232. New Jersey R. R. Co. v. Kennard (21 Penn. St. 203), 356. New Jersey R. R. Co. v. West (3 Vr. 91), 293. New Jersey Traction Co. v. Gard- ner (29 Vr. 176), 27. (33 Fed. Rep. 801), 367. Neal V. Gillett (23 Conn. 437), 19. Nebraska City v. Campbell (2 Black, 590), 232. Necker v. Harvey (49 Mich. 517), 419. Needham v. Grand Trunk R. R. Co. (38 Vt 294), 96, 98, 99, 108, 109. New Jersey Traction Co. v. Gard- Needham v. Louisville &c. R. R. ner (31 Vr. 571), 279, 350. Co. (85 Ky. 423), 19, 66, 274. New Jersey Zinc &c. Co. v. Lehigh Needham v. San Francisco &c. R. Zinc &c. Co. (30 Vr. 189), 201, R. Co. (37 Cal. 409), 226, 324. 202, 210, 211. Neet V. Burlington &c. By. Co. (106 Newman v. Chicago &c. Ry. Co. Iowa, 248), 322. (80 Iowa, 672), 21. Nehrbas v. Central Pacific R. R. Newman v. Fowler (8 Vr. 89), 26, Co. (62 Cal. 320), 267. 131. Neiver v. Missouri Pacific Ry. Co. Newman v. Phillipsburg R. R. Co. (12 Mo. App. 25), 213. (23 Vr. 446), 338. Nelson v. Chesapeako &c. R. R. Co. Newman v. Third Ave. R. R. Co. (88 Va. 971), 107, 108. (18 Jones & S. 412), 208. Nelson v. Chicago &c. Ry. Co. (60 New Orleans &c. R. R. Co. v. AU- Wis. 320), 274. britton (38 Miss. 242), 183, 204. Nelson v. City of Helena (16 Mont. New Orleans &c. R. R. Co. v. Har- 21), 170. rison (48 Miss. 112), 363. Nelson v. Galveston &c. Ry. Co. (78 New Orleans &c. R. R. Co. v. Tex. 621), 109, 309, 311. Hughes (49 Miss. 258), 367. Nelson v. Harrington (72 Wis. 591), New York &c. R. R. Co. v. Ball (24 84. Vr. 283), 354. Ixx Table of Cases. [References are to sections. J New York &c. R. R. Co. v. Bell Nonce v. Richmond &c. R. R. Co. (112 Penn. St. 400), 363, 370. (33 Fed. Rep. 429), 303, 307. New York &c. R. R. Co. v. Blumen- Nones v. Northouse (45 Vt. 587), thai (160 111. 40), 27, 183. 234. New York &c. R. R. Co. v. Cooper Norfolk &c. R. R. Co. v. Donnelly (85 Va. 939), 335. (88 Va. 853), 366. New York &c. R. R. Co. v. Kellam Norfolk &c. R. R. Co. v. Ferguson (83 Va. 851), 214. (79 Va. 241), 18, 170, 354. New York &c. R. R. Co. v. Kistler Norfolk &c. R. R. Co. v. Groseclose (19 Ohio C. C. 316), 58, 335. (88 Va. 267), 338. New York &c. R. R. Co. v. Leaman Norfolk &c. R. R. Co. v. Lipscomb (25 Vr. 202), 22. (90 Va. 137), 243. New York &c. R. R. Co. v. Marion Norfolk &c. R. R. Co. v. Ormsby (28 Vr. 94), 274. (27 Gratt. 455). 10, 19, 338. New York &c. R. R. Co. v. Stein- Norris v. Kohler (41 N. Y. 42), 186. brenner (18 Vr. 161), 335. Norris v. Litchfield (35 N. H. 271), New York &c. Ry. Co. v. New Jer- 274, 295. sey Electric Ry. Co. (31 Vr. 52), Norris v. Warner (59 111. App. 300), 55, 56. 35. New York &c. Telephone Co. v. North Chicago Rolling Mill Co. v. Bennett (Vr., 5 Am. Neg. Rep. Johnson (114 111. 57), 359. 657), 237. North Chicago Rolling Mill v. Niblett V. Mayor &c. of Nashville Monka (107 111. 340), 210, 211. (12 Heisk. 684), 74. North Chicago Street R. R. Co. v. Nichols V. Brooklyn City R. R. Co. Baur (79 111. App. 3.21; 179 111. (30 Hun, 437), 216. 126), 352. Nichols V. Marsland (L. R., 10 North Deutscher Lloyd S. S. Co. v. Exch. 255), 18. Ingebregsten (28 Vr. 400), 68. Nichols V. Washington &c. R. R. North Hudson County Ry. Co. v. Co. (83 Va. 99), 79. Flanagan (28 Vr. 236), 303. Nicholson v. Erie Ry. Co. (41 N. North Kankakee Street Ry. Co. v. Y. 525), 3. Blatchford (81 111. App. 609), Nickerson v. Harriman (38 Me. 340. 277), 99. North Pennsylvania R. R. Co. v. Nierenberg v. Wood (30 Vr. 112), Heileman (49 Penn. St. 60), 55. 132. North Pennsylvania R. R. Co. v. Nies V. Broadhead (75 Hun, 255), Kirk (90 Penn. St. 15), 205, 261, 206. 265. Nilan v. Richmond Gas Light Co. North Penn. R. R. Co. v. Mahoney (1 App. Div. 234), 74. (57 Penn. St. 187), 26, 131, 338. Nixon V. Hannibal &c. R. R. Co. North Manheim Township v. Ar- (141 Mo. 425), 57. nold (119 Penn. St. 380), 74. Njus V. Chicago &c. Ry. Co. (47 Northcoate v. Bachelder (111 Mass. Minn. 92), 95. 322), 291 Noblesville Foundiy &c. Co. v. Yea- Northern Central Ry. Co. v. Mills ^T r,,"""",!^ ^, 256. Sawyer v. Corse (17 Gratt. 230), 82, 136. Saxton V. Bacon (31 Vt. 540), 280. Sayward v. Carlson (1 Wash. St. 29), 359, 360. Scanlon v. Wedger (156 Mass. 462), 37. Schaefer v. City of Fond du Lac (99 Wis. 333), 44, 94. Schanda v. Sulsberger (7 App. Div. 221); 40 N. Y. Supp. 116), 173. Schaub V. Hannibal &o. R. R. Co. (106 Mo. 74), 266. SchefCer v. Washington &c. R. R. Co. (105 U. S. 249), 236, 324. Scheffler v. Minneapolis &c. Ry. Co. (32 Minn. 518), 98, 125, 211, 254. Schell V. Plumb (55 N. Y. 592), 256. Schexnaycdre v. Texas &c. Ry. Co. (46 La. Ann. 248), 343. Schlmpf V. Sliter (64 Hun, 463), 52. Schindelbeck v. Moon (32 Ohio St. 264), 61. Schindler v. Milwaukee &c. Ry. Co. (87 Mich. 400), 338. Schlereth v. Missouri &c. Ry. Co. (96 Mo. 509), 213, 371. Schllchting v. Wintgen (25 Hun, 626), 111. Schmeer v. Gas Light Co. (147 N. Y. 529), 45, 185. Schmid v. Humphrey (48 Iowa, 652), 297, 298. Schmidt v. Dugan (60 Wis. 300), 315. Schmidt v. Kansas City &c. Co. (90 Mo. 284), 79, 81. Schmitz V. St. Louis &c. Ry. Co. (46 Mo. App. 380), 267. Schneider v. Missouri Ry. Co. (75 Mo. 295), 151. Schneider v. Provident Life Ins. Co. (24 Wis. 28), 8. Schoenfeld v. Milwaukee City Ry. Co. (74 Wis. 433), 325. Schoepper v. Hancock Chemical Co. (113 Mich. 582), 77, 173, 184. Schofield V. Chicago &c. Ry. Co. (114 U. S. 615), 56. Schofield V. Wood (170 Mass. 415), 79. Schreiber v. Sharpless (110 U. S. 76), 25. Schrier v. Milwaukee &c. Ry. Co. (65 Wis. 457), 273. Schroeder v. Chicago &c. R. R. Co. (47 Iowa, 375), 207, 208, 370. Schroeder v. Chicago &c. R. R. Co. (108 Mo. 322), 371. Schroyer v. Lynch (8 Watts, 453), 82, 136. Schulman v. Houston &c. R. R. Co. (36 N. Y. Supp. 439), 52. Schultz V. Chicago &c. Ry. Co. (44 Wis. 638), 193, 362, 366. Schultz V. Chicago &c. Ry. Co. (48 Wis. 375), 372. Schultz V. Griffith (103 Iowa, 150), 35. Schum V. Pennsylvania R. R. Co. (107 Penn. St 8), 171, 179. Ixxx Table of Cases. [References are to sections.] Schwander v. Blrge (33 Hun, 186), 293. Schwanzer v. Brooklyn R. E. Co. (45 N. Y. Supp. 889), 240. Scott V. Bergen County Traction Co. (Vr., 43 Atl. Rep. 1060), 352. Scott V. London &c. Docks Co. (3 Hurlst. & C. 596), 289. Scott V. Shepherd (2 Wm. Blackst. 892; 3 Wils. 403), 37, 324. Scott Township v. Montgomery (95 Penn. St. 444), 74, 228, 230, 231. Seaboard Mfg. Co. v. Woodson (94 Ala. 143), 367. Seabrook v. Hecker (2 Robt. 291), 294. Seals V. Edmondson (71 Ala. 509), 202. Seaman v. Koehler (122 N. Y. 646), 186, 335. Searle v. Kanawaha &c. Ry. Co. (32 W. Va. 370), 27, 109, 269. Searles v. Manhattan Elevated Ry. Co. (17 .Tones & S. 425), 189, 190, 192. Searles v. Manhattan Ry. Co. (101 N. Y. 661), 173, 185. Secord v. Great Western Ry. Co. (15 Up. Can. Q. B. 631), 273. Secord v. St. Paul &e. Ry. Co. (5 McCrary, 515), 170. Sedgworth v. Overend (7 T. R. 279), 148. Seeley v. Citizens' Traction Co. (179 Penn. St. 334), 312. Seger v. Town of Barkhamstead (22 Conn. 290), 231. Seither v. Philadelphia Traction Co. (125 Penn. St. 397), 318. Selleck v. City of Janesville (100 Wis. 157), 237. Selma &c. R. R. Co. v. Lacy (43 Ga. 461), 95, 107, 160. Selma &c. R. R. Co. v. Lacy (49 Ga. 106), 126. Serensen v. Northern Pac. R. R. Co. (45 Fed. Rep. 407), 158, 162, 272. Sessions v. Town of Newport (23 Vt. 9), 282. Seybolt v. New York &c. R. R. Co. (95 N. Y. 562), 174, 181, 183. Seymer v. Town of Lake (66 Wis. 651), 344. Seymour v. Citizens' Ry. Co. (114 Mo. 266), 352. Seymour v. Maddox (16 Ad. & El. [N. S.] 326), 150. Severy v. Chicago &e. Ry. Co. (6 Okl. 153), 56. Severin v. Eddy (52 111. 189), 26, 131, 136, 318. Seward v. Mayor &c. of Wilming- ton (2 Marvel, 189), 74. Sexton V. Metropolitan Street Ry. Co. (57 N. Y. Supp. 577), 351. Sexton V. Zett (44 N. Y. 430), 278. Shaber v. St. Paul &c. Ry. Co. (28 Minn. 103), 56, 103, 188, 194, 282. Shafter v. Evans (53 Cal. 32), 205. Shallcross v. City of Philadelphia (187 Perm. St. 143), 349. Shanny v. Androscoggin Mills (66 Me. 420), 281, 359. Sharp V. Evergreen Township (67 Mich. 443), 298. Shartle v. City of Minneapolis (17 Minn. 308), 180. Shattuck V. Rand (142 Mass. 83), 34. Shaw V. Boston &c. R. R. Co. (8 Gray, 45), 19, 240, 252. Shaw V. Craft (37 Fed. Rep. 317), 337. Shaw V. Town of Potsdam (11 App. Div. 508), 132. Shaw V. Van Renselaer (60 How. Pr. 143), 208. Shaw V. Webber (79 Hun, 307), 316. Shea V. Potrero &c. R. R. Co. (44 Cal. 414), 52, £40. Shea V. St. Paul City Ry. Co. (50 Minn. 395), 52. Sheanron v. Pacific Mut. Life Ins. Co. (83 Wis. 507), 312, 316. Shedd V. Moran (10 111. App. 618), 107. Sheehan v. New York Central &c. R. R. Co. (91 N. Y. 332), 368. Sheel V. City of Appleton i49 Wis. 125), 282. Sheff V. City of Huntington (16 W. Va. 307), 170, 224. Sheffield v. Central Union Tel. Co. (36 Fed. Rep. 164), 337. Sheffield v. Rochester &c. R. R. Co. (21 Barb. 339), 294. Shelby County v. Scearce (2 Du- vall, 576), 15. Sheldon v. Hudson River R. R. Co. (29 Barb. 226; 14 N. Y. 218), 169, 173. Sheldon v. Western Union Tel. Co. (51 Hun, 591), 185. Shelley v. City of Austin (74 Tex- 608), 74. Shelton v. Merchants &c. Co. (59 N. Y. 258), 298. Table of Cases. Ixxxi [References are to sections.] Shepard v. Creamer (160 Mass. Simmons v. New Bedford &c. 496), 185. Steamboat Co. (97 Mass. 361), Shepard v. Missouri Pacific Ry. Co. 27. , (85 Mo. 629), 208. Simpson v. Hand (6 Wheat. 311), Sheridan v. Foley (29 Vr. 230), 185. 335. ■Sherlock v. Ailing (44 Ind. 184), Simpson v. New York Rubber Co. 183, 217, 261. (80 Hun, 415), 302. Sherlock v. Ailing (95 V. S. 99), 106, Sims v. Dorsey (61 Ga. 488), 118. 107. Sinclair v. Maritime Passenger Ass. Sherman v. Hannibal &c. R. R. Co. Co. (107 E. C. L. 478), 8. (72 Mo. 62), 354. Sioux City &c. R. R. Co. v. Fin- Sherman V. Johnson (58 Vt. 40), layson (16 Neb. 578), 201, 205, 246. 208, 209, 211. Sherman v. Western Stage Co. (24 Sioux City &c. R. R. Co. v. Smith Iowa, 515), 305, 309. (22 Neb. 775), 359. Sherrin v. St. Joseph &c. Ry. Co. Sioux City &c. R. R. Co. v. Stout (103 Mo. 378), 365. (17 Wall. 657), 81, 290. Sherwood v. Chicago &c. Ry. Co. Sipple v. State of New York (99 (82 Mich. 374), 230, 234, 238. N. Y. 284), 86. Shidet V. Jules Dreyfuss Co. (50 Skelton v. London &e. Ry. Co. (L. La. Ann. 280), 61. R., 2 C. P. 631), 16. Shields v. Young (15 Ga. 349), 98. Skinner v. London &c. Ry. Co. (5 Shinners v. Proprietors &c. Canals Exch. 787), 183. (154 Mass. 168), 189. Shipley v. Fifty Associates (101 Mass. 251. 106 ib. 194), 42. Shook V. City of Cohoes (108 N. Y. 648), 282. Short V. New Orleans &c. R. R. Co. (69 Miss. 848), 183. Shultz V. Chicago &c. Ry. Co. (44 Wis. 638), 312. Shumway v. Walworth &c. Mfg. Co. (98 Mich. 411), 236. Sibley v. New Orleans &e. R. R. Co. (49 La. Ann. 588), 352. Siblev V. RatlifCe (50 Ark. 477), 93, 119, 120. Sibley v. Smith (46 Ark. 275), 208. Sidekum v. Wabash &c. Ry. Co. (93 Mo. 400), 208, 209. Slater v. Jewett (85 N. Y. 61), 359, 361. Slater v. Mersereau (64 N. Y. 138), 131. Slattery v. Toledo &c. Ry. Co. (23 Ind. 83), 367. Sleeper v. Worcester &c. R. R. Co. (58 N. H. 520), 282. Sloan V. Central Iowa R. R. Co. (62 Iowa, 728), 85. Sloane v. Soutliern Cal. Ry. Co. (Ill Cal. 669), 231, 236, 280. Smedis v. Brooklyn &c. R. R. Co. (88 N. Y. 13), 179. Smerlley v. Hestonville &c. Ry. Co. (184 Penn. St. 620), 229. Smethurst v. Boston Square Church (148 Mass. 261), 228. Siegriest v. Arnot (10 Mo. App. 207), Smith v. Atchison &c. R. R. Co. 14. (25 Kan. 738), 133. Siemers v. Eisen (54 Cal. 418), 213. Smith v. Benick (87 Md. 610), 32 Sievers v. Peters &c. Co. (151 Ind. 42), 188, 189. Sikes V. Johnson (16 Mass. 389), 39. Sillivan v. Tioga R. R. Co. (112 N. Y. 643), 237. Sills V. Brown (9 Car. & P. 601), 324. Silsby V, Michigan Car Co. (95 Mich. 204), 163, 232, 242. Simmons v. Chicago &c. R. R. Co. (110 111. 340), 290. Simmons v. Everson (124 N. Y. 319), 132. Smith V. Boston &c. R. R. Co. (120 Mass. 490), 297. Smith V. Chicago &c. Ry. Co. (4 So. Dak. 71), 170. Smith V. Chicago &c. R. R. Co. (108 Mo. 243), 27, 230. Smith V. City of Des Moines (84 Iowa, 685), 191. Smith V. City of St. Joseph (55 Mo. 456), 113, 244, 245. Smith V. Clarke Hardware Co. (100 Ga. 163), 88. Simmons v. McConnell (86 Va. Smith v. Eastern R. R. Co. (35 N. 494), 77, 257. H. 356), 167, 170. Ixxxii Table of Cases. [References are to sections.] Smith V. Electric Traction Co. (187 Snyder v. Witt (99 Tenn. 618), 165,. Penn. St. 110), 54. 318. Smith V. Foran (43 Conn. 244), 94. Snodgrass v. Carnegie Steel Co. Smith V. Hays (23 111. App. 244), (173 Penn. St. 228), 176, 178,, 88. 185. Smith V. Hillside &c. Co. (186 Penn. Snow v. Chandler (10 N. H. 92), St. 28), 70, 71. 317. Smith V. Holcomb (99 Mass. 552), Soderman v. Kemp (145 N. Y. 427),, 231. 176. Smith V. Irwin (22 Vr. 507), 70, 322. Solomon v. Manhattan Ry. Co. (103 Smith V. London &c. Ry. Co. (L. R., N. Y. 437), 345, 350. 6 C. P. 14), 20. Sommers v. Mississippi &c. R. R. Smith V. Louisville &c. R. R. Co. (75 Ala. 449), 103, 104, 105. Smith V. Memphis &c. R. R. Co. (18 Fed. Rep. 304), 133. Smith V. Milwaukee Builders &c. Exch. (91 Wis. 360), 23, 213. Co. (7 Lea, 201), 183. Soneffler v. Minneapolis &c. Ry. Co. (32 Minn. 538), 211. Sonnenfeld Millinery Co. v. Peo- ple's Ry. Co. (59 Mo. App. 668). 248. Smith V. N. Y. Cent. R. R. Co. (24 Soule v. New York &c. R. R. Co. N. Y. 222), 14, 300. (24 Conn. 575), 96. Smith V. New York &c. R. R. Co. Southampton &c. Co. v. Southamp- (38 Hun, 33), 336. Smith V. New York &e. R. R. Co. (17 Vr. 7), 298. Smith V. O'Connor (48 Penn. St. 218), 338. Smith V. Oxford Iron Co. (13 Vr. 467), 70. Smith V. Pittsburg &c. Ry. Co. (90 Fed. Rep. 783), 238. ton Board (8 El. &. B. 801), 73, 83. South &c. R. R. Co. V. Sehaufler (72 Ala. 136), 350. South &c. R. R. Co. V. Sullivan (59 Ala. 272), 125, 313. South Carolina &e. R. R. Co. v. Carolina &c. Ry. Co. (93 Fed. Rep. 543), 85, 299. Smith V. Pittsburg &c. Ry. Co. (2 South Carolina R. R. Co. v. Nix i Ohio St. 10), 231. Smith V. Potter (46 Mich. 258), 361. Smith V. Richmond &c. R. R. Co. (99 No. Car. 241), 356. Smith V. Robertson (L. R., 8 Vict. 256), 183. Smith V. Southern Ry. Co. (53 So. Car. 121), 22. Smith V. St. Paul City Ry. Co. (32 Minn. 1), 29, 183, 192, 206. Smith V. TJnion Trunk Line (18 Wash. St. 351), 279. Smith V. Van Houten (4 Halst. 381), 118. Smith V. Wabash &c. Ry. Co. (92 Mo. 359), 273, 371. Smithson v. Chicago &c. Ry. Co. (71 Minn. 216), 221. Smoot v. Mayor &c. of Wetumpka (24 Ala. 112), 170. Snaith v. liOndon &c. Docks Co. (L. R., 3 C. P. 3261, 79. Snvder v. Natchez &c. R. R. Co. (42 La. Ann. 302), 31. Ga. 572), 107, 160, 319. Southern Cotton Press Co. v. Brad- ley (52 Tex. 587), 14, 15. Southern Kansas Ry. Co. v. Walshi (45 Kan. 653), 183. Southern Ry. Co. v. Bryant (95 Va.. 212), 56, 170, 179. Southern Ry. Co. v. Myers (87 Fed_ Rep. 149), 232. Southern Ry. Co. v. Watson (104 Ga. 243), 334. Southwestern &c. Co. v. Beatty (63 Ark. 65), 33. Southwestern R. R. Co. v. Paulk (24 Ga. 356), 104, 105, 127. Southwestern R. R. Co. v. Singleton< (66 Ga. 252; 67 Ga. 306), 350. Southworth v. Old Colony Ry. Co. (105 Mass. 342), 50. Sorensen v. Manasha Paper &c. Co.. (56 Wis. 338), 174. Sowden v. Idaho Quartz Mining Co.. (55 Cal. 443), 202. Spatz V. Lyons (55 Barb. 476V 200. Snyder v. Pittsbursh &c. Ry. Co. Spears v. Chicago &c. R. R. Co. (43' (11 W. Va. 14), 153, 170. Neb. 720), 175, 186. Snvder v. Wheeling Electric Co. (43 Speer v. Greencastle &c. Road Co,- W. Va. 661), 151, 185. (4 Ind. App. 525), 47. Table of Cases. Ixxxiii [References are to sections.] Speir V. City of Brooklyn (139 N. Y. 6), 37. Spellman v. Lincoln Rapid Transit Co. (36 Neb. 890). 27, 29, ]83. Spencer v. Milwaukee &c. R. R. Co. (17 Wis. 487), 356. Spencer v. Ohio &c. Ry. Co. (130 Ind. 181), 362. Spencer v. Utica &c. R. R. Co. (5 Barb. 337), 169. SpUttorf V. State of New York (108 N. Y. 205), 86, 104. Spofford V. Harlow (3 Allen, 176), 295, 352. Spokane Truck Co. v. Hoefer (2 Wash. St. 45), 243. Spooner v. Delaware &o. R. R. Co. (115 N. Y. 22). 57, 118. Spragne v. Smith (29 Vt. 421), 85. Springfield City Ry. Col v. De Camp (11 111. App. 475), 151. Springfield Consolidated Ry. Co. v. Hoeffner (175 111. 634), 165, 231, 283. Springfield Consolidated Ry. Co. v. Welsch (155 111. 5ri), 196, 199, 204. Springside Coal Mining Co. v. Gro- gan (169 111. 50), 281. Sproul V. City of Seattle (17 Wash. St. 256), 252. Sprow V. Boston &c. R. R. Co. (163 Mass. 330), 56. Spnrr v. North Hudson County R. R. Co. (27 Vr. 346), 26, 131. Spurrier v. Front Street Ry. Co. (3 Wash. St. 659), 170. Squier v. Gould (14 Wend. 159), 163, 241, 242. Squires v. Inhabitants of Amherst (145 Mass. 192), 312. Staal V. Grand Street &c. R. R. Co. (107 N. Y. 625), 217, 235. Stafford v. City of Oskaloosa (64 Iowa, 251), 232. Stafford v. Rubens (115 111. 196), 267. Standard Oil Co. v. Helmick (148 Ind. 457), 66. Standard Oil Co. v. Tiernev (14 D. R. A. 677), 77, 189, 251. Stanley v. Bircher (78 Mo. 245), 147. Stanton v. Metropolitan R. R. Co. (14 Allen, 485), 297. Stark V. City of Portsmouth (52 N. H. 221), 282. Stark V. Lancaster (57 N. H. 88), 280 282 state v! Bailer (26 W. Va. 94), 324. State V. Baltimore &c. R. R. Co. (Md., 17 Atl. Rep. 88), 109. State V. Baltimore &c. R. R. Co. (24 Md. 84). 102, 258, 267. State V. Baltimore &c. R. R. Co. (58 Md. 221), 168, 170, 174. State T. Baltimore &c. R. R. Co. (58 Md. 482), 168. State V. Baltimore &c. R. R. Co. (70 Md. 319), 96, 158. State V. Baltimore &c. R. R. Co. (77 Md. 489), 153. State V. Boston &c. R. R. Co. (58 N. H. 408), 10, 14. State V. Boston &c. R. R. Co. (80 Me. 430), 335. State V. Cecil County Commission- ers (54 Md. 426), 219. State V. Collins (16 R. I. 371), 51. State V. Cumberland &c. R. R. Co. (87 Md. 183), 56. State V. Gilmore (24 N. H. 461), 109, 158. State V. Grand Trunk Ry. Co. (58 Me. 176), 217. State V. Grand Trunk Ry. Co. (60 Me. 145), 109, 150, 158. State V. Housekeeper (70 Md. 162), 84. State V. Hoyt (46 Conn. 330), 210. State V. Maine Central R. R. Co. (76 Me. 357), 169, 179. State V. Manchester &c. R. R. Co. (52 N. H. 528), 10, 14, 21, 149, 151, 158, 217, 293, 426. State V. Matster (57 Md. 287), 364. State V. Morris &c. B. R. Co. (3 Zabr. 361), 140. State V. Pittsburgh &e. R. R. Co. (45 Md. 41), 107, 160. State V. Western &c. R. R. Co. (63 Md. 433), 301. State V. Wilkinson (2 Vt. 480), 75. St. Clair Street Ry. Co. v. Badie (43 Ohio St. 91), 335. St. Louis Bridge Co. v. Miller (138 111. 465). 48, 208, 209. St. Ijouis &c. Packet Co. v. Keokuk &c. Co. (31 Fed. Rep. 755), 190. St. Louis &c. Ry. Co. v. Ames (54 Ark. 159), 116. St. Louis &c. R. R. Co. v. Andres (16 111. App. 292). 169. St. Louis &c. R. R. Co. v. Cantrell (37 Ark. 519), 350. St. Louis &c. R. R. Co. v. Davis (55 Ark. 462), 267. St. Louis &c. Ry. Co. v. Fairbaira (48 Ark. 491), 30. lixxiv Table of Cases. [References are to sections.] St. Louis &c. Ry. Co. v. Freeman (36 Ark. 41), 246, 267. St. Louis &c. Ry. Co. v. Hall (53 Ark. 7), 243. St Louis &c. Ry. Co. v. Hopkins (54 Ark. 209), 43, 185. St. Louis &c. Ry. Co. v. Mathias (50 Ind. 65), 151, 167. St. Louis &c. Ry. Co. v. McCormick (71 Tex. 660), 108. St. Louis &c. R. R. Co. v. Maddry (57 Ark. 306), 261, 265, 269, 273. St. Louis &c. Ry. Co. v. Needham (52 Fed. Rep. 371), 125. St. Louis &c. Ry. Co. v. Putnam (1 Tex. Civ. App. 142), 369. St. Louis &c. Ry. Co. v. Rice (467), 864. St. Louis &c. Ry. Co. v. Sweet (60 Ark. 550), 27, 218, 255, 269, 273. St. Louis &c. R. R. Co. v. Todd (36 111. 409), 14. St. Louis &c. Ry. Co. v. Weaver (35 Kan. 412), 170, 171, 186, 188, 364. St Louis &c. Ry. Co. v. Yocum (34 Ark. 493), 158. St Mary's Woolen Mfg. Co. v. Bradford Glycerine Co. (14 Ohio C. Ct 522), 77. Steamboat New World v. King (16 How. 474), 14. Stearns v. Ontario Spinning Co. (184 Penn. St 519), 184. Stebbins v. Central Vt R. R. Co. (54 Vt. 461), 322, 324. Steel V. Kurtz (28 Ohio St. 191), 109. Steele v. Burkhart (104 Mass. 59), 295 Stein V. City of Council Bluffs (72 Iowa, 180), 75. Stein V. Grand Ave. Ry. Co. (10 Phila. 440), 195, 198. Stelnbrunner v. Pittsburgh &c. Ry. Co. (146 Penn. St. 504), 256. Steinmetz v. Kelly (72 Ind. 442), 331. Stenger v. Van Sieklen (132 N. Y. 490), 79. Stephani v. City of Manitowoc (89 Wis. 467), 48. Stephens v. Hannibal &c. R. R. Co. (86 Mo. 221), 371. Stephens v. Nashville &c. Ry. Co. (10 Lea, 448), 315. Ster V. Tuety (45 Hun, 49), 190. Sterling Bridge Co. v. Pearl (80 111. 251), 205. Stevens v. Armstrong (6 N. Y. 435), 63, 64, 281. Stevens v. European &c. Ry. Co. (66 Me. 74), 182, 183. Stevens v. Lafayette &c. Gravel Road Co. (99 Ind. 392), 164, 222. Stevens v. Nichols (155 Mass. 472),. 79. Stevens v. Walpole (76 Mo. App. 213), 59, 349. Stewart v. City of Nashville (96 Tenn. 50), 170, 343. Stewart v. City of Rlpon (38 Wis. 584), 236, 246, 252. Stewart v. Davis (31 Ark. 518),. 298. Stewart v. Everts (76 Wis. 35), 207, 216, 223. Stewart v. Inhabitants of Machias Post (48 Me. 477), 288. Stewart v. Ohio River R. R. Co. (40 W. Va. 188), 66, 176, 183. Stewart v. Terre Haute &c. R. R. Co. (103 Ind. 44), 104, 158. Stierle v. Union Ry. Co. (156 N. Y. 70), 27, 29. Stilling V. Town of Thorp (54 Wis. 528), 210. ' StillsoQ V. Hannibal &c. R. R. Co.. (67 Mo. 671), 338. Stillwell &c. Mfg. Co. v. Phelps (130 IT. S. 520), 202. Stillwell V. New York &c. R. R. Co.. (34 N. Y. 29), 196. Stimpson v. Wood (57 L. J. Q. B. 484; 59 L. T. 218), 265. Stock V. City of Boston (149 Mass. 410), 2, 90. Stock V. Wood (136 Mass. 353),. 169, 286. Stoeckman v. Terre Haute &c. R. R. Co. (15 Mo. App. 503), 108, 198. Stoher v. St. Louis &c. Ry. Co. (91 Mo. 509), 243, 254, 269. Stokes V. Saltonstall (13 Pet. 181), 183, 350. Stokes V. Township of Ralpho (187 Penn. St 333), 349. Stone V. Dry Dock &c. R. R. Co. (115 N. Y. 104), 19, 39, 339, 340.. Stone V. Hurst (94 Mo. 475), 164. Storey v. Ashton (L. R., 4 Q. B. 476), 281. Story V. Veach (22 Up. O. C. P. 164), 173. Stover V. Inhabitants of Bluehilt (51 Me. 439), 237. Table of Cases. Ixxxv [References are to sections.] Stowe V. Bishop (58 Vt. 498), 195, 205. Straight v. Odell (13 111. App. 232), 151.. Straka v. Lander (60 Wis. 115), 118. Strand v. Chicago &c. Ey. Co. (67 Mich. 380), 344. Stratton v. Central Street Ry. Co. (95 111. 25), 334. Strawbridge v. Bradford (128 Penn. St. 200), 34. Street R. R. Co. v. Nolthenius (40 Ohio St. 376), 167, 205. Street Ey. Co. v. Bolton (43 Ohio St. 224), 363. Stringer v. Missouri Pacific Ry. Co. (96 Mo. 299), 854. Stroble v. Chicago' &c. Ry. Co. (70 Iowa, 555), 364, 370. Strohl V. Levan (39 Penn. St. 177), 50. Strohm v. New York &c. R. R. Co. (96 N. Y. 805), 204, 235. Strong V. City of Stevens Point (62 Wis. 255), 217, 273. Strouse v. Whittlesey (41 Conn. 559), 50. Stuart V. Havens (17 Neb. 211), 20t>, 209. Stubley v. London &c. Ry. Co. (L. E., 1 Exch. 13), 285. Stuher v. McButee (142 N. Y. 200), 110, 315. Stucke v. New Orleans R. R. Co. (50 La. Ann. 172), 79. Stufler v Southern Pacific Co. (121 Cal. 400), 55. Stuebing v. Marshall (10 Daly, 406), 315. Suburban Electric Co. v. Nugent (29 Vr. 658), 33, 173. SulUvan v. Boston &c. R. R. Co. (156 Mass. 878), 88. Sullivan v. Dunham (10 App. Div. 438; 41 N. Y. Supp. 1083), 77. Sulli^ an V. Hannibal «&c. R. E. Co. (107 Mo. 66), 371. Sullivan v. India Mfg. Co. (113 Mass. 896), 70, 281. Sullivan v. Louisville Bridge Co. (9 Bush, 81), .322. Sullivan v. Mississippi &c. E. E. Co. (11 Iowa, 421), 362. Sullivan v. Oregon Ry. Co. (12 Or. 892) 243. Sullivan v. Pacific E. R. Co. (3 Dill. 334), 98. Sullivan v. Philadelphia &c. R. E. Co. (30 Penn. St. 234), 27. Sullivan v. Toledo &e. Ey. Co. (58 Ind. 26), 153, 167. Sutherland v. Troy &c. R. R. Co. (74 Hun, 162), 193. Sutton v. Bonnett (114 Ind. 248), .S6. Sutton V. City of Snohomish (11 Wash. St. 24), 74. Sutton V. Town of Wauwatosa (29 Wis. 21), 297, 298, 347. Suydam v. Moore (8 Barb. 868), 136, 137. Swarthout v. New Jersey Steam- boat Co. (48 N. Y. 209), 87. Sweeney v. Old Colony &c. R. R. Co. (10 Allen, 368), 13, 79, 91. Sweetland v. Chicago &c. Ey. Co. (Mich., 43 L. R. A. 568), 111, 258. Swift V. Raleigh (54 111. App. 44), 231. Swift Electric Light Co. v. Grant (90 Mich. 469), 195. Swigert v. Hannibal &c. R. E. Co. (75 Mo. 475), 850. Swinarton v. Le Boutillier (7 Misc. 639), 79. Swords V. Edgar (59 N. Y. 28), 59, 60, 62. Sykes v. Town of Pawlet (43 Vt. 446), 124. Taber v. Delaware &c. E. E. Co. (71 N. Y. 489), 298. Tabler v. Hannibal &c. E. E. Co. (93 Mo. 79), 371. Taggart v. City of Pall River (170 Mass. 82.5), 78. Talbot V. West Virginia Ey. Co. (42 W. Va. 560), 229, 243. Tanner v. Louisville &c. E. E. Co. (60 Ala. 621), 199, 205, 826, 331. Tarry v. Ashton (1 Q. B. D. 314), 185. Taylor v. Carew Mfg. Co. (148 Mass. 470), 169. Taylor v. City of Austin (32 Minn. 247), 188. Taylor v. Cranberry Iron Co. (94 No. Car. 525), 165, 310, 811. Taylor v. Evansville &c. R. E. Co. (121 Ind. 124), 370. Taylor v. Felsing (164 111. 881), 150, 174. Taylor v. Goodwin (L. E., 4 Q. B. D. 228), 51. Taylor v. Grand Trunk Ey. Co. (48 N. H. 304), 27, 199, 243. Ixxxvi Table of Cases. [References are to sections.] Tarlor v. Holman (45 Mo. 371), 14. Texas &c. Ey. Co. v. O'Donnell (58 Taylor v. Lake Shore &c. R. R. Co. (45 Mich. 74), 42, 92. Taylor v. Manchester &c. Ry. Co. (L. R., 1 Q. B. D. 134), 90. Taylor v. Pennsylvania Co. (78 Ky. 348), 107. Taylor v. Town of Monroe (43 Conn. 36), 242. Tebbritt v. Bristol &c. Ry. Co. (L. R., 6 Q. B. 73), 79. Tefft V. Wilcox (6 Kan. 46), 234. Teipel v. Hilsendegen (44 Mich. 461), 169. Telfer v. Northern R. R. Co. (1 Vr. 188). 161, 254, 255, 319. Tex. 27), 215, 338. Texas &c. Ry. Co. v. Orr (46 Ark. 182), 170. Texas &c. Ry. Co. v. Robertson (82 Tex. 687), 109. Texas &c. Ry. Co. v. Suggs (62 Tex. 323), 183. Terre Haute &c. R. R. Co. v. Brunker.(128 Ind. 554), 208, 209. Terre Haute &c. R. R. Co. v. Buck (96 Ind. 346), 174, 182, 183. Terre Haute &c. R. R. Co. v. Clum (123 Ind. 15), 189. 257 272 Terre Haute &c. R. R. Co. v. Graham (95 Ind. 294), 334. Temperance Hall Assn. v. Giles Terre Haute &c. R. R. Co. (4 Vr. 260), 190, 193. Jones (11 111. App. 322), 284. Tenanty v. Boston Mfg. Co. (170 Terre Haute Electric Ry. Co. Mass. 323), 66. Lauer (21 Ind. App. 466), 352. Tennessee Coal &c. R. R. Co. v. Terry v. Jewett (78 N. Y. 338), 261, Herndon (100 Ala. 451), 271. 287. Tennessee &c. Ry. Co. v. Markens Teteur v. Chicago &c. Ry. Co. (77 (88 Ga. 63), 336. Wis. 505), 269, 270. Tennessee &c. R. R. Co. v. Roddy Tetherow v. St. .Joseph &c. R. R. (85 Tenn. 400), 273. Co. (98 Mo. 74), 189, 265. Texas &c. R. R. Co. v. Murphy (46 Thane v. Scranton Traction Co. Tex. 356), 170. Texas &c. R. R. Co. v. Spradling (72 Fed. Rep. 152), 179, 186. Texas &c. R. R. Co. v. Richards (68 Tex. 375), 108. Texas &c. R. R. Co. v. Whitmore (38 Tex. 276), 365. Texas &c. Ry. Co. v. Cox (145 U. S. 593), 25, 95, 104, 107, 142. Texas &c. Ry. Co. v. Crowder (63 Tex. 502), 170. Texas &c. Ry. Co. v. Curlin (13 Tex. Civ. App. 505), 3, 321. Texas &c. Ry. Co. v. De Milley (60 Tex. 194), 190. Texas &c. Ry. Co. v. Easton (2 Tex. Civ. App. 378), 372. Texas &c. Ry. Co. v. Garcia (52 Tex. 284), 294. Texas &c. Ry. Co. v. Geiger (79 Tex. 13), 273. Texas &c. Ry. Co. v. Gentry (163 U. S. 353), 171, 186. Texas &c, Rv. Co. v. Kirk (62 Tex. 227), 1&3. Texas &c. Rv. Co. v. Lester (75 Tex. 56), 273. Texas &c. Ry. Co. v. Levi (59 Tex. 674), 274, (Penn. St., 6 Am. Neg. Rep. 185), 352. Theleman v. Moeller (73 Iowa, 108), 370. Thirteenth &c. Ry. Co. v. Boudrou (92 Penn. St. 475), 352. Thomas v. Consolidated Tract. Co. (33 Vr. 36), 44. Thomas v. Delaware &c. R. R. Co. (8 Fed. Rep. 731). 170. Thomas v. Gates (68 Pac. Rep. 315), 231. Thomas v. Henges (131 N. Y. 453), 49. Thomas v. Philadelphia &c. R. R. Co. (143 Penn. St. 180), 183. Thomas v. Royster (98 Ky. 206), 105, 149, 281. Thomas v. Western Union Tel. Co. (100 Mass. 156), 185. Thomas v. Winchester (6 N. Y. 397), 19, 88. Thompkins v. Clav Street R. R. Co. (66 Cal. 163), 335. Thompson v. Berry (26 Tex. 263), 307. Thompson v. Central R. R. Co. (54 Ga. 509), 169. Texas &c. Ry. Co. v. Murphy (46 Thompson v. Chicago &c. Ry. Co. Tex. 356), 153, 274, 350. (71 Minn. 89), 219, 281. Table of Cases. Ixxxvii LReferences are to sections.] Thompson v. Dodge (58 Minn. 555), 51, 91. Thompson v. Flint &c. Ry. Co. (57 Mich. 300), 153. Thompson v. Great Northern By. Co. (70 Minn. 219), 153. Thompson v. Johnson Bros. Co. (86 Wis. 576), 267. Thompson v. Louisville &c. R. R. Co. (91 Ala. 496), 21. Thompson v. North Mo. R. R. Co. (51 Mo. 190), 170. Thompson v. Salt Lake Rapid Transit Co. (16 Utah, 281), 52. Thompson v. Scott (4 Dill. 508), 142. Thompson v. Tioga B. B. Co. (36 Barb. 79), 308. Thoresen v. La Crosse Ry. Co. (87 Wis. 597), 52. Thorp V. Minor (109 No. Car. 152), 64, 144, 145. Thorp V. Town of Broolifield (36 Conn. 320), 344. Thorpe v. New Yorli &c. R. R. Co. (76 N. y. 402), 133. Thurber v. Harlem &c. R. R. Co. (60 N. Y. 326), 338, 339. Thurman v. Cherokee R. R. Co. (56 Ga. 376), 85. Thyng v. Fitchburg R. R. Co. (156 Mass. 16), 361. Tibby V. Missouri Pacific By. Co. (82 Mo. 292), 355. Tice V. Munn (94 N. Y. 621), 236. Tichenor v. Hayes (12 Vr. 193), 90, 96, 147. Tiemey v. Minneapolis &c. Ry. Co. (31 Minn. 234), 151, 154. Tierney v. Minneapolis &c. By. Co. (33 Minn. 311), 362, 369, 372. Tierney v. Syracuse &c. B. B. Co. (85 Hun, 146), 64. Tifft V. Tifet (4 Den. 175), 39, 40 Tilley v. Hudson Biver B. B. Co. (29 N. Y. 252; 24 N. Y. 471), 254, 266, 269. TimUn v. Standard Oil Co. (54 Hun, 44), 61. Tioga B. B. Co. v. Blossburg &c. B. R. Co. (20 Wall. 137), 308. ' Tltcomb V. Fitchburg R. B. Co. (12 Allen, 254), 57. Tobran v. Bichmond &c. B. B. Co. (84 Va. 192), 372. Todd V. Inhabitants of Rowley (8 Allen, 51), 112, 221. Todd V. Old Colony &e. B. R. Co. (3 Allen, 18), 356. Toledo &c. Ry. Co. v. Beggs (85 111. 80), 183, 184, 297. Toledo &c. Ry. Co. v. Brannagaa (75 Ind. 490), 169, 171. Toledo &c. Ry. Co. v. Brooks (81 111. 245), 217, 297. Toledo &c. R. R. Co. v. Crittendon (42 111. App. 469), 337. Toledo &c. Ry. Co. v. Foster (43 111. 415), 278, 284. Toledo &c. Ry. Co. v. Goddard (25 Ind. 185), 19. Toledo &c. Ry. Co. v. Moore (77 111. 217), 281. Tolman v. Syracuse &c. R. R. Co. (98 N. Y. 198), 56, 169. Tolson V. Inland &c. Coasting Co. (6 Mackey, 39), 170. Tomle V. Hampton (129 111. 379), 59, 60. Tomlinson v. Town of Derby (43 Conn. 562), 150, 163, 234, 241, 242. Tompkins v. City of Oswego (15 N. Y. Supp. 370), 344. Tompkins v. West (56 Conn. 478), 245. Tonawanda R. R. Co. v. Munger (5 Den. 266), 3. Toner v. Chicago &c. Ry. Co. (69 Wis. 188), 366. Toomey v. London &c. Ry. Co. (3 C. B. [N. S.] 146), 30, 173, 285. Topeka City Ry. Co. v. Higgs (38 Kan. 375), 29. Totten V. Phipps (52 N. Y. 354), 60. Tourtellot v. Rosebrook (11 Mete. 460), 169. Tower v. Providence &c. R. R. Co. (2 R. I. 404), 3. Town of Albion v. Hetrick (90 Ind. 545), 205. Town of Elkhart v. Ritter (66 Ind. ■ 136), 227. Town of Knightstown v. Musgrove (116 Ind. 121), 335. Town of Newberry v. Connecticut &c. R. R. Co. (25 Vt 377), 93, 11, 113. Town of Rushville v. Poe (85 Ind. 83), 157, 167. Town of Salida v. McKinna (16 Colo. 523), 232. Townley v. Chicago &c. Ry. Co. (53 Wis. 626), 3, 193, 292. Towns V. Vicksburg &c. R. R. Co. (37 La. Ann. 630), 359. Townsend v. New York &c. R. R. Co. (56 N. Y. 295), 243. Ixxxviii Table of Cases. [References are to sections.] Townsend v. Radcllffe (44 III. 446), 88, 109. Townsend v. Susquehanna Turn- pike Co. (6 Johns. 90), 47. Township of Crescent v. Anderson (114 Penn. St. 643), 336. Tozer v. New York &c. R. K. Co. (105 N. Y. 617), 235. Trafford v. Adams Ex. Co. (8 Lea, 96), 109. Travellers Ins. Co. v. Mosley (8 Wall. 397), 197, 205. Traver v. Eighth Ave. R. R. Co. (42 N. Y. 497; 3 Keyes, 497), 246. Treadwell v. Whittier (80 Cal. 574), 27, 34. Trenton Passenger Ry. Co. v. Cooper (31 Vr. 219), 185, 198. Tripp V. Inhabitants of Lyman (37 Me. 250), 282. Trout V. Old Dominion Cotton Mills (82 Va. 140), 166. Trout V. Virginia &c. R. R. Co. (23 Gratt. 619), 166. Trow V. Thomas (70 Vt. 580), 91, 246. Trow V. Vermont Central R. R. Co. (24 Vt. 487), 274, 322, 324. Trustees of Canandaigua v. Foster ^ (156 N. Y. 354), 59. Tucker v. New York &c. R. R. Co. (124 N. Y. 308), 179, 186. Tudor Iron Works v. Weber (31 111. App. 306; 129 111. 535), 370. Tuff V. Warman (2 C. B. [N. S.] 740), 322, 335. TuUy V. Fitchburg R. R. Co. (134 Mass. 499), 101. Tumalty v. New York &e. R. R. Co. (170 Mass. 164), 169. Tunnicliffe v. Bay City Cons. Ry. Co. (102 Mich. 624), 231. Turess v. New York &c. R. R. Co. (32 Vr. 314), 13, 81. Turner v. City of Indianapolis (96 Ind. 51), 157, 167. Turner v. City of Newburgh (109 N. Y. 301), 74, 180, 204. Turner v. Hitchcock (20 Iowa, 310), 131, 317, 318. Turner v. St. Clair Tunnel Co. (Ill Mich. 578), 95. Turton v. Powelton Electric Co. (185 Penn. St. 406), 26. Tuteur v. Chicago &c. R. R. Co. (77 Wis. 505). 271, 273. Tuttle V. Chicago &c. R. R. Co. (42 Iowa, 518), 245. Tuttle V. Chicago &c. Ry. Co. (48 Iowa, 236), 183. Tuttle V. Farmington (58 N. H. 13), 237, 282. Tyler v. New York &c. R. R. Co. (137 Mass. 238), 291. Tyler v. Third Ave. R. R. Co. (41 N. Y. Supp. 523), 215, 228. Tyson v. South. &c. R. R. Co. (61 Ala. 554), 367. U. Udderzook v. Commonwealth (76 Penn. St. 340), 206. Unger v. Forty-second Street &c. R. R. Co. (51 N. Y. 497), 50. Union Pacific Ry. Co. v. Botsford (141 U. S. 250), 208, 209. Union Pac. Ry. Co. v. Daniels (152 U. S. 684), 68. Union Pacific Ry. Co. v. Dunden (37 Kan. 1), 273. Union Pacific Ry. Co. v. Evans (52 Neb. 50), 280. Union Pacific Ry. Co. v. Hand (7 Kan. 380), 27. Union Pacific Ry. Co. v. Jones (21 Colo. 340), 245, 246. Union Pacific Ry. Co. v. McDon- ald (152 U. S. 262), 81. Union Pacific Ry. Co. v. Milliken (8 Kan. 647), 224. Union Rv. &c. Go. v. Shacklett (119 111. 232), 127, 159, 165. Union Ry. & Transit Co. v. Shack- lett (19 111. App. 145), 355. United Electric Ry. &c. Co. v. Shel- ton (98 Tenn. 423), 132. United States v. Thompson (98 U. S. 486), 303. Urbanek v. Chicago &c. Ry. Co. (47 Wis. 59), 224. Urquhart v. City of Ogdensburg (23 Hun, 75), 153, 167. Usher v. West Jersey R. R. Co. (126 Penn. St. 206), 12a Valentine v. Middlesex R. R. Co. (137 Mass. 28), 292. Van Antwerp v. Linton (89 Htm, 417; 35 N. Y. Supp. 318), 72. Vandegrift v. Rediker (2 Zabr. 185), 331. Vanderbeek v. Hendry (5 Vr. 467), 79. Vanderplank v. Miller (1 Moody & M. 169), 335. Vanderpool v. Husson (28 Barb. 196), 294. Table of Cases. Ixxxix [References are to sections.] "Van Dusen v. Letelller (78 Mich. 492), 369. Van Horn v. Burlington &c. Ry. Co. (59 Iowa, 33), 214. Van Leuven v. Lyke (1 N. Y. 515), 35. Van Natta v. People's Street Ry. Co. (133 Mo. 13), 339. Van O'Linda v. Lothrop (21 Pick. 292), 46. Van Steenburgh v. Tobias (17 Wend. 562), 132. Van Winkle v. American Steam Boiler Go. (23 Vr. 240), 19, 131. Varney v. Manchester (58 N. H. 430), 282. Varnham v. City of Council Bluffs (52 Iowa, 698), 230. Vawter v. Missouri Pac. Ry. Co. (84 Mo. 679), 108. Veazie v. Penobscot R. R. Co. (49 Me. 119), 24, 94. Verrill V. Inhabitants of Minot (31 Me. 299), 280. Vlcksburg &c. R. R. Co. v. Phillips (64 Miss. 693), 96. Vlcksburg &c. R. R. Co. v. Putnam (118 U. S. 545), 211, 221, 230, 232. Village of .Jefferson v. Chapman (127 111. 438), 24. Village of Port Jervis v. First Nat. Bank (96 N. Y. 550), 43, 94. Village of Sheridan v. Hibbard (119 111. 307), 231. Vimont v. Chicago &c. Ry. Co. (69 Iowa, 296), 97, 128. Vincent v. Cook (6 Thomp. & C. 562; 4 Hun, 318), 43. 185. Vinton V. Schwab (32 Vt. 612), 282. Virginia &c. R. R. Co. v. Roach (83 Va, 375), 354. Vittum V. Oilman (48 N. H. 416), 99. Voak V. Northern Central Ry. Co. (75 N. Y. 320), 345. Vogelgesang v. City of St. Louis (139 Mo. 127), 74. Volkmar v. Manhattan Ry. Co. (134 N. Y. 418), 43, 185. Vosburg V. Putney (86 Wis. 278), 204, 236. Voss V. Delaware &c. R. R. Co. (33 Vr. 59), 69. W. Wabash &c. R. R. Co. v. Central Trust Co. (23 Fed. Rep. 738), 170. Wabash R. R. Co. v. Coker (81 111. App. 660), 21, 168. Wabash R. R. Co. v. Cregan (Ind. App., 54 N. B. Rep. 767), 428. Wabash &c. R. R. Co. v. Koenig- sam (13 111. App. 505), 184. Wabash &c. Ry. Co. v. Mahaffee (16 111. App. 290), 281. Wabash &c. Ry. Co. v. McDaniels (107 U. S. 454), 69. Wabash &c. Ry. Co. v. Shacklet (105 111. 364), 3, 335. Wabash &e. Ry. Co. v. Shacklett (10 111. App. 404), 104. Wabash &c. Ry. Co. v. Wallace (110 111. 114), 334. Wabash &c. Ry. Co. v. Wolff (13 111. App. 437), 133. Waddell v. Slmonson (112 Penn. St. 567), 363. Wade v. DeWitt (20 Tex. 398), 210. Wade V. Leroy (20 How. 34), 232. Wadsworth v. Marshall (88 Me. 263), 77. Wagner v. Missouri Pacific Ry. Co. (97 Mo. 512), 355. Waite V. Northeastern Ry. Co. (El., Bl. & El. 728), 335, 338. Wakefield v. Connecticut &c. R. R. Co. (37 Vt. 330), 179. Wakeman v. Robinson (1 Bing. 213), 8. Walbert v. Trexler (156 Penn. St. 112), 281. Waldele v. New York &c. B. R. Co. (95 N. Y. 274), 197, 198, 200. Waldhier v. Hannibal &e. R. R. Co. (71 Mo. 514), 151. 152. Waldo V. Goodsell (33 Conn. 432), 258. Waldron v. Hopper (Coxe, 339), 50. Walker v. Boston &c. R. R. Co. (128 Mass. 8), 361, 367. Walker v. Chicago &c. Ry. Co. (71 Iowa, 658), 77, 1&5. Walker v. Clay (21 Ala. 797), 121. Walker v. Erie Ry. Co. (63 Barb. 260), 231, 283. Walker v. Great Northern Ry. Co. (28 Ir. L. R., Q. B. D. 69), 90. Walker v. Herron (22 Tex. 55), 170. Walker v. Lake Shore &c. Ry. Co. (104 Mich. 606), 254. Walker v. McNeill (17 Wash. St. 582), 167, 265. 269, 272. Walker v. Second Ave. R. R. Co. (6 N. Y. Supp. 536), 246. Walker v. Town of Westfield (39 Vt. 246), 169. xc Table of Cases. [References are to sections.] Walker v. Vlcksburg &c. R. R. Co. (41 La. Ann. 795), 350. Walker v. Winstanley (155 Mass. 301), 79. Wall V. Livesay (6 Colo. 465), 183. Wallace v. Cannon (38 Ga. 199), 297. Wallace v. Central Vt. E. R. Co. (138 N. Y. 302), 193. Wallace v. Chicago &c. Ry. Co. (67 Iowa, 547), 312, 316. Wallace v. Merrimack &c. Nav. Co. (134 Mass. 95), 295. Wallace v. Stevens (74 Tex. 559), 217. Wallace v. Third Avenue R. R. Co. (36 App. Div. 57), 133. Wallace v. Western &c. R. R. Co. (98 No. Car. 494), 356. Wallace v. Western R. R. Co. (104 No. Car. 442), 164, 169, 170, 235. Wallace v. Wilmington &c. R. R. Co. (8 Houst. 529), 91, 227. Waller v. Hannibal &c. R. R. Co. (83 Mo. 608), 350. Waller v. Lasher (37 111. App. 609), 24. Walsh V. Boston &c. R. R. Co. (171 Mass. 52), 169. Walsh V. Brooklyn Bridge Trustees (96 N. Y. 427), 82, 83. Walsh V. Fitchburg R. R. Co. (78 Hun, 1), 81. Walsh V. Mayor &c. of New York (107 N. Y. 220), 83, 167. Walsh V. Oregon &c. Ry. Co. (10 Or. 250), 169. Walsh V. Sayre (52 How. Pr. 334), 208. Walters v. Chicago &c. R. R. Co. (36 Iowa, 458), 267. Walton V. Booth (34 La. Ann. 913), 88, 125. Ward V. Blackwood (48 Ark. 396), 231. Ward V. Charleston City Ry. Co. (19 So. Car. 521), 205. Ward V. Chicago &c. Ry. Co. (85 Wis. 601), 344. Ward V. Milwaukee &c. Ry. Co. (29 Wis. 144), 15. Ward V. Newark &c. Turnpike Co. (1 Spencer, 323), 47. Ward V. Southern Pac. Co. (25 Or 433), 175. Wardle v. New Orleans City R. R. Co. (35 La. Ann. 202), 278. Warmington v. Atchison &c. R. R. Co. (46 Mo. App. 159), 365. Warner v. Bacon (8 Gray, 397), 227. Warner v. Inhabitants of Holyoke (112 Mass. 367), 282. . Warner v. New York Central R. R. Co. (44 N. Y. 456), 169, 177. Warner v. Western N. Car. R. R. Co. (94 No. Car. 250), 109. Warren v. Englehart (13 Neb. 283), 109. Wartmann v. Swindell (25 Vr. 589) 38. Warxeli v. Harrison (37 111. Apn. 323), 37. Washburn v. Nashville &e. R. E. Co. (3 Head, 638), 354. Washington Gas Light Co. v. Dist. of Columbia (161 U. S. 316), 45, 94. Washington &c. R. R. Co. v. Glad- mon (15 Wall. 401), 170, 339. Washington &c. R. R. Co. v. Grant (11 App. Cas. [D. C] 107), 29, 222, 279. Washington &c. R. R. Co. v. Har- mon (147 U. S. 571), 170, 235, 248. Washington &c. R. R. Co. v. Hickey (12 App. Cas. [D. C] 269), 245, 248. Washington &c. R. R. Co. v. Mc- Dade (135 TJ. S. 554), 66. Washington v. Missouri &c. Ry Co. (90 Tex. 314), 173, 174, 175. Washington Southern Ry. Co. v. Lacey (94 Va. 460), 56, 357, 430. Wasmer v. Delaware &c. R. R. Co. (80 N. Y. 212), 50, 133. Waterbury v. New York &c. R. R. Co. (17 Fed. Rep. 671), 301. Waterman v. Chicago &c. R. R. Co. (82 Wis. 613), 210, 232, 235, 248, 251, 280. Waters v. Mayor &c. Newark (27 Vr. 361), 73. Watkinds v. Southern Pac. R. R. Co. (38 Fed. Rep. 711), 153, 164. Watkins v. Atlantic Avenue R. R. Co. (20 Hun, 287), 293. Watkins v. Goodall (138 Mass. 533), 60. Watson V. Forty-second Street &c. R. R. Co. (93 N. Y. 522), 303. Watson V. Minneapolis Street Ry. Co. (53 Minn. 551), 52. Watson V. Portland &c. Ry. Co. (91 Me. 584), 279, 352. Watson V. St. Paul City Ry. Co. (42 Minn. 46), 29. Table of Cases. xci [References are to sections.] Watson V. St Paul City Ry. Co. (70 Minn. 514), 109. Watts V. Hart (7 Wasli. St. 178), 366. Way V. Foster (1 Allen, 408), 297. Weaver v. Baltimore &c. R. R. Co. (21 D. C. 499), 106, 107. Weaver v. Wood (Hobart, 134), 145. Webb V. Richmond &c. R. R, Co. (97 No. Car. 387), 359, 365. Webber v. Herliimer &c. R. R. Co. (109 N. Y. 311), SD3. Weber v. New Yorli &e. R. R. Co. (58 N. Y. 451), 56. Webster v. Hudson River R. R. Co. (38 N. Y. 260), 335. Webster v. Rome &c. R. R. Co. (115 N. Y. 112), 183, 296, 354. Weelts V. McNulty (101 Tenn. 495), '41. Weeks v. New Orleans &c. R. R. Co. (40 La. Ann. 800), 350. Weemes v. Weemes (73 Ala. 462), 145. Weideman v. Tacoma &c. Ry. Co. (7 Wash. St. 517), 185. Weidmer v. New York &c. R. R. Co. (114 N. Y. 462), 185. Weidner v. Rankin (26 Ohio St 522), 125. Weisenberg v. City of Appleton (26 Wis. 56), 227, 235. Weisenberg v. Winneconne (56 Wis. 667), 48. Weiss V. Bethlehem Iron Co. (88 Fed. Rep. 23), 56. Weiss V. Pennsylvania R. R. Co. (79 Penn. St. 387), 171, 179. Welch V. Durand (36 Conn. 182), 36. Welch V. Wesson (6 Gray, 505), 295. Welfare v. London &c. R. R. Co. (L. R., 4 Q. B. 693), 183, 286. Wells V. Abrahams (L. R., 7 Q. B. 554), 98. Wells V. New York Central R. R. Co. (26 Barb. 641), 300. Wellington v. Downer Kerosene Oil Co. (104 Mass. 64), 88. Wellman v. Susquehanna Depot (167 Penn. St. 239), 282. Weller v. McCormick (18 Vr. 397), 42. Wells V. Denver &c. Ry. Co. (7 Utah, 482), 265. 266, 273. Wells V. N. Y. Cent R. R. Co. (24 N. Y. 181), 14. Welsh V. The North Cambria (40 Fed. Rep. 655), 106. Wentworth v. Town of Summit (60 Wis. 28), 157. Werely v. Person (28 N. Y. 344), 216. Werle v. Long Island R. R. Co. (98 N. Y. 650), 353. West Chester &c. R. R. Co. v. Mc- Elwee (67 Penn. St. 311), 188, 275, 278. West Chicago &c. R. R. Co. v. Dooley (76 111. App. 424), 267. West Chicago &c. R. R. Co. v. Piper (165 111. 325), 133, 318. Westbrook v. Mobile &c. R. R. Co. (66 Miss. 560), 338, 339, 340. Westcott V. Central Vt. R. R. Co. (61 Vt 438), 109, 158, 161, 162. Westerfield v. Levis (43 La. Ann. 63), 338, 340. Western &c. R. R. Co. v. Adams (55 Ga. 279), 367. Western &c. R. R. Co. v. Bishop (50 Ga. 465), 301, 302. Western &c. R. R. Co. v. Brown (102 Ga. 13), 248. Western &c. R. R. Co. v. King (70 Ga. 261), 55. Western &c. R. R. Co. v. Meigs (74 Ga. 857), 193, 213, 261. Western &c. R. R. Co. v. Rogers (104 Ga. 224), S39. Western &c. R. R. Co. v. Sawtell (65 Ga. 235), 319. Western &c. R. R. Co. v. Stanley (61 Md. 266), 356. Western &c. R. R. Co. v. Strong (52 Ga. 461), 107, 126. Western &c. R. R. Co. v. Wilson (71 Ga. 22). 350. Western &c. R. R. Co. v. Young (81 Ga. 397), 22, 23, 213, 248. Western Union Tel. (ilo. v. Gris- wold (37 Ohio St 301), 14. Western Union Tel. Co. v. Hoffman (80 Tex. 420). 338, 339. Western Union Tel. Co. v. McGill (57 Fed. Rep. 699), 109. Western Union Tel. Co. v. State (82 Md. 293), 185. Western Union Tel. Co. v. Thorn (64 Fed. Rep. 287), 33. Westfield v. Mayo (122 Mass. 100), 94. West .Tersey R. R. Co. v. Ewan (26 Vr. 574), 56, 279. Wetch V. Wesson (6 Gray, 505), 295. Whaalen v. Hd. River &e. R. R. Co. (8 Ohio St. 249), 362. xeii Table of Cases. [References are to sections. J Whaite v. Northeastern Ry. Co. (El. B. & E. 719), 167. Whalen v. Consolidated Traction Co. (32 Vr. 606), 183. Whatman v. Pearson (L. R., 3 O. P. 422), 281. Wheelahan v. Philadelphia Trac- tion Co. (150 Penn. St. 187), 278. Wheeler v. City of Plymouth (116 Ind. 158), 74. Wheeler v. Wason Mfg. Co. (135 Mass. 294), 70, 71, 281. Wheeler &c. Co. v. Buckhout (31 Vr. 102), 202. Whelan v. New York &c. R. B. Co. (38 Fed. Rep. 15), 211, 230, 232, 236. Whipple V. New York &c. R. R. Co. (19 R. I. 587), 66, 89. Whirley v. Whitman (1 Head, 610), 304, 338. Whitaker v. Campbell (187 Penn. St. 113), 204. Whitamore v. Waterhouse (4 Car. & P. 383), 137. White V. Boston &c. R. R. Co. (144 Mass. 404), 174, 183. White V. City of Trinidad (10 Colo. App. 327), 164, 170. White V. Concord R. R. Co. (30 N. H. 188), 170. White V. Fitchburg R. R. Co. (136 Mass. 321), 291. White V. Lang (128 Mass. 598), 296. White V. Maxey (64 Mo. 552), 217. White V. Milwaukee &c. Ry. Co. (61 Wis. 536), 208, 235, 294. Whitehead v. SI. Louis &c. Ry. Co. (99 Mo. 263), 27. Whitesell t. Hill (101 Iowa, 629), 84. Whitford v. Panama R. R. Co. (23 N. Y. 465), 103, 107, 108. Whitney v. Clifford (57 Wis. 156), 174. Whitney v. Gross (140 Mass. 232), 190. Whitney v. Town of Clarendon (18 Vt 252), 91, 164, 227, 235. Whitney &c. Co. v. O'Rourke (172 III. 177). 66, 312. Whlton V. Chicago &c. R. R. Co. (21 Wis. 310), 125. Whittaker v. City of Helena (14 Mont. 124). 335. Whittaker v. New York &c. R. R. Co. (19 Jones & S. 287), 224. Whitten v. Hartin (163 Mass. 39), 36. Wlckle V. Manhattan Ry. Co. (32 Fed. Rep. 278), 362. Wilds V. Hudson R. R. Co. (24 N. Y. 181, 430), 169, 334. Wiley V. West Jersey R. R. Co. (15 Vr. 247), 228, 280, 324. Wilkens v. Mayor &c. of Wilming- ton (2 Marvel, 132), 170, 174. Wilkins v. St. Louis &c. Ry. Co. (101 Mo. 93), 279. Wilkinson v. Searcy (76 Ala. 176), 163 241 243 Willard v. Pinard (44 Vt. 34), 94. Willard v. Swanseon (126 111. 381), 334. Willcox V. Hines (100 Tenn. 538), 60. Willey V. Allegheny City (118 Penn. St. 490), 19. Willey V. Inhabitants of Belfast (61 Me. 569; 7 Am. & Eng. Ency. of Law, 381), 21, 280, 324. Williams v. Cameron (26 Barb. 172), 145. Williams v. Bwing (31 Ark. 229), 118. Williams v. Hays (143 N. Y. 442), 20, 39, 145. Williams v. Louisville Industrial School of Reform (95 Ky. 251), 83. Williams v. O'Keefe (9 Bosw. 536), 294. Williams v. Pullman Palace Car Co. (40 La. Ann. 417), 133. Williams v. Sheldon (10 Wend. 654), 131. Williams v. Thacker &c. Co. (44 W. Va. 599), 364. Willis V. Grand Trunk Ry. Co. (62 Me. 488), 301. Willis V. Long Island R. R. Co. (34 N. Y. 670), 353. Willis V. Missouri Pac. Ry. Co. (61 Tex. 432), 108. Willis V. Second Avenue Traction Co. (189 Penn. St. 430), 230. Willy y. MuUedy (78 N. Y. 310), 16, 22, 92. 212. Wilson V. Brett (11 M. & W. 115), 14. Wilson V. Bumstead (12 Neb. 1), 125. Wilson V. City of Troy (135 N. Y. 96), 180. Wilson V. Morgan (29 Vr. 426). 250. Wilson V. Denver &c. R. R. Co. (7 Colo. 101), 153. Table of Cases. XClll [References are to sections.] Wilson V. Northern Pacific R. R. Co. (26 Minn. 278), 183, 345, 350. Wilson V. Owens (16 Ir. L. R. 225), 63, 64. Wilson V. Pennsylvania R. R. Co. (132 Penn. St. 27), 213, 231. Wilson V. Pennsylvania R. R. Co. (177 Penn. St. 503), 274. Wilson V. Phoenix Powder Mfg. Co. (40 W. Va. 413), 77. Wilson V. Southern Pacific Co. (13 Utah, 352), 230. Wilson V. Trafalgar &c. Gravel Road Co. (83 Ind. 326), 153, 167. Wiltse V. Town of Tilden (77 Wis. 152), 109, 158. Winans v. Randolph (169 Penn. St. 606), 36. Winch V. Conservators of the Thames (L. R., 7 C. P. 458), 83. Wingart v. Carpenter (101 Mich. 395), 108. Winn V. City of Lowell (1 Allen, 177), 342, 343. Winnegar v. Central Pass. Ry. Co. (85 Ky. 547), 99. Winner v. Lothrop (67 Hun, 511), 208. Winner v. Oakland Township (158 Penn. St. 405), 337. Winnt V. International &c. R. R. Co. (74 Tex. 32), 105. ~ Winship v. Enfield (42 N. H. 197), 282. Winterbottom v. Wright (10 M. & W. 109), 88. Winters v. Hannibal &c. R. l^. Co. (39 Mo. 468), 278, 286. Winters v. Kansas City &c. Ry. Co. (99 Mo. 509), 338. Wise V. Morgan (101 Tenn. 273), 22, 88, 212. Wiseham v. Richards (136 Penn. St. 109), 363. Withee v. Brooks (65 Me. 14), 129. Witte V. Stifel (126 Mo. 295), 79. Wiwirowski v. Lake Shore &c. R. R. Co. (124 N. Y. 420), 169, 171. Woehrlin v. SchafEer (17 Mo. App. 442), 129. Wohlfhart v. Beckert (27 Hun, 74), 293. Wohlfhart v. Beckert (92 N. Y. 490), 88. Wojclechowski v. Spreckels Sugar Refining Co. (177 Penn. St. 57), 176, 312. Wolf V. Kilpatrick (101 N. Y. 146), 43. Wolford V. Lyon &c. Co. (63 Cal. 483), 250, 262. Wonder v. Baltimore &c. R. R. Co. (32 Md. 411), 364. Wood v. Chicago &c. Ry. Co. (51 Wis. 190), 174, 205. Wood V. Louisville &c. R. R. Co. (8 Fed. Rep. 44), 251. Wood V. New York &c. R. R. Co. (70 N. Y. 195), 221. Wood V. Pennsylvania R. R. Co. (117 Penn. St. 306), 21. Woodbridge v. Marks (17 App. Div. 139; 45 N. Y. Supp. 156), 35. Woodbury v. District of Columbia (5 Mackey, 127), 252. Wooden v. Western &c. R. R. Co. (126 N. Y. 10), 95, 107, 126. Woods V. Naumkeag Steam Cotton Co. (134 Mass. 357), 60. Woodward v. City of Boscobel (84 Wis. 226), 285, 236. Woodward v. Hancock (7 Jones' Law, 384), 84. Woodward v. Michigan &c. R. R. Co. (10 Ohio St. 121), 108, 109. Woodward v. Washburn (3 Den. 369), 247. Wooley V. Grand Street &c. R. R. Co. (83 N. Y. 121), 57, 190, 293. Woolfolk V. Macon &c. R. R. Co. (56 Ga. 457), 274. Wooster v. Broadway &c. R. R. Co. (72 Hun, 197), 177. Wormell v. Maine Central R. R. Co. (77 Me. 397), 359. Worster v. Forty-second Street R. R. Co. (50 N. Y. 203), 44, 57. Worster v. Proprietors of Canal Bridge (16 Pick. 541), 157, 167. Worthen v. Grand Trunk Ry. Co. (125 Mass. 99), 214. Worthen v. Love (60 Vt. 285), 35. Wren v. Louisville &c. R. R. Co. (Ky., 20 S. W. Rep. 215), 214. Wrenn v. Jones (111 Mass. 360), 50. Wright V. Boiler (42 Hun, 77), 193. Wright V. Boston &c. R. R. Co. (129 Mass. 440), 167. Wright V. Cincinnati &c. R. R. Co. (94 Ky. 114), 56. Wright V. City of Fort Howard (60 Wis. 119), 205, 216. Wright V. City of Wilmington (92 No. Car. 156), 294. Wright V. Compton (53 Ind. 337), 77, 136, 137. Wright V. Leonard (30 L. J. C. P. [N. S.] 367), 134. xeiv Table of Cases. [References are to sections.] "Wright V. Maiden &c. R. R. Co. (4 Allen, 283), 338. Wright V. Southern Ry. Co. (123 No. Car. 280), 65. Wyatt V. Citizens' Ry. Co. (55 Mo. 485), 274, 293. Wyatt V. Williams (43 N. H. 102), 98. Wynn v. Central Park &c. R. R. Co. (38 N. Y. St. Rep. 181), 29. Wyld V. Pickford (8 M. & W. 443), 14. Wyman v. Leavitt (71 Me. 227), 231. Wymore v. Mahaska County (78 Iowa, 396), 332, 338. Yahn v. City of Ottumwa (60 Iowa, 429), 201, 205, 337. Yeaw V. Williams (15 R. I. 20), 205. Yerian v. Linkletter (80 Cal. 135), 243. Yerkes v. Keokuk &c. Packet Co. (7 Mo. App. 265), 183. Yonoski v. State (79 Ind. 393), 298. York V. Canada Atl. S. S. Co. (22 Can. S. C. 167), 49. Yorktown Turnpike Co. v. Leon- hardt (66 Md. 70), 183. Young V. Bransford (12 Lea, 232), 185. Young V. Citizens' Street R. R. Co. (148 Ind. 54), 19, 52, 323. Young V. Hannibal &c. R. R. Co. (79 Mo. 336), 286. Zelgler v. Day (123 Mass. 152), 361. Zemp V. Wilmington &c. R. R. Co. (9 Rich. L. 84), 195, 353. Zimmerman v. Union Ry. Co. (38 N. Y. Supp. 362; 3 App. Div. 219), 53. LAW iro PKACTICE IN ACCIDENT CASES. PART I — GENERAL PRINCIPLES. CHAPTER I. GENERAL PRINCIPLES. Definitions; Distinctions. i 1. Accident and negligence dis- tinguislied. 2. Negligence and torts distin- guished. 3. Negligence defined. 4. Negligence is divisible into two classes — Scope of the book. 5. Negligence is a negative and not a positive term. Negligence is a relative and not an absolute term. Negligence and fraud distinr guished. Negligence and accident dis- tinguished — Illustrations. 9. Negligence, heedlessness, and willful mischief distin- guished. 10. Negligence and misfeasance distinguished. 11. Nonfeasance, misfeasance, and malfeasance defined and distinguished. Negligence and nuisance dis- tinguished. Invitation and license distin- guished. 6. 8. 12 13, § 14. Negligence is divisible into three degrees — Denied. 15. Negligence is divisible into- three degrees. 16. Legal duty defined — Duty and right distinguished. 17. A breach of legal duty is of the essence of negligence. 18. A breach of legal duty must be shown — Burden of proof. 19. Ordinary care, reasonable' care, utmost care defined. 20. Intent and design are not ele- ments of negligence. 21. Negligence — Proximate cause — Injury resulting from two causes. 22. Violation of duty imposed by statute. 28. Failure to comply with re- quirements of ordinances by railroad companies. 24. Dangerous or illegal work. done under contract. 25. Federal and State courts — When not bound by eacli other's decisions. 26. No contribution betweer* joint tort-feasors. Section 1. Accident and negligence distinguished The word " accident " is used to designate an event or occurrence which. 2 Gekeeal Peikciples. happens unexpectedly from the uncontrollable operations of na- ture alone, and without human agency, as when a house is stricken and burned by lightning or blown down by a tenipest, or an event resulting undesignedly and unexpectedly from human agency alone, or from the joint operation of both.* An acci- dent is the effect or result, which may or may not be caused by negligence; negligence is the cause;^ when it is the proximate cause of an accident it is actionable; when an acci- dent is caused by human agency which is unavoidable, or by an unknown cause, or by the uncontrollable operations of nature alone, it is not actionable. The courts speak of acci- dents thereby designating results or effects which may or may not be caused by actionable negligence. § 2. Negligence and torts distinguished. — Negligence from which personal injury or death of a human being results, is a branch of the law of torts. The word " tort " is derived from the Latin tortus, meaning twisted; a " tort," in its original and most general sense, means any wrong;* in a more re- stricted sense, however, a tort signifies an act which gives rise to a right of action, being a wrongful act causing injury and which consists in the infringement of a right, created otherwise than by a contract.* The term " torts " includes wrongs, suf- fered " in consequence of the negligence or malfeasance of 1 Butler, J., in Morris v. Piatt, somewliat difBcult. Moak's Un- 32 Conn. 85 (1864). derhlU on Torts. 23. The text ZMeCarty v. New York &c. R. writers either avoid a definition ~R. Co., 30 Pa. St. 251 (1858). See entirely (Addison on Torts), or Henry v. Grand Ave. Ry. Co., 113 frame one plainly imperfect (2 Mo. 537 (1892), § 8. Bouvier's Law Diet. 600), or de- 3 Rapalje & Law. Law Diet, pend upon one wMoh they concede (vol. 2). p. 1280. to be inaccurate, but hold sufficient *Ib. "We have been unable to for judicial purposes. Cooley on find any accurate and perfect defi- Torts, 3, note 1; Moak's TJnderhill nition of a tort. Between actions on Torts, 4; 1 Hilliard on Torts, 1. plainly eoc contractu and those as By these last authors a tort is de- clearly ex delicto there exists what scribed in general- as " a wrong in- has been termed a border land, dependent of contract." And yet it where the lines of distinction is conceded that a tort may grow are shadowy and obscure, and the out of, or make part of, or be coin- tort and the contract so ap- cident with a contract (2 Bouvier's IM-oach each other and be- Law Diet. 600), and that precisely come so nearly coincident as to the same state of facts, between the make their practical separation same parties, may admit of an ac- Gekekal Principles. 3 others, wliere the remedy at common law is by an action on the •case."^ Where a tort is committed upon a public navigable water of the United States, it is said to be a " marine tort."® A tort is maritime where the injury is received upon a vessel afloat, though the negligence originated on landJ The word " tort " is not synonymous with the word " negligence," all torts are not the result of negligence — some torts only, flow from negligent acts; nor on the other hand is negligence, in all cases, from which a right of action arises, a tort. It is a tort in those cases only where there is a violation of those duties imposed by law, as distinguished from the duties created by contract, resulting in injury; an action ex contractu as well as an action ex delicto may arise from negligence, while an action ex delicto only, will lie for a tort. While it is true that precisely the same state of facts, between the same parties, may admit of an action, either ex contractu or ex delicto ,•* yet the contract is, in legal significance, distinct from the tort; the latter is sometimes called tortious negligence.^ tion either ex contractu or ex delicto, cent acts and conditions, of inflict- Cooley on Torts, 90. ing another and different injury, " In such cases the tort Is de- and accomplishing another and pendent upon, while at the sam« difCerent purpose, the question time independent of, the contract; whether such invasion of a right is for if the latter imposes a legal actionable as a breach of contract duty upon a person, the neglect of only, or also as a tort, leads to a that duty may constitute a tort somewhat difficult search for a founded upon a contract. 1 Addi- distinguishing test." Finch, J., in son on Torts, 13. Ordinarily, the Kich v. New York &c. R. K. Co., essence of a tort consists in the 87 N. Y. 382, 390 (1882). violation of some duty to an indl- 6 Grier, J., in Philadelphia &'c. vidual, which duty is a thing dif- K. R. Co. v. Philadelphia &c. Tow- ferent from the mere contract ob- boat Co., 23 How. (U. S.) 209, 216 ligation. When such duty grows (1859). out of relations of trust and con- 6 Holmes v. Oregon &c. R. R. Co., fidence, as that of the agent to his 5 Fed. Rep. 75 (1880). principal, or the lawyer to his v Leonard v. Decker, 22 Fed. client, the ground of the duty is Rep. 741 (1884). apparent, and the tort is, in gene- 8 Rich v. New York &c. R. B. ral, easily separable from the Co., 87 N. Y. 382, 390 (1882); Cooley breach of contract. But where no on Torts, 90; Shearm. & Redf. on such relation flows from the con- Neg. (5th ed.), § 22; Stock v. City stituted facts, and still, a breach of of Boston, 149 Mass. 410 (1889). its obligation is made the essential » Shearm. & Redf. on Neg., § 4. and principal means, in combina- " Some difference of opinion ex- -tion with other and perhaps Inno- ists on the question whether cer- 4 GrElfEEAL PRINCIPLES. § 3. Negligence defined. — Negligence is a species or sub- division of " torts," and may exist either where the parties are strangers, or where they stand in a special relation one to the other. ^" " Negligence in its civil relations is such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal duty, as produces in an ordinary and natural sequence a damage to another."^^ Baron Alderson's definition is, " negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man tain kinds of injuries, especially that the wrongdoer is liable for all those arising from the negligence injuries resulting directly from the of carriers, are, or are not, torts, wrongful act, whether they could strictly speaking, i. e., whether or could not have been foreseen they are wrongs independent of by him. Brown v. Chicago &c. Ky. contract, or breaches of contract Co., 54 Wis. 342 (1882). See Had- sued for in the form of actions for ley v. Baxendale, 9 Bxch. 341 tort." Dicey on Parties, p. 377. (1854); Hobbs v. London &c. E.y. A general right of a citizen to Co., L. K., 10 Q. B. Ill (1875). security of life and limb, and in- So the rule in reference to parties demnity against personal injuries to the action is different in the two occasioned by negligence, fraud or kind? of actions. See chap. 3, vi^nce of others, is a right in rem, Parties, § 90. as distinguished from a right in i" Kapalje & Law. Law Diet. personam growing out of contract, (vol. 2), p. 858. " These two kinds of right may ex- n Whart. on Neg., § 3. Mr. ist in the same person at the same Chief Justice Beasley, of the Su- time, and though having no con- preme Court of New Jersey, ap- nection with each other, may look proved Dr. Wharton's definition as to the accomplishment of the same complete. Salmon v. Delaware &c. object; yet the possession of the R. R. Co., 9 Vr. 5, 11 (1875). one does not affect duties and ob- Shearman & Redfleld's definition ligations relating to the other." (§ 3 [5th ed.]), is " Negligence, con- Mulkey, J., in Wabash &c. Ry. stituting a cause of civil action, is Co. V. Shacklett, 105 111. 364, 380 such an omission, by a responsible (1883). person, to use that degree of care. The rule in actions for breach of diligence and skill which it was his contract is, that the damages re- legal duty to use for the protection coverable are only such as the par- of another person from injury as, ties may reasonably be supposed in a natural and continuous se- to have contemplated as likely to quence, causes unintended dam- result from such a breach; the gen- age to the latter." era! rule in actions for torts is. Gekeral Peincifles. 5 ■would not do."^^ Negligence may operate either to create or to defeat a right of action. § 4. Negligence is divisible into two classes — Scope of the book. — • ISTegligence is divisible into two classes ; negligence arising from a contractural relation such as bailment for which an action ex coniractu will lie; and negligence arising from a tort, i. c, where the duty is created by law and the breach of it is called a " tort," for which an action ex delicto is the proper remedy. It is the law of negligence viewed as a tort, the practice in actions brought to protect and enforce the rights growing out of accidents causing personal injuries and death of human beings, that limits the scope of this book. In- cluding a statement of the general principles governing the law of accident cases : Actions — parties thereto, pleadings 12 Blythe v. Birmingham Water where the cases in which negli- Works, 11 Exch. 784 (1856). This gence is defined are collected, definition is cited with approval by Culpable negligence defined in Mr. Justice Field in the Nitro- Chicago &c. Ry. Co. v. Carpen- Glycerine Case, 15 Wall. 524, 538 ter, 12 U. S. App. 398 (1893). (1872). " Negligence is the breach " Courts and judicial writers have of legal duty." Mitchell, J., in Os- often attempted to give a compre- borne v. McMasters, 40 Minn. 105 hensive definition of the term • neg- (1889). For other definitions see ligence ' as used in the law. But no Deering on Negligence, § 1; Cooley definition has yet been given, and on Torts, 630; 7 Am. & Eng. Ency. it Is obvious that none can be of Law (2d ed.), p. 370; Eay on given accurate and comprehensive Negligence of Imposed Duties, enough to apply to the varying § 183; McCuUy v. Clarice, 40 Pa. facts and circumstances of every St. 402 (1861); Nicholson v. Erie case." O'Brien, J., in Lane v. Ry. Co., 41 N. Y. 525, 529 (1870); Town of Hancock, 142 N. Y. 510, Tower v. Providence &c. R. R. Co., 516 (1894). 2 R. I. 404, 409 (1853) ; Townley v. In popular significance " Neg- Chicago &c. Ry. Co., 53 Wis. 626, ligence and neglect are distin- 633 (1881); Tonawanda R. R. Co. guished thus: Negligence is the V. Munger, 5 Den. 266 (1848); habit, and neglect the act, of leav- Brown v. Congress &c. Street Ry. ing things undone or unattended Co., 49 Mich. 153 (1882); Granvelle to. We are negligent as a general V. Minneapolis &c. Ry. Co., 10 Fed. trait of character; or are guilty of Rep. 153 (1882); Hearen v. Pender, neglect in particular cases, or in L. R., 11 Q. B. D. 503, 507 (1883); reference to individuals who had a Texas &c. Ey. Co. v. Ourlin, 13 right to our attentions." Web- Tex. Civ. App. 505 (1896); Rapalje ster's Diet. .& Law. Law Diet. (vol. 2), p. 860, 6 GEJfEBAL PbINCIPLES. and forms, evidence, questions of law and fact, damages, de- fenses, contributory negligence, fellow servants, charge to the jury by the trial judge, requests to charge and exceptions. § 5. Negligence is a negative and not a positive term. — Negli- gence is essentially a negative and not a positive idea; it is the not doing rather than the doing j the absence of care rather than the exercise of it. Mr. Justice Willes says: " Con- fusion has arisen from regarding negligence as a positive in- stead of a negative word, and it is really the absence of such care as it was the duty of the defendant to use."^^ § 6. Negligence is a relative and not an absolute term. — Negli- gence is a relative,''* and not an absolute or intrinsic term, which must be determined in all cases by a reference to the situation, and knowledge of the parties and all the attendant circumstances. That which might be extra care under one condition of knowledge and one state of circumstances would be gross negligence with different knowledge and under changed circumstances.-'^ So, too, there is no fixed or definite standard by which negligence can be measured; the only test that can be applied by courts and juries is the common sense, sound judgment and common experience of reasonably pru- dent men — as witnessed in everyday, practical life ; except ' in that class of cases where the statute prescribes the measure of duty, or the courts have laid down definite rules, by which negligence is determined. 13 Grill V. General Iron Screw absolute. Cooke v. Baltimore Tract Collier Co., L. R., 1 C. P. 600, 612 Co., 80 Md. 551, 554 (1895). Always ^1866). relates to some circumstance of 14 New Jersey Express Co. v. time, place or persons. Jameson Nichols, 4 Vr. 440 (1867); Brand v. San Jose &c. R. R. Co., 55 CaU v. Troy &c. R. R. Co., 8 Barb. 378 593 (1880). (1850); Central R. R. Co. v. Moore, ib The Nitro-Glycerine Case, 15 4 Zabr. 824, 830 (1854); Pennsyl- Wall. 524 (1872); Shearm. & Redf. vania R. R. Co. v. Coon, 111 Pa. on Neg. (5th ed.), § 12. Care and St. 430 (1886); O'Mellia v. Kansas negligence are relative terms. City &e. R. R. Co., 115 Mo. 205, Dougherty v. Missouri R. R. Co.,. 219 (1893). Negligence is essen- 81 Mo. 331 (1884). tially relative and comparative, not General Peinciples. 7 § 7. Negligence and fraud distinguished iTegligence is dis- tinguished from fraud, says Mr. Justice Beardsley, in that, " In the iirst there is no positive intention to do a wrongful act; but in the latter a wrongful act is ever designed and in- tended. Negligence in its various degrees ranges between pure accident and actual fraud, the latter commencing where negligence ends; negligence is evidence of fraud but still is not fraud."" § 8. Negligence and accident distinguished — Illustrations An accident " is an event," says Judge Cooley,^^ " which hap- pens unexpectedly and withoiit fault." It is an event which hap- pens entirely from a superior agency.^* ilTegligence differs from accident, or as the law sometimes states it, " inevitable acci- dent,"^* in that the latter is an event that takes place without one's foresight or expectation; an event which proceeds from an unknown cause, or is an tmusual effect of a known cause, and, therefore, not expected.^* Mr. Justice Heade draws out this distinction clearly and sharply by. the following illustra- tion; as if a railroad bed be in good order and the engines and cars be in good order and the engineer and other attendants be skillful and careful; and yet a rail breaks, the train is crushed and the employees and passengers are killed; that is an unsual and unexpected event from a known cause, an acci- dent. But if the track be out of order and the engine became 16 Gardner v. Heartt, 3 Den. 237 18 Gault v. Humes, 20 Md. 29i, (1846). To the same effect are Story 304 (1863) ; Nave v. Flack, 90 Ind. on Bail., § 19; Shearm. & Redf. on 205, 210 (1883). " Responsibility Neg., § 3; Deering on Neg., § 5. ceases where accident intervenes." See Jones on Bail., §§ 8-46 et seq. Rodgers v. Central Pacific R. E. " Legal fraud consists in will- Co., 67 Cal. 609 (1885). fully inducing a belief, to the detri- 19 Brown v. Kendall, 6 Gush. 292, ment of another, in the existence 296 (1850). of a state of facts which the. fraud- 20 Schneider v. Provident Life doer is aware does not exist." Ins. Co., 24 Wis. 28 (1869); Crutch- Kahl V. Love, 8 Vr. 6 (1874). field v. Richmond &c. R. R. Co., 76 "Lewis V. Flint &c. Ry. Co., 54 N. C. 320 (1877); Brown v. Kendall, Mich. 55, 56 (1884). See § 1. "An 6 Cush. 292, 296 (1850); Nave v. occurrence which could not have Flack, 90 Ind. 205, 210 (1883); t)een avoided by any degree of Deering on Neg., § 4; Brown v. care capable of being exercised Collins, 53 N. H. 442 (1873); under the circumstances." Stand- Shearm. & Redf. on Neg. (5th ed.). ard Diet. Eng. Lang. (vol. 1), p. 14. § 16. 8 GrENEKAL PrISTCIPLES. ' unmanageable and on account thereof there be the like results as above stated on the good road, that is not an unusual or unexpected event from such a cause, it is not accident, but it is negligence ;^^ in fact it may be safely assumed that in accident there is always an element of some violence, casualty or vis major necessarily involved,^ which is wanting in negli- gence. Strictly speaking, accidents are occurrences to which human fault does not contribute; but this is only a restricted meaning, for accidents are recognized as occurrences arising from the carelessness of men.^^ For an injury caused purely by inevitable or unavoidable accident while engaged in a lawful business there is no legal liability.^* § 9. JTegligence, heedlessness, and willful mischief distinguished. — Mr. Austin distinguishes negligence from heedlessness, and says : " Heedlessness differs from negligence, although they are clearly allied. The party who is negligent omits an act, and breaks a positive duty. The party who is heedless does ■an act, and breaks a negative duty.^* Between negligence and willful mischief there is no difference, but of degree.^® Lord Denman said : " Between willful mischief and gross negligence the boundary line is hard to trace : I should rather say im- possible. The law runs them into each other, considering such degree of negligence as some proof of malice. "^^ 21 Crutchfleld v. Kiclimond &c. 26 Mangan v. Atterton, L. R., 1 K. R. Co., 76 N. C. 320, 322 (1877). Exeh. 239, 240 (1866). 22 Sinclair v. Maritime Passenger 27 Lynch v. Nurdin, 1 Q. B. 29, Ass. Co., 107 B. C. L. 478 (1861); 3 38 (1841). "There is, in truth, no El. & El. 478. case that has been recognized as 23 Nave v. Flacli, 90 Ind. 20S, sound that holds that the rule as to 210 (1883). the responsibility of the wrong- 24 Shearm. & Redf. on Neg., § 5; doer is different in cases of aetion- Uay on Negligence of Imposed able negligence from that which Duties, § 22; Brown v. Kendall, 6 prevails in cases of willful or ■Cush. 292 (1850) ; Wakeman v. Rob- malicious torts. There is a dif- inson, 1 Bing. 213 (1823). The dis- ference as to the measure of dam- tinction between an accident and ages, for, where the tort is malici- an act of God seems to be that in ous, exemplary damages may be one case there is not, and in the recovered, but such damages can- other ease there is, the presence not be recovered in cases of negli- and operation of vis major. Pat- gence." Elliott, C. J., in Indianap- terson Railway Ace. Law, 35. oils &c. Ry. Co. v. Pitzer, 109 Ind. 25Lect. on Juris. (3d ed.), i, 440; 179. 189 (1886). cited in Whart. on Neg., § 12. General Principles. 9 § 10. Negligence and misfeasance distinguished. — Negligence differs from misfeasance or civil misconduct in that malice in the latter is always implied and a wrong always intended; it is more nearly the equivalent of that which is sometimes stated as gross negligence.^* Negligence is a nonfeasance, not a mal- feasance.^ § 11. Nonfeasance, misfeasance, and malfeasance defined and dis- tinguislied. — ■ " Nonfeasance is the omission of an act which a person ought to do. Misfeasance is the improper doing of an act which a person may lawfully do. Malfeasance is the doing of an act which a person ought not to do at all,"^" such as trespass. § 12. Negligence and nuisance distinguished.— Negligence dif- fers from a nuisance and trespass in that a nuisance or trespass from which injury arises is an act which the defendant had no right, by law, to do or attempt to do, i. e., an unauthorized and wrongful act,^^ while negligence is the " inadvertent imperfec- tion," of an act which the defendant had by law a right either to do or to attempt to perform. Negligence involves the idea of unintentional injury.^^ Nuisance and trespass, on the other hand, imply an intent or willful ptirpose to accomplish injurious results. A wrong is always intended. The act is presumptively wrong until justified. The law of negligence is, therefore, inapplicable to cases of nuisance and trespass. They are acts of malfeasance as distinguished from nonfeasance and misfeasance. The au- 28 Negligence Is more nearly sy- tinction Is important in ascertain- nonymous with carelessness than ing the liability of a servant or with any other word. Shearm. & agent to third persons. They are Kedf. on Neg., § 2; State v. Man- not liable to third persons for non- chester &c. R. K. Co., 52 N. H. 562 feasance. Smith's Law of Blast. & (1873); State v. Boston &c. E.. R. Serv. 415; Meacham on Agency, Co., 58 id. 408 (1878). Negligence § 572; Whart. on Neg., § 535; De- and ordinary care are correlative laney v. Rochereau, 34 La. Ann. terms. Norfolk &c. R. R. Co. v. 1123 (1882). Ormsby, 27 Gratt. 455 (1876). 31 Jeune v. Sutton, 14 Vr. 257 29 Pennsylvania Co. v. Sinclair, (1881). 62 Ind. 306 (1878). 32 shearm. & Redf. on Neg. (5th 30 Bell V. Joseyln, 3 Gray, 309, ed.), § 19; Blyth v. Birmingham 311 (1855); Osborn v. Morgan, 130 Water Works Co., 11 Exch. 781 Mass. 102 (1881); Burns v. Pethel, (1856); Ruter v. Foy, 46 Iowa, 132 75 Hun, 437, 443 (1894). This dis- (1877). 10 General Pkinciples. thorities establish a distinction between an action for a -willful ■\vi-oug and an action for negligence ;^^ a nuisance being an un- authorized act, such as an unauthorized excavation in a public street. In such case, the -wrong consists not in any negligence, but in causing, making or continuing the -wrongful or un- authorized excavation in the street.^* An action for injuries from such a cause, a nuisance, is based upon a -wrongful act, and special damages arising therefrom furnish ground for a private action -without regard to negligence. ^^ § 13. Invitation and license distinguished. — Invitation is in- ferred -when there is a common interest or mutual advantage,, -while a license is inferred when the object is the mere pleasure or benefit of the person using it.^* The jury may infer a license from custom. ^^ § 14. Negligence is divisible into three degrees — Denied. — Neg- ligence has been divided into three degrees — " negligence," "ordinary negligence," and "gross negligence;" this classi- fication originated in the civil law,^* and was engrafted into 33 Dickinson v. Mayor &c. New question of care or want of care is York, 92 N. Y. 584 (1883). The not involved in an action for in- questlon of care Is not an element juries resulting from a nuisance." in this class of wrongs; it is merely Laflin &c. Co. v. Teamey, 131 111. a question of results. -Wood on 322, 825 (1890). Law of Nuisances, p. 34. 36 Campbell on Neg. ; Bennett v. 34 Irvine v. "Wood, 51 N. Y. 224, Louisville &c. R. R. Co., 102 U. S. 228 (1872) ; Barbage v. Powers, 130 577, 585 (1880). See Sweeney v. id. 281 (1891). Old Colony &c. R. R. Co., 10 Allen, 35Congrese v. Smith, 18 N. Y. 368 (1865). Case of trespass and 79, 82 (1858); Dygert v. Schenck, 23 license. lb. Invitation may be -Wend. 446 (1840). See Clifford v. express or it may be implied. Damm, 81 N. Y. 52, 56 (1880). Turess v. New York &c. R. R. Co., "Where a permit is necessary to 32 Vr. 318 (1898). " Temptation is open or obstruct a public street not always invitation." Holbrook the effect of it would be only to v. Aldrick, 168 Mass. 16 (1897). A mitigate the act from an absolute structure erected on land by the nuisance to an act involving care owner which is attractive to chil- in its construction and mainte- dren is not an invitation to children nance, and to justify such an act to enter thereon. Delaware &c. R. it would be necessary not only to R. Co. v. Reich, 32 Vr. 635 (1898). plead it, but also to allege and 37 Atchison &c. R. R. Co. v. Cross, prove a compliance with its terms. 58 Kan. 424 (1897). Clifford V. Damm, 81 N. Y. 52, 56 38 story on Bail., § 18; Jones on. (1880). "As a general rule, the Bail., §§ 36-46. General Peinciples. 11 the common law at an earlier period without question; it has always rested upon an apparently arbitrary foundation and has of late years been seriously called into question;^* the general disposition of the coiirts is to ignore this division as useless.**' This classification grew out of the classification of bailments and is fovmded on one principle or circumstance underlying the law of bailments, viz., of benefit or advantage to bailor or bailee, or of mutual benefit. As this circumstance of mutual benefit or advantage was common to all bailments, it was made the foundation or principle of the classification.*^ This classification has been recognized in the common law as applied to contracts;*^ and as applied to torts such a classification has been attempted.*^ But as the cir- cumstance or principle on which it is founded in contracts, viz. : a mutual benefit to bailor or bailee, is wanting in torts, it is but natural that such an attempt to distinguish degrees of negligence, as applied to torts, should produce confusion.** It is evident, from the very nature of the subject, that such a classification or division is, and must be, a mere abstract, philo- sophical distinction, of little or no use in practice.*^ 39 Ohio &c. By. Co. v. Selby, 47 44 Wells v. New York Cent. R. R. Ind. 484 (1874); Milwaukee &c. R. Co.. 24 N. Y. 181, 187 (1862). R. Co. V. Armes, 91 V. S. 494 « Wells v. New York Cent. R. B. (1875); Whai-t. on Neg., § 44; Story Co., 24 N. Y. 181, 187 (1862); Steam- , on Bail., § 17, note 1. boat New World v. King, 16 How. 40 For a discussion of the degrees 474 (1853) ; Railroad Co. v. Lock- of negligence, see 5 Am. Law Rev. wood, 17 Wall. 383 (1873) ; Mil- 38 (1870); Deering on Neg., § 11; waukee &c. Ry. Co. v. Armes, 91 Whart. on Neg., § 44; Ray on Neg- U. S. 489 (1875); Philadelphia &c. ligence of Imposed Duties, § 183c; R. R. Co. v. Derby, 14 How. 486 7 Am. & Eng. Ency. of Law (2d (1852). ed.), p. 379. Mr. Justice Allen says this dis- 41 Wells V. New York Cent. R. B. tlnetion Is unsatisfactory for two Co., 24 N. Y. 181, 187 (1862). reasons: First, because " It is not 42 Story on Bail., § 18. founded upon any principle; and, 43 Dreher v. Town of Fitchburg, second, it is not capable of any 22 Wis. 675 (1868) ; Hammond v. certain and satisfactory application Town of Mukwa, 40 id. 35 (1876); to individual cases as they arise. Moore v. Cass, 10 Kan. 291 (1872); Attempts have been made to fix a Kansas Pacific By. Co. v. Pointer, liability upon the distinction be- 14 Id. 50 (1874); Southern Cotton tween gross negligence and negli- Press Co. v. Bradley, 52 Tex. 587, gence merely, but courts have been 600 (1880) ; Beach on Cont. Neg. (3d compelled to abandon the attempt, ed.), §§ 61-64. and to say that negligence does not 12 Geneeal Principles. § 15. Negligence is divisible into three degrees. — There are au- thorities holding that there is a clear and well-defined distinc- tion, which does exist in the degrees of negligence, and that ■change Its character and become anything but negligence by the application of any epithet to It." Smith V. New York Cent. R. B. Co., 24 N. Y. 222, 241 (1862). See in this connection Perkins v. New York Cent. R. R. Co., 24 N. Y. 196, 207 (1862); Wells v. New York Cent. R. R. Co., id. 181, 187 (1862). The word " gross " as applied to negligence is a word of description and not of definition. Grill v. Gen- eral Iron Screw Collier Co., L. R., 1 C. P. 600, 612 (1866). There has been an attempt to de- scribe the cause when it should have been applied to the result; the injury is capable of description and comparison by degrees, while the cause is a fiixed, absolute and entire unit, and is not changed as an entire quantity by the addition of words. Indeed, it will be found by an examination of the cases, that what is called gross negli- gence is not negligence at all, but quasi criminal, or civil misconduct, or its equivalent — actual misfeas- ance. Owen V. Burnett, 2 Crompt. & M. 360 (1834); Wyld v. Pickford, « M. & W. 443 (1841). Or willful injury. St. Louis &c. R. R. Co. v. Todd, 36 111. 409, 441 (1865). In England, Lord Denman, in a case depending on the Common Carriers Act, doubted whether any intelligible distinction exists be- tween gross negligence and negli- gence merely. Hinton v. Dibbin, 2 Q. B. 661 (1842). There is no difference between negligence and gross negligence; that was the same thing with a "Vituperative epithet. Wilson v. Brett, 11 M. & W. 115 (1848); Beal V. South Devon Ry. Co., 3 H. & C. 337 (1864). Approved in Grill v. General Iron Screw Collier Co., L. R., 1 C. P. 600, 612 (1866). In the Supreme Court of the United States it has been doubted whether these terms can be use- fully applied in practice; their meaning is not fixed or capable of bein^ fixed. Steamboat New World V. King, 16 How. 474 (1853); Philadelphia &c. R. R. Co. v. Derby, 14 id. 486 (1852); Railroad Co. V. Lockwood, 17 Wall. 383 (1873); Milwaukee &c. Ry. Co. v. Armes, 91 U. S. 489 (1875). In Missouri there are no degrees of negligence known to the law, where the subject of bailment is human life. Siegriest v. Arnot, 10 Mo. App. 207 (1881). Gross is not used as expressing the antithesis of a certain defined degree of care, it is used in the sense of " culpable " or " action- able," or else it is a mere epithet. Siegriest v. Arnot, 10 Mo. App. 207 (1881). An instruction by the court that the defendant must be found guilty of willful negligence was held er- ror in Taylor v. Holman, 45 Mo. 371 (1870). So in Indiana. Penn- sylvania Co. V. Krick, 41 Ind. 368 (1874); id. 391, 399 (1874); Ohio &c. Ry. Co. V. Selby, id. 471 (1874). So in Alabama. Mobile &c. R. R. Co. V. Thomas, 42 Ala. 672, 714 (1868). So in Ohio. Columbus &c. R. R. Co. V. Webb, 12 Ohio St. 475, 496 (1861); Western Union Tel. Co. v. Griswold, 37 id. 301 (1881); Meek v. Pennsylvania Co., 38 id. 632 (1883). Geneeal Principles. 13' the distinction is a real and valuable one.*® In Texas it is engrafted on the Constitution.*^ " Gross neglect " is defined as " That entire want of care wMch would raise a presumption of a conscious indifference to consequences."** The Kentucky Geai. Stats., chap. 57, § 3, provides: If the life of a person is lost or destroyed by " willful neglect " punitive damages may be recovered.*® Whether " willful neglect " is the same as " gross neglect " or in any case more or less culpable, is imma- terial. It must involve either an intentional wrong or such a reckless disregard of security and right as to imply bad faith.^" " "Willful neglect " " is an intentional failure to per- form a manifest duty, in which the public has an interest, or In Colorado the Supreme Court gross negligence of the defendant,, said that It did not recognize any exemplary as well as actual dam- degrees of negligence. Denver ages may be recovered." Sayles Consolidated Electric Co. v. Simp- Civ. Stat., art. 2901; Kev. Stat. Ari- sen, 21 Col. 371, 376 (1895). zona, § 2147 (1887). Rev. Stat, of In New Hampshire it was said Texas, art. 2899, provides: That the distinction is after all mainly street car companies shall be liable- verbal. State V. Manchester &c. R. for injury to persons on the track R. Co., 52 N. H. 557 (1873); State only when the injury is caused by V. Boston &c. R. R. Co., 58 id. 408 the " gross negligence " of the com- (1878). To the same effect are pany. Dallas City R. R. Co. v. Briggs V. Taylor, 28 Vt. ISO, 185 Beeman, 74 Tex. 291 (1889). (1855); Baxter v. Second Ave. R. R. 48 Southern Cotton Press &c. Co. Co., 3 Robt. 510 (1865). v. Bradley, 52 Tex. 587, 600 (1880). 46 Shearm. & Bedf. on Neg. (5th Such distinction has been recog- ed.), § 47. Such a distinction is nized In Nebraska. Burlington &c. recognized in Wisconsin. Dreher R. R. Oo. v. Wendt, 12 Neb. 76- V. Town of Fitchburg, 22 Wis. 675 (1881). (1868); Ward v. Milwaukee &c. Ry. 49 Actual intention to commit an Co., 29 id. 144 (1871); Cremer v. injury is not essential to constitute Town of Portland, 36 id. 100 (1874) ; wanton negligence. Kansas City Hammond v. Town of Mukwa, 40 &c. B. R. Co. v. Campbell, 6 Kan. id. 35 (1876). App. 417 (1897). In Kansas it is said the distinc- so Louisville &c. R. R. Co. v. Rob- tion is too well established to re- inson, 4 Bush, 509 (1868); Louis- quire comment. Moore v. Cass, 10 ville &e. B. R. Co. v. Filbern, 6 id. Kan. 291 (1872); Kansas Pacific 580 (1869); Louisville &c. R. R. Co. Ry. Co. V. Pointer, 14 id. 50 (1874). v. Murphy» 9 id. 522, 531 (1872). See Dudley v. Camden &c. Ferry Willful injury and wanton negli- Cc, 13 Vr. 25, 28 (1880). gence defined in Memphis &c. R. 47 Const, of Texas, 1876, art. 16, R. Co. v. Martin, 117 Ala. 367 S 26. " When the death is caused (1897). by the willful act or omission, or 14 General Peinciples. which is important to the person injured, in eitner permitting or avoiding the injury. "^^ " Gross neglect " squints at fraud and is tantamount to the magna culpa of the civil law, which in some respects is quasi criminal ;°^ such indifference is morally criminal, and if it leads to actual injury may well be regarded as criminal in law.®* § 16. legal duty defined — Duty and right distinguished. — "A legal duty," says Prof. Wharton, " is that which the law re- quires to be done or forborne to a determinate person, or to the public at large, and is correlative to a right vested in such determinate person, or the public at large."®* In the law of negligence the words " duty " and " right " are correlative terms.®® In a limited sense right is the converse of duty. It is our right, under the law, not to be injured by the negligence of another; it is the duty of others, under the law, not to injure us through negligence. In this sense a duty is that which proceeds from one to another; a right is that which is directed to another — that which he may rightly claim. § 17. A breach of legal duty is of the essence of negligence. — ■ A violation or breach of a legal duty is of the essence of action- able negligence,®® as was said by Mr. Chief Justice Beasley: 51 Kentucky Central R. R. Co. v. 54 Whart. on Neg., § 24. Gastineau, 83 Ky. 119, 128 (1885). 55 Willy v. Mulledy, 78 N. Y. 314 To constitute willful negligence (1879). " Duty and right are cor- the act done or omitted to be done relative; and where a duty is ina- must be intended. Peoria Bridge posed, there must be a right to Assn. v. Loomis, 20 111. 235, 251 have it performed." lb. (1858); Highland Ave. &c. R. R. Co. 56 ghearm. & Redf. on Neg. (5th V. Swope, 115 Ala. 287 (1896); Ala- ed.), § 8 e« seq.; Whart. on Neg., § 3; bama &c. R. R. Co. v. Burges«, 116 Deering on Neg., § 3. The theory of id. 509 (1897); Birmingham &c. Ry. liability in negligence cases is the Co. V. Bowers, 110 id. 328 (1895). violation of some legal duty to exer- 52 Louisville &c. R. R. Co. v. Rob- else care. Cusicls v. Adams, 115 N. inson, 4 Bush, 509 (1868; Louis- Y. 55, 59 (1889). " Actionable neg- ville &c. R. R. Co. v. Collins, 2 ligence consists in the neglect of Duvall, 114 (1805); Board Int. Imp. the use of ordinary care or skill Shelby County v. Scearce, 2 Id. 576 towards a person to whom the de- (1864); Beach on Cont. Neg. (3d fendant owes the duty of observ- ed.), § 62. ing ordinary care and skill, by 53 Southern Cotton Press &c. Co. which neglect the plaintiff, without V. Bradley, 52 Tex. 587, 600 (1880). contributory negligence on his part. General Pbinciples. 15 " It is not every one who suffers a loss from the negligence of another that can maintain a suit on such ground. The limit is, that the person occasioning the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss;"^^ the mere failure to perform a self-imposed duty is not actionable negligence^® nor merely a moral duty.^® It is that duty which the law creates, and as everybody is pre- sumed to know the law and consequently their legal duty, ignorance of that duty cannot be invoked as a defense to an action to recover damages, caused by negligence.^'' It may be stated as a fundamental principle in the law of negligence, deducible from the cases reported in the books, that the gist of the' action consists in the violation of a legal duty imposed to exercise care, which has caiised the injury com- plained of, and it will be found, upon an examination of the cases, that where no such legal duty proceeded from the de- fendant to the plaintiff, no legal liability was imposed by the courts for the injury.^^ This principle is not changed or modified by the fact that the injury complained of follows directly or remotely the act or conduct of the parties;®^ nor from the rule of evidence applicable in a certain class of cases, such as those between passenger and carrier, whereby has suffered injury to his person v. Collins, 53 N. H. 442 (1873); or property." Brett, M. R., in Phillips v. Library Co., 26 Vr. 307 Heaven v. Pender, L. R., 11 Q. B. (1893). /. e., negligence which D. 503, 507 (1883). does not constitute a breach of 57 Kahl v. Love, 8 Vr. 5, 8 (1874). duty is not actionable. Breese v. There can be no negligence, with- Trenton Horse R. R. Co., 23 Vr. out the existence of a correspond- 250, 253 (1890); 2 Add. on Torts, ing duty upon the part of the per- § 1378; Cooley on Torts, 792. son against whom the negligence While the general rule is that the is charged. Kennedy v. Chase, 119 true ground of liability in actions Cal. 637 (1898). for negligence is not danger but 58 Skelton v. London &c. Ry. Co., negligence, and the test of negli- L. R., 2 C. P. 631 (1867). gence is the ordinary usage of 59 Shearm. & Redf . on Neg. (5th business, yet this rule is not appli- ed.), § 10. Such as duties imposed cable where the ordinary usage of by generosity, kindness, charity, business is below what ordinary lb. care requires. Beck v. Hood, 185 60 Deerlng on Neg., § 3. Pa. St. 32 (1898). 61 The Nitro-Glycerine Case, 15 62 The Nitro-Glycerine Case, 15 Wall. 524 (1872); Losee v. Bu- Wall. 524 (1872). chanan, 51 N. Y. 476 (1873); Brown 16 Geneeal Principles. the proof of the injury, with its attendanj; circumstances, usually constitutes a prima facie case of negligence, which the carrier must overcome. Neither one nor the other of these principles can alter the principle upon which liability for negli- gence is enforced; which is a violation of a duty imposed by law to exercise care. § 18. A breach of legal duty must be shown — Burden of proof. — iN'egligence or a breach of legal duty must be shown; it will not be presumed ;^^ the burden of proof rests with the party asserting or charging negligence. The law does not impute negligence;^* thus, where one who does an act lawful in itself, from which damage results to another, is not answer- able for such damage, unless he has been guilty of negligence,, or other fault, in the manner of doing the act.*® "As applied to the owner of a steam boiler which he had in use on his own property, it was held that he was not responsible, in the absence of negligence, for the damage done by its bursting.®' Mere permission to pass over dangerous lands, or acquiescence in such passage for the benefit or convenience of the licensee, creates no duty on the part of the owner, except to refrain from acts willfully injurious.®^ It was held in the famous English case of Metcher v. Rylands,** that if one brings upon his land anything which would not naturally come upon it, 63 Philadelphia &c. R. R. Co. v. 65 Losee v. Buchanan, 51 N. T. Hummell, 44 Pa. St. 375 (1863); 476 (1873), affirming 42 How. Pr. Palmer v. New York &c. R. R. Co., 385; reversing 61 Barb. 86; Brown 112 N. Y. 245 (1889); McGrell v. v. Collins, 53 N. Y. 442 (1873); Buffalo Office Building Co., 158 Id. Marshall v. Welwood, 9 Vr. 339 265, 273 (1897); Jacksonville Street (1876); Phillips v. Library Co., 23 Ry. Co. V. Chappell, 21 Fla. 175 id. 807 (1893); The Nitro-Glycerlne (1885); Quinn v. Johnson Forge Case, 15 Wall. 524 (1872); Ulshow- Co., 9 Houst. 338 (Del. 1892). ski v. Hill, 32 Vr. 375 (1898). 64 Norfolk &c. R. R. Co. v. Fer- 66 Marshall v. Welwoo.d, 9 Vr. guson, 79 Va. 241 (1884); Quinn v. 339 (1876). Johnson Forge Co., 9 Houst. 338 «^ Phillips v. Library Co., 26 Vr. (Del. 1892). So it must be shown 307 (1893). that the breach of duty was the «*3 Hurl. & Colt. 774 (1865); re- proximate cause of the damage; it versed in the Exchequer Chamber, will not be presumed. Hayes v. I^- R-. 1 Bxch. 265 (1866); which Michigan Cent. R. B. Co., Ill U. S. '"'as afBrmed in the House of 228 (1884); Shearm. & Redf. on Lords, L. R., 3 H. L. 330 (1868). Neg. (5th ed.), S 25. General Principles. 17 such as water artificially collected, and which, is, in. itself, dangerous, and may become mischievous, if not kept under proper control, though in so doing he may act without personal willfulness or negligence, he will be liable in damages for any mischief or damage thereby occasioned. A distinction is made in this case between the ordinary manner of the use of the land and an artificial use in the former case, there being no legal liability without willfulness or negligence. Metcher v. Eylands was followed by the English courts in the case of Fletcher v. Smith.®® It has been applied to a variety of differ- ent facts, such as holding a tenant liable for damage caused by sewage escaping into his neighbor's cellar, although he has not been guilty of negligence.™ The English courts. have limited or distinguished the rule laid down in Fletcher v. Kylands, by holding that where water is stored in reservoirs and escapes in consequence of extraordinary floods, thereby doing damage, in the absence of negligence there is no lia- bility;''^ Mellish, L. J. : " But the present case is distinguished from that of Rylands v. Fletcher in this: that it is not the act of the defendant in keeping this reservoir, — an act in itself lawful, — which alone leads to the escape of the water and so renders wrongful that which, but for such escape, would have been lawful. It is the supervening vis major of the water caused by the flood, which superadded to the water in the reservoir, — which of itself would have been innocuous, - — • causes the disaster."^^ 69 L. R., 7 Exeh. 305 (18"'2); af- 72 lb. So water stored in a reser- firmed, 2 App. Cas. 781 (1877). voir released by act of third per- 70 Humphreys v. Cousins, L. R.> sons. Box v. Jubb, L. R., 1 O. P. 2 C. P. D. 239 (1877), applied to a D. 423 (1879). Distinguished from case where one knowingly planted a case where it was held, that the on his own land and suffered to tenant of an upper floor of a build- grow over the land of his neighbor ing is not liable, in the absence of a noxious tree by which his negligence, for damages caused by neighbor's cattle were injured, an water escaping from his water- action will lie against him at the closet to the lower floor. Ross v.. suit of such neighbor. Orowhurst Fedden, L. R., 7 Q. B. 661 (1872). V. Amersham Burial Board, L. R., Other English eases applying and 4 Exch. D. 5 (1878). See 7 Cent, limiting the doctrine of Fletcher L. J. 465; 18 Alb. L. J. 514. v. Rylands in 1 Thomp. on Neg., 71 Nichols V. Marsland, L. R., 10 § 7, p. 93. Exch. 255 (1875); affirmed, L. R., 2 j:xch. D. 1 (1876). 2 18 General Peinciples. § 19. Ordinary care, reasonable care, utmost care defined — The standard or test which the law exacts in the performance of a legal duty is " ordinary care," and it is the disregard of such care that constitutes negligence. " Ordinary care " may be described rather than defined. " Ordinary care, skill and diligence is such a degree of care, skill and diligence as men of ordinary prudence, under similar circumstances, usually employ. If the danger be great and threatening, then a higher degree of sldll and care is requisite in order to prevent it; and in case of great danger, great care and caution will be but ordinary care, but if the circumstances are such that but little risk or danger may be reasonably apprehended, then a much less degree of care will be ordinary care."''^ It is that degree of care which a person of ordinary prudence is pre- sumed to use, under the particular circumstances, to avoid injury. It must be in proportion to the danger to be avoided, and the fatal consequences involved in its neglect.^* The de- 73 Brown v. Lynn, 31 Pa. St. 510, (1887). " Ordinary care is that 512 (1858) ; approved, Ernst v. Hud- care which a reasonable, prudent son River R. R. Oo., 35 N. Y. 9, 27 and cautious man would take to (1866); Ray on Negligence of Im- avoid injury under like circum- posed Duties, § 183b; Beach on stances." Chicago &c. R. R. Co. v. Cont. Neg. (3d ed.), §§ 21-23. Adler, 129 111. 340 (1889). '\Such Master's liability for injuries to care and caution as an ordinarily servants. Bailey, pp. 3-12; Grand prudent person would exercise un- Trunk Ry. Co. v. Ives, 144 U. S. der similar circumstances." Austin 417 (1891); Holly v. Boston Gas &c. B. R. Co. v. Beatty, 73 Tex. Light Co., 8 Gray, 131 (1857); Shaw 592, 596 (1889). " Ordinary care Is V. Boston &c. Ry. Co., id. 79 (1857). that care which every prudent man 74 Toledo &c. Ry. Co. v. Goddard, observes." Richmond &c. R. R. Co. 25 Ind. 185, 197 (1865); Mayor &c. v. Howard, 79 Ga. 44, 58 (1887). New York v. Bailey, 2 Den. 433 " Reasonable care is such as pru- (1844). " Reasonable care requires dent persons exercise, when con- care to be exercised in proportion templating the danger that may be to the danger of doing harm to encountered at such crossings." others. Whatever may be the * * * "Reasonable care requires, dangerous circumstances, reason- in all cases, the exercise of vigilance able care must be exercised to pre- proportioned to the danger encoun- vent harm." Park, C. J., in Dexter tered." Barker v. Savage, 45 N. Y. V. McCready, 54 Conn. 171, 172 191 (1871). The measure of care (1886). " Ordinary care is that de- required of a young child is simply gree which is exercised by ordinar- such as might reasonably be ex- ily prudent persons under similar pected, under the circumstances, circumstances." Needham v. Louis- of a child of that age. Stone v. Dry ville &c. R. R. Co., 85 Ky. 434 Dock &c. R. R. Co., 115 N. Y. 104 General Principles. 19 ^ee of care exacted by tlie law is always in proportion to the danger to be apprehended. ^° The Supreme Court of Errors of Connecticut has said: The exact boundary between the several degrees of care and their correlative degrees of careless- ness, or negligence, are not always clearly defined or easily pointed out. We think, however, that by " ordinary care " is meant that degree of care which may readily be expected from a person in the party's situation, and that gross negligence imports not a malicious intention or design to produce a par- ticular injury, but a thoughtless disregard of consequences; the absence, rather than the actual exercise, of volition with reference to results. What is the measure of " reasonable care " must, of course, depend upon the circumstances of the particular situation in which the party at the time is placed.'^® It is, therefore, generally a question of fact to be submitted to the jury under instructions from the court, although in some classes of cases definite rules are laid down by the courts by which " ordinary care " is determined.''^ The law hedges around the lives and persons of men with much more care (1889). " Regard Is to be had to souri &c. Ry. Co. v. Hanning, 91 the growth of science, and the im- Tex. 347 (1897); Galveston &c. Ry. provement in the arts, which take Co. v. Gormley, id. 393 (1898); place from generation to genera- 7 Am. & Eng. Ency. of Law (2d tion." Shearm. & Redf. on Neg. ed.), pp. 375-378. (5th ed.), § 12. Ordinary care " is t5 Meredith v. Reed, 26 Ind. 334, such care as ought reasonably to 336 (1866). be expected of an ordinarily pru- T6 Neal v. Gillett, 23 Conn. 437, dent person in the same situation 443 (1855); Price v. New Jersey &e. as that of the individual whose Transp. Co., 2 Vr. 229, 237 (1865); conduct is in question in the par- Beach on Cont. Neg. (3d ed.), §§ 21- ticular case.'' Keown v. St. Louis 23 ; Bailey on Masters' Liability for R. R. Co., 141 Mo. 86, 94 (1897). Injuries to Servants, pp. 3-12. The " Ordinary care is such care as a phrase " ordinary care " is equiva- person of ordinary prudence exer- lent to " reasonable care." Fallon cises under the circumstances of v. City of Boston, 3 Allen, 38, 39 the danger to be apprehended. (1861). They are interchangeable. The greater the danger the higher Kendall v. Brown. 74 111. 232, 237 the degree of care required to con- (1874). The terms " negligence " stitute ordinary care, the absence and " ordinary care " are correla- of which is negligence. But it is tive terms. Norfolk &c. R. R. Co. a question of degree only. The t. Ormsby, 27 Gratt. 455 (1876). kind of care is precisely the same." 77 Grand Trunk Ry. Co. v. Ives, Young V. Citizens Street R. R. Co., 144 U. S. 417 (1891). 148 Ind. 54, 58 (1896). See Mis- 20 General Pkinciples. than it employs when guiarding their property, so that, in thi» particular, it makes, in a way, every one his brother's keeper.''*" It has been said, that in all cases in which a person undertakes- the performance of an act which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more human beings, known or unknown, the law, ipso facto, imposes, as a public duty, the obligation to exercise such care- and skill.''* " The utmost care and diligence," " the highest degree of care and diligence," are expressions to measure the care and diligence which a prudent man would exert in that business under like circumstances.®" Difl&culty in the applica- tion of this rule has sometimes come from an improper inter- pretation of the expressions " utmost care and diligence," " most exact care," and the like. These do not mean the utmost care and diligence which men are capable of exercising. They mean the utmost care consistent with the nature of the- carrier's undertaking, and with a due regard for all the other matters which ought to be considered in conducting the busi- ness. Among these are the speed which is desirable, the prices which passengers can afford to pay, the necessary cost of the different devices and provisions for safety, and the relative risk of injury from different possiblo causes of it.^^ § 20. Intent and design are not elements of negligence. — Designr and intent are not elements which enter into the determination of legal negligence,*^ as was pointed out in a previous section, they T8 Chief Justice Beasley in Van so Cole, C. J., in Henclse v. Mll- Wlnkle V. American Steam Boiler waukee City Ry. Co., 69 Wis. 401,. Co., 23 Vr. 240 (1890). So too 408 (1887); Willey v. AUegtieny Thomas v. Winchester, 6 N. Y. 397 City, 118 Pa. St. 490 (1888); (1852); Shearm. & Redf. on Neg. Shearm. & Redf. on Neg. (5th ed.), (5th ed.), § 47. As applied to the § 46. business of railroads. See Michigan 8i Knowlton, J., in Dodge v. Cent. R. R. Co. v. Coleman, 28 Mich. Boston &c. Steamship Co., 148^^ 448 (1874). When lives of persons Mass. 207, 218 (1889); S. P., Ohi- are endangered no higher degree cago &c. R. R. Co. v. Arnol, 144r of care is exacted. Galveston &c. 111. 261, 272 (1893). Ry. Co. V. Gormley, 91 Tex. 393 82 Deering on Neg., § 2; Shearm. (1898). & Redf. on Neg. (5th ed.), § 19; 79 Van Winkle v. American Whart. on Neg., § 11; Williams v. Steam Boiler Co., 23 Vr. 240 (1890); Hays, 143 N. Y. 442, 446 (1894). Shearm. & Redf. on Neg. (5th ed.). That one had reason to anticipate § 47; Ray on Negligence of Im- that his negligence would injure- posed Duties, § 183c. another is not an essential ele- General Peinciples. 31 are distinguishing tests of fraud. They are always character- istic of criminal law. The law looks to the person damaged by another and seeks to make him whole without reference to the purpose or the condition, mental or physical, of the per- son cavising the damage.^ It is not essential to legal liability flowing from negligent acts or conduct that the damage or injury resulting therefrom might " reasonably have been ex- pected " because men are presumed in law to intend the natural and probable consequences of their acts;^* intent is not, therefore, an element in the proof of negligence. Intent to do an injury to another is something more than negligence, it is ^wasi-criminal. § 21. Negligence — Proximate cause — Injury resulting from two causes. — An elementary rule in the law of negligence of universal application is, that the plaintiff must show, and the burden of proof is with the plaintiff to show, that the violation or omission of duty complained of was the proxi- mate cause of the plaintiff's injuries.*^ A proximate cause is that cause which naturally led to, and which might have been expected to produce, the result.** The application of this rule is attended vdth perplexing difficulties. It is one thing to understand a rule of law, and quite a different task to apply it well. As has been said by Mr. Justice Barrows, of the Supreme Court of Maine : " If it ever happens that logic and common sense cannot be reconciled in the application ment. Beven on Neg. 81; Smith 5; Bhrgott v. Mayor &c. New York, V. London &c. Ry. Co., L. E., 6 G. 96 N. Y. 264 (1884); Norwood v. P. 14 (1870). Raleigh &c. R. R. Co., Ill N. C. 83 Williams v. Hays, 143 N. Y. 236 (1892); Florida &c. R. R. Co. v. 442, 446 (1894). Williams, 37 Fla. 406 (1896); Bit- 84Whart. on Neg., § 16; Shearm. ting v. Township of Maxatawny, & Redf. on Neg. (5th ed.), §§ 19, 21. 177 Pa. St. 213 (1896). The breach 85 Shearm. & Redf. on Neg., chap, of duty upon which an ac- 11, § 25 et seq.; Deering on Neg., tion is brought must not only be I 2; 2 Thomp. on Neg. 1083; Whart. the cause, but the proximate on Neg., § 73 et seq., " Casual Con- cause of the damages to the plain- neetion;" Beach on Cont. Neg. (3d tiff. Wabash R. R. Co. v. Coker, ed.), §§ 24-34; 7 Am. & Eng. Ency. 81 111. App. 660 (1898). of Law (2d ed.), p. 381; 3 Suther- 86 State v. Manchester &c. R. R. land on Damages, 714; Cooley on Co., 52 N. H. 528 (1873); Laidlawi Torts, 69; Addison on Torts (3d ed.), v. Sage, 158 N. Y. 73 (1899). 22 General Peinciples. of this doctrine to the decision of causes, logic must give- way. "®^ Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events, though such consequences be immediately and directly brought about by intervening, causes, if such inter- vening causes were set in motion by the original wrongdoer.®* The connection of cause and effect must be established.** It is also a principle well settled that when an injury is caused by two causes concurring to produce the result, for one of which the defendant is responsible and not for the other, the de- 8T Willey V. Inhabitants of Bel- ceases to exist and become unnatu- fast, 61 Me. 569, 575 (1872). " We ral is, it seems to me, extremely may take occasion here to add that difficult to determine." Id. 378. the doctrine of contributing causes Rothrock, J. " Much has been produces annually a crop of dis- written upon the subject of proxi- putatlons, which savor more of the mate and remote causes, as applied subtleties and learning of the to injuries on the ground of neg- schoolmen than of a desire to ligence. The books are full of re- evolve any practical, intelligible fined reasoning and distinctions as rule which shall be of service in to conditions and causes and casual administering justice between connections, and the like; but, af- party and party." lb. ter all, courts and juries should " The law is a practical science, determine these questions upon and courts do not indulge refine- common-sense principles, within ments and subtleties, as to causa- the comprehension of the ordinary tion, that would defeat the claims triers of questions of fact." New- of natural justice." Baltimore &c. man v. Chicago &c. Ry. Co., 80 R. R. Co. V. Reaney, 42 Md. 117, Iowa, 672, 680 (1890); Purcell v. 136 (1874). See Fleming v. Beck, St. Paul City Ry. Co., 48 Minn. 134 48 Pa. St. 309 (1864); Wood v. (1892); Pittsburgh &c. Ry. Co. v. Pennsylvania R. R. Co., 117 id. 306 Taylor, 104 Pa. St. 306 (1883). (1896). See Thompson v. Louisville &c. R. ssHammill v. Pennsylvania R. R. Co., 91 Ala. 496 (1890); Chris- R. Co., 27 Vr. 870, 379 (1894). On tianson v. Chicago &c. Ry. Co., 67 this subject Mr. Justice Lippin- Minn. 94 (1896); Shearm. & Redf. cott, of the Supreme Court of New on Neg. (5th ed.), § 28. Jersey, said: " If there could be 89 Shearm. & Redf. on Neg. (5tli deduced from them (i. e., the ed.), § 25; Daniel v. Metropolitan cases) the very best possible ex- Ry. Co., L. R., 3 C. P. 216, 222 pression of the rule, it would re- (1868); Kistner v. City of Indianap- main after all to decide each case olis, 100 Ind. 210 (1884). For a largely upon the special facts be- full statement of the law with a longing to it, and often upon very citation of authorities on proxi- nice discriminations, the border mate cause, see Shearm. & Redf. line at which the natural sequence on Neg. (5th ed.), chap. 11, §§ 25-40- Genehal Principles. 33 fendant cannot escape -i:fisponsibility.*' One is liable for an injury caused by the concurring negligence of himself and another to the same extent as for one caused entirely by his own negligence.^^ Proximate or remote cause is important as bearing upon the defense of contributory negligence. The rule at common law is, that one who suffers an injury for want of that ordinary care which a prudent man would have exercised under the circumstances is remediless, because he may be said to have caused the injury by his contributory negli- gence.^^ It is that negligence of the plaintiff operating as an efficient cause of the injury, in connection with the fault of the defendant, which is a defense to the action.^* It must be that negligence of the plaintiff which co-operates in causing the injury, and without which the injury would not have happened.^* § 22. Violation of a duty imposed by statute. — Failure to per- form a duty imposed by statute, such as to give statutory signals at public crossings by railroad companies, constitutes actionable negligence.®^ Or upon a failure to comply with a statute which requires a flagman or watchman to be stationed at such crossings,*® or a failure to provide fire-escapes as re- quired by statute.®^ But to fasten liability upon the defend- so Baltimore &c. R. R. Co. V. 93 Fairbanks v. Kerr, 70 Pa. St. Sulphur Springs, 96 Pa. St. 65 86 (1871). (1880); .Jackson v. Wisconsin Tel. 9* Lehigh Valley R. R. Co. v. Co., 88 Wis. 243 (1894); Rodgers v. Greiner, 113 Pa. St. 600 (1886). Central Pacific R. R. Co., 67 Cal. 95 Chicago &c. E. R. Co. v. Boggs, 607 (1885); Grand Trunk Ry. Co. lOlInd. 522 (1884) ; Indiana &c. Ry. Y. Cummings, 106 U. S. 700 (1882); Co. v. Barnhart, 115 Ind. 399 (1888); Harriman v. Pittsburgh &c. Ry. Platte &c. Co. v. Dowell, 17 Col. Co., 45 Ohio St. 32 (1887); Lane 376 (1892). v. Atlantic Works, 111 Mass. 136 96 Western &c. R. R. Co. v. (1872); Ouverson v. City of Graf- Young, 81 Ga. 397 (1888); Curley ton. 5 N. DaJj. 281 (1895). v. Illinois Cent. R. R. Co., 40 La. 91 Chicago &c. Ry. Co. v. Cham- Ann. 810 (1888). bers, 68 Fed. Rep. 153 (1895); Cop- 97 Willy v. MuUedy, 78 N. Y. 310 pins V. New York &c. R. R. Co., (1879). The duty so imposed is 122 N. Y. 557 (1890); McGregor v. both created and measured by the Reid &c. Co., 178 111. 464 (1899); statute. Pauley v. Steam Gauge &c. City of Flora v. Pruett, 81 111. App. Co., 131 N. Y. 90, 96 (1892). Drug- 161 (1898). gist failing to label poisonous 92 Ray on Negligence of Imposed liquid as required by statute. Wise Duties, § 184. v. Morgan, 101 Tenn. 273 (1898). 24 General Pehstciples. ant it must be shown that the failure to use the safeguards or perform the acts required by the statute, , was the cause of the accident.^* In Indiana it was held that the court had a right to instruct the jury, as a matter of law, that a failure to give statutory signals at public crossings by railroad com- panies constituted negligence.®^ When a defendant and its agents conform to legislative directions, such as giving audible signals of the approach of a train, it is within the protection of the law, and is absolved from negligence so far as those particular things, required by the statute, are concerned,^ although there is a class of cases which hold, that a prescribed statutory duty is only cumulative and not sufficient in itself.* On the other hand, negligence in the exercise of a prescribed statutory duty is actionable, if such negligent acts caused the injury.^ § 23. Failure to comply with requirements of ordinances by rail- road companies. — In some of the States it has been held that a failure to comply, by railroad companies, with the require- ments of a valid ordinance, in running their trains within the limits of a city, is negligence per se.* Such as running a Or employing child in mining con- i New York &e. R. E. Co. v. trary to statute. Queen v. Dayton Leaman, 25 Vr. 202, 206 (1891); &c. Co., 95 Tenn. 458 (1895). See Chicago &c. R. R. Co. v. Dough- Allan v. State S. S. Co., 132 N. Y. erty. 110 111. 521 (1884). 91 (1892); Klatt v. N. C. Foster 2 New York &c. R. R. Co. v. Lumber Co., 97 Wis. 641 (1897); Leaman, 25 Vr. 202, 206 (1891). Morris v. Stanfield, 81 111. App. 3 Pennsylvania R. R. Co. v. 264 (1898). Barnett, 59 Pa. St. 259 (1868); 98 Coal Run Coal Co. v. .Jones, Bettle v. Camden &c. R. R. Co., 26 127 111. 379 (1889); Dodge v. Burl- Vr. 615, 622 (1893). "A negligent ington &c. R. R. Co., 34 Iowa, 276 exercise of the right or the neg- (1872); Chrlstner v. Cumberland ligent performance of the duty can &c. Coal Co., 146 Pa. St. 67 (1892); in no event be excused." lb.; Ohrystal v. Troy ^-c. R. R. Co., 124 Thomas on Neg. 404; Shearm. & N. Y. 519 (1891); Lake Shore &c. Redf. on Neg. (5th ed.), §§ 13, 467, Ry. Co. V. Parker, 131 111. 557 468. <1890); Baltimore &c. Ry. Co. v. * Alabama: Gothard v. Alabama Conoyer, 149 Ind. 524 (1897). &c. R. R. Co., 67 Ala. 114, 120 99 Chicago &c. R. B. Co. v. Boggs, (1880). 101 Ind. 522 (1884); Baltimore &c. Georgia: Western &e. R. R. Co. Ry. Co. v. Conoyer, 149 id. 524 v. Young, 81 Ga. 397 (1888); Cen- <1897). See Smith v. Southern Ry. tral R. R. Co. v. Curtis, 87 id. 416 Co.- OS So. Car. 121 (1898). (1891). General Pkinciples. 25 railroad train at a rate of speed prohibited by the city ordi- nance;^ or a failure to keep a flagman or watchman stationed at a street crossing as required by the ordinance.* But in other States it has been held that a violation of an ordinance is " some evidence of negligence " only.'' § 24. Dangerous or illegal work done under contract. — Where one is under a primary obligation to perform, a duty imposed by law, he cannot release himself from liability for its non- performance, by a contract which he may make for its per- formance by another person.® As where a person or corpo- ration is authorized by statute, or bound by contract, to do a particular work, he cannot avoid responsibility by contracting with another person to do that work.® The distinction appears to be, that, when work is being done under a contract, if an Iowa: Dodge v. Burlington &c. E. R. Co., 34 Iowa, 276 (1872); Cor- rell V. Burlington &c. R. R. Co., 38 id. 120 (1874). Minnesota: Bott v. Pratt, 33 Minn. 323 (1885). Missouri: Murray v. Missouri Pac. Ry. Co., 101 Mo. 236 (1890); Keim v. Union &c. Co., 90 id. 314, 321 (1886). Texas: Gulf &c. Ry. Co. v. Pen- dery, 14 Tex. Civ. App. 60 (1896). Wisconsin: Smith v. Milwaukee Builders &c. Exch., 91 Wis. 360 (1891). 5 CoiTell V. Burlington &c. R. R. Co., 38 Iowa, 120 (1874). 6 Murray v. Missouri Pac. Ry. Co., 101 Mo. 236. 7 Maryland: The violation of the ordinance is not per se such negli- gence on the part of the defendant as will afford a cause of action. Reidel v. Philadelphia &c. R. R. Co., 87 Md. 153 (1897). Pennsylvania: " It Is merely evi- dence of negligence." Connor v. Electric Traction Co., 173 Pa. St. 602, 608 (1896). See Shearm. & Redf. on Neg. (5th ed.), § 13; Thomas on Neg. 404. 8 Shearm. & Redf. on Neg. (5th ed.), § 14. " His obligation is to do the thing, not merely to employ another to do it." Hole v. Sitting- bourne &c. Ry. Co., 6 Hurlst. & N. 488 (1861) ; Pickard v. Smith, 10 C. B. (N. S.) 480 (1861); Village of JefCer- son V. Chapman, 127 111. 438 (1889). Applied to the liability of a city or village where it was held that a city or village cannot divest Itself of its duty to control and super- vise the improvements and repairs of the streets and sidewalks it di- rects to be made, by simply mak- ing a contract therefor, and thereby exonerate itself from lia- bility for ah injury occasioned by the negligent manner in which the work is done by the contractor, lb.; "Veazie v. Penobscot R. R. Co., 49 Me. 119 (1860); Hayes v. West Bay City, 91 Mich. 418 (1892). 9 Hole V. Sittingbourne &c. Ry. Co., 6 Hurlst. & N. 488 (1861). 26 Geneeal Pkinciples. accident happens and an injury is caused by negligence, in a matter entirely collateral to the contract, the liability turns on the question whether the relation of master and servant exists. But, when the thing contracted to be done causes. the mischief, and the injury can only be said to arise from the authority of the employer, because the thing contracted to be done is imperfectly performed, then the employer must be presumed to have authorized the act, and to be responsible for it.^** When one contracts with another to do a wrongful thing, such as digging in a highway, he cannot relieve himself from the consequences by the terms of his contract, by which the contractor stipulated to guard against accidents.^^ Or where the contract directly requires the performance of a work which, however skillfully done, will be intrinsically dan- gerous.^^ § 25. Federal and State courts, when not bound by each other's decisions. — The United States Supreme Court said, in a case brought up from Massachusetts, in which a statute of that State was under review, which forbids travelling on Sunday except " for necessity or charity," that the courts of the United States adopt and follow the decisions of the highest court of a State on questions which concern merely the Constitution or laws of that Stkte; also where a course of those decisions, whether founded on the statute or not, have become rules of property within the State; also in regard to rules of evidence in actions at law; and also in reference to the common law of the State, and its laws and customs of a local character, when established by repeated decisions.-'^ In a case involving the liability of a master for injuries to a servant caused by the 10 Wilde, B., in Hole v. Sitting- area-walls and constructing coal bourne &c. Ry. Co., 6 Hurlst. & N. vaults abutting on a street. Haw- 488, 499 (1861). Or if the act itself ver v. Wbalen, 49 Ohio St. 6» is wrongful, the employer is re- (1892). sponsible for the wrong so done by 12 Village of Jefferson v. Chap- the contractor or his servants, man, 127 111. 438 (1889); Waller v. Ellis V. Sheffield Gas Consumers' Lasher, 37 111. App. 609 (1890). Co., 2 Ellis & B. 767 (1853). 13 Bucher v. Cheshire R. R. Co., 11 Congreve v. Smith, 18 N. Y. 79 125 U. S. 555 (1888). See Burgess (1858); Creed v. Hartmann, 29 id. v. Seligmen, 107 id. 20 (1882). 591 (1864). Or the building of General Peinciples. 37 negligence of a fellow servant the same court said that the point involved was not a question of local law, to be settled by the decisions of the highest court of the State in which a cause of action arises, but is one of general law, to be de- termined by a reference to all the authorities, and a considera- tion of the principles underlying the relation of master and servant.'^* But whether a right of action survives, is governed in the Federal courts by local or State law.^'* On the other hand the State courts are not bound by the decisions of the United States courts on questions involved in accident cases and kindred subjects. But they are guided and bound by the decisions of the highest court of the State in which the ques- tions are presented for adjudication; as was said by Vice- Chancellor Pitney of New Jersey : " While the utterances of the Supreme Court of the United States are binding throughout the Union upon certain constitutional and statu- tory questions, and are entitled to great weight upon all ques- tions, they cannot be considered as authoritative on such as are here involved, outside of the District of Columbia."^" § 26. No contribution between joint tort feasors There can be no claim for contribution between joint tort feasors. One or all are liable for the consequences of the negligent act com- mitted by joint tort feasors. There can be but one satisfac- tion, payment made by one, and a release given by one will discharge all.^^ Although several judgments may be recov- 1* Baltimore &c. R. R. Co. v. termlned by the laws of the State Baugh, 149 U. S. 368 (1893); How- where the action is brought and is ard V. Delaware &c. Co., 40 Fed. not affected by the fact that the Rep. 195, 197 (1889). injury occurred in another State. So It is a question of general Baltimore &c. R. R. Co. v. Joy, 173 law whether a suit can be main- IJ. S. 226 (1899). tained in one jurisdiction when le Merchants &c. Co. v. Borland, death was caused in a different 8 Dick. 295 (N. J. 1895). jurisdiction. Texas &c. Ry. Co. v. "Newman v. Fowler, 8 Vr. 89, Cox, 145 U. S. 593 (1892). 90 (1874); North Pennsylvania R. 15 Schreiber v. Sharpless, 110 U. R. Co. v. Mahoney, 57 Pa. St. S. 76 (1883) ; Baltimore &c. R. R. 187 (1868) ; Spurr v. North Hudson Co. V. Joy, 173 U. S. 226 (1899). County R. R. Co., 27 Vr. 346 (1894) ; Whether a pending action for per- Turton v. Powelton Electric Co., sonal injuries may be revived upon 185 Pa. St. 406 (1898) ; Eaton v. the death of the party is to be de- Boston &c. R. R. Co., 11 Allen, 500 28 Gbneeal Pbinciples. ered, the plaintiff can have but one satisfaction;*^ the reason for the rule being that the law will not imdertake to adjust the burthens of misconduct.*® (1866); Brown v. City of Cam- 18 Severln v. Eddy, 52 111. 189 bridge, 3 id. 474, 476 (1862). The (1869); Gross v. Pennsylvania &c. same doctrine applies to torts for R. R. Co., 65 Hun, 191 (1892). whicli the injured party has an 19 Newman v. Fowler, 8 Vr. 89, election to sue one or more parties 90 (1874). See Shearm. & Redf. on separately, such as master or ser- Neg. (5th ed.), § 31. vant. lb. CHAPTER II. GENERAL PRINCIPLES — Continued. Common Law and Statutoey Liability, as Applied by the CouETS in the Teial of Accident Oases. § 27. Common carriers of pas- ? sengers — Utmost care. 28. Liability is independent of contract. 29. Liability of street railway companies to passengers — Starting and stopping. 30. Liability of common carriers for injuries at depots, sta- tions and platforms. 31. Liability of common carriers to strangers and tres- passers. 32. Contractors — Statutes. 33. Electricity and electrical ap- pliances. 34. Elevators. 35. Domestic animals. 36. Negligent use of firearms. 37. Explosion of fireworlts. 38. Liability of those engaged in games and sports. 39. Infants, idiots and lunatics. 40. Parents not liable for torts of infants — Statutes. 41. Innkeepers — No presumption of negligence from fire. 42. Highways — Abutting own- ers. 43. Injuries received on streets. 44. License to interfere with highways. 45. Gas companies. 46. Temporary use of highways for building or trade. 47. Turnpike and plank-road companies — Statutes. 48. Bridges — Statutes. 49. Wharves and piers. [29] 50. Riding and driving. 51. Bicycles. Liability of street railway companies to vehicles and pedestrians. The rule stated — New York. The rule stated — Pennsyl- vania. Railroad crossings. Duty of traveller to look and listen. Construction and mainte- nance of crossings. Statutory signals. Landlord and tenant. Landlord and tenant — Tene- ment or apartment-houses. 61. When tenant is liable. When lessor and tenant are jointly liable. Master and servant — Lia- bility of master for ser- vant's acts. 64. The relation of master and servant must exist Liability of master to ser- vants — Negligence of fel- low servants — Statutes. Master does not insure ser- vants against risks. Safe place to work — Tools — Machinery — Appliances. Inspection. Duty to select competent and sufficient fellow servants — To make rules. Inexperienced and youthful servants— Instructions and warnings. 52. 53. 54. 55. 56. 57. 58. 59. 60. 62. 63. 65. 66. 67. 68. 69. 70. 30 Genekal Peinciples. § 71. Delegation by master of his personal duties. 72. Liability of servants to third persons or to fellow ser- vants. 73. Liability of municipal cor- porations—Common law — Statutes. 74. Liability of municipal corpo- rations — Highways. 75. Liability of municipal corpo- rations — Notice. 76. Liability for injuries from the use of private prem- ises. 77. Explosions — Blasting. § 78. Unwholesome and offensive occupations. Licensees — Trespassers. Spring guns. Children — Conflicting de- cisions. 82. Public oflicers. 83. Public trustees. Physicians and surgeons — Dentists. Receivers. Liability of the State. 87. Liability for injuries on ves- sels — Act of Congress. 88. Vendors and manufacturers of dangerous articles — Druggists. 79. 80. 81. 84. 85. 86. § 27. Common carriers of mon carriers of passengers passengers — Utmost care. — Corn- are not insurers of the lives or safety of their passengers.^ They are bound to use the utmost care, skill and diligence that human foresight, skUl or expe- rience can suggest to careful, diligent and skillful persons in the construction of the roadbed, ears, machinery appliances and in their use, in the m'anagement of the business.^ This utmost care is exacted by the law as a standard of duty; courts 1 Keadhead v. Midland Ry. Co., L. R., 2 Q. B. 412 (1867); 4 id. 379 <1869); Breen v. New York &c. R. R. Co., 109 N. Y. 297 (1888); Palmer v. Delaware &c. Canal Co., 120 N. Y. 170 (1890); Louisville &c. Ry. Co. V. Snyder, 117 Ind. 435 <1888); Chicago &c. R. R. Co. v. Pillsbury, 123 111. 9 (1887); Sim- mons V. New Bedford &c. Steam- boat Co., 97 Mass. 361 (1867); In- galls V. Bills, 9 Mete. 1 (1845); Carroll v. Staten Island R. R. Co., 58 N.- Y. 126 (1874); Leslie v. Wa- bash &c. R. R. Co.. 88 Mo. 50 (1885); New Jersey Traction Co. v. Gardner, 29 Vr. 176 (1895); Smith V. Chicago &c. R. R. Co., 108 Mo. 243 (1891); Baltimore City Pas- senger Ry. Co. V. Nugent, 86 Md. 349 (1897); Connells v. Chesapeake &c. Ry. Co., 93 Va. 44 (1896). Who are or are not deemed passengers, see Shearm. «& Redf. on Neg. (5th ed.), §§ 488, 489; Story on Bail. (9th ed.), § 600. 2 Readhead v. Midland Ry. Co., L. R., 2 Q. B. 412 (1867); 4 id. 379 (1869); Indianapolis &c. R. R. Co. V. Horst, 93 U. S. 291 (1876). Case of a landslide in a railway cut. Gleeson v. Virginia Midland R. R. Co., 140 U. S. 435 (1890); Montgom- ery &c. Ry. Co. V. Mallette, 92 Ala. 209 (1890); George v. St. Louis &c. Ry. Co., 34 Ark. 613 (1879); St. Louis &c. Ry. Co. v. Sweet, 60 id. 550 (1895); Boyce v. California Stage Co., 25 Cal. 460 (1864); Tread- well V. Whittier, 80 id. 574 (1889); McCurrie v. Southern Pacific Co., 122 id. 558 (1898); Kansas Pa- General Peinciples. 31 should not relax it, especially when the powerful and danger- ous agencies of steam, electricity or compressed air are used as a motive power. The California Civil Code^ provides that they shall use " the utmost care and diligence " for their safe carriage. The Georgia Code provides that a " carrier of passengers is bound to extraordinary diligence " for the safety of passengers.* This rule requiring the highest degree of care applies to passengers on mixed or freight trains.® While it is cific Ry. Co. V. Miller, 2 Colo. 442 negligent and careless use of a (1874); Fuller v. Naugatuck R. R. loaded gun exhibited by another Co., 21 Conn. 557 (1852); Chicago passenger. Ferry Companies v. &c. R. R. Co. V. Pillsbury, 123 111. White, 99 Tenn. 256 (1897); Balti- 9 (1887); Louisville &c. Ry. Co. v. more &c. R. R. Co. v. Wightman, Snyder, 117 Ind. 435 (1888); Union 29 Gratt. 431 (1877); Connells v. Pacific Ry. Co. v. Hand, 7 Kan. Chesapeake &c. Ry. Co., 93 Va. 44 380 (1871); Baltimore City Pas- (1896); Searle v. Kanawha &c. Ry. senger Ry. Co. v. Nugent, 86 Md. Co., 32 W. Va. 370 (1889). " The 349 (1897); Ingalls v. Bills, 9 Mete, utmost care and diligence; " " The 1 (1845); McElroy v. Nashua &c. highest degree of care and dili- R. R. Co., 4 Cush. 400 (1849); Sim- gence," defined in Heucke v. Mil- mons T. New Bedford &c. Steam- waukee City Ry. Co., 69 Wis. 401, boat Co., 97 Mass. 361 (1867); 408 (1887). Such is the universal Dodge V. Boston &e. Steamship doctrine of the courts and text Co., 148 Mass. 207, 218 (1889); Fur- writers. Ray on Negligence of Im- nish V. Missouri Pacific Ry. Co., posed Duties, chap. 4, § 65; Hutch- 102 Mo. 438 (1890); Smith v. Chi- inson on Carriers, §§ 503, 799-801; cago &c. R. R. Co., 108 id. 243 Cooley on Torts (2d ed.), 768, 769; (1891); Palmer v. Delaware &c. Thompson on Carriers of Passen- Canal Co., 120 N. Y. 170 (1890), af- gers, p. 175 et seq.; 2 Wood Ry. firming 46 Hun, 486; Carroll v. Law, p. 1095; Story on Bail., § 601; Staten Island R. R. Co., 58 id. 126 Shearm. & Redf. on Neg. (5th ed.), (1874); Taylor v. Grand Trunk Ry. § 495; 5 Am. & Eng. Ency. of Law Co., 48 N. H. 304 (1869); Sullivan (2d ed.), p. 558; 6 id., p. 236. V. Philadelphia &c. R. R. Co., 30 3 Code, § 2100; Fisher v. South- Pa. St. 234 (1858). In a recent New ern Pacific R. R. Co., 89 Cal. 399 York case this rule is said to exist (1891). only with respect to those results * Code, § 2067; Alabama &c. Ry. which are naturally to be appre- Co. v. Coggins, 88 Fed. Rep.^55 hended from unsafe roadbeds, de- (1898). fective machinery, imperfect cars 5 Chicago &c. R. R. Co. v. Arnol, and other conditions endangering 144 111. 261 (1893); New York &c. the success of the undertaking. R. R. Co. v. Blumenthal, 160 id. Stierle v. Union Ry. Co., 156 N. Y. 40 (1896); Missouri Pacific Ry. Co. 70, 73 (1898); Nashville &e. R. R. v. Holcomb, 44 Kan. 332 (1890); Co. V. Jones, 9 Heisk. 27 (1871). Ohio Valley Ry. Co. v. Watson, 93 The rule was applied to protecting Ky. 654 (1893). passengers from injuries by the 33 Geneeal Peinciples. said that the " utmost care " and the " highest degree of dili- gence " are to be exercised, it is to be understood that the care and diligence exacted are not such as will exclude all possible peril, or required to be of that degree that will render the use of the instruments of transportation, known to be employed,^ impracticable. But it always has relation to the mode of con- veyance accepted and used, and the conditions and circum- stances necessarily attendant.® They are liable for the slight- est negligence causing injury to their passengers.^ The reason for the rule is, that a neglect of duty in such cases is likely to result in such fatal consequences, such as great bodily harm or loss of life to those who are compelled to use such means of conveyance. As the result of the least negligence may be of so fatal a nature, the duty of vigilance, imposed by law on the part of the carrier, requires the exercise of the utmost care, so far as human skill, experience and foresight can go, in order to prevent or guard against accident.* The fact that a carrier is financially embarrassed is no excuse for relaxing 6 Chicago &c. R. R. Co. v. Arnol, 144 111. 261, 272 (1893); Dodge v. Boston &c. Steamship Co., 148 Mass. 218 (1889). Whenever the company receives passengers upon freight trains and collects fare from them, although it is done in violation of a rule of the company, the corporation in- curs the same liability for his safety as if he were in their regu- lar passenger train. Beach on Cont. Neg. (3d ed.), § 154; Interna- tional &c. R. R. Co. V. Irvine, 64 Tex. 529 (1885); Whitehead v. St. Louis &c. Ry. Co., 99 Mo. 263 (1889); Dunn v. Grand Trunk Ry. Co., 58 Me. 187 (1870); Lawrence- burg &c. R. R. Co. V. Montgomery, 7 Ind. 474, 476 (1856); Creed v. Pennsylvania R. R. Co., 86 Pa. St. 139 (1878); Bdgerton v. New York &c. R. R. Co., 39 N. Y. 227 (1868); Lucas V. Milwaukee &c. R. R. Co., 33 Wis. 41 (1873); Ohio &c. R. R. Co. V. Muhling, 30 111. 9 (1861). 7 Louisville &c. Ry. Co. v. Sny- der, 117 Ind. 435 (1888); Baltimore &c. R. R. Co. V. Wightman, 29 Gratt. 431 (1877); Boyce v. Cali- fornia Stage Co., 25 Cal. 460, 468 (1864); Furnish v. Missouri Pacific Ey. Co., 102 Mo. 438 (1890); Heucke v. Milwaukee City Ry. Co., 69 Wis. 401 (1887); Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890 (1893). What degree of care the common carrier must observe for the safety of a passenger on its trains, to exonerate it from lia- bility for injury, is a question of law. Chicago &c. R. R, Co; v. Pillsbury, 123 111. 9 (1887). 8 Kelly V. Manhattan Ry. Co., 112 N. Y. 443, 450 (1889); Moreland V. Boston &c. R. R. Co., 141 Mass. 31 (1886). For carrier's liability for injuries happening to passengers beyond carrier's line, see Shearm. & Redf. on Neg. (5th ed.), § 503. Genehal Principles. 33 the severity of the rule.® The standard of care and diligence required by the law does not depend upon the common car- rier's pecuniary condition nor the amount of its earnings.^* § 28. liability is independent of contract. — The duty of com- mon carriers, engaged in the public employment, to safely and securely carry, is independent of contract. It is a duty imposed by law from considerations of public policy. It arises from the fact that persons or property are received in the course of the business of such employments.^-^ ISTor do the obligations and liabilities depend upon statute. ^^ The rule of law has its foundation deep in public policy. It is approved by experi- ence, and sanctioned by the plainest principles of reason and justice.-^* § 29. Liability of street railway companies to passengers — Starting and stopping. — The same duty, obligations and lia- bilities are imposed upon street railway companies for the safe carriage of their passengers as are imposed upon steam rail- roads. ■** A different rule is applied to steam railroads starting and stopping their trains at stations, and to street railway companies stopping and starting to take on and let off passen- 9 Taylor v. Grand Trunk Ry. Co., Ky. Co. v. McClellan, 54 Neb. 672 48 N. H. 304, 317 (1869). (1898); Wynn v. Central Park &c. 10 lb. R. R. Co., 38 N. Y. St. Rep. 181 11 Delaware &c. R. R. Co. v. (1891); Stierle v. Union Ry. Co., 156 Trautwein, 23 Vr. 169 (1889); Car- N. Y. 70 (1898); Topeka City Ry. >roll v. Staten Island R. R. Co.. 58 Co. v. Higgs, 38 Kan. 375 (1888); N. Y. 126 (1874); Austin v. Great O'Connell v. St. Louis Cable &c. "Western Ry. Co., L. R., 2 Q. B. Ry. Co., 106 Mo. 482 (1891); Bonce 442 (1867); Poulkes v. Metropolitan v. Dubuque Street Ry. Co.,53 Iowa, Dist. Ry. Co., L. R., 5 C. P. D. 157, 278 (1880); Heucke v. Milwaukee 169 (1880); 4 id. 267; Shearm. & City Ry. Co., 69 "Wis. 401 (1887); Redf. on Neg. (5th ed.), § 486. Denver Tramway Co. v.. Reid, 4 12 Hannibal &e. R. R. Co. v. Col. App. 53 (1893); Spellman v. Swift, 12 "Wall. 262 (1870); Phila- Lincoln Rapid Transit Co., 36 Neb. delphia &c. R. R. Co. v. Derby, 14 890 (1893); Cronan v. Crescent City How. 468, 485 (1852). R. R. Co., 49 La Ann. 65 (3897); 13 Indianapolis &c. R. R. Co. v. Atlanta Consolidated Street Ry. Horst, 93 U. S. 291, 296 (1876). Co. v. Bates, 103 Ga. 333 (1897); 1* Citizens Street Ry. Co. v. Twi- Ray on Negligence of Imposed Du- name, 111 Ind. 587 (1887); Smith v. ties, chap. Ill; Thompson on Car- St. Paul City Ry. Co., 32 Minn. 1 riers of Passengers, 26, 442; Hutch- (1884); "Watson v. St. Paul City Ry. inson on Carriers, § 500 et seq. Co., 42 id. 46 (1889); Lincoln Street 3 34 General Principles. gers. On the ordinary railroads operated by steam power, and stopping at regular stations, the conductor in charge of a train is only required to stop a sufficient time to allow pas- sengers an opportunity to alight by the exercise of reasonable diligence, and, having so waited, is not guilty of negligence in putting the train in motion again, while a passenger is in the act of alighting, or otherwise in a dangerous position, unless he knew the fact at the time, or ought to have known it. But this principle does not apply to the driver or motor- man of a street railway car drawn by horses, or propelled by electricity, whose duty it is, when signalled to stop, not only to stop a reasonable time for passengers to alight, but to see and know, before starting again, that no one is in the act of alighting, or in any other perilous position. If injury is done to a passenger while alighting from the car by starting the same, it is such a failure of duty as renders the company liable." § 30. Liability of common carriers for injuries at depots, sta- tions and platforms. — Common carriers are bound simply to ex- ercise ordinary care over the approaches to the cars, such as depots, stations, platforms, halls, stairways and the like, in view of the dangers to be apprehended.-'® They are not held to IB Birmingham Union Ry. Co. v. land v. Boston &c. R. R. Co., 141 Smith, 90 Ala. 60 (1890); id. 8. See Mass. 31 (1886); Pendleton Street Washington &c. R. R. Co. v. Grant, R. R. Co. v. Shires, 18 Ohio St. 11 App. Cas. 107 (D. O. 1897); Rob- 255 (1868); Beard v. Connecticut inson v. Northampton Ry. Co., 157 &c. R. R. Co., 48 Vt. 101 (1875) ', Mass. 224 (1892); Earth v. Kansas St. Louis &c. Ry. Co. v. Fairbairn, City Elevated Ry. Co., 142 Mo. 48 Arli. 491 (1886); Moses v. 535 (1897). Negligence on stop- Louisville &c. R. R. Co., 39 La. ping and starting, see Shearm. & Ann. 649 (1887); Buenennann v. Redf. on Neg. (5th ed.), § 508. St. Paul &c. Ry. Co., 32 Minn. 16 Kelly V. Manhattan Ry. Co., 390 (1884); McKone v. Michigan 112 N. Y. 443, 450 (1889); Palmer V. Cent. R. R. Co., 51 Mich. 601 Pennsylvania Co., Ill id. 488 (1883); Cross v. Lake Shore &c. (1888); Lafflin v. Buffalo &c. R. R. R- R- Co., 69 id. 363 (1888); Moore Co., 106 Id. 136 (1887); Carpenter v. Wabash &c. R. R. Co., 84 Mo. V. Boston &c. R. R. Co., 97 id. 494 481 (1884); Ray on Negligence of (1884); Bennett v. Louisville &c. Imposed Duties, § 33; Shearm. & R. R. Co., 102 TJ. S. 577 (1880); Kedf. on Neg. (5th ed.), '§§ 501, 506; Exton V. Central R. R. Co., 33 Vr. Beach on Cont. Neg. (3d ed.), §| 7 (1898); Pennsylvania Co. v. 160-163. Marion, 104 Ind. 239 (1885); More- General Peinciples/ 35 that high degree of care which the law requires them to exer- cise over the roadbed, machinery and appliances, when in operation, for the safety of the passenger, while in the actual progress of his joiirney; and this for the reason that the con- sequences of a neglect of the highest skill and care which human foresight can attain to in such cases are naturally of a much less serious nature." A passenger walking on a railroad station platform, in order to enter his train, is not bound to exercise any more care than the law requires in a place presumed to be safe.^* To establish a case of negligence for an alleged defectiveness in a structure for the use of pas- sengers, such as a platform or the like, it must be proved that it was an improper one for its purpose. It is not sufficient to show that by some alterations it might have been made safer. ^^ Overcrowding the platform of an elevated station whereby injury is caused to passengers about to board a train, is actionable f^ but negligence in such a case is a question for the jury.^^ A railroad company owes no duty with respect to the safety of its depot platforms and waiting-rooms, to those who visit its premises out of idle curiosity ,^^ but to abstain from gross and wanton negligence, which is equivalent to in- tentional mischief.^* § 31. Liability of common carriers to strangers and trespassers. — The common carrier of passengers is not under the same obligation as to care and diligence in guarding against injuries to strangers, especially to trespassers, that it is in guarding against injuries to passengers.^ But such a person cannot "Kelly V. Manhattan Ry. Co., ^^t lb. 112 N. Y. 443, 450 (1889). See Ala- 22 Gillis v. Pennsylvania E. R. bama &c. Ry. Co. v. Coggins, 88 Co., 59 Pa. St. 129 (1868); Burbank Fed. Rep. 455 (1898) ; Pennsylvania v. Illinois Cent. R. R. Co., 42 La. Co. V. McCaffrey, 173 111. 169 Ann. 1156 (1890); Helnlein v. Bos- (1898). ton &c. R. R. Co., 147 Mass. 136 iSAyree v. Delaware &c. R. R. (1888). Co., 158 N. Y. 254 (1899). 23 Burbank v, Illinois Cent. R. R. isCrafter v. Metropolitan Ry. Co., 42 La. Ann. 1156 (1890); Co., L. R., 1 C. P. 300 (1866); Whart. on Neg. 822. Toomey v. Brighton &c. Ry. Co., 24 Chicago &c. R. R. Co. v. Mehl- 3 C. B. (N. S.) 146 (1857). sack, 131 111. 61 (1889); Snyder v. 20 McGearty v. Manhattan Ry. Natchez &c. R. R. Co., 42 La. Ann. Co., 15 App. Div. 2; 43 N. Y. Supp. 302 (1890); Leonard v. Boston &c. 1086 (1897). R. R. Co., 170 Mass. 318 (1898). 36 Gene'hal Pbinciples. be treated in a willful, wanton, or malicious manner.^^ To entitle the plaintiff, who was a trespasser, to recover damages against a railroad company, he must prove either a wanton and willful injury by the defendant company, or that after discovering the plaintiff's perilous position the company did not exercise ordinary care to avoid the accident.^® § 32. Contractors — Statutes. — It is a settled principle in the law of negligence, declared in a multitude of cases, and ap- plied to a great variety of circumstances, that where a person or corporation exercising an independent employment, enters into a contract with another, as an independent contractor, to execute the subject-matter of the contract, the contractor alone is liable for injuries arising from the negligence of him- self or his servants.^ There are well-understood and defined exceptions to this rule of exemption : First : "When the sub- ject-matter of the contract is unlawful. Second: When a statutory duty is imposed upon individuals or corporations. Third: When the contract provides for the doing of an act which, when performed, vsdll create a nuisance.^® Fourth: When the thing to be done, however skillfully and carefully performed, is intrinsically dangerous.^^ This principle is 25 Atchison &c. R. R. Co. v. his own right and for himself, Gants, 38 Kan. 608 (1888); Louis- whereas an agent or servant acts ville &c. R. R. Co. v. Johnson, 92 for and in the name of another. Ala. 204 (1890); Chicago &e. R. R. City of Detroit v. Corey, 9 Mich. Co. V. Mehlsack, 131 111. 61 (1889); 184 (1861). Snyder v. Natchez &c. R. R. Co., 28 Bngel v. Eureka Club, 137 N. 42 La. Ann. 302 (1890); Condran v. Y. 100, 104 (1893); Peachey v., Row- Chicago &c. Ry. Co., 67 Fed. Rep. land, 13 C. B. 182 (1853); Ellis v. 522 (1895); 14 C. C. A. 506. See Sheffield Gas Co., 2 El. & B. 767 Pierce on Railroads, p. 330; Hutch- (1853); Evans v. Murphy, 87 Md. inson on Carriers, p. 447. 498 (1898); Smith v. Benick, 87 id. 26Pelrce v. Walters, 164 111. 560 610 (1898). See Shearm. & Redf. (1897). on Neg. (5th ed.), §§ 176, 298. 27Thomas on Neg., p. 343; Cooley 292 Dillon on Mun. Corp., § on Torts, 548; Shearm. & Redf. on 1029; Mayor &c. of Birmingham Neg. (5th ed.), § 164; Cuff v. New^ v. McCary, 84 Ala. 469 (1887). Or ark &c. R. B. Co., 6 Vr. 17, 574 where the employer personally in- Q870); Berg v. Parsons, 156 N. Y. terferes with the work. Berg v. 109 (1898). The difference between Parsons, 156 N. Y. 109 (1898). It a contractor and an agent or ser- is also held that there must be due vant is, that a contractor acts in care in selecting the contractor. General Principles. 37 based upon the reason that the contractor alone has the right to direct and control the manner of performing the work and the servants hired by him in its execution. This is also made the test in some courts/" by which to determine whether the one performing the work is an independent contractor or simply a servant or agent. " The true test of a ' contractor ' would seem to be, that he renders the service in the course of an independent occupation, representing the will of his em- ployer only as to the result of his work, and not as to the means by which it is accomplished."^,^ § 33. Electricity and electrical appliances.— In supplying and handling electricity " very great care " to prevent injury is required. ^^ " It is due to the citizens that electric companies that are permitted to use for their purposes the streets of a city or town shall be required to exercise the utmost degree of care in the construction, inspection and repair of their wires and poles, to the end that travellers along the highway may not be injured by their appliances. The danger is great, and care and watchfulness must be commensurate to it. Norwalk &c. Co. v. Borough of is the violation of a duty imposed Norwalli, 63 Conn. 395 (1893). See by express contract upon the em- Berg v. Parsons, 84 Hun, 60 (1895); ployer; (4) or if the wrongful act Am. L. Rev. for March- April, 1895, is the violation of a duty imposed p. 229. by statute; (5) or if the employer 30 Larson v. Metropolitan Street retains the right to direct or con- By. Co., 110 Mo. 234 (1892). trol the time and manner of exe- 31 Shearm. & Kedf. on Neg. (5th cutlng the work or interferes and ed.), § 164. Approved in Hexamer assumes control so as to create the V. Webb, 101 N. y. 377, 385 (1886); relation of master and servant, or Cunningham v. International R. R. so that an injury results which is Co., 51 Tex. 503, 510 (1879); Rob- traceable to his interference; (6) inson v. Webb, 11 Bush, 464 (1875). or if the employer ratifies the un- The Georgia statute provides authorized way of the independent that an employer is liable for the contractor. Code of Ga. (vol. 2), acts of a contractor: (1) when the 1895, § 3819. work is wrongful in itself, or if 32 Giraudi v. Electric Imp. Co., done in the ordinary manner, 107 Cal. 120, 124 (1895). See My- would result in a nuisance; (2) or ban v. Louisiana Electric Light &c. if, according to previous knowledge Co., 41 La. Ann. 964 (1889) ; Ennis and experience, the work to be v. Gray, 87 Hun, 355 (1895); 10 Am. done is in its nature dangerous & Eng. Ency of Law (2d ed.), p. to others, however carefully per- 869. formed; (3) or if the wrongful act 38 General Phinciples. * * * All the reasons that support the rigid enforcement of this rigid rule against the carriers of passengers by steam, apply with double force to those who are allowed to place above the streets of a city wires charged with a deadly current of electricity or liable to become so charged. The require- ment does not carry with it too heavy a burden. "^^ It is negli- gence to allow a wire liable to become charged with electricity to hang in or over a street or sidewalk at such a height as to obstruct or endanger ordinary travel.^* § 34. Elevators. — The same duty, obligations and liabilities as to care, skill and diligence are imposed, by law, upon the owners and managers of a passenger elevator, as upon a com- mon carrier of passengers, for the protection of the passengers in it, and to guard against injuries to thera.^ The owner of a passenger elevator in a building which is run for the use of those persons invited to enter the building, becomes a common carrier, and is charged with the highest degree of care which human foresight can suggest, both as to machinery and appli- ances and the conduct of the servants.^® They are liable for 33 Burwell, J., in Haynes v. olede Gas Light Co., 145 Mo. 502 Kaleigh Gas. Co., 114 N. C. 203, (J 898); Newark Electric Light &c. 211 (1894); S. P., Leavenworth Coal Co. v. Ruddy, N. J. (1898); 5 Co. V. Ratchford, 5 Kan. App. 150 Am. Neg. Rep. 402, where a list (1897); Excelsior Electric Co. v. of recent cases will be found in Sweet, 28 Vr. 224 (1894) ; Suburban which injuries were sustained from Electric Co. v. Nugent, 29 id. 658 contact with electric wires. (1896) ; Arkansas Telephone Co. v. 35 Goodsell v. Taylor, 41 Minn. Ratteree, 57 Ark. 429 (1893); South- 207 (1889); Treadwell v. Whittier, western &c. Co. v. Beatty, 63 id. 80 Cal. 574 (1889). See Hodges v. 65 (1896). See Shearm. & Redf. on Percival, 132 111. 53 (1890); Lee v. Neg. (5th ed.), § 698; Elliott on Publishers' Co., 55 Mo. App. 390 Roads & Streets, chap. 29, " Street (1893); Hartford Deposit Co. v. Railways;" Western Union Tel. SoUitt, 172 111. 222 (1898); Shearm. Co. V. Thorn, 64 Fed. Rep. 287 & Redf. on Neg. (5th ed.), § 719a; (1894); 12 C. C. A. 104; lUings- Alb. L. .T., Nov. 23, 1889, p. 417; worth V. Boston &c. Co., 161 Mass. Thomas on Neg. 560; 10 Am. & 583 (1894); Sullivan v. Boston &c. Eng. Ency. of Law (2d ed.), p. 944. R. R. Co., 156 id. 378 (1892); Hector 36 Marker v. Mitchell, 54 Fed. V. Boston &c. Co., 161 id. 558(1894); Rep. 637 (1893); 10 C. 0. A. 306; Griffin v. United &c. Co., 164 id. Treadwell v. Whittier, 80 Cal. 574 492 (1895); Jackson v. Wisconsin (1889) ; Goodsell v. Taylor, 41 Minn. Tel. Co., 88 Wis. 243 (1894). 207 (1889); Kentucky Hotel Co. v. S4Ahern v. Oregon Tel. Co., 24 Camp, 97 Ky. 424 (1895); Field v. Or. 276 (1893); Gannon v. La- French, 80 111. App. 78 (1898). General Pkinciples. 39 the slightest negligence causing injury to their passengers.^^ The falling of an elevator affords prima facie evidence of negligence.^ In some States the operation of elevators is regulated by statute.^^ An omission to comply with the. re- quirements of the statute is prima facie evidence of negli- 40 gence. § 35. Domestic animals.— Generally it is said to be well es- tablished that the owner of a vicious dog, is liable for any injury committed by the dog, if he had previous knowledge of its vicious propensities.*^ This is true when the animal is permitted to go at large. The owner's liability does not depend upon negligence, because in such cases it is a willful wrong to permit a vicious animal to wander at will.*^ Fo^ injuries committed by animals, the owner is only liable for his negligence in permitting, or suffering such injuries to be committed.*^ He is only answerable for the want of ordinary «are.** Thus, the owner of a dog is not liable for the damages 37 Oberfelder v. Doran, 26 Neb. York Eeal Estate Assn., 156 N. Y. 118 (1889); Kentucky Hotel Co. v. 205 (1898). Camp, 97 Ky. 424 (1895). See Mc- ^i Hilllard on Torts, 644; 1 Add. Orell V. Buffalo Office Building on Torts (Wood's ed.), §§ 261, 262; Co., 153 N. Y. 265 (1897); Shattuck Perkins v. Mosswan, 15 Vr. 579 v. Hand, 142 Mass. 83 (1886); Colo- (1882); Roehers v. RemhofC, 26 id. rado Mortg. &e. Co. v. Eees, 21 475 (1893). Colo. 435 (189.5) ; Amerine v. Por- « Shearm. & Redf . on Neg. (5tli teous, 105 Mich. 347 (1895); Obers- ed.), § 628; Lynch v. McNally, 73 dorfer v. Pabst, 100 Wis. 515 N. Y. 347 (1878); 7 Daly, 126; Mul- (1898). Injury to servants. Straw- ler v. McKesson, 73 N. Y. 195 tiridge v. Bradford, 128 Pa. St. 200 (1878); 2 Am. & Eng. Ency. of Law (1889); Bier v. Standard Mfg. Co., (2d ed.), p. 351. 130 id. 446 (1889). Effect of public 43 Shearm. & Redf. on Neg. (5th inspection of elevators on masters' ed.), § 626; Thomas on Neg. 506; duty to servants. McGregor v. Van Leuven v. Lyke, 1 N. Y. 515 Eeid &c. Co., 178 111. 464 (1899). (1848); Dolfinger v. Fishback, 12 38Goodsell V. Taylor, 41 Minn. Bush, 474 (1876); Woodbridge v. 207 (1889); Treadwell v. Whittier, Marks, 17 App. Div. 139 (1897); 45 80 Cal. 574 (1889); Hartford De- N. Y. Supp. 156. posit Co. V. Sollitt, 172 111. 222 44 Shearm. & Redf. on Neg. (5th (1898). ed.), § 626; Meredith v. Reed, 26 39 New York Laws of 1874, chap. Ind. 334 (1866); Georgia Code, § 547, § 5. 2964; Conway v. Grant, 88 Ga. 40 40 McRickard v. Flint, 114 N. Y. (1891). 222 (1889). See Malloy v. New 40 General Pbinciplbs. caused by the dog, though he knows he is vicious, if he exer- cise proper care and diligence to secure him, so that he will not injure any one who does not unlawfully provoke or inter- meddle with him.*^ § 36. Negligent use of firearms — ^When one makes use of loaded weapons, he is responsible only as he might be for any negligent handling of dangerous machinery, that is to say, for care proportioned to the danger of injury from them. The firing of guns for sport or exercise is not unlawful if a suitable place is chosen for the purpose, but in the streets of a city, or in any place where many persons are congregated it might be negligence.*® Mr. Justice Scudder, of the Supreme Court of jSTew Jersey, said : " The duty which a person, lawfully carrying firearms, owes to others is not different from that which is imposed on all who have control of any hurtful thing, except in the degree of care to be exercised. As firearms are more than ordinarily dangerous when loaded, those who handle them are bound to use more than ordinary care to prevent injury to others. * * * Each case must stand upon its own peculiar facts, and rational rather than distinctively legal conclusions must usually be drawn from them."*'^ Thus where *5 Worthen v. Love. 60 Vt. 285 proper precautions against such. (1888). Draft horse. Reed v. acts on its part." Shearm. & Eedf. Southern Express Co., 95 Ga. 108 on Neg. (5th ed.), § 628, and cases (1894). Unaltered mule, decided cited; Earhart v. Youngblood, 27 under Sand & H. Dig., § 7301; Pa. St. 331 (1856); Finney v. Curtis, Briscoe v.Alfrey, 61 Ark. 196(1895). 78 Cal. 498 (1889); Meegan v. Mc- Cow. Moyslakan v. Wheeler, 117 Kay, 1 Okl. 59 (1892); Norris v. N. Y. 285 (1889); Brice v. Bauer, Warner, 59 111. App. 300 (1894); 108 id. 428 (1888). Liability of Cuney v. Campbell, Minn. ; 6 owner of dog for injury, under Am. Neg. Rep. 97 (1899). In Eng- lowa Code, § 1485; Schultz v. Grif- land and many of the States the fith, 103 Iowa, 150 (1897). common-law rule- requiring an. " To charge the owner of an averment and proof of scienter as animal for an injury committed by against owners of dogs has been it when not trespassing, it Is neces- modified by statute, sary, at common law, to allege and 46 Cooley on Torts, p. 593 ; Con- prove that he had previous notice radt v. 01auve,-93 Ind. 476 (1883). that its disposition vras such as to 47 Moebus v. Becker, 17 Vr. 41, make it probable that it would 44 (1884). See Hankins v. Wat- commit injuries of a similar char- kins, 77 Hun, 360 (1894); 28 N. Y. acter, and that he failed to take Supp. 867. General Principles. 41 the defendant fired a pistol, shooting at a mark, and the ball glanced and hit the plaintiff, it was found that the injury was unintentional, but was the result of gross and culpable carelessness on the defendant's part, it was held that the action of trespass vi et armis would lie.** On the other hand, one hunting in a wilderness need not expect the presence of another within range of his gun, and if such be the case and unintentional injury results, the huntsman is not liable.*® "Where one of two hunters is walking in advance of the other, the latter is bound to so carry his gun that in the event of its accidental discharge the former will not be injured. The duty of each is to watch his own gun, not the guns of those behind him.™ So it is actionable negligence for one, while adjusting the hammer of a loaded revolver, to hold it so that an accidental discharge would injure another. ^-^ If a person is injured by the dis- charge of firearms in the hands of another, who has entire control of them, the burden is cast upon the latter to prove that the gun or revolver was not fired at the former either intentionally or negligently, but the result was inevitable and without the least fault upon his part.^^ 48 Welch v. Durand, 36 Conn, not apply. Sutton v. Bonnett, 114 182 (1869). Ind. 243 (1887). 49 Whitten v. Hartln, 163 Mass. In Kentucky the statute provides 39 (1895); Thomas on Neg. 676; "that the widow and minor child Shearm. & Redf. on Neg. (5th ed.), or children of a person killed by § 686. the careless, wanton, or malicious sowinans v. Randolph, 169 Pa. use of firearms, or by any weapon St. 606 (1895). See McCleany v. popularly known as "Colts," Frantz, 160 id. 535 (1894). " brass knucks," or " slung shots," 61 Judd v. Ballard, 66 Vt. 668 or other deadly weapons not in (1894). self-defense, may have an action B2 Atchison v. Dullam, 16 111. against the person or persons who App. 42 (1884). In Indiana the act committed the killing." Gen. of March 5, 1883, p. 107, concern- Stats., chap. 1, § 6. See Bethel v. ing the use of firearms, makes Otis, 92 Iowa, 502 (1894); Knott v. criminal the pointing of a gun Wagner, 16 Lea, 481 (1886). or other firearm at another pur- One who snaps a gun knowing posely, whether it be done with it to be pointed at another person wicked intent or in mere foolish- is guilty of negligence per se and ness. Lange v. State, 95 Ind. 114 is liable to such person in damages, (1883). But where the weapon is both at common law and under the accidentally, and not purposely, statute. Bahel v. Manning, 112 pointed at another, the statute does Jlich. 24 (1897). 42 Statement of Genekal Pkinciples. § 37. Explosion of fireworks. — Mr. Thomas in his work on Negligence says: " The explosion of fireworks in a public street, without proper legislative or municipal authority, is wrongful, and the wrongdoer is liable for an injury happening therefrom to persons or property."^^ If a municipality by ordinance assumes to authorize the display of fireworks at places and under circumstances dangerous to persons and property, it may be liable for damages resulting therefrom to persons not participating therein, without other evidence of negligence or wrong ;^ a person placing himself in proximity to an unlawful display, to watch the same, may recover for injury -without evidence of negligence in the conduct of the same, or in the use of dangerous materials."®^ One firing a gun or exploding fire-crackers in a street, thereby frightening borses, is liable either to the owner of the horse ;^® or to any person whom the frightened horse may have injured.^^ § 38. Liability of those engaged in games and sports. — One in- flicting an injury while engaged in a game or sport is liable for such injury if it was intentional;^* but if the injury was inflicted in good faith and within the rules of the game, it is not actionable.^® 53 Thomas on Neg., p. 679; Mo. 653 (1889). Contra, Scanlon v. Whart. on Neg., § 181; Conklin v. Wedger, 156 Mass. 462 (1892). Case Thompson, 29 Barb. 218 (1859); of fireworks. See Warxel v. Harrl- Shearm. & Redf. on Neg. (5th ed.), son, 37 111. App. 323 (1890). § 688. Squib thrown from person 56 Cole v. Fisher, 11 Mass. 137 to person liable to any one alter- (1814); Conklin v. Thompson, 29 nately injured by its explosion. Barb. 218 (1859). Scott v. Shepard, 2 W. Blackst. 57 Conklin v. Thompson, 29 Barb. 892 (1773); 3 Wils. 403. 218 (1859); S. P., Lowery v. Man- 54 Thomas on Neg., p. 679; Speir hattan Ry. Co., 99 N. Y. 158 (1885); V. City of Brooklyn, 139 N. Y. 6 Lee v. Union R. R. Co., 12 R. I. <1893). Contra, Fifield v. City of 383 (1879); Plollet v. Simmers, 106 Phoenix, 36 Pac. Rep. 916 (Ariz. Pa. St. 95 (1884). 1894); Bartlett v. Town of Clarks- 58 Cooley on Torts, § 163. burg, W. Va. (1898); 5 Am. 59 whart. on Neg. Ill; Thomas Neg. Rep. 492. on Neg. 681. Engaged in a " rush " 55 His mere presence as a specta- or "horse game." Markley v. Whit- tor does not make him a joint man, 95 Mich. 236 (1893). Defense wrongdoer. Thomas on Neg., p. that the act he did was by way of 679; Colvin v. Peabody, 155 Mass. a joke. Wartman v. Swindell, 25 104 (1891); Dowell v. Guthrie, 99 Vr. 589 (1892). Statement of General Pbinciples. 43 § 39. Infants, idiots and lunatics. — Infants, idiots and hma- tics*" are liable for tkeir torts in the same manner as adults.®^ An injury might probably be considered an unavoidable acci- dent in the case of infants, which would not be so considered in the case of adults.®^ The law looks to the person damaged by another and seeks to make him whole without reference to the condition mental or physical, of the person causing the damage.^ § 40. Parents not liable for torts of infants — Statutes A parent is not liable for the torts of his infant child, not done by his authority;®* such as injury done with guns given by the parent to the child.®^ But in Georgia it is provided by statute that every person shall be liable for torts committed by his child.«® 60 Reeves on Domestic Relations, 64 Chiaddocls v. Plummer, 88 p. 386; Seliouler on Domestic Re- Mich. 225 (1891); Harris v. lations, § 253; Bullock v. Babcock, Cameron, 81 Wis. 239 (1892); Hag- 3 Wend. 391 (1829); Sikes v. John- erty v. Powers, 66 Oal. 368 (1885); son, 16 Mass. 389 (1820); Conklin TifCt v. Tifft. 4 Den. 175 (1847); y. Thompson, 29 Barb. 218 (1859); Baker v. Haldeman, 24 Mo. 219 Conway v. Reed, 66 Mo. 346 (1877); (1857). Campbell v. Stakes, 2 Wend. 137 In Mississippi it was held that a (1828); Tifft v. Tifft, 4 Den. 175 parent is not civilly liable to a (1847). child for personal injuries Inflicted 61 1 Chit. PI. 66; Morain v. Dev- during minority and while the re- lin, 132 Mass. 87 (1881). lation of parent and child with its 62 Bullock V. Babcock, 3 Wend, natural obligations exist. Hewlett 391 (1829). On the question of the v. Ragsdale, 68 Miss. 703 (1891). contributory negligence of a young That was a suit by a child against child the New York Court of Ap- her mother to recover damages for peals said: In administering civil having willfully, illegally and ma- remedies the law does not fix any liciously caused a minor daughter arbitrary period when an infant to be imprisoned for ten days in becomes sui juris; when the in- an Insane asylum. lb. quiry Is material it becomes a 65 Chaddock v. Plummer, 88 question of fact for the jury, un- Mich. 225 (1891); Harris v. Oam- less the child is of so very tender eron, 81 Wis. 239 (1892). Contra, years that the court can safely de- Johnson v. Glidden, S. Dak. cide. Stone v. Dry Dock &c. R. R. (1898); 5 Am. Neg. Rep. 97. Co., 115 N. Y. 104 (1889). 6« Code of Ga. (1895), § 3817. 63 Williams v. Hays, 143 N. Y. 442, 446 (1894); 157 id. 541 (1899). 44 General Principles. § 41. Innkeepers — No presumption of negligence from fire. — An iniLkeeper is not an insurer of the persons of his guests against injury, his obligation is merely to exercise reasonable care that his guests may not be injured by anything happening to them by his negligence.*^ No presumption of negligence arises against the owner or occupier of an inn or house in which fire originates.** § 42. Highways — Abutting owners. — The abutting owner of land fronting on a highway or street owes no duty, as such^ to repair any part of the highway, or otherwise make it safe for travel;®* he is liable, however, for injuries resulting from obstructions caused or created by him in the adjoining side- walk, it makes no difference how or in what manner such obstructions were created.^" But he is not responsible to individuals for injuries resulting to them from defects or want of repair in the sidewalk ;^^ or from accumu- lations by natural causes, of snow and ice thereon;'^ or for injuries resulting from obstructions in the way, wholly effected by natural causes ;^^ although the sidewalk forms part of the highway, and he is obliged by ordinances of the city to keep the sidewalk clear and in good repair.^* But he will be liable if he constructs a building by which he directs the natural 6T Weeks v. McNulty, 101 Tenn. ting sidewalk is not sufficient to 495 (1898). charge the owner with knowledge 68 Weeks v. McNulty, 101 Tenn. of its unsafe condition. Frassi v. 495 (1898). The contrary rule has McDonald, 122 Gal. 400 (1898). been pronounced harsh and unrea- 7i Kirby v. Boylston Market sonable. lb. Assn., 14 Gray, 249 (1859). 69 Dillon on Mun. Corp., § 1012; 72 Kirby v. Boylston Market Oity of Rochester v. Campbell, 123 Assn., 14 Gray, 249 (1859); Moore N. Y. 405 (1890); Waller v. McCor- v. Gadsden, 93 N. Y. 12 (1883); Tay- mick, 18 Vr. 397 (1885); Kirby v. lor v. Lake Shore &c. R. R. Co., Boylston Market Assn., 14 Gray, 45 Mich. 74 (1881); City of Hart- 249 (1859). See Kelly v. Bennett, ford v. Talcott, 48 Conn. 525 (1881); 132 Pa. St. 218 (1890); EUiott on Flynn v. Canton Co. of Baltimore, Streets & Roads, chap. 27. 40 Md. 312 (1874) ; Norton v. City of 70 Kirby v. Boylston Market St Louis, 97 Mo. 537 (1888). Assn., 14 Gray, 249 (1859) ; Barry 73 city of Hartford v. Talcott, 4S v. Terkildsen, 72 Cal. 254 (1887); Conn. 525 (1881). Flynn v. Canton Co. of Baltimore, 74 Kirby v. Boylston Market 40 Md. 312 (1874). The mere exist- Assn., 14 Gray, 249 (1859); Flynn ence of an unsafe condition from v. Canton Co. of Baltimore, 40 Md. ten to twenty minutes of an abut- 312 (1874); Taylor v. Lake Shore Geneeal Pbinciples. 45 flow of water from his premises upon a sidewalk, where it freezes; to persons who are injured by falling on the ice;'''' or where snow accumulates on a roof, and does injury by sliding off in a mass;''® upon a person travelling with due care on a highway J^ § 43. Injuries received on streets — An unauthorized excava- tion in the street of a city, for the benefit of adjoining prem- ises, is a nuisance, and all persons who continue, or in any way become responsible for it, are liable, irrespective of any ques- tion of negligence.^* But if there be permission to make such excavation from the proper municipal authorities, and the act is unskillfuUy exercised, the rule of liability relaxes its severity and rests upon and is limited by the ordinary principles gov- erning actions for negligence. ''® Consent may be inferred from acquiescence;**' but permission to leave the work in a state dan- gerous to persons passing, cannot be inferred.*^ It is negli- gence to leave unprotected, excavations near a street or high- way, so that a person, using ordinary care, falls into them;*^ &c. R. R. Co., 45 Mich. 74 (1881); Sehaick, 108 id. 530, 533 (1888); City of Hartford v. Talcott, 48 Robbins v. Chicago City, 4 Wall. Conn. 525 (1881). 657 (1866); Gridley v. City of 75 Lovis v. Eureka Club, 56 N. Bloomington, 68 111. 47 (1873). Y. Supp. 66 (1899). 81 Robbins v. Chicago City, 4 T6 Shipley v. Fifty Associates, 106 Wall. 657 (1866). Mass. 194 (1870) ; Garland v. 82 Shearm. & Redf . on Neg. (Sib Towne, 55 N. H. 55 (1874). ed.), §§ 343, 703; Add. on Torts, 201. 77 Shipley v. Fifty Associates, Not liable if not substantially ad- 101 Mass. 251 (1869); Shearm. & joining a public highway. Hard- Redf. on Neg. (5th ed.), § 721. castle v. South Yorkshire Ry. Co., 78 Irvine v. Wood, 51 N. Y. 224 i Hurlst. & N. 67 (1859). Fourteen (1872); Congreve v. Morgan, 18 id. inches from the public way. Had- 84 (1858); Creed v. Hartman, 29 id. ley v. Taylor, L. R., 7 O. P. 53 591 (1864); Babbage v. Powers, 130 (1865); Haughey v. Hart, 62 Iowa, id. 281 (1891). 96 (1883); City of Norwich v. Breed, 79 Village of Port Jervis v. First 30 Conn. 535 (1862). See Bennett v. Nat. Bank, 96 N. Y. 550 (1884); Louisville &c. R. R. Co., 102 U. S. Clifford v. Dam, 81 id. 52 (1880); 577 (1880); Crogan v. Schiele, 53 Nolan V. King, 97 id. 565 (1885); Conn. 186 (1885); City of Indianap- Wolf V. Kllpatrick, 101 id. 146 olis v. Emmelman, 108 Ind. 530 (1886); Babbage v. Powers, 130 id. (1886); Penso v. McOormick, 125 id. 281 (1891). 1^^ (1890); Graves v. Thomas, 95 sojorgensen v. Squires, 144 N. id. 361 (1883); Deneck v. Pennsyl- Y. 280 (1895); Babbage v. Powers, vania R. R. Co., 30 Vr. 415 (1896). 130 Id. 281 (1891); Jennings v. Van 46 General Phinciplbs. or walls or other structures so that they will fall into the street;*^ or to permit the falling of a building in the street, in the course of erection.^* The falling of signs into a public street is prima facie evidence of negligence;*^ or a bolt from an elevated railroad structure;®® or a brick from a railroad bridge over a highway ;*'' or cotton piled on the sidewalk in front of a warehouse, falling and injuring a passer-by;®* or bales of hay;*® or a stick from an insecure pile of lumber.®" § 44. license to interfere with highways — One having a license to interfere with the highway from a municipality is liable for the consequences of his negligence.®^ An obligation to keep a street in repair requires that it shall be kept in such condition that the ordinary and expected travel of the locality ' may pass with reasonable ease and safety. The degree of dili- gence required of a street railway company either in laying its tracks in the streets of a city or running its cars, depends on the hazards to be encountered, and the consequences to be appre- hended from its negligence.®^ ISTo notice to a railroad com- pany of patent defects in a street connected with the track and caused by the laying of its tracks is necessary, but when it appears that the defects existed and an injury was caused thereby the presumption of negligence is complete. The pre- sumption of knowledge arises from the existence of the de- 83 Eector &c. of the Church of standing upon the sIdeTvalk in front the Ascension v. Buclihart, 3 Hill, of defendant's premises. Denby v. 193 (1842); Mullen v. St. John, 57 Miller, 59 Wis. 240 (1884). N. Y. 569 (1874) ; Salisbury v. 89 Dehring v. Comstock, 78 Mich. Herchenroder, 106 Mass. 458 (1871). 153 (1889). 84 Vincett v. Cook, 4 Hun, 318 9" Holly v. Bennett, 46 Minn. 386 (1875). (1891); Earl v. Crouch. 16 N. Y. 85 Morris v. Strobel &c. Co., 81 Supp. 770 (1891) ; Branson v. Labot, Hun, 1 (1894); St. Louis &c. Ry. Co. 81 Ky. 638 (1884). v. Hopkins, 54 Ark. 209 (1891). ^i Shearm. & Redf. on Neg. (5th 86 Volkmar v. Manhattan Ry. Co., ed.), § 359. 134 N. Y. 418 (1892). 92 Thomas on Neg. 1150, 1151; 8T Kearney v. London &c. Ry. McMahon v. Second Ave. R. R. Co., Co., L. R., 5 Q. B. 411 (1870). Or 75 N. Y. 231 (1878); Worsterv. from an abutting house on a per- Forty-second Street &c. R. R. Co., son in the street. Murray v. Mc- 50 id. 203 (1872); Schaefer v. City Shane, 52 Md. 217 (1879). of Fond du Lac, 99 Wis. 333 (1898); 88 Maddox v. Cunningham, 68 Thomas v. Consolidated Tract. Co., 6a. 431 (1882). Blocks of wood 33 Vr. 36 (1898). Genekal Principles. 47 fects themselves. If circumstances exist showing absence of negligence, as that the defects had not existed for a sufficient length of time to create a presumption of knowledge, or to enable it to repair, it is for the company to prove. ®^ Whoever, without lawful authority, obstructs a highway so as to render its use hazardous, is liable to one who sustains a special dam- age thereby.^ The liability does not depend upon negli- gence.®^ § 45. Gas companies — A gas company must use reasonable and ordinary care in planting its pipes and mains, so as to pre- vent the escape of gas therefrom in dangerous quantities in view of its occupancy of streets for its special and extraordinary use in conducting an article in a high degree inflammable and explosive.®^ It is bound to use a degree of care and skill proportioned to the danger reasonably to be anticipated, which it is its duty to avoid.*^ A gas company is not an insurer against explosions of gas carried into buildings by its pipes, but is simply bound, in permitting the gas to be turned into a building, to exercise that degree of care which the nature of the article it deals in, and the consequences to be apprehended from an accident reasonably call for.^® § 46. Temporary use of highways for building or trade.- — In reference to the use of streets, Mr. Justice Morton of the 93 Worster v. Forty-second Street 97 Shearm. & Eedf . on Neg. (5th &o. R. E. Co., 50 N. Y. 203 (1872). ed.), § 692; S. P., Holly v. Boston 9* Shearm. & Kedf. on Neg. (5th Gas Light Co., 8 Gray, 123 (1857); ed.), § 865; Dygert v. Schenck, 23 Washington Gas Light Co. v. Dist. "Wend. 446 (1840); Barton v. Mc- of Columbia, 161 U. S. 316 (1895). Donald, 81 Cal. 265 (1889). Dan- Rule stated in Koelsch v. Philadel- gerous machinery in an alley, both phia Co., 152 Pa. St. 355 (1893). the abutting owner and munici- Natural gas, decided under § 3561a, pality are liable. Osage City v. Rev. Stats, of Ohio. Liable for Larkln, 40 Kan. 206 (1888). damages without proof of negli- 95 Congreve v. Morgan, 18 N. Y. gence. Gas Fuel Co. v. Andrus, 50 84 (1858). Ohio St. 695 (1895). Destruction 96 Mississinewa Mining Co. v. of trees. Evans v. Keystone Gas Patton, 129 Ind. 472 (1891). See Co., 148 N. Y. 112 (1895). Lebanon Natural Gas, Light &c. 98 Schmeer v. Gas Light Co., 147 Co. v. Leap, 139 Ind. 443 (1894); N. Y. 529 (1895); Pine BlufC &c. Consumers Gas Trust Co. v. Per- Co. v. Schneider, 62 Ark. 109 rego, 144 id. 350 (1895). (1896); id. 118. 48 Geneeal Principles. Supreme Court of Massaclmsetts states the rule to be : " What may be deemed a reasonable and proper use of a way, public or private, must depend much on the local situation, and much on public usage. The general use and the acquiescence of the public is evidence of the right. The owner of land may make such reasonable use of a way adjoining his land, as is usually made by others similarly situated. As to the reasonableness of the use, it may well be laid down, that in a populous town where land is very valuable, it is not unreasonable to erect buildings and fences on the line of the street and to place doors and gates in them, so as when opened to swing over the street. When the owner of a lot in such a situation has occasion to build, and for that purpose to dig cellars, he may rightfully lay his building materials and earth within the limit of the street, provided he takes care not improperly to obstruct the same, and to remove them within a reasonable time. It is very obvious that, without this privilege, it would be in some situa- tions nearly or quite impracticable to build at all."®' This rule is said to apply to any temporary use of a highway or street that is rendered absolutely necessary from the necessities of trade, commerce or the erection of buildings, that does not necessarily or unreasonably obstruct the same.* But a sys-' tematic and continued encroachment upon a street, though for the purpose of carrying on a lawful business, is unjusti- fiable.2 § 47. Turnpike andplank-road companies — Statutes. — A turn- pike or pland-road company is bound to exercise reasonable 99 Van O'Linda v. Lothrop, 21 v. Rome &c. R. R. Co., 140 N. T. Pick. 292, 297 (1838); Callanan v. 277 (1893); Jochem v. Robinson, 72 Gilman, 107 N. T. 360 (1887). .Or Wis. 199 (1888). But such ob- to allow horses and carriages oc- struction must not only be neces- casionally to stand in such street sary, with reference to the busi- against or neaj" a house. lb.; ness of the tradesman. It must be Shearm. & Redf. on Neg. (5th ed.), reasonable with reference to the S 361. rights of the public. Callanan v. 1 Commonwealth v. Passmore, 1 Gilman, 107 N. Y. 360 (1887). gerg. & R. 217 (1814); People v. 2 People v. Cunningham, 1 Den. Cunningham, 1 Den. 524 (1845); 524 (1845). Obstructions incident Rex v. Jones, 3 Campb. 230 (1812); to traffic, see Shearm. & Redf. on Mahar v. Steuer, 170 Mass. 454 Neg. (5th ed.), § 362; Elliott on (1898); Mills v. City of Philadel- Roads & Streets, 524. phia, 187 Pa. St. 287 (1898); Booth Genebal Principles. 49 care and diligence to render the ordinary public travel on the road or highway convenient and safe ; and if, by the negligence of the company, the road is rendered unsafe, and a traveller exercising ordinary care, sustains damage, the company is liable.' They are bound to exercise ordinary care and dili- gence in keeping them in such a state of repair that they may be travelled with safety to life and limb;* for the neglect to perforin this duty they are liable at common law to any per- son who may be aggrieved by such neglect,® without any ex- press statutory provision imposing such liability.® These cor- porations are quasi common carriers — they receive a toll or compensation, and are, therefore, bound to furnish passengers with safe roads and bridges.^ The taking of toll from travel- lers as compensation for the use of the road creates an obliga- tion to maintain every part of the road in a safe condition.^ So such companies are liable for leaving piles of stone in the road, which would have a tendency to frighten horses, being of a dangerous character, although not technically a defect or obstruction on the highway, for damages caused to travellers thereby, after notice of its character and neglect to remove the same.* The acquisition by another of the right to use the road will not necessarily relieve from further obligation the one originally liable for nonrepair.^" In Massachusetts the gen- eral statutes respecting turnpike corporations provide that they shall be liable to pay all damages that shall happen to 3 Ireland v. Oswego &c. Plank 6 Davis v. Lamoille &c. Plank Eoad Co., 13 N. Y. 526 (1856). Road Co., 27 Vt. 602 (1855); Balti- *Shearm. & Kedf. on Neg. (5tli more &c. Turnpike Co. v. Cassell, ed.), § 385; Townsend v. Susque- 66 Md. 418 (1886). hanna Turnpike Co., 6 Johns. 90 7 Freeholders of Sussex County (1810); Goshen &e. Turnp. Co. v. v. Strader, 3 Harr. 108, 122 (1840); Sears, 7 Conn. 86 (1828); Baltimore Baltimore &c. Turnpike Co. v. Cas- &c. Turnp. Co. v. Cassell, 66 Md. sell, 66 Md. 418 (1886). 418 (1886); Brookville &c. Turnp. 8 Baltimore &c. Turnpike Co. v. Co. v. Pumphrey, 59 Ind. 78 (1877); Cassell, 66 Md. 418 (1886) Baltimore &c. Turnp. Road v. 9 Eggleston v. Columbia Turnp. Parks, 74 Md. 282 (1891); Speer v. Road Co., 82 N. Y. 278 (1880). Greencastle &c. Road Co., 4 Ind. lo Shearm. & Eedf. on Neg. (5th App. 525 (1891); Davis v. Lamoille ed.), § 389; Born v. Allegheny &c. &c. Plank Road Co., 27 Vt. 602 Plank Road Co., 101 Pa. St. 334 (1855). (1882); Johnson v. Salem Turnp. 5 Ward v. Newark &c. Turnpike &e. Co., 109 Mass. 522 (1872). Co., 1 Spencer, 323 (1844). 4 50 General Phinciples. any person from the want of repairing their ways.^' It was ield that such companies are liable for damages so arising, although their officers or agents had no notice of the want of repair.-'* § 48. Bridges — Statutes. — At common law, the duty of re- pairing bridges rested upon the county, where no person or other body was specially charged therewith.^' A public bridge constitutes part of the highway upon which it is situate, and a city, by taking charge of and improving the highway, accepts and becomes charged with the maintenance of a bridge con- structed thereon by the county.^* A higher degree of care is due from a toll-bridge company than from one maintaining a free bridge. ^^ His liabilities are analogous to the owner of a turnpike road — his obligation is to keep the bridge in proper condition for the safe passage of passengers. This is his duty and he is only liable for negligence.^® Where a drawbridge is situated partly within the limits of a town and partly within a village, and it is managed and controlled by both, they will be jointly and severally liable for the injuries occasioned by the negligence of their officers in the management of the draw to such bridge. ^^ In the United States their maintenance and re- 11 Gen. Stats., chap. 62, § 12. must give notice that there is dan- 12 Johnson v. Salem Turnpike &c. ger for which they will not be an- Co., 109 Mass. 522 (1872). See swerable and must refuse to take Davis V. Lamoille Plank Road Co., toll. Randall v. Cheshire Turnpike, 27 Vt. 602 (1855). 6 N. H. 147 (1836). See further on 13 Hill V. Board 'of Suprs. of the subject of bridges, Shearm. lilvingston Co., 12 N. Y. 52 (1854). & Redf. on Neg. (5th ed.), chap. The statute 22 Henry VIII, chap. 5, 17, §§ 390-397; 4 Am. & Bng. Ency. affirmed the rule of the common of Law (2d ed.), pp. 918, 945. law in this particular. lb. See 4 is Griysby v. Chappell, 5 Rich. Am. & Eng. Ency of Law (2d ed.), L. 443 (1852); St. Louis Bridge Co. p. 918. V. Miller, 138 111. 465 (1891). They 1* City of Goshen v. Myers, 119 are not the same as those of com- Ind. 196 (1889). See Stephani v. mon carriers. Frankfort Bridge Co. City of Manitowoc, 89 Wis. 467 v. Williams, 9 Dana, 403 (1840). 1(1895) ; Mahnken v. Freeholders of 17 Weisenberg v. Winneconne, 56 Monmouth, 33 Vr. 404 (1898). Wis. 667 (1883). Otherwise when 15 St. Louis Bridge Co. v. Miller, the bridge is between States the 138 111. 465 (1891). See drcutt v. authorities of each State are solely Kittery Bridge Co., 53 Me. 500 liable for nonrepair. Brown v. <1866); Chase v. Cabot &c. Bridge Town of Fairhaven, 47 Vt. 386 Co., 6 Allen, 512 (1863). They (1875). General Principles 51 pair are controlled by statute. It is usually imposed upon the towns, ^* counties, cities,^® or public officers.^ § 49. Wharves and piers — A wharf or pier is to be treated as a public street; and, when it becomes out of repair, it is a public nuisance.^-^ The liabilities are not the same as in the case of highways. The wharf being for the use of both teams and freight, each must be used with a reasonable regard for the safety and convenience of the other.^^ An owner or lessee of a pier or wharf, such as a steamboat company, must exercise reasonable care in protecting persons who come to meet its passengers on its wharves, whether owned or rented by it.^ § 50. Riding and driving. — The rider or driver of a horse or other animal must use ordinary care in its management, and is liable for all damages occasioned by his carelessness.^* It is a general rule that persons meeting in a street or highway must, for the purpose of passage, turn towards the right.^^ A person on the wrong side of the road, at the time of the passage of and collision with an opposite vehicle, raises a presumption of negligence on the part of the former.^® But the presence on, or use of, the wrong side of the road may be jus- is Hill V. Board of Suprs. of 81 Me. 362 (1889); Shearm. & Eedf. X,ivingston Co., 12 N. T. 52 (1854). on Neg. (5th ed.), § 725. 19 City of Gosben v. Myers, 119 24 Shearm. & Redf. on Neg. (5th Ind. 196 (1889). ed.), § 644; Leame v. Bray, 3 East, 20 Gen. Stats of New Jersey 593 (1803); Waldron v. Hopper, Dobbins v. Missouri &c. Ry. Ky. 119 (1885). Turn-table of a Co., 91 Tex. 60 (1897). In that casfr railroad. Kansas City Ry. Co. v. a child fell into a pool of water on Fitzsimmons, 22 Kan. 686 (1879). private premises. Missouri &c. Ry. Turn-table of a railroad. O'Malley Co. v. Edwards, 90 Tex. 65 (1896). V. St. Paul &c. Ry. Co., 43 Minn. « Such as Sioux City &c. R. R. 289 (1890). Turn-table. Barrett v. Co. v. Stout, 17 Wall. 657 (1878). Southern Pacific Co., 91 Cal. 296 The same rule has been adopted (1891) ; Branson v. Labrot, 81 Ky. by the' States of 638 (1884); Penso v. McCormlck, Massachusetts: Turn-table. Dan- 125 Ind. 116 (1890). Dynamite iels v. New York &c. R. R. Co., 154 cartridge marked powder "found Mass. 349 (1891). and cracked by small boy; owner New Hampshire: Frost v. Bast- and landlord liable. Powers v. ern R. R. Co., 64 N. H. 220 (1886). Harlow, 53 Mich. 507, 515 (1884). A landowner is under no duty to Slack from a coal mine in an open a mere trespasser to keep his prem- lot. Union Pacific Ry. Co. v. Mc- ises safe; and the fact that the Donald, 152 U. S. 262 (1893). Ex- trespasser is an infant does not cavations by a municipal corpora- raise a duty where none otherwise tion on private lands. Mackey v. exists. lb. City of Vlcksburg, 64 Miss. 777 New Jersey: Case of a young (1887). Child swinging upon a gate child injured on a turn-table, which fell. Chicago &c. R. R. Co. Delaware &c. R. R. Co. v. Reich, T. Bockoven, 53 Kan. 279 (1894). 32 Vr. 635 (1898); Turess v. New Deep pit in a populous city. City of York &c. R. R. Co., id. 314 (1898). Pekin v. McMahon, 154 111. 141 New York: Walsh v. Fitchburg: (1895). Child walking into a pool R. R. Co., 145 N. Y. 301 (1895). of hot water. Brinkley Car Go. v. General Pbinciples. 91 the rule of law to be: The general rule with regard to the duty which a landowner owes to persons coming upon his prem- ises is that where the entry is made by his invitation, either express or implied, he is required to use reasonable care to have his premises in a safe condition; but that where the entry is made merely by his permission (and a fortiori where it is an actual trespass), the landowner is under no obligation to keep his premises in a nonhazardous state; his only duty to a licensee or a trespasser is to abstain from acts willfully injurious, and the fact that the licensee or the trespasser is an infant of tender years affords no reason for modifying this rule and charging the landowner with a duty which does not otherwise exist. § 82. Public officers. — It is a general rule of law that public officers, when not negligent themselves in the selection of their subordinates, are not personally liable to third persons for per- sonal injury caused by the negligence of their subordinates, agents, servants or clerks, necessarily and properly employed by, or under, them in the discharge of their official duties.*^ They are liable for their own personal negligence or default in the discharge of their duties and also for the negligence or default of their private agents or servants in the discharge of their official duties.*^ § 83. Public trustees. — In England, statutory bodies, such as incorporated public trustees, although not organized for profit and administering a fund raised by statute, are liable in an action for negligence of themselves or their employes in the line of their duty causing damage to third persons.** A mem- 42Shearm. & Eedf. on Neg. (5th Miss. 197 (1880); Peart v. Meeker, ed.), chap. 13, § 319; Elliott on 45 La. Ann. 421 (1893). Roads & Streets, chap. 25; Thomas « Sawyer v. Corse, 17 Gratt. 230 on Neg., p. 36; Donovan v. Me- (1867). Alpine, 85 N. Y. 185 (1881); id. 117 ** ghearm. & Eedf. on Neg. (5th (1881). Board of Education not ed.), §§ 326, 327; Mersey DocliS v. liable. Walsh v. Trustees &c. of Gibbs, L. R., 1 H. L. 93 (1864); 11 Bridge, 96 N. Y. 427 (1884); H. L. Cas. 686; Winch v. Con- Schroyer v. Lynch, 8 Watts, 453 servators of the Thames, L. R., 7 (1839); City of Richmond v. Long, C. P. 468 (1872); affirmed, L. R., 17 Gratt. 375 (1867); Sawyer v. 9 id. 378 (1874); Southampton &c. Corse, id. 230 (1867). See Nugent Bridge Co. v. Southampton Local V. Mississippi, Levee Comrs., 58 Board of Health, 8 El. & Bl. 812 93 Geneeal Phinciples. ber of a corporate body, upon which body a duty rests, cannot be held individually liable for the neglect of its duties that pertain to the corporate body. If there is neglect to exert its powers or aJl its means, it is the neglect of the corporate body and not of the individuals composing it.*° Trustees of public works appelated by a municipal corporation, holding and man- aging the work solely for the benefit of the municipality, are not liable as a corporation or for the negligence of their em- ployes.*® So it has been held that trustees of corporations created for the purpose of extending charitable relief, either of private or public funds, having no capital stock and no pro- vision for making dividends or profits, are not liable, as a cor- poration, for the negligence of their agents or servants in the line of their employment, resulting in personal injury or death to third persons.*^ § 84. Physicians and surgeons — Dentists. — A physician or sur- geon is not a warrantor or insurer of a cure, and is not to be tried by the result of his remedies.** The implied contract of <1858); Gibbs v. Liverpool Docks, Benton v. Trustees of Boston City 3 Hurlst. & N. 164 (1858); Clothier Hospital, 140 id. 13 (1885); Downes V. Webster, 12 C. B. (N. S.) 790 v. Harper Hospital, 101 Mich. 555 (1862); Gilbert v. Trinity House, (1894); Williamson v. Louisville L. R., 17 Q. B. D. 795 (1886), over- Industrial School of Reform, 95 ruling Duncan v. Findlater, 6 CI. Ky. 251 (1894); Perry v. House of & Fin. 894 (1839). Refuge, 63 Md. 20 (1884). Under 4SBassett v. Fish, 75 N. Y. 303 Laws of 1876, chap. 176. Haas <1878), reversing 12 Hun, 209. v. Missionary Society, 6 Misc. «Shearm. & Redf. on Neg. (5th 281; 26 N. Y. Supp. 868 (1893). ed.), § 330; Elliott on Roads & Charge of trial judge reported in Streets, chap. 25; Walsh v. Brook- full. Boyd v. Insurance Patrol, 113 lyn Bridge Trustees, 96 N. Y. 427 Pa. St. 269 (1886); 120 id. 624 (1884); Walsh v. Mayor &c. of New (1888). See Newcomb v. Boston York. 107 id. 220 (1887); Reid v. Protective Dept, 151 Mass. 215 Mayor &c. of New York, 139 id. (1890). 534 (1893). 48 Shearm. & Redf. on Neg. (5th 47 Shearm. & Redf. on Neg. (5th ed.), § 605; Thomas on Neg., p. ed.), S 331. The person injured 1107; Hancke v. Hooper, 7 Carr. & has no right to be indemnified by P. 81 (1835); McCandless v.McWha, damages out of the trust fund. 22 Pa. St. 261 (1853); 25 id. 95 Heriot's Hospital V. Ross, 12 CI. & (1855); Ordronaux on " .Turispru- Fln. 507 (1846). Public hospital not dence of Medicine," 42. For a lead- liable to one of its patients. Mc- ing case on this subject, see Pike Donald v. Massachusetts General v. Honsinger, 155 N. Y. 201 (1898). Hospital, 120 Mass. 432 (1876); Gbneeal Peinciples. &3 a physician or surgeon is not to cure — to restore a fractured limb to its natural perf ectness — but to treat the case with dili- gence and skill.** The physician, like the attorney, undertakes, in the practice of his profession, that he is posseted of that degree of knowledge and skill therein which usually pertains to the other members of his profession. And the physician, in attending his patients, engages that he will use due care to dis- cover the nature of the disease, which gives occasion for his services, and in applying the usual remedies. But beyond this measure of skill and diligence, the law makes no exaction. If he is to be held for results, or as a guarantor of success, it can be only in virtue of his express agreement.^" The degree of care and skill required is that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients.®^ The burden of proof to show want of proper care and skill is on the plaintiff, and he must affirmatively prove all the elements of the negligence charged.^^ So the skill required of a dentist cannot be limited to such as is exercised by dentists in his neighborhood, but must be such as is ordinarily possessed and practiced by the average of his pro- fession.^* « Woodward, J., in McCandless V. Whitesell v. Hill, 101 Iowa, C29 McWha, 22 Pa. St. 261, 267 (1853); (1897); Du Bois v. Decker, 130 N. Pike V. Honsinger. 155 N. Y. 201 Y. 325 (1891); Jones v. Vroom, 8 (1898). Colo. App. 143 (1896); Link v. Shel- 50 Ely V. Wilbur. 20 Vr. 685, 687 don, 136 N. Y. 1 (1892); Gates v. (1887); Lelghton v. Sargent, 27 N. Fleischer, 67 Wis. 504 (1886). H. 460 (1853); 31 id. 119 (1855). Clairvoyant physicians. Nelson v. 51 State V. Housekeeper, 70 Md. Harrington, 72 Wis. 591 (1888). 162 (1888). The fact that a phy- In North Carolina it was held sician or surgeon renders his ser- that what is reasonable skill and vices gratuitously does not ab- due care in a physician in the solve him from the duty to exer- treatment of a patient, is a ques- cise reasonable and ordinary care, tion of law, and it is error to leave skill and diligence. Du Bois v. it to be determined by the jury. Decker, 130 N. Y. 325 (1891). Woodward v. Hancock, 7 Jones' 52 Holtzman v. Hoy, 118 111. 534 Law, 384 (1860). Malpractice ques- (1886); Carpenter v. Blake, 60 tion for the jury. Moralzky v. Barb. 488 (1871); State v. House- Wirth, 67 Minn. 46 (1896). keeper, 70 Md. 162 (1888); Hastings 63 McCracken v. Smathers, 122 V. Stetson. 91 Me. 229 (1898). See N. C. 799 (1898). further on this general subject; 94 Geneeal Principles. § 85. Receivers. — A receiver of a railroad company is liable for an injury to a passenger to the same extent as the comp.'iny would have been if it was in possession and running the road.^ He stands, in respect to duty and liability, just where the cor- poration would, were it operating the road.®^ The question whether or not the receiver is liable for negligence, must be tested by the same rules that would be applied if the corpo- ration was the actual party defendant before the court.®* A receiver is liable for personal injuries caused by negligence,®^ in the same manner and to the same extent as the corporation would be held, had not the receiver been appointed.®® A re- ceiver is personally liable to persons sustaining loss or injury by or through his own neglect or misconduct. He is person- ally responsible for misfeasance and a positive wrong.®^ He is not personally liable for acts of nonfeasance.*" ISTor is he B4Sprague v. Smith, 29 Vt. 421 <1857); Holman v. Galveston &c. Ry. Co., 14 Tex. Civ. App. 499 (1896); McNulta v. Lockridge, 137 111. 270 (1891). 55 Klein v. Jewett, 11 C. E. Gr. 474 (1875). He represents or is the agent of the company. Bartlett v. Keim, 21 Vr. 260 (1888). 56 Klein v. Jewett, 11 C. E. Gr. 475 (1875). In his oflBcial capacity. Meara v. Holbrook, 20 Ohio St. 137 (1870). Receivers of a railroad appointed in another State may be sued as common carriers in Massa- chusetts. Paige V. Smith, 99 Mass. 395 (1868). So an action at law in a State court lies against a re- ceiver in possession of the prop- erty and effects of a railroad com- pany appointed by the United States courts, for the torts of the servants of his predecessor in the same receivership. McNulta v. Lockridge, 137 111. 270 (1891). See Little V. Dusenbury, 17 Vr. 614 (1884); Lyman v. Central Vt. R. B. Co., 59 Vt. 167 (1886); Lamphear v. Buckingham, 33 Conn. 238 (1866). 57 Durkin v. Sharp, 88 N. Y. 225 <1882); Fuller v. Jewett, 80 id. 46 (1880); Graham t. Chapman, 33 N. Y. St. Rep. 349 (1890); Wlnbourn's Case, 30 Fed. Rep. 167 (1886); Pope's Case, id. 169 (1886); Daven- port V. Receivers of Alabama &c. R. B. Co., 2 Woods, 519 (1875); Sloan V. Central Iowa R. R. Co., 62 Iowa, 728 (1883); Meara v. Hol- brook, 20 Ohio St. 137 (1870); Mc- Nulta V. Lockridge, 137 111. 270 (1891). Contra, held that receivers in their official capacity are not subject to a suit, for a personal in- jury to one of their employes, re- sulting from the negligence of others of their employes in the same services. Receivers are not within the terms of the statute. Henderson v. Walker, 55 Ga. 481 (1875); Thurman v. Cherokee R. R. Co., 56 id. 376 (1876); Cardot v. Barney, 63 N. Y. 281 (1875). 58 See Ray on Negligence of Im- posed Duties, § 163; Graham v. Chapman, 33 N. Y. St. Rep. 349 (1890). 59 Erwin v. Davenport, 9 Helsk. 44 (1871). 60 lb.; Bartlett v. Cicero &c. Co., 177 111. 68 (1898). General Pbinciples. 95 personally liable for the neglect or misconduct of those em- ployed by him. in the performance of the duties of his ofHce.*^ Damages are not to be recovered against him personally or execution issued against his individual property. The judgment should provide for payment out of the trust fund.®^ The company itself is not liable for the negligence of the receiver or its servants;®* provided it had no direction or con- trol of the property.®* Nor can an action of tort for personal injuries be sustained by an employe while a railroad was in the hands of receivers, against the new corporation, after the re- ceivers have turned over the property to it.®® § 86. Liability of the State. — The State is not liable for the negligence or misfeasance of its agents, like a natural person or corporation, for the acts of their servants, except when the State, by its legislature, has voluntarily assumed such liability. This principle is said to be well settled upon grounds of public policy, and the doctrine uniformly asserted by vsrriters of ap- proved authority and the courts.®® 61 Camp V. Barney, 4 Hun, 373 the fund. Bartlett v. Cicero &c. (1875); Candot v. Barney, 63 N. Y. Co., 177 111. 68 (1898); South Caro- 281 (1875); Kain v. Smith, 80 id. lina &c. E. R. Co. v. Carolina &c. 458 (1880); McNulta V. Lockbridge, Ry. Co., 93 Fed. Rep. 543 (1899); 137 111. 270 (1891). JIcNulta v. Lockridge, 137 111. 270 62 McNulta V. Lockbridge, 137 111. (1891). 270 (1891). See Ballou v. Famum, 65 Archambeau v. New York &c. <) Allen, 47 (1864); Bay on Negli- E. E. Co., 170 Mass. 272 (1898). gence of Imposed Duties, § 164. This defense is admissible under 63 Ballou v. Farnum, 9 Allen, 47 a general denial. (1864); Metz v. Buffalo &c. E. E. 66 story on Agency (7th ed.), Co., 58 N. Y. 61 (1874); Lock v. § 319; Shearm. & Redf. on Neg. (5th Franklin &e. Turnpike Co., 100 ed.), §§ 249, 251; Lewis v. State of Tenn. 163 (1897); Holman v. Gal- New York, 96 N. Y. 71 (1884); veston &c. Ey. Co., 14 Tex. Civ. Thomas on Neg., p. 1131; Loughlln App. 499 (1896); McNulta v. Lock- v. State of New York, 105 N. Y. 159 ridge, 137 111. 270 (1891). (1887); Splittorf v. State of New 64 See Parr v. Spartanburg &c. York, 108 id. 205 (1888); Donahue E. E. Co., 43 So. Car. 197 (1894). v. State of New York, 112 id. 142 Cannot escape liability to the pub- (1889); Chapman v. State, 104 Cal. lie for torts by leasing its road to 690 (1894) ; Denning v. State, 123 id. another. lb. Damages for torts of 316 (1899). By statute in New York corporation receivership are part of the State permits damages to be the operating expenses. Claims for recovered, sustained by them from torts during the receivership follow the canals, or from their use and 96 Genehal Pkinciples. § 87. Liability for injuries on vessels — Act of Congress. — The act of Congress, July 7, 1838, amended by act of August 30, 1852, for the better security of lives of passengers on board of vessels, propelled by steam, does not take away or impair the common-law right of action, by persons injured while pas- sengers upon such vessels.®'' § 88. Vendors and manufacturers of dangerous articles — Drug- gists. — There is a class of cases which hold that those who deal in and sell articles that are dangerous to life, such as drugs and explosives, are liable not only to the purchasers of such articles, but to all persons injured through whosesoever hands they may have passed. As for example when a deadly poison is labelled a harmless medicine, and is sent upon the market.®* So it was held that a caterer was liable for poison- ous food, furnished at a ball to one who bought a supper ticket therefor.®* The mere sale of a poisonous drug to one management, or resulting or aris- their nature dangerous to the lives ing from the negligence or conduct of others. Thomas v. Winchester, of any officer -of the State having 6 N. Y. 397 (1852). See Howes v. charge thereof, or resulting or aris- Rose, 13 Ind. App. 674 (1895); ing from any accident or matter or Wohlfahrt v. Beckert, 92 N. Y. thing connected with the canals. 490 (1883); 27 Hun, 74. So by Minn. Laws of 1870, chap. 321; Laws of Stat., § 14, chap. 147, Laws of 1885; 1883, chap. 205; Laws of 1884, chap. Osborne v. McMasters, 40 Minn. 60; Eexford v. State of New York, 103 (1889); Wellington v. Downer 105 N. Y. 229 (1887); Locke v. State Kerosene Oil Co., 104 Mass. 64 of New York, 140 id. 480 (1894); (1870); Blkins v. McKean, 79 Pa. Sipple v. State of New York, 99 St. 493 (1875); Wise v. Morgan, 101 id. 284 (1885). Tenn. 273 (1898); Walton v. Booth, 87 10 V. S. Stat, at Large, 61; 16 34 La. Ann. 913 (1882); Smith v. id. 440; Swarthout v. New Jersey Hays, 23 111. App. 244 (1886). Steamboat Co., 48 N. Y. 209 (1872). 69 Bishop v. Weber, 139 Mass. 411 See Carroll v. Staten Island R. R. (1885). The Georgia statute (Code, Co., 58 id. 126, 141 (1874); Cald- 1882, §§ 3003, 3004) provides if a well V. New Jersey Steamboat Co., person who knowingly or care- 47 id. 282 (1872); Shearm. & Redf. lessly sells to another unwhole- on Neg. (5th ed.), § 515. some provisions of any kind or 68 The liability arises, not out of adulterated drugs or liquors, the any contract or direct privity be- defect being unknown to the pur- tween him and the person injured, chaser, and damage results, such but out of the duty the law im- person shall be liable in damages poses upon him to avoid acts in for such injury. General Principles. 97 "wHo asks for a harmless one, is insufficient to show negligence of the druggist in making the sale.™ So where machinery or implements have concealed defects and are put upon the market without disclosing such defects, it has been held that the vendor is liable to the purchaser for injury therefrom, but not to a third person, unless the defect was so highly dangerous. to any one exposed to the same as to make it negligent to market it at all.'^^ The general rule is stated thus: In the absence of fraud or deceit in effecting a sale, the maker and seller of an article, not intrinsically dangerous in character, is not liable to one not a party to the contract of sale, who is injured because of defects in the material or construction of the article, arising from negligence of the maker. ^^ 70 Howes V. Rose, 13 Ind. App. Eeiss v. New York Steam Co., 128 fi74 (1895). See Brunswig v. White, N. Y. 103 (1891). Sale of cartridges 70 Tex. 504 (1888) ; Meyer v. King, to young boy. Binf ord v. Jolinston, 72 Miss. 1 (1894). The Georgia 82 Ind. 426 (1882). Sale of revolver statute (Code, 1882, § 3005), pro- to young boy. Poland v. Earhart, Tides that " if a vendor of drugs 70 Iowa, 285 (1886). Gunpowder and medicines, by himself or agent, sold to a child. Carter v. Towne, either knowingly or negligently 103 Mass. 507 (1870). Vicious horse, furnishes the wrong article or Carter v. Harden, 78 Me. 528 (1886). medicine, and damage accrues Selling loaded cartridges. Smith v. from the use of the drug or medi- Clarke Hardware Co., 100 Ga. 103 cine furnished, to the purchaser or (1896). Woolen manufacturers dye- his patients or his family or his ing clothes with common dj'es are property, the vendor shall respond not liable to a purchaser poisoned in damages for the injury done." by handling the clothes. Gould v. Liability of Druggists, see 10 Am. Slater Woolen Co., 147 Mass. 315 & Eng. Ency. of Law (2d ed.), p. (1888). Calomel given for quinine 266. by physician of a steamship com- 71 Whart. on Neg., § 134; Thomas pany; company not liable. Allan v. on Neg. 730; Shearm. & Redf. on State SS. Co., 132 N. Y. 91 (1892). Neg. (5th ed ), §§ 683, 689, 690, 691. 72 Bragdon v. Perkins-Campbell Cases in which this principle has Co., 87 Fed. Rep. 109 (1898). Case been applied : Balance wheel. Loop of the sale of a side-saddle. lb. V. Litchfield, 42 N. Y. 351 (1870). See S. P., Collis v. Selden, L. R., Steam boiler. Losee v. Clute, 51 N. 3 C. P. 495 (1868); Winterbottom v. Y. 494 (1873). Steam apparatus. Wright, 10 M & W. 100 (1842). 7 PART II — PROCEDURE. EVIDENCE. DAMAGES. QUESTIONS OF LAW AND FACT. CHAPTER III. ACTIONS FOR PERSONAL INJURIES. Actions foe Causing Death. 89. Style of action — Trespass — Case — Civil Action — Pleading. 90. Election to sue in contract or tort — Parties — Daaa- ages. SI. When the action will lie at common law. 32. When the action will lie by statute — Municipal ordi- Bance. 53. Two actions from same wrongful act — Husband — Parent — Master. 54. Kight of action over against wrongdoer — Practice. 55. Where the action may be brought — Lex fori — Federal courts. 56. Death of parties — Abate- ment of right of action. 57. Right of action — Assign- ment. 58. No action at common law for causing death of a human being. 99. 100. 101. 102. Action at common law for incidental loss resulting from death. Lord Campbell's Act — American statutes. Special statutory provisions. Distinguishing features of the action. 103. The statute creates a new right of action. 104. Liberal or strict construction 105. The constitutions and the statutes. 106. Where the action may be brought — Federal courts — Courts in admiralty. i07. Death and action in dif- ferent States — Lex fori. 108. Death and action in dif- ferent States — Lex fori — Continued. 109. Survival of beneficiaries necessary. 110. Distribution. There can be but one action and one recovery ill. § 89. Style of action — Trespass — Case — Civil action Tleading — At common law, the action for an injury to the person, when such injury was consequential, was trespass on the •case, frequently designated an action on the case, or simply ■"case;" if the injury was committed by the immediate act complained of, the action was trespass vi et armis, simply called ■"trespass." There are many cases in the reports illustrating [98] Action. 99 the distinction between these two actions in their application as remedies to recover damages for personal injuries.* Many of the States have adopted a Civil Code of Procedure, in which the remedy is designated simply a " civil action."^ In some of the States the common-law style of action is still in \ise, such as an action on the case.* In some of the States an action of trespass, or trespass on the case, may be used,* or an action 1 Chitty on Pleading (vol. 1), pp. 122, 133, 162. " The words trespast and case, both in their ordinary and legal sense, have a different meaning; the word trespass apply- ing to injuries resulting from di- rect force, and case to such as are consequential. True, the word trespass, in its broadest significa- tion, as embracing every species of injury, would include case." Harrington v. Heath, 15 Ohio, 485 (1846). " The distinction between the actions of trespass vi et armis and on the case is perfectly clear. If the injury be committed by the immediate act complained of, the action must be trespass; if the in- jury be merely consequential upon that act, an action upon the case is the propter remedy." Day v. Ed- wards, 5 T. R. 648 (1794). If a man throws a log into the high- way, and in that act it hits me, I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case; because it is only prejudicial in consequence, for which I could have no action at all. Reynolds v. Clarke, 1 Str. 634 (1726). 2 Arkansas: Dig. of Stats. 1894, § 5605. California: Deering's Ann. C. & S. (vol. 3), 1885, § 24307. Indiana: Stats. 1896, § 249. Iowa: Code 1888, § 3710. Kansas: Gen. Stats. 1889, § 4087. Minnesota: Stats, of Minn. 1894, § 5131. Nebraska: Comp. Stats. 1895, § 5592. New York: Stover's New York Ann. Code of Civil Procedure, « 418. North Carolina: McCracken v. Smathers, 122 N. C. 799 (1898). North Dakota: Rev. Code 1895, § 5181. Ohio: Bates Ann. Stats. 1897, § 4971. South Carolina: Code of Civil Procedure, § 1. Utah: Comp. Laws 1888, § 3126. Wyoming: Rev. Stats. 1887, § 2360. 3 Alabama: Counts in trespass and case may be joined when they relate to the same subject-matter. Code of Ala. (vol. 1), § 2673. Michigan: 2 Howell's Stats., § 7759. p. 1942. New Hampshire: Huntress v. Boston &c. R. R. Co., 66 N. H. 185 (1889). New Mexico: Lutz v. Atlantic &c. R. R. Co., 6 N. Mex. 496 (1892). Rhode Island: Whipple v. New York &c. R. R. Co., 19 R. I. 587 (1896). Vermont: Manley v. Delaware &c. Co., 69 Vt. 101 (1896). * Delaware: Laws of 1874, chap. 106, § 11, p. 048. Illinois: Rev. Stats. 1891, chap. 110, § 22, p. 1045; Chicago &c. R. R. Co. V. Murowski, 78 111. App. 661 (1898). 100 AcTioif. of " tort,""'^ or an " action on the facts of the case."® In those States where the common-law form of action is still in use, the forms and style of the common-law pleadings are usually pre- served, such as the declaration, plea. But in the Code States^ the pleadings are usually styled the complaint and answer. It Texas and Missouri the pleadings are styled a petition ana answer. '^ § 90. Election to sue in contract or tort — Parties — Dam- ages. — In a previous section it was stated that precisely the same state of facts, between the same parties, may admit of an action either eoe contractu or ex delicto.^ In such cases the tort is dependent upon, while at the same time it is independent of the contract; for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract.® Thus, when a passenger has been injured by the negligence of a common carrier, it is at the election of the plaintiff to declare in assumpsit and rely on the promise, or to declare in tort and rest on the breach of duty.-'" The Maine: Rev. Stats. 1884, chap. 82, § 15. p. 696. Pennsylvania: " Action of tres- pass." Purd. Dig. Supp., p. 2369 (act of May 25, 1887), § 2; P. L. 271. Virginia: Code 1887, § 2901, p. 693. West Virginia: Code 1891, chap. 103, § 8, p. 726. 5 Massachusetts: Pub. Stats. 1882, chap. 167, § 1, p. 964. New Jersey: Rule 95 of Supreme Court promulgated June 21, 1888. Counts for causes of actions aris- ing ex delicto may be joined in the same suit. 6 Tennessee: Code 1884, § 3441. 7 Texas: Rev. Stats. 1887, § 1187. Missouri: Rev. Stats. 1889, §§ 2039, 2041. 8 Rich V. New York &c. R. R. Co., 87 N. Y. 382, 390 (1882); Cooley on Torts. 90. 9 Rich V. New Yorl£ &c. R. R. Co., 87 N. Y. 382, 390 (1882); Bal- timore &c. R. R. Co. V. Carr, 71 Md. 135 ;i889) ; 1 Addison on Torts, 13. In such cases it is sometimes- said that personal injuries are caused by a tortious breach of con- tract. Johnson v. Northern Pacific Ry. Co., 46 Fed. Rep. 347 (1891).. A culpable attorney or physician may be sued either for the breach of the implied contract, which ob- liges him to the exercise of skill and care, or in tort for a breach, of duty with respect to the same particulars. Tichenor v. Hayes, 12 Vr. 193, 200 (1879). 10 McElroy v. Nashua &c. R. R. Co., 4 Gush. 400, 403 (1849); Jack- sonville Street Ry. Co. v. Chap- pell, 22 Fla. 610, 620 (1886); Frink V. Potter, 17 111. 406, 411 (1855); Pennsylvania R. R. Co. v. Peoples, 31 Ohio St. 537 (1877). See Stock V. City of Boston, 149 Mass. 410- (1889); Taylor v. Jlanchester &c- Action. K recovery will be governed by the rules peculiar to the form of action.^^ If the action is in tort, all the parties liable need not be joined as defendants ;^^ but if the action is in contract, all the parties to the contract must be joined, and no one who is not a party to the contract can maintain a suit or be joined in the action. -^^ So the rule for the assessment of damages is different in the two actions. The rule in actions for breach of contract is, that the damages recoverable are only such as the parties may reasonably be supposed to have contemplated as likely to result frotn such a breach. The general rule in actions for torts is, that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.^* Hence the rule of •damages in actions brought for a breach of contract is more restricted than in actions of tort.^® § 91. When the action will lie at common law. — In order to maintain an action for an injury to a person at common law, it must be shown that the defendant was under some legal duty to exercise care towards the plaintiff, which he has omitted to perform.^® This is the basis on which the cause of action rests. ^'^ The duty may exist as to some persons, and not as to others, Ry. Co., L. R., 1 Q. B. D. 134 the duty to carry safely being a (1895); Boston v. Chesapeake &c. contract between the company Ry. Co., 36 W. "Va. 318 (1892); and the servant. Alton v. Mid- Johnson V. Northern Pacific Ry. land Ry. Co., 19 C. B. (N. S.) 213 Co., 46 Fed. Rep. 347 (1891); (1865). See Bricker v. Philadel- Walker v. Great Northern Ry. Co., phia &c. R. R. Co., 132 Pa. St. 1 28 Ir. L. R., Q. B. D. 69 (1890); (1890); Fairmount &c. R. R. Co. v. Shearm. & Redf. on Neg. (5th ed.), Stutler, 54 id. 375 (1867). § 22; Hutchinson on Carriers, §§ w Brown v. Chicago &c. Ry. Co., 738-740. 54 Wis. 342 (1882). 11 Frink v. Potter, 17 111. 411 ib Bhrgott. v. Mayor &e. of New (1355). York, 96 N. Y. 264, 281 (1884). 12 § 131. 1® Bvansville &c. R. R. Co. v. 13 § 112. Thus an action will not Griffin, 100 Ind. 221 (1884) ; Lar- lie against a railway company, as more v. Crown Point Iron Co., 101 carriers of passengers for hire, at N. Y. 391, 394 (1886); Heaven v. the suit of the master, for a per- Pender, L. R., 11 Q. B. D. 503 sonal injury sustained through (1883); Lechman v. Hooper, 23 Vr. its negligence by its servant, 253 (1890); Ennis v. Gray, 87 Hun, whereby the master lost the benefit 355 (1895). of the services of the servant — 17 Sweeny v. Old Colony &c. R. the contract out of which arose R. Co., 10 Allen, 368, 372 (1865). 102 Action. depending upon, the peculiar relations and circumstances.'® Thus, as between master and servant, or passenger and carrier, the duty arises out of the relation existing between them. Where no legal duty exists there is no cause of action.'® The defendant must be guilty of some wrongful act or breach of positive duty to the plaintiff.^" The duty is dictated and meas- ured by the exigencies of the occasion.^' Injury alone will 18 Larmore v. Crown Point Iron Co., 101 N. Y. 391, 394 (1886). Thus overcrowding the platform of a station of an elevated railroad causing injury to one there for the purpose of taking the train is acv tionable. McGearty v. Manhattan Ry. Co., 15 App. Div. 2 (1897); 43 N. Y. Supp. 1086. 19 Reynolds v. Van Beuren, 155 N. Y. 120 (1898). " It is not neces- sary, in order to establish the legal duty, to do more than prove the facts out of which the duty springs, for where the facts are established the law will fix the duty. The duty is created by the law but the facts must exist in or- der to give force or relevancy to the legal principles." Elliott on Roads & Streets, 637. 2opeake v. Buell, 90 Wis. 508, 515 (1895). 21 Baltimore &c. R. R. Co. v. Jones, 95 U. S. 442 (1877). Ac- tions for negligence may, for con- venience, be separated into four classes, namely, — where, upon the occasion of the injury complained of, (1) the plaintiff, (2) the defend- ant, (3) neither of the parties was present, and (4) where both parties were present In all of them it may happen that both parties were more or less negligent. Ac- tions upon the statute of highways are a common example of the first class. The negligence of the de- fendant, however great, does not relieve the plaintiff from the duty of exercising ordinary care. * * * The law is not affected by the presence or the absence of the parties, nor by the difficulty of applying it to complicated facts. To warrant a recovery where both parties are present at the time of the injury, as well as in other cases, ability on the part of the de- fendant must concur with non- ability on the part of the plaintiff to prevent it by ordinary care. Their duty to exercise this degree of care is equal and reciprocal; neither is exonerated from the ob- ligation by the present or previous misconduct of the other. The law no more holds one responsible for an unavoidable, or justifies an avoidable, Injury to the person of one who carelessly exposes him- self to danger, than to his prop- erty, similarly situated in his ab- sence. He who cannot prevent an injury negligently inflicted upon his person or property by an in- telligent agent " present and acting at the time " is legally without fault, and it is immaterial whether his inability results from his ab- sence, previous negligence, or other cause. On the other hand, his neg- lect to prevent it, if he can, is the sole or co-operating cause of the injury. Carpenter^ J., in Nashua &c. Steel Co. v. Worcester &c. R. R. Co., 62 N. H. 159 (1882). Action. 103 never support an action on the case ; there must be a concurrence of injury and wrong. If a man does an act that is not unlawful in itself, he cannot be held responsible for any resulting injury, unless he does it at a time or in a manner or under circum- stances which render him chargeable with a want of proper regard for the rights of others. In such a case, the negligence imputable to him constitutes the wrong, and he is accountable to persons injured, not because damage has resulted from his doing the act, but because its being done negligently or without due care has resulted in injury. If the act was not wrongful in itself, the wrong must necessarily be sought for in the time or manner or circumstances under which it was performed. Injury does not prove the wrong, but only makes out the case for redress after the wrong is established.^^ So in every valid cause of action two elements must be present — the injury and the damage. The one is the legal wrong which ,is to be re- dressed, the other the scale or measure of the recoveiy. As there may be damages without an injury, so there may be an injury without damages.^^ Nominal damages are sufficient to maintain the action.^* Fresh damages without a fresh injury will not authorize a second or subsequent action. ^^ The injured person can recover but one compensation for all damages past and prospective.^® So he can maintain but one action for an injury to his person and property.^^ On this point, however, 22Cooley, C. J., In Macomber v. legal duty; (2) a breach o^ duty Nichols, 34 Mich. 212, 216 (1876). by failure to observe care; and (3) " To constitute a tort two things such breach proximately causing must concur — a wrongful act com- damage." Little, J., in Perry v. mitted by the defendant and proxi- Macon Consolidated Street R. R. mate legal damage to the plain- Co., 101 Ga. 400, 407 (1897). tiff." Taft, J., in Trow v. Thomas, 24 Balier v. Manhattan R. R. Co., 70 Vt. 584 (1898). A person cannot 118 N. Y. 533 (1890); Leeds v. be made to pay damages for his Metropolitan Gas Light Co., 90 id. acts unless they are done in such 26 (1882). manner and at such a time as to 25 city of North Vernon v. Voeg- show that he was acting in disre- ler, 103 Ind. 314, 319 (1885). gard of the rights of others. 26 Wallace v. Wilmington &c. R. Thompson v. Dodge, 58 Minn. 555 R. Co., 8 Houst. 529 (1889, IJel.); (1874). Ayres v. Delaware &c. R. R. Co., 23 Elliott, J., in City of North 158 N. Y. 254 (1899). Vernon v. Voegler, 103 Ind. 314, 27 Reilly v. Sicilian Asphalt Pav- 319 (1885). "Actionable negli- ing Co., 4 Am. Neg. Rep. 692; N. gence arises essentially from (1) a Y. App. Div. (1898). A personal in- 104 Action. there is a contrariety of judicial opinion.^* An injury to the plaintiff and his clothing furnishes but one cause of action.^* § 92. When the action will lie by statute — Municipal ordinance. — ■ Private actions do not lie for breach of public ■duties,*" unless such actions are given by statute. A breach of a general duty to the public is not sufficient to maintain a private action; it must be a breach of a special duty to the indi\idual injured.*^ The principle of law is, that where a corporate body, whether of a municipal ■or of a private character, owes a specific duty to an individual, an action will lie for a breach or neglect of that duty, whenever such breach or neglect has occasioned an injury to that indi- vidual. But if such corporation owes a duty to the public, and neglects to perform it, although every individual compris- ing that public is thereby injured, some more and some less, yet they can have no private remedy at the common law.*^ When the statute makes the omission of a certain act illegal, and subjects the parties omitting it to penalties, one receiving- jury and damage to plaintiff's car- former recovery of the value of riage at the same time and from the horses and wagon, in another the same cause give rise to but suit by the administrator. Pealte •one cause of action, and a recovery v. Baltimore &c. R. K. Co., 26 Fed. in an action for damages to one Rep. 495 (1886). will bar a subsequent action for The injury must be the proxi- damages to the other. lb. See mate result of the defendant's Whitney v. Town of Clarendon, 18 fault, and the damage must be Vt. 252 (1846). special -to plaintiff. It need not, 28 Brunsden v. Humphrey, L. R., however, be a direct injury to the 14 Q. B. D. 141 (1884), reversing plaintiff or resulting immediately 11 id. 712. See Peake v. Baltimore from the defendant's negligence, &c. R. R. Co., 26 Fed. Rep. 495 as in the cases of masters, parents (188G). or husbands suing, not for the di- 29 Bliss V. New Yorli &c. R. R. rect personal injury, but for the Co., 160 Mass. 447, 455 (1894). indirect damage growing out of "When there was a collision with the personal injury. Shearm. & ■defendant's train by which the in- Redf. on Neg. (5th ed.), § 115. testate was killed and his horses so Taylor v. Lake Shore &c. R. and wagon were destroyed, it was R. Co., 45 Mich. 74 (1881). held, that a suit by the administra- si Ennis v. Gray, 87 Hun, 355 tor under the Revised Statutes of (1895). Ohio, sections 6134, 6135, to re- 32 Hornblower, C. J., in Free- cover damages for the death of the holders of Sussex City v. Strader, intestate is not barred by the 3 Harr. 108, 121 (1840, N. J.) Action. 105 bodily injury through such omission has the right of suing at common law. The action, however, must be subject to the rules of the common law.^^ The legislature has power to attach a condition to the maintenance of a common-law action as well as one created by statute.^* A plaintiff who sues on a right of action given by statute must present a case clearly -within the statute which creates the right. ^^ Where a statute, which creates a new right, prescribes the remedy for its violation, the remedy is exclusive. But when a new remedy is given by statute for a right of action existing independent of it, without excluding other remedies already known to the law, the statu- tory remedy is cumulative merely, and the party may pursue either at his option.^® In this respect there is no difference in principle between an obligation imposed by statvite and one imposed by ordinance in pursuance of statutory authority. ^^ An ordinance of a city is not of itself sufficient to give a cause 33 Caswell V. Worth, 5 Bl. & Bl. 849, 855 (1856). One of those rules is that a want of ordinary care, or willful misconduct on the part of the plaintiff is an answer to the action lb. " As a general rule, when an act is enjoined or forbid- den under a statutory penalty, and the failure to do the act en- joined or the doing of the act for- bidden has contributed to an in- jury, the party thus in default is liable therefor to the party injured, notwithstanding he may also be subject to a penalty." Devens, J., in Parker v. Barnard, 135 Mass. 120 (1883). 3* Reining v. City of Buffalo, 102 N. y. 308 (1886). 35 Hamilton v. Jones, 125 Ind. 176, 178 (1890). In some of the States there are statutes giving a right of action to persons suffer- ing injuries, resulting from the in- toxication of any person, against those who furnished the liquor, causing such intoxication. 6 Am. & Eng. Ency. of Law (2d ed.), p. 36. These statutes are frequently styled The Civil Damage Acts. The action in such cases is entirely the creature of the statute. Sale or gift of intoxicating liquors not ac- tionable at common law. Cruse v. Aden, 127 111. 231 (1889). 36 City of Zanesville v. Fannan, 53 Ohio St. 605 (1895). So where a statute prescribes a duty, the duty so imposed is both created and measured by the statute. Pauley v. Steam Gauge &c. Co., 131 N. Y. 90, 96 (1892). " In every case where a statute enacts or proliibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recom- pense of a wrong done to him con- trary to said law." Comyn's Di- gest, "Action upon Statute" (F); Willy v. Mulledy, 78 N. Y. 310 (1879). 37 City of Rochester v. Campbell. 123 N. Y. 405 (1890); Flynn v. Canton Co. of Baltimore, 40 Md. 312 (1874); City of Hartford v. Tal- cott, 48 Conn. 525 (1881). 106 Action. of action to a party injured by an act in violation of its terms.** A municipal ordinance cannot create a civil liability against a person violating it and in favor of persons injured by its viola- tion, for this is a power whicli belongs alone to the sovereign power of the State. The only liability which attaches to the infraction of such an ordinance is the penalty it imposes.** § 93. Two actions from same wrongful act — Husband — Parent — Master — At common law, two causes of action may spring from the same wrongful act, because two distinct injuries may thereby be inflicted**" to two separate parties — the one receiving the direct personal injury, the other, an indirect loss caused by the same negligent act. Thus, for a tort committed upon a wife, two actions will lie, as a general rule — one by the husband alone for the loss of service and expenses, and the i other by the husband and wife for the injury to the wife.*^ So a parent and child have each a separate right of action grow- ing out of the injury inflicted upon the infant.*^ The right of a parent to sue for injuries to his child is the same in principle as that of a master to sue for injuries to his servant. So the master and servant may each have a separate or distinct cause of action — the servant to recover for his injuries, and the master to recover damages to himself for the loss of the labor and services of his servant per quod servitium amisit.*^ 38 Knupfle V. Knickerbocker Ice Vr. 154 (1897) ; McKune v. Santa Co., 84 N. Y. 488 (1881). Or a city Clara &c. Co., 110 Cal. 480 (1895) r police regulation. Moore v. Gads- Meese v. Fond du Lac, 48 Wis. 323' den, 93 N. Y. 12 (1883). (1879); Town of Newbury v. Con- 39Moran v. Pullman Palace Car necticut &c. R. it. Co., 25 Vt. 37T Co., 134 Mo. 641, 650 (1896); Rock- (1853). ford City Ry. Co. v. Blake, 173 111. 42 Oakland Ry. Co. v. Fielding, 354 (1898). 48 Pa. St. 320 (1864); Karr v. iOHendrick v. Ilwaco Ry. &c. Parks, 44 Cal. 46 (1872); Cowden Co., 4 Wash. St. 400 (1892); May- v. Wright, 24 Wend. 429 (1840); hew V. Burns, 103 Ind. 328 (1885); Sibley v. Ratliffe, 50 Ark. 477 Putnam v. Southern Pacific Co., 21 (1888); Covington Street Ry. Co. v.. Or. 230 (1891). Packer, 9 Bush, 455 (1872); Cin- *i Rogers v. Smith, 17 Ind. 323 cinnati &c. R. R. Co. v. Chester, 57 (1861); Rockwell v. Waverly &c. Ind. 297 (1877). Traction Co., 187 Pa. St. 568 (1898); 43 Ames v. Union Ry. Co., 117 Hawkins v. First Street Cable Ry. Mass. 541, 343 (1875); Fairmount Co., 3 Wash. St. 592 (1892); Con- &c. Ry. Co. v. Stuller, 54 Pa. St. solidated Tract. Co. v. Whalan, 31 375 (1867). Action. 107 § 94. Bight of action over against wrongdoer — Practice — When a party has been exposed to liability and suffers damages thereby and is sued and has been compelled to pay money on account of the negligence of another party, and they are not joint tort-feasors or particeps criminis, an action will lie by the former against the latter to recover the amount so paid. This is so whether contractual relations exist between them or not.** Mr. Justice Endicott, of the Supreme Court of Massa;- chusetts, stated the rule thus : " When two parties, acting to- gether, commit an illegal or wrongful act, the party who is held responsible in damages for the act cannot have indemnity or contribution from the other, because both are equally cul- pable or particeps criminis, and the damage results from their joint offense. The rule does not apply when one does the act or creates the nuisance and the other does not join therein, but is thereby exposed to liability and suffers damage. He may recover from the party whose wrongful act had thus -exposed him." In such case the parties are not in pari delicto as to each other, though as to third persons either may be held liable.** The illustration of this principle is most frequently found in that class of cases where a municipality which has been compelled to pay a judgment recovered against it for personal in- juries caused by a defect in a sidewalk, may recover the amount of the judgment from the property-owner whose negligence to repair was the occasion of the injury.*® Or where the munici- 44 Oceanic Steam Nav. Co. v. 67; Old Colony R. E. Co. v. Sla- Campania Trans. Espanola, 134 N. vens, 148 id. 363 (1889) ; City of Y. 461 (1892); 144 id. 663 (1895). Brooklyn v. Brooklyn City R. R. 45 Gray v. Boston Gas Light Co., Co., 47 N. Y. 475 (1872); City of 114 Mass. 149, 154 (1873). In that Rochester v. Montgomery, 72 id. case the defendant fastened a tele- 65 (1878) ; Nashua Iron &c. Co. v. graph wire to the plaintiff's chim- Worcester &c. R. R. Co., 62 N. H. ney without having obtained per- 159 (1882); Veazie v. Penobscot R. mission; the wire pulled the chim- R. Co., 49 Me. 119 (1860); Hamden ney into the street, injuring a v. New Haven &c. R. R. Co., 27 traveller, who brought suit against Conn. 158 (1858). the owner of the building; it was 46 Brockville Borough v. Ar- held, that an action would lie by thurs. 152 Pa. St. 334 (1893); 130 the plaintiff for the amount of id. 501. In such ease the person money so paid to the traveller as injured may proceed in the first damages against the defendant, place either against the munici- Same principle, see Churchill v. pality or the property-owner. Holt, 127 Mass. 165 (1879); 181 id. ' 108 Action. pal corporation itself, not being the wrongdoer, kas been com- pelled to pay damages, caused by the obstruction of streets, by the negligence of its contractors or third persons.*^ Or where a master has had to pay damages caused by the servant's negli- gence, the master, not having contributed to the injury, may recover the sum so paid from the servant.*® Notice of the pendency of such action should be given to the original wrong- doer, with a request to him to come in and defend the action.*® He will then be concluded by the judgment rendered;^ but he may show that he was free from fault.^^ The effect of not giving any notice is to impose upon the party first sued the burden of again litigating the case and establishing the action- able facts.^^ The notice does not go to the right of action."* § 95. Where the action may be brought — Lex fori — Federal courts — At common law, a right of action is given for personal injuries. Personal actions, such as actions ex delicto for per- sonal injuries, are transitory. They may be brought in any 47 City of Rochester v. Montgom- Richardson, 54 Me. 46 (186G). The «ry, 72 N. Y. 65 (1878); Village of record of the judgment is compe- Port Jervis v. First Nat. Bank, 96 tent evidence. Mayor &c. Troy v. id. 550 (1884) ; Lowell v. Boston &c. Troy &c. R. R. Co., 49 N. Y. 657 R. R. Co., 23 Pick. 24 (1839); City (1872); City of Rochester v. Mont- of Elkhart v. Wickwire, 87 Ind. 77 gomery, 72 Id. 65 (1878); Schaefer (1882) ; Robbins v. Chicago City, 4 v. City of Fond du Lac, 99 Wis. Wall. 657 (1866); 2 Black, 418 333 (1898). <1862) ; Washington Gas Light Co. bi city of Chicago v. Robbins, 2 Y. Dist. of Columbia, 161 U. S. 316 Black, 418 (1862); 4 Wall. 657 (1895). (1866). 48 Grand Trunk By. Co. v. La- b2 village of Port Jervis v. First tham, 63 Me. 177 (1874); Smith v. Nat. Bank, 96 N. Y. 550 (1884); Foran, 43 Conn. 244 (1875) ; Mobile Westfield v. Mayo, 122 Mass. 100 &c. Ry. Co. V. Clanton, 59 Ala. 392 (1877). In the absence of any <1877); Willard v. Pinard, 44 Vt. 34 statutory provision upon the sub- (1871). See Whart. on Neg., § 246; ject, formal notice in writing is 2 Thomp. on Neg. 1061; Shearm. & not necessary. Robbins v. Chicago Redf. on Neg. (5th ed.), § 24a. City, 4 Wall. 657 (1866); 2 Black, 49 Elliott on Roads & Streets, 418 (1862); Village of Port Jervis 656. V. First Nat. Bank, 96 N. Y. 550 50 lb. The verdict and judgment (1884). are conclusive evidence. City of ss Village of Port Jervis v. First Boston V. Worthington, 10 Gray, Nat. Bank, 96 N. Y. 550 (1884). 496 (1858); City of Portland v. ACTIOJJJ. 109 jurisdiction where the wrongdoer can be found.®* The law of the State in which the suit is brought controls the remedy, i. e., the remedy is governed by the lex fori^^ for such injuries as might be redressed by action at common law will be redressed by action in the State where brought, without proof of what the law of the State where the injury occurred is, it being pre- sumed that the common law exists in the foreign State or country, unless the contrary is shown. ®^ Actions for personal in- juries maybe brought in the Federal courts, when the citizenship of the parties is such as to confer jurisdiction. But when the points involved in the siiit are those of general law, which are to be determined by a reference to all the authorities, and a con- sideration of the principles underlying the liability of the de- fendant, the courts of the United States are not bound by the decisions of the highest court of the State in which the cause of action arose.®^ In many of the States the common-law lia- bility has been modified or changed by statute, such as a master's liability to his servants for injuries growing out of the negli- gence of fellow servants, especially in reference to servants employed by railroad corporations.®® The Supreme Court of MAckerson v. Erie Ry. Co., 2 Vr. 309 (1865); Hanna v. Grand Trunk Ry. Co., 41 111. App. 116 (1891); Wooden v. Western &c. R. R. Co., 126 N. Y. 10 (1891); Mexi- can National Ry. Co. v. Jackson, 89 Tex. 107 (1896); Cincinnati &c. R. R. Co. V. McMullen, IIY Ind. 439 (1889). Whether allowed by statute or common law. McLeod v. Connecticut &c. R. R. Co., 58 Vt 727 (1886). 55 Anderson v. Milwaukee &c. Ry. Co., 37 Wis. 321 (1875); Krogg V. Atlanta &c. R. R. Co., 77 Ga. 202 (1886); Herrick v. Minneapolis &c. Ry. Co., 31 Minn. 11 (1883). See contra. Turner v. St. Clair Tun- nel Co., Ill Mich. 578 (1897). 56 Hanna v. Grand Trunk Ry. Co., 41 111. App. 116 (1891); Selmi &c. R. R. Co. V. Lacy, 43 Ga. 461 (1871); Krogg v. Atlanta &c. R. R. Co., 77 id. 202 (1886); .Tackson v. nusburg &c. Ry. Co., 140 Ind. 241 (1894). 57 Bucher v. Cheshire R. R. Co., 125 U. S. 555 (1888); Baltimore &c. R. R. Co. V. Baugh, 149 id. 368 (1883); Texas &c. Ry. Co. v. Cox, 145 id. 593 (1892); Howard v. Dela- ware &c. Co., 40 Fed. Rep. 195 (1889). 58 Iowa Code, § 1307; Minnesota, chap. 13, Laws of 1887. The courts of those States have held that the servant must be engaged in the perilous business of railroad- ing; the peculiar dangei-s attending the business of operating a rail- road. Deppe V. Chicago &c. R. R. Co., 36 Iowa, 52, 56 (1872); Lavalee V. St. Paul &c. Ry. Co., 40 Minn. 249 (1889). Alabama: Stats. 1886, Code, §| 2590-2592. 110 Action. Wisconsin held that no action will lie in that State by a servant against his master for injuries received in the course of the service, through the negligence of a fellow servant, wher6 such an injury was received in the State of Iowa, notwithstanding the fact that the Iowa statute gave a right of action.®* The Supreme Court of Minnesota reached an opposite conclusion upon substantially the same state of facts. It said it is not necessary that the law of the State where the right of action accrued and the law of the forum where it is sought to be enforced should concur in holding that the act done gave a right of action. The statute referred to is not against the public policy of the laws of Minnesota, although differing from the common-law rule, which we retain.** California: Code, § 1970. Texas will not undertake to ad.iucli- Florida: Chap. 4071, Laws of cate rights which originated in an- 1891. other State or country under stat- Georgia: Code 1882, §§ 2202, utes materially different from the 2083. law of that State in relation to the Kansas: 1 Gen. Stats. 1889, par. same subject-matter. Jlosican Na- 1251. Is not restricted to servants tional Ry. Co. v. Jackson, 89 Tex. while engaged in moving trains. 107 (1896). Atchison &e. R. E. Co. v. McKee, eo Herrick v. Minneapolis &c. Ry. 37 Kan. 592 (1887). Co., 30 Minn. 11 (1883). That case Massachusetts: Stats., chap. 207, was followed and approved by the Laws of 1887. Applies to all ser- Supreme Court of the State of vants. Illinois, which held that a suit Mississippi: Code 1892, § 3559. could be maintained in that State Montana: Comp. Stats. 1888, p. for an injury done in the State of 817, § 697. Indiana, where the statute of that Texas: Laws of 1891, chap. 24. State gave a right of action. Chi- Wisconsin: Chap. 220, Laws of cago &c. R. R. Co. v. Rouse, 178 1893. 111. 132 (1899), affirming 78 111. App. 59 Anderson v. Milwaukee &c. 286; 5 Am. Neg. Rep. 549; Njus v. Ry. Co., 37 Wis. 321 (1875). See Chicago &c. Ry. Co., 47 Minn. 92 also Iowa Code, § 1307; Krogg v. (1891). Action by servant against Atlanta &c. R. R. Co., 77 Ga. 202 master for personal injuries, con- (1886); Louisville &c. R. R. Co. v. tract of service and service per- Trammell, 93 Ala. 350 (1890)- formed in the State of Pennsyl- furner v. St. Clair Tunnel Co., Ill vania for which no right of action Mich. 578 (1897). In a suit by a could be maintained in the State servant for a personal injury of Pennsylvania. Held, the action which occurred in the Republic of could not be maintained in the Mexico the Supreme Court of State of Ohio thourrh the laws of Texas held that the courts of Ohio would give full relief had the Action. Ill § 96. Death of parties -^ Abatement of right of action. — At common law, the right of action for a personal injury abated upon the death of the person to the action before judgment,®^ ■which is expressed by the Latin phrase, actio personalis moritur euni persona. This principle is stated in Williams on Execu- tors thus : " But it was a principle of the common law that if an injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done. Thus, where the action was founded on any mal- feasance or misfeasance, was a tort, arose ex delicto, such as trespass for taking goods, etc., trover, false imprisonment, as- sault and battery, slander, deceit, diverting a water-course, ob- structing lights, escape, and many other cases of the like kind. Where the declaration imputes a tort, either to the person or the property of another, and the plea under the old pleading must have been ' not guilty,' the rule was actio personalis moritur <-um persona."^' In some of the States, statutes have been passed declaratory of the common-law rule. Thus the Florida statute provides that all actions for personal injuries shall die with the person.*^ Tbere is a distinction between the abatement transaction occurred in that State. Minnesota: Stats. 1894. § 5912. No recovery can be had in the State An action for a purely personal ■of Ohio when barred by the laws tort does not survive the death of of another State where the cause of the tort-feasor. Green v. Thomp- action arose. Alexander v. Penn- son, 26 Minn. 500 (1880). sylvania Co., 48 Ohio St. 623 (1891). New Yorlt: An action given by See Kahl v. Memphis &c. K. K. the statute (chap. 450, Laws of Co., 95 Ala. 337 (1891); Alabama 1847; Code of Civ. Pro., § 1902) to ■&c. K. R. Co. V. Carroll, 97 id. 126 the representatives of the decedent, <1892); Alabama &c. R. R. Co. v. whose death was caused by the Fulghum, 87 Ga. 263 (1891). negligence of another, abates upon 61 Baker v. Bolton, 1 Campb. the death of the wrongdoer, and 493 (1808); Soule v. New York &c. an action cannot be maintained R. R. Co., 24 Conn. 575 (1856); against his representatives. Hege- Green v. Thompson, 26 Minn. 500 rick v. Keddie, 99 N. Y. 258 (1885). <1880). Abates on the death of the An action against a common car- wrongdoer. Hamilton v. Jones, 125 rier, by a husband, for loss of ser- Ind. 176 (1890); Russell v. Sunbury, vice and expense on account of in- 37 Ohio St. 372 (1881). See Quin v. jury to his wife while a passenger Moore, 15 N. Y. 432 (1857). is grounded in tort; it does not 62 Williams on Executors (vol. 2), abate at the death of the plaintiff; p. 4, Randolph & Talcott Ed. It is within Rev. Stats. 447, § 1. 63 Eev. Stats, of Fla. 1891, § 989. Cregin v. Brooklyn Cross Town R. Indiana: Stats. 1896, § 282. R. Co., 75 N.Y. 192 (1878); 9 Hun, 341. 112 Action. of a suit, by the deatli of one or both of the parties to it, and the abatement of a cause of action by force of the maxim, actia personalis moritur cum persona.^ The first is a matter of procedure only. In many of the States the common-law rule has been changed or modified by statute, which provides that the right of action for an injiiry to the person shall survive.^ In some of the States it is provided that the right of action shall not abate after verdict.®* 64 Broom's Legal Maxims, 905; Kay on Negligence of Imposed Duties, § 167. 65 Arkansas: Dig. of Stats., § 5223; Davis v. St. Louis &c. Ry. Co., 53 Ark. 117 (1890). See 28 Am. Law Reg. (N. S.), p. 385. Colorado: Ann. Stats., § 2917. Connecticut: Gen. Stats. 1888, §§ 1007-1009; Soule v. New York &c. R. R. Co., 24 Conn. 575 (1856); Murphy v. New York &c. R. R. Co., 29 id. 496 (1861); 30 id. 184 (1861). Georgia: Code (vol. 2) 1895, § 3825. Illinois: Act of 1872, § 123; Hol- ton V. Daly, 106 111. 131 (1883); Chicago &c. R. R. Co. v. O'Con- nor, 119 id. 586 (1887). Iowa: MeClain's Ann. Code 1888, § 3730. Kansas: Gen. Stats. 1889 (vol. 2), § 4510; Hulbert v. City of Topeka, 34 Fed. Rep. 510 (1888). Kentucky: Ky. Stats. 1894, § 10. Louisiana: Art. 2315, as amended by Act No. 71, 1884, p. 94. Maryland: Public Gen. Laws (vol. 2), p. 1115, § 25. An action by a husband to recover damages for the killing of his wife, abates on the death of the husband; sec- tion 1 of article 2 of the Code of ISGO, which provides for the sur- vival of personal actions, expressly excepting from its operation ac- tions for injuries to the person. State V. Baltimore &c. R. R. Co., 70 Md. 319 (1889). Massachusetts: Pub. -Stats., p. 958, § 1. Mississippi: Code, §§ 1513, 2078, 2079; Vicksburg &c. R. R. Co. v. Phillips, 64 Miss. 693 (1887). Montana: Cons. Codes & Stats. 1895, p. 792. § 587. New Hampshire: Pub. Stats. 1891, chap. 191, § 8. New Jersey: Gen. Stats of N. J. (vol. 2), p. 1426, §§ 4, 5; Tichenor V. Hayes, 12 Vr. 193 (1879). Ohio: Bates' Ann. Stats. 1897 (vol. 2), § 4975. Oklahoma: Stats. 1893, par. 4312, § 434. ' Pennsylvania: Brightly's Pur- don's Dig. (vol. 2) 1894, p. 1603, § 2. Rhode Island: Gen. Laws 1896, p. 806, § 7. Tennessee: Code 1896, § 4569;. Mill. & V. Code. § 3130. Texas: Rev. Stats. 1895, p. 649, § 3353a. Vermont: Laws of 1847, p. 29, No. 42; Gen. Stats. 1894, § 2447; Needham v. Grand Trunk B. E. Co., 38 Vt. 294 (1865); Earl v. Tup- per, 45 id. 275 (1873). Virginia: Code 1887, § 2906. 66 Nevada: Gen. Stats. 1885, § 3038. North Carolina: Code (vol. 1) 1883, § 188, par. 2. North Dakota: Rev. Codes, §, 5234. Action. 113 § 97. Right of action — Assignment — A general rule of the c®iinmon law is, that a claim or demand or right of action to recover damages for a personal injury cannot be assigned or transferred; this is so by statute in New York.^^ In Iowa it has been held that a claim based upon a personal tort, which at common law died with the party, may be assigned or trans- ferred like any other cause of action.®® So it has been held by the Supreme Court of Iowa that where personal injury is inflicted in the State of Iowa, a cause of action arises thereon which is assignable under the laws of that State. If the assign- ment is made and delivered in a State where such assignment is void, still an action may be prosecuted thereon in the courts of Iowa.*® But in Minnesota it was held that a right to recover damages for a personal tort is a mere personal right and not assignable even after verdict, and before judgment.™ § 98. No action at common law, for causing death of a human being. — At common law, no action could be maintained for the negligence or default of another, causing the death of a human being. Lord EUenborough stated the common law to be that, " in a civil court, the death of a human being could not be complained of as an injury."''^ The right of action for Oregon: Hill's Ann. Laws 1892, personal Injury for negligence was p. 162, § 39. assignable before judgment. Leh- New Mexico: Not pending ac- mann v. Farwell, 95 Wis. 185. See tion. Comp. Laws 1884, § 2139. 14 L. R. A. 512, u. 67 Rev. Stats., Code & Laws New 7i Baker v. Bolton, 1 Campb. 493 York (Birdseye 1889, vol. 1), p. 124, (1808); Tiffany on Death by Wrong- § 2. But it was held by the Court ful Act, § 1; Thomas on Neg. 488; of Appeals that the interest of the Ray on Negligence of Imposed Du- mother in the damages which may ties, § 168 et seq.; Shearm. & Redf. be recovered in the suit, for cans- on Neg. (5th ed.), chap. 8, § 124 et ing the death of her minor child, seq.; 8 Am. & Eng. Ency. of Law is one capable of assignment. (2d ed.), p. 851. The earliest case Quin V. Moore, 15 N. Y. 432 (1857). is Higgins v. Butcher, Yelverton, See § 128. 89 (1607). See 2 Rolle's Abr. 68 Gray v. McCallister, 50 Iowa, 575. To the same effect are Os- 497 (1879). t)orn v. Gillett, L. R., 8 Exch. 88 69 Vimont v. Chicago &c. Ry. Co., (1873); 42 L. J. Exch. 53; Carey v. 69 Iowa, 296 (1886). Berkshire &c. R. R. Co., 1 Cush. 70 Hunt v. Conrad, 47 Minn. 475 (1848) ; Eden v. Lexington &c. 557 (1891). In Wisconsin it was R. R. Co., 14 B. Mon. 165 (1853); held that a cause of action for a Needham v. Grand Trunk R. R. 8 114 Action. the injury abated upon the death of the person injured.''^ The Latin maxim, actio personalis moritur cum persona, being applicable. ^^ Actions for losses sustained by surviving relatives are wholly statutory.''* The courts have given different rea- Co., 38 Vt 294 (1865); Pennsyl- vania R. E. Co. V. Adams, 55 Pa. St. 499 (1867); Myers v. Holborn, 29 Vr. 193, 195 (1895). Early Ameri- can cases contra: Cross v. Guthery, 2 Root, 90 (Conn. 1794) ; overruled, Connecticut Mut. Life Ins. Co. v. New York &c. R. R. Co., 25 Conn. 265 (1856); Ford v. Monroe, 20 Wend. 210 (1838) ; overruled, Green V. Hudson River R. R. Co., 2 Keyes, 294 (1866). See McGovern v. New Yorii &c. R. R. Co., 67 N. Y. 417 (1876); Plummer v. Webb, 1 Ware, 69 (1825); Cutting v. Seabury, 1 Sprague, 522 (1860) ; Sullivan v. Pa- cific R. R. Co., 3 Dill. 334 (1874); overruled. Mobile Life Ins. Co. v. Brame, 95 U. S. 755 (1877); The Harrisburg, 119 id. 199 (1886); Shields V. Young, 15 Ga. 349 (1854); approved. Chick v. Southwestern R. R. Co., 57 Id. 357 (1876); Mc- Dowell V. Georgia R. R. Co., 60 id. 320 (1878). Under the Missouri statute providing for the survival of actions. James v. Christie, 18 Mo. 162 (1853), cited in Stanley v. Bircher, 78 Id. 245 (1883). Since the twelfth century, as before that time, there seems to have been a schedule of prices in existence to 1)6 paid for the lives of men. Prof. Maitland in " Doomsday Book and Beyond." 72 Mobile Life Ins. Co. v. Brame, »5 V. S. 754, 759 (1877); Hollenbeck V. Berkshire R. R. Co., 9 Gush. 478, 480 (1852). T3 In Green v. Hudson River R. K. Co., 2 Keyes, 294 (1866), it was said this principle was not appli- cable to the action brought by a husband for his Injuries and Inci- dental damage to Mm for the kill- ing of the wife. 74 Brown v. Chicago &c. Ry. Co., Wis. (1898); 5 Am. Neg. Rep. 255. Mr. Justice Hunt, of the Su- preme Court of the United States, remarked that " the authorities are so numerous and so uniform to the proposition, that by the com- mon law no civil action lies for an injury which results in death, that it is impossible to speak of It as a proposition open to question. It has been decided in many cases in the English courts and in many 6f the State courts, and no de- liberate, well-considered decision to the contrary is to be found." Mobile Life Ins. Co. v. Brame, 95 U. S. 754, 756 (1877); Kramer v. Market Street R. R. Co., 25 Cal. 434 (1864) ; Grosso v. Delaware &c. R. R. Co., 21 Vr. 317 (1888). " The rule has been applied equally in actions brought by the husband for the death of the wife." Hyatt v. Adams, 16 Mich. 180 (1867); Green v. Hudson River R. R. Co., 2 Keyes, 294 (1866); Grosso v. Delaware &c. R. R. Co., 21 Vr. 317 (ISSSk Dickins v. New York &c. R. R. Co., 23 N. Y. 158 (1861). " By the wife for the death of the hus- band." Lyons v. Woodward, 49 Me. 29 (1860); Wyatt v. Williams, 43 N. H. 102 (1861). " By the pa- rent for the death of a minor child." Little Rock &c. Ry. Co. v. Barker, 33 Ark. 350 (1878); Schef- fler V. Minneapolis &c. Ry. Co., 32 Minn. 125 (1884); Carey v. Berk- ACTTON. 115 sons for tlie rule. It is strange that on so important a subject there is no well-founded reason on which the rule is based. Leonard, J., says: " It is of no practical utility to search for the reason of the rule. It remains somewhat obscure."^" § 99. Action at common law for incidental loss resulting from death. — It is to be observed that the rule of the common law applies to an action to recover damages for the death , only. There are, in some cases, indirect results flowing from the death to which this rule does not apply and for which an action will lie, such, for example, as the loss of service of the injured shire R. R. Co., 1 Gush. 475 (1848). " By the widow suing in her right and as tutrix of her minor chil- dren." Hubgh v. New Orleans &c. R. R. Co.. 6 La. Ann. 495 (1851); Hermann v. New Orleans &c. R. R. Co., 11 La. Ann. 51 (1856). " By the executor or administrator su- ing in his representative capacity." Kearney v. Boston &c. R. R. Co., 9 Cush. 108 (1851); Crowley v. Pan- ama R. R. Co., 30 Barb. 99 (1859). " By an insurance company suing to recover damages by reason of having been forced to pay an In- surance policy on the life of a per- son killed by the defendant." Con- necticut Mut. Life Ins. Co. v. New York &c. R. R. Co., 25 Conn. 265 (1856); Mobile Life Ins. Co. v. Brame, 95 U. S. 754 (1877) ; Tiffany on Death by Wrongful Act, § 11. "By an orphan child' for causing death of uncle who supported the child." Hindry v. Holt, 24 Colo. 464 (1897). 75 Green v. Hudson River R. R. Co., 2 Keyes, 294 (1866); 2 Abb. Dec. 277. See article in Am. Law Rev., p. 128. It has been suggested that the reason of the rule was based on the law of forfeiture. Shields v. Young, 15 Ga. 349 (1854); denied in Grosso v. Delaware &c. R. R. Co., 21 Vr. 317 (1888); Hyatt V. Adams, 16 Mich. 180, 185 (1867). Or the doctrine of merger, see Wells V. Abrahams, L. R., 7 Q. B. 554, 557 (1872). Although the de- fendant be criminally liable, he is liable in a civil action. Kain v. Larkin, 56 Hun, 79 (1890); denied in Osborn v. Gillett, L. R., 8 Bxch. 88 (1873); Hyatt v. Adams, 16 Mich. 180, 185 (1867); Grosso v. Delaware &c. B. R. Co., 21 Vr. 317, 320 (1888). The principle actio personalis moritur cum persona, i. e., the right of action dies with the person who was a party to the suit, is not applicable. Green v. Hudson River R. R. Co., 2 Keyes, 294 (1866); 2 Abb. Dec. 277. The Michigan Supreme Court says the reason rests on public poUcy. Hyatt V. Adams, 16 Mich. 180, 187 (1867). " The awful magnitude of the wrong ' has been assigned as the reason ' why neither court nor jury have ever been trusted by the law with the function of estimat- ing it. It is manifestly not one reason, but many, which lie at the basis of the common-law rule." Connecticut Mut. Life Ins. Co. v. New York &c. R. R. Co., 25 Conn. 265, 272 (1856). 116 Action. person during the penod between the injury and the death.^* So, where the death is caused by a tortious breach of contraxjt, such as the contract which exists between passenger and car- rier, the executor or administrator, although he could not sue in tort, may sue in contract, and recover damages suffered by the decedent's estate." In ISTew Hampshire it has been held that when the breach of contract results in an injury purely personal, the action does not survive, being an exception to the rule of actions ex contractu.''^ When death results, twO' causes of action may arise — one in favor of the decedent for his loss and suffering resulting from the injury in his lifetime, the other founded on his death, or on the damages resulting from his death, to his widow and next of kin.''® Lord Campbell's V6 Baker v. Bolton, 1 Campb. 493 (1808); Covington Street Ry. Co. V. Packer, 9 Bush, 455 (1877); Hyatt V. Adams, 16 Mich. 180 (1867); Natchez &c. R. R. Co. v. Cook, 63 Miss. 38 (1885); Nicker- son V. Harrlman, 38 Me. 277 (1854). And where the statute gives a right of action for causing death the two actions may proceed pari passu, and a recovery In one will not bar a recovery in the other. Davis V. St. Louis &c. Ry. Co., 53 Ark. 117 (1890); Mowry.v. Chaney, 43 Iowa, 609 (1876); Phlllppi v. Wolfe, 14 Abb. Pr. 196 (N. S. 1873); Ford V. Monroe, 20 Wend. 210 (1838); May hew v. Burns, 103 Ind. 328 (1885). And any incidental ex- penses incurred during that time for medical attention to, and care and nursing. Natchez &c. R. R. Co. v. Cook, 63 Miss. 38 (1885); Cov- ington Street Ry. Co. v. Packer, 9 Bush, 455 (1872). A loss occasioned by the deceased's inability to at- tend to business during the inter- val between his injury and death. In an action for a breach of con- tract, where the plaintiff was a passenger who was Injured. Brad- shaw V. Lancashire &c. ,Ry. Co.,. L. R., 10 C. P. 189 (1875). 77 Tiffany on Death by Wrongful Act, § 18; Winnegar v. Central Pass. Ry. Co., 85 Ky. 547, 552" (1887); Bradshaw v. Lancashire &c. Ry. Co., L. R., 10 C. P. 189 (1875); Leggott V. Great Northern Ry. Co., 1 Q. B. D. 599 (1876); Steamship- City of Brussels, 6 Ben. 370 (1873) ; Knights v. Quarles, 2 Brod. & B. 102 (1820). 78 Vittum V. Oilman, 48 N. H. 416 (1869); Jenkins v. French, 58 id. 532 (1879). Held, in New York, that such actions survived under the statute which preserved from abatement " wrongs done to the property, rights, or the interest of another." Cregin v. Brooklyn &c. R. R. Co., 75 N. Y. 192 (1878); 83 id. 595 (1881). See Crowley v. Panama R. E. Co., 30 Barb. 99 (1859). 79Needham v. Grand Trunk R R. Co., 38 Vt. 294 (1865). The former is reserved by the act of 1847 (Laws of 1847, p. 29, No. 42), and the latter is under the act of 1849 (Laws of 1849, p. 7, No. 8); both actions are to be prosecuted. Action. ll? Act provides that not more tlian one action shall lie for and in respect of the same subject-matter of complaint.^ § 100. Lord Campbell's act — American statutes The statute which is known as Lord Campbell's Act was passed by the Brit- ish Parliament in 1846.^^ It creates or provides a remedy by civil action for causing the death of a human being, and gives to the personal representatives of a person killed by the wrong- ful act, neglect or default of another, a right of action to re- cover damages for causing such death. This statute has been the parent of all the legislation on this subject in the United States. The first in point of time was passed by the legisla- ture of the State of New York in 1847; since that time, all the States and Territories of the American Union. The District of Columbia and the Provinces of Canada have passed statutes providing for a civil remedy, or gi^^ng a right of action to re- cover damages for the negligent or wrongful killing of a human being. These statutes difFer not only in the terms and lan- guage in which they are expressed, but also in respect to the per- sons by whom or for whose benefit the action may be brought, as well as the measure of damages.®^ in point of form in the name of New Brunswlcls: Consol. Stats., his personal representative, but the chap. 86. damages in the two suits are given Nova Scotia: Rev. Stats. 1884, upon entirely different principles, chap. 116. and for different purposes. lb. Ontario: Rev. Stats. 1887, chap. See Legg v. Britten, 64 Vt. 652 135. (1890), distinguishing Needham v. Quebec: Civil Code, L. Can., art. Grand Trunk R. R. Co., 38 Vt. 294 1056. <1865). Alabama: Code 1887, § 2589. 80 9 & 10 Viet., chap. 93, § 3. The Arizona: Rev. Stats. 1887, art. same provision is contained in the 2145. statute of New Brunswicli. Consol. Arliansas: Dig. Stats. 1894, § Stat, chap. 86, § 5; Nova Scotia 5911. Rev. Stats. 1884, chap. 116, § 3; California: Code Civ. Pro., §§ Ontario Rev. Stats. 1887, chap. 135, 376, 377. § 5; Quebec Civil Code, L. Can., Colorado: Miles' Stats. 1891, §§ art. 1056; Maryland Pub. Gen. 1509-1511. Laws, art. 67, § 2. Connecticut: Gen. Stats. 1888, §§ 81 9 & 10 Vict., chap. 93; amended 1008, 1009. 27 & 28 Vict., chap. 95. Delaware: Rev. Stats. 1852, chap. 82 England: 9 & 10 Vict, chap. 105; amended, 1874. 93; amended, 27 & 28 Vict., chap. District of Columbia: Comp. S3. Stats. 1894, chap. 49. 118 Action. § 101. Special statutory provisions — In some of the States the statute provides that the right of action of the party in- jured shall survive in case death results from the injury.^ Florida: Rev. Stats. 1892, §§ 2342-2344. Georgia: Code 1887, § 588. Idaho: Rev. Stats. 1891, §§ 4099, 4100. Illinois: Eev. Stats. 1895, chap. 70, §§ 1. 2. Indiana: Rev. Stats. 1894, §§ 267, 285. Iowa: Rev. Stats. 1888, §§ 2525- 2527. Kansas: Comp. L. 1885, chap. 80, § 422; amended, 1889, chap. 131. Kentucky: Const, § 241; Gen. Stats., chap. 57, § 3; Stats. 1894, chap. 1, § 6. Louisiana: Rev. Civil Code 1889, art. 2315. Maine: Stats. 1891, chap. 124. Maryland: Poe's Code 1888, art. 67, §§ 1-4. Massachusetts: Pub. Stats. 1882, chap. 52, § 17; chap. 73, § 6; chap. 112, § 212; amended, 1883; Stats. 1886, chap. 140. Michigan: Howell's Stats. 1883, § 8313. Minnesota: Gen. Stats. 1894, § 5913. Mississippi: Code 1892, § 663. Missouri: Rev. Stats. 1889, § 4426. • Montana: Code Civ. Pro. 1895, §§ 578. 579. Nebraska: Comp. Stats. 1895, § 2503. Nevada: Comp. Laws 1885, § 3898. New Hampshire: Pub. Stats. 1891, chap. 191, §§ 8-14. New Jersey: Gen. Stats, of N. J. (vol. 1), p. 1188, § 11. New Mexico: Comp. Laws 1885, § 2309; amended, 1891, chap. 49. New York: Code Civ. Pro., §§ 1902-1904; amended, 1895. North Carolina: Code 1883, § 1498. North Dakota: Code 1895, § 5974. Ohio: Rev. Stats. 1894, § 6134. Oklahoma: Comp. Stats. 1893, §§ 4311, 4313. Oregon: Code Civ. Pro. 1892, § 371. Pennsylvania: Brightly's Purd. Dig. 1894, p. 1603, §§ 1-7. Rhode Island: Pub. Stats. 1882, chap. 204, § 20. South Carolina: Rev. Stats. 1893, § 2315. South Dakota: Comp. L. 1887, §§ 5498, 5499; Laws of 1891, chap. 4. Tennessee: Code 1896, §§ 4025- 4029. Texas: Rev. Stats. 1888, § 2899. Utah: Comp. L. 1888, §§ 2961, 3178, 3179. Vermont: Comp. Stats. 1894, § 2451. Virginia: Code 1887, § 2902. Washington: Code Pro. 1891, § 138. West Virginia: Code 1891, chap. 103, § 5. Wisconsin: Ann. Stats. 1889, § 4255. Wyoming: Code 1887, § 2364a. 83 This is so in Connecticut: Gen. Stats. 1888, i§ 1008, 1009. Iowa: MeClain's Ann. Code, § 3730. Louisiana:. Civil Code, art, ,2315; amended by Laws of 1884, p. 94. New Hampshire: Pub. Stats. 1891, chap. 191, § 8. Tennessee: Mill & V. Code, & 3130. Action. 119 Thus the Iowa statute provides that " all causes of actions shall survive, and may be brought, notwithstanding the death of the person entitled or liable to the same." Under these statutes the question has arisen whether the action could be maintained when the death was instantaneous. The Massachusetts courts have repeatedly held that in such cases the action could not be maintained because there was the absence of a perfect cause of action before death.®* Those statutes " which create a new cause of action, and give damages for the injury resulting from the death, it is immaterial whether the death is or is not in- stantaneous."®^ By statute in some States, a special action is provided in favor of the father or mother for causing the death of a child.®® So by statute in some States, a special action is provided against railroad companies or other public carriers when life is lost through their negligence or carelessness.®^ In Maine and Massachusetts, the damages are in the nature of a fine, recovered by indictment, for the use of the widow and children of the deceased, or if none, then to the use of the heirs or next of kin. In Virginia the statute provides for a libel in rem against a ship or vessel, or a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as 84 Kearney v. Boston &c. R. K. Kentucky: Gen. Stats., chap. 57, Co., 9 Gush. 108 (1851) ; HoUen- § 1. Or by willful neglect may re- beck V. Berkshire K. R. Co., id. 478 cover punitive damages. Id., § 3. (1852); Bancroft v. Boston &c. R. Maine: Rev. Stats. 1883, chap. R. Go., 11 Allen, 34 (1865); TuUy v. 51, § 68. Fitchburg R. R. Go., 134 Mass. 499 Massachusetts: Pub. Stats. 1882, (1883) ; Kennedy V. Standard Sugar chap. 23, § 6; chap. 112, §§ 212, Refinery, 125 id. 90 (1878); Nourse 213; Stats. 1883, chap. 243; Stats. V. Packard, 138 id. 307 (1885); JIul- 1886, chap. 140. cahey v. Washburn &c. Go., 145 Missouri: Rev. Stats. 1889, § id. 281 (1887). 4425. 85 TifCany on Death by Wrongful New Mexico : Gomp. Laws 1884, Act, § 73; Brown v. Buffalo &c. R. § 2308; amended by Laws of 1891, R. Go., 22 N. T. 191, 194 (1860) ; In- chap. 49. ternational &c. R. R. Go. v. Kin- North Dakota: Gomp. Laws of dred, 57 Tex. 491 (1882). Dakota 1887. § 5498. 86 See § 119. Rhode Island: Pub. Stats., chap. 87 This is so in 204, § 15. Arizona: Rev. Stats. 1887, 5 2145. Texas: Sayles' Civil Stats., art. Colorado: Gen. Stats. 1883, § 2899, §§ 1, 2. 1030. 120 Action. amount in law to a felony.®® By statute, an action is given' against a person killing another in a duel, the surviving princi- pal, the seconds, and all others aiding or promoting the duel.®* So an action is given for a willful violation of the Miners Act, causing injury or loss of life.®" So when a life is lost through any defect or want of repair, or sufhcient railing, in any high- way, townway, causeway, or bridge.''^ § 102. Distinguishing features of the action. — Mr. Tiffany, in his valuable book on Death by Wrongful Acts, says : " The distinguishing features of the new action are three in number: (1) That it may be maintained whenever death is caused by wrongful act, neglect, or default, such as would, if death had not ensued, have entitled the party injured to maintain an action; (2) that it is for the exclusive benefit of certain desig- nated members of the family of the deceased; and (3) that the damages recoverable are such as result to the beneficiaries from the death. "«2 88 Virginia: Code 1887, § 2902. Washington: Hill's Ann. Stats. & 89 This is so in Oode 1891, § 138, provides " when Kentucky: Gen. Stats., chap. 32, the death of a person is caused f 1. Or where a person is killed by an injury received in falling by the careless, wanton, or ma- through any opening or defective licious use of firearms. Gen. place in any sidewalk, street, al- Stats., chap. 1, § 6. ley, square, or wharf, his heirs or Washington: Hill's Ann. Stats. & personal representatives may main- Code 1891. § 138. tain an action for damages against Ontario: Kev. Stats. 1887, chap, the person whose duty it was, at 135, § 4. the time of the injury, to have Quebec: Civil Code, L. Can., art. kept in repair such sidewalk or 1056. other place." Georgia: Code 1882, § 2971; For a full compilation of the amended, Laws 1887, p. 43. The statutes, with an analytical table, action is for homicide. see Tiffany on Death by Wrong- so Illinois: 3 Starr & 0. Ann. ful Act For a comparative and Stats., chap. 93, § 14. comprehensive study of these Missouri: Rev. Stats. 1889^ § statutes nothing could be more 7074. useful. Pennsylvania: Brightly's Purd. 92 § 22. In order that a cause of Dig. Supp., p. 2252, § 70. action under Lord Campbell's Act 91 Maine: Rev. Stats. 1883, chap, and similar statutes shall exist, it 18, § 80. is necessary that the following cir- Massachusetts: Pub. Stats. 1882, cumstances concur: (1) That the chap. 52, § 17. death shall have been caused Action. 121 § 103. The statute creates a new right of action Some of the cases hold, and the weight of authority seems to be on the side, viz., that the statute gives a new right of action,^* and not a substituted right of action.®* If the injured person brings a suit and recovers damages for the injury in his life- time, in case death subsequently results from the injury, his personal representatives cannot maintain an action for the death.»« § 104. Liberal or strict construction — These statutes have, by some courts, been declared to be remedial and are entitled to receive the liberal construction which appertains to remedial statutes,*® and by other courts it is said they are in derogation ty such wrongful act, neglect, or R. R. Co., 24 Md. 84, 101 (1865); default of the defendant that an Evans v. Newland, 34 Ind. 112 action might have been main- (1870). tained therefor by the party in- 93 Blake v. Midland Ry. Co., 18 jured if death had not ensued; (2) Q. B. 93, 101 (1852); 18 Ad. & El. that there be in existence some one (N. S.) 93; Littlewood v. Mayor &c. of the persons for whose benefit of New Yorli, 89 N. Y. 24, 27 (1882) ; the action may be brought; (3) that Whltford v. Panama R. B. Co., 23 there be in existence a proper party N. Y. 465 (1861) ; Smith v. Louis- plaintiff,— that Is, that an exec- vUle &c. R. R. Co., 75 Ala. 449 utor or administrator shall have (1883); Munro v. Pacific Coast &c. lieen appointed, — unless the stat- Co., 84 Cal. 515 (1890) ; Adams v. ute authorizes the action to be Northern Pacific Ry. Co., 95 Fed. iDrought directly by the benefi- Rep. 938 (1899). claries; (4) that the time within 9* Leggott v. Great Northern Ry. which the action must be brought Co., 1 Q. B. D. 599 (1876); Whit- has not elapsed; and (5) according ford v. Panama R. R. Co., 23 N. Y. to some authorities, that the bene- 465 (1861); Hamilton v. Jones, 125 ficiaries, or some one of them, shall Ind. 176, 179 (1890). have suffered pecuniary loss by 95 Littlewood v. Mayor &c. of reason of the death. Whether, if New York, 89 N. Y. 24 (1882), un- no pecuniary loss has been sus- der chap. 450, Laws of 1847 of N. tained, the action may be main- Y.; Read v. Great Eastern Ry. Co., tained for nominal damages, is a L. R., 3 Q. B. 555 (1868). question upon which there Is a 96 Haggerty v. Central R. R. Co., conflict of authority. Tiffany on 2 Vr. 349, 350 (1865); Murphy v. Death by Wrongful Act, § 60. Board of Chosen Freeholders, 28 The word "wrongful," as used id. 244, 250 (1894); Bolinger v. St. in the statute, does not mean in- Paul &c. R. R. Co., 36 Minn. 418, tentional, willful or malicious. Mc- 421 (1887) ; Merkle v. Bennington l Dicey on Parties to Actions, p. 330, Rule 79; Sheartn. & Redf. Florida: Rev. Stats. 1892, p. 357,. § 982. Iowa: By guardian or next friend. Miller's Rev. Code 1888, p.. 888, § 2569. Louisiana: Suit must be brought against the curator. Garland's Rev- Code of Practice 1894, § 115. Maine: Rev. Stats. 1883, p. 699,. § 38. Massachusetts: Pub. Stats. 1882,^ p. 960, § 25. Michigan: Comp. Laws 1871, p. 1689, § 5844. Missouri: Rev. Stats. 1889, p.. 1318, § 5517. Nevada: Gen. Stats. 1885. § 56a. New Hampshire: Pub. Stats. 1891, p. 501, § 1. North Carolina: Code of No. Car. 1883, § 181. Ohio: Rev. Stats. 1894, § 5000. Rhode Island: Pub. Stats. 1882. § 7. 17-4 Parties Defendant. § 146. Death by wrongful act, neglect — Parties defendant. — Lord Campbell's Act** provides that, whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued shall be liable to an action for damages. Lan- guage of like import is used in all, or nearly all, of the statutes^* of the respective States. Many of them, in express terms, in- clude corporations, so that the proper party defendant depends upon the same considerations as in the case of personal injury. § 147. Death of wrongdoer extinguishes liability at common law — American statutes. — The liability for a personal injury at common law, like the right of action for the same cause, dies with the wrongdoer; the maxim of the common law applies, actio personalis nioritur cum persona. Hence it follows that the personal representatives of the deceased, i. e., his executors or administrators, cannot be sued for torts committed by him, at common law.^ This rule of the common law has been changed by statute in some of the States.** Vermont: Gen. Stats. 1870, p. Stats, of Minn. 1894, § 5912. An 477, § 17. action for a purely personal tort Wyoming: By guardian or trus- does not survive the death of the tee. Rev. Stats, of Wyo. 1887, § tort-feasor. Green v. Thompson, 26 2387. Minn. 500 (1880); Russell v. Sun- S3 9 & 10 Vict., chap. 93. bury, 37 Ohio St. 372 (1881); Moe 84 For a complete copy of all the v. Smiley, 125 Pa. St. 136 (1889) ; statutes, see Tiffany on Death by Hegerlcli v. Keddie, 99 N. Y. 258 Wrongful Act— Appendix; Ana- (1885); id. 651. lytical Table of the Statutes, id. 86 Arizona: Rev. Stats. 1887, § xviii; id., § 118. These statutes 2152. do not change the common-law Georgia: Code of Ga. 1895 (vol. rule in respect to defendants, viz., 2), § 3825. that the action against a wrong- Illinois: Knox v. City of Sterl- doer dies with the person who ing, 73 111. 214 (1874). committed the wrong. See cases Iowa: Miller's Rev. Code of in § 147. Iowa 1888, p. 866, § 2525. 86 Dicey on Parties to Actions, Kentucky: Ky. Stats. 1894, p. p. 479; Hamilton v. Jones, 125 Ind. 176, § 10. 176 (1890); Stanley v. Bircher, 78 Louisiana: Not after answer Mo. 245 (1893). Nor under Gen. filed. Garland's Rev. Code of Prac. Stats. 1865, 491, § 30, of Missouri. 1894, p. 21. Parties Defendant. 175 § 148. Nonjoinder or misjoinder of plaintiffs or defendants. — An action brought by a wrong plaintifp, or against a wrong defendant, must fail.*'^ The errors which can be committed in respect to the parties to an action are of three kinds: First, the action may be brought in the name of the wrong plaintiff or against the wrong defendant; Seccmd, the error may consist in the nonjoinder of plaintiffs or of defendants; Third, the error may consist of a misjoinder of plaintiffs or of defendants. A nonjoinder of plaintiffs gives rise to a plea in abatement;^ a misjoinder of plaintiffs leads only to increased costs. A non- joinder of defendants is no error;®* a misjoinder of defendants leads only to increased costs.^ New Mexico: No action pend- ing sliall abate by death of either or both parties thereto. Comp. Laws 1884, § 2139. New Jersey: Gen. Stats, of N. J. (vol. 2), p. 1426, § 5; Tlchenor v. Hayes, 12 Vr. 193 (1879). Ohio: Bates' Ann. Stats. 1897, I 4975. Oklahoma: Stats. 1893, par. 4312, § 434. Oregon: Not after verdict. Hill's Ann. Laws 1892, p. 162, § 39. North Carolina: Code 1883, § 188, par. 2. North Dakota: Rev. Codes 1895, i 5234. Tennessee: Code of Tenn. 1896, I 4569. Texas: Rev. Stats. 1895, § 3353a. Virginia: Not to abate by the death of the defendant or the dis- solution of the corporation when a corporation is the defendant. Code of Va. 1887, § 2906. Vermont: For a bodily hurt or injury, if either party dies during the pendency of such action, the action shall survive, but when there are several defendants in such action, and one or more, but not all, die, it shall be prosecuted against the surviving defendant or defendants only. Vt. Stats. 1894, § 2447. 87 Dicey on Parties to Actions, p. 499. If the error appears on the pleadings it may be taken advan- tage of by demurrer, motion in ar- rest of judgment or error. The points to be considered when an error is discovered are what is the effect of the error if unamended; and, secondly, can it be amended. 88 Dicey on Parties to Actions, p. 507; Sedgworth v. Overend, 7 T. R. 279; Bloxam v. Hubbard, 5 East, 407 (1804). 89 Nonjoinder of defendants can- not be availed of in bar. Eaton v. Boston &c. R. R. Co., 11 Allen, 500, 505 (1866). Joint tort-feasors cannot be compelled to be made parties. Hoosier Stone Co. v. Mc- Cain, 133 Ind. 231 (1892). 90 At common law in actions eai delicto the plaintiff might dis- continue as to one or more of the defendants and proceed against the others even after verdict, though all had joined in the same plea and had been found guilty of the same tort. Montgomery Gas Light Co. V. Montgomery &c. Ry. 176 Parties Defendant. Co., 86 Ala. 372 (1888). And does not affect the liability of the real wrongdoer. Govett v. Radnidge, 3 East, 62 (1802); Bretherton v. Wood, 3 Brod. & B. 54 (1821); 7 E. 0. L. 345; Pozzi v. Shipton, 8 Ad. & E. 963 (1838). Scheme as to joinder of parties. Dicey on Par- ties to Actions, p. 509. Actions for torts: (o) Plaintiffs. 1. Nonjoinder ■— Gives rise to a plea in abatement. 2. Misjoinder — Leads only to In- creased costs. (6) Defendants. 1. Nonjoinder — Has no effect. 2. Misjoinder — Leads only to in- creased costs. Actions on contract: (a) Plaintiffs. 1. Nonjoinder — Fatal unless amended. 2. Misjoinder — Leads only to in- creased costs. (6) Defendants. 1. Nonjoinder — Gives rise to a plea in abatement. 2. Misjoinder — Fatal unless amended. CHAPTER VI. PLEADINGS. i 149. Pleadings in general. 150. Requisites in pleading a cause of action in acci- dent cases. 151. A general averment of neg- ligence is sufficient. 152. The real ground of com- plaint should be dis- tinctly stated. 153. Allegation that plaintiff is free from contributory negligence. 154. Pleadings which have been held sufficiently specific. 155. Pleadings which have been held not sufficiently spe- cific. 156. Injuries to person and property — Joinder of causes of action — Hus- band and wife. 157. Pleadings in actions against municipal corporations — Notice. § 158. Actions for causing death — Existence of beneficia- ries must be alleged. 159. Appointment of plaintiff as administrator or executor must be alleged. 160. Action based on a foreign statute — Such statute must be alleged. 161. Bill of particulars. 162. Allegation of damages un- der the statute. 163. Special — Exemplary dam- ages — In common-law actions. 164. General denial — Plea — Answer — Contributory negligence. 165. Special pleas — Release — Statute of Limitations. 166. Demurrers. 167. Miscellaneous forms of com- plaints, declarations and petitions in the reports — For complete forms see chapter " Forms." § 149. Pleadings in general. — Many of the States have adopted a Civil Code of Procedure, in which the remedy to redress personal wrongs is designated simply a " civil action,"^ the common-law forms of action and pleadings having been abolished. In such States the pleadings in which the cause of action and defense are stated, are usually styled a complaint and answer, instead of a declaration and plea as at common law. In Missouri^ and Texas,^ the pleadings are styled a peti- 1 See § 89. 2 Missouri: Rev. Stats. 1889. § 2039, 2041. 3 Texas: Rev. Stats. 1887, 1187. So in 12 Kentucky: Thomas v. Royster, § 98 Ky. 206 (1895). Louisiana: Erslew v. New Or- § leans &c. R. R. Co., 49 La. Ann. 86 (1897). [177] 178 Pleadings. tion and answer. Many of the States still adhere to the com- mon-law forms of pleadings — the declaration and plea — and under the liberal practice allowed by statute in amending the pleadings, the common-law system of pleading, as now used, is 010 more technical than under the Code. When the action is brought to recover damages for causing the death of a human being by the neglect or default of another person or corpora- tion, the same style of action and form of pleadings are used as in actions brought to redress personal injuries. In the State of Maryland the statute provides that the action " shall be brought by and in the name of the State of Maryland, for the use of the person entitled to damages."* In the States of Maine* and Massachusetts,® the statutes provide a remedy by indictment, when the life of a person is lost by the negligence or carelessness of a railroad corporation. In actions brought to recover damages for personal injuries caused by negligence, or for causing the death of a human being, it matters little whether the pleading in which the cause of action is stated is called a complaint, petition, declaration or indict- ment, except so far as relates to their formal parts, as the prin- cipal point in this class of cases is to state facts, and such facts only as constitute a cause of action showing negligence or de- fault in the performance of a legal duty.^ What would be suiBcient under one system of pleading would necessarily be sufficient under the other, varied in the formal parts so as to conform to local statutes and practice. § 150. Requisites in pleading a cause of action in accident cases. — The pleading in which the cause of action is stated for the recovery of damages for personal injuries or for causing the death of a human being by negligence, whether it is a Nebraska: Kearney Electric Co. Hampshire. State v. Manchester V. Laughlin, 45 Neb. 390 (1895). &e. R. K. Co., 52 N. H. 528 (1873). Ohio: Hesse v. Columbus &c. R. 7 While mere abstract conclu- E. Co., 58 Ohio St. 167 (1898). sions of law cannot be pleaded, yet 4 Maryland: Pub. Gen. Laws, art. allegations which combine the ele- 67, § 2. . ments of such conclusions, and 6 Maine: Rev. Stats. 1883, chap, also of facts, are admissible in 51, § 68. pleading. Grindle v. Milwaukee « Massachusetts: Pub. Stats. &c. R. R. Co., 42 Iowa, 376 (1876). 1882, chap. 112, § 212. This was See 2 Thomp. on Neg.. 1246 1248, formerly so by statute in New 1254; Thomas on Neg. 1045. Pleadings. 179 complaint, petition, declaration or indictment, should contain and state with precision: First. An allegation or statement of the facts and circumstances from which it is shown that the defendant owed a legal duty to the plaintiff. An allegation of a duty standing alone is insufficient.® That the act of the de- fendant complained of was negligent in character, in that the defendant negligently performed, or failed to perform, the duty he owed to the plaintiff; that such negligent act of the defendant was the cause of the plaintiff's injury and damage as its natural and proximate result.* Second. That the plain- tiff's injury was caused without fault or negligence on his part.^" Third. A statement of facts from which the extent and nature of the damage complained of is shown. ^^ Fourth. In actions 8 The allegation of a duty stand- A declaration for wrongfully and ing alone will not sustain or aid a negligently killing the deceased, pleading; the sufficiency of the without stating the facts consti- pleading or declaration must be tuting the negligence, was held determined upon the facts from bad on demurrer, in Cotton Oil Co. which the duty is deduced. Mar- v. Shamblin, 101 Tenn. 263 (1898). vin Safe Co. v. Ward, 17 Vr. 19 » To sustain a recovery there (1884); Clyne v. Helmes, 32 Vr. 358 must be in every instance a con- (1898); Chicago &c. R. R. Co. v. nection between the wrong and Clausen, 173 111. 100 (1898). An the injury, facts must be pleaded allegation of duty, in words, is al- which show the connection be- ways surplusage; if the facts tween the negligent wrong and its stated raise the duty, the allega- consequences. Mere conclusions tion is unnecessary; if they do not, will not suffice. Harris v. Board of it is unavailing. Gibson v. Leon- Commissioners, Ind., Dec. 14, 1889; ard, 37 111. App. 344, 349 (1890); 23 N. E. Rep. 92; Parker v. Prov- Angus V. Lee, 40 id. 304 (1890); idence &c. Steamboat Co., 17 R. Seymour v. Maddox, 16 Ad. & El. I. 376 (1891). (N. S.) 326 (1851). Whether, upon lo See § 153. In many of the the facts stated, the defendant States the absence of such an alle- owed any duty to the plaintiff gation has been held not to be is a question of law; whether they fatal. But in a few of the States ■were proved would be a question the absence of such an allegation for the jury. Gibson v. Leonard, has been held fatal on demurrer. 37 111. App. 344, 349 (1890). The lb. pleader must state facts from ii Chiles v. Drake, 2 Mete. 146 which the law will raise a duty (1859, Ky.). If defendant desired and show an omission of duty and that theallegations should be more resulting injury; but when that is definite, it could have moved to done, an allegation that the act have them, i. e., the allegations was negligent is unnecessary. Tay- of damages, made more specific or lor V. Felsing, 164 111. 331 (1896). for a bill of particulars. Ehrgott 180 Pleadings. brought under the statute, for causing the death of a humaa being, an allegation of the existence of some person entitled to the benefit of the recovery under the statute. ^^ When the ac- tion is brought in a different State from the one in which the death was caused, there must be an allegation in the pleading^ of the existence of a statute in that State giving a right of action for causing death of a human being. Such statute must be " substantially similar " to the statute of the State in which the action is brought. -"^ A declaration which states a cause of action so that it can be understood by the party who is to answer it, by the jury who are to ascertain the truth of the allegations, and by the court who is to give judgment, and which distinctly sets forth when, where, in what manner and under what circumstances the plaintiff was injured by the de- fendant's default, negligence and improper conduct, is suf- ficient.^* V. Mayor &c. of New York, 96 N. Y. 264, 277 (1884). Special damages, i. e., damages which the law does not necessarily imply that the plaintiff has sustained from the act complained of, must be dis- tinctly averred in order to apprise the defendant of the nature of the claim. Tomlinson v. Town of Derby, 43 Conn. 562, 567 (1876). 12 It is not necessary to set out the names of the beneficiaries. McGlove V. New Jersey &c. R. R. Co., 8 Vr. 304 (1875); Quincy Coal Co. V. Hood, 77 111. 68, 73 (1875); Conant v. Griffin, 48 id. 410 (1868) ; Jeffersonvllle &c. R. R. Co. v. Hendricks, 41 Ind. 48 (1872). Al- though it is customary to set forth the names. Under the Maine stat- ute, which provides a procedure by Indictment and forfeiture, their names must be stated. State v. Grand Trunk Ry. Co., 60 Me. 145 (1871). In Pennsylvania the stat- ute provides that the declaration shall state who are the parties en- titled to such action. 2 Brightly' s Purd. Dig., p. 1267, § 4. See §S 109, 158. 13 See § 107. i< McCouU V. City of Man- chester, 85 Va. 579 (1888); Jones V. Old Dominion Cotton Mills, 82' id. 140 (1886). A declaration against a corporation need not al- lege affirmatively, by express aver- ment, that the injury complained of was caused by the negligent act of agents or servants of the- defendant who were not fellow servants of the defendant. The allegation that the defendant was negligent excludes ex vi termini, that the injury was caused by parties for whose conduct the de- fendant was not responsible. Libby V. Scherman, 146 111. 540 (1803); Hess V. Rosenthal, 160 id. 621 (1896). Under the Virginia Code,, p. 1094, chap. 167, § 40, in an ac- tion against a railroad company, it is not necessary to aver in the declaration that it is a corpora- tion, nor is it necessary to prove on the trial that the defendant is. Pleadings. '^ 181 § 151. A general averment of negligence is sufficient. — A gen- «ral averment of negligence is sufficient;^* the particular acts constituting the negligence need not be, in detail, specifically- set out.^"' But if the acts which constitute the negligence be a corporation, unless with the plea there is filed an affidavit denying that it is. The court will ex officio take notice of the fact. Baltimore &c. R. R. Co. V. Sherman, 30 Gratt. 602 (1878). If the plaintiff sues by a name which imports a corporation it need not specially aver its corporate existence. Holmes &c. Co, v. Commercial Nat. Bank, 23 Colo. 210 (1896). Ordi- nances as to speed of trains need not be pleaded by the plaintiff, but are competent evidence going to prove negligence. Faber v. St. Paul &c. Ey. Co., 29 Minn. 465 (1882). See Lake Shore &c. R. R. Co. V. O'Conner, 115 111. 254 (1885). 15 Ohio &c. Ry. Co. v. Walker, 113 Ind. 196, 200 (1887); Mack v. St. Louis &c. Ry. Co., 77 Mo. 232 (1883); Schneider v. Missouri Ry. Co., 75 id. 295 (1882); St. Louis &e. Ry. Co. V. Mathias, 50 Ind. 65 (1875); Clark v. Chicago &c. R. R. Co., 15 Fed. Rep. 588 (1883); Old- field V. New York &c. R. R. Co., 14 N. Y. 310 (1856) ; Grindle v. Mil- waukee &c. R. R. Co., 42 Iowa, 376 (1876); Chiles v. Drake, 2 Mete. 146 (1859, Ky.); Louisville &c. Ry. Co. V. Lynch, 147 Ind. 165 (1896); Thomas on Neg. 1045, 1046. In Indiana it has been held, negli- gence in the complaint need not be distinguished as " ordinary " or "gross;" a charge of negligence is broad enough to admit proof of any and all degrees of negligence. Pennsylvania Co. v. Krick, 47 Ind. 369 (1874); City of Port Wayne v. De Witt, id. 391 (1874); Hildebrand V. Toledo &c. R. R. Co., id. 399 (1874); Ohio &c. R. R. Co. v. Selby, id. 471 (1874). So in Kentucky it was held the degree of negligence whether willful, gross or ordinary, need not be stated. It is a matter of proof and not of averment. Louisville &c. R. R. Co. v. Mitchell, 87 Ky. 327 (1888). It is not neces- sary to set out the evidential facts. Chicago &c. R. R. Co. v. Kellogg, Neb. (1898); 5 Am. Neg. Rep. 50, where some recent cases on pleading are collected. 16 Clark V. Chicago &c. R. R. Co., 15 Fed. Rep. 588 (1883); Mack V. St. Louis &c. Ry. Co., 77 Mo. 232 (1883); Jones v. White, 90 Ind. 255 (1883); Pennsylvania Co. v. Dean, 92 id. 459 (1883); Ohio &c. R. R. Co. V. Selby, 47 id. 471 (1874); Lucas V. Wattles, 49 Mich. 380 (1882); Tierney v. Minneapolis &c. Ry. Co., 31 Minn. 234 (1883); State V. Manchester &c. R. R. Co., 52 N. H. 528 (1873); Chiles v. Drake, 2 Mete. 146 (1859, Ky.); Snyder v. Wheeling Electrical Co., 43 W. Va. 661 (1897). But the plaintiff must aver in what respect defendant was negligent. Illinois Central R. R. Co. V. Weiland, 179 111. 609 (1899). When the suit Is by a ser- vant seeking to I'ecover damages for an injury, the pleadings should be more specific than when a pas- senger is seeking damages. Clark V. Chicago &c. R. R. Co., 15 Fed. Rep. 588 (1883). Must allege in what capacity the plaintiff was employed, whether as a servant of the defendant, or the servant of an independent contractor, or as a licensee, or in some other capacity. Boardman v. Creighton, Me. ; 44 Atl. Rep. 721 (1899). A com- plaint is fatally defective which does not contain an averment that 183 Pleadikgs. specifically pleaded, no others can be proved. ^^ Thus, where the petition set forth that the plaintiff was injured through the negligence of a railroad company in " using defective machin- ery," and " in running its cars," etc., the evidence showed that a broken rail was the cause of the injury, it was held to be a fatal variance. ^^ So any degree of negligence may be proved under the general averment of negligence.-'® § 152. The real ground of complaint should be distinctly stated. — The real ground of complaint constituting the negligence which caused the injury should be clearly and distinctly stated.^ Thus, where the negligence consists in having a defective sand- box on the engine and in keeping a defective frog in the track, the petition should not charge negligence in the running of the cars.^^ The act complained of must be pleaded as the cause of action. To permit a recoveiy upon an act not pleaded, but incidentally revealed, would be obviously unfair.^ It has been the plaintiff was ignorant of the delinquencies of a fellow servant, so a complaint must aver the practicability of additional appli- ances for the safety of employes, and that the plaintiff, at the time of the injury, was ignorant of the dangers to which he was exposed. Peterson v. New Pittsburg &c. Co., 149 Ind. 260 (1897). 17 Schneider v. Missouri Ry. Co., 75 Mo. 295 (1882); Batterson v. Chi- cago &c. Ey. Co., 49 Mich. 184 (1882); Straight v. Odell, 13 111. App. 232 (1882)r; Springfield City Ry. Co. V. De Camp, 11 id. 475 (1882); Haynie v. Chicago &c. R. R. Co., 9 id. 105 (1881); Snyder v. M^heeling Electrical Co., 43 W. Va. 661 (1897). iswaldhier v. Hannibal &c. R. R. Co.. 71 Mo. 514 (1880). 19 Keating v. Detroit &c. R. R. Co., 104 Mich. 418 (1895). 20 Edens v. Hannibal &c. R. H. Co., 72 Mo. 212 (1880); Waldhier V. Hannibal &c. R. R. Co., 71 id. 514 (1880); Heilner v. Union County, 7 Or. 83 (1879). 21 Edens v. Hannibal &c. R. R. Co., 72 Mo. 212 (1880). See Gillett V. Detroit Board of Trade, 46 Mich. 309 (1881). 22 Georgia &c. R. R. Co. v. Oaks, 52 Ga. 410, 416 (1874). Especially so if introduced by way of de- fense, lb. Pierce v. Great Falls &c. R. R. Co., Mont. ,; 6 Am. Neg. Eep. 109 (1899). "A general alle- gation of negligence is suflBcient to repel a demurrer for want of facts. This means, not that the pleading is good by charging that the plain- tiff was injured ' by the negli- gence of the defendant,' but that it is sufficient if the act stated as the cause of the injury is alleged to have been ' negligently ' done. If the pleader goes beyond this general allegation, and sets forth the specific facts that he claims- made the act causing the injury negligent, the specific averments may overbear the general, and ' render the pleading obnoxious on demurrer. A defendant is enti- tled to a statement of the specific Pleadings. 183 held tliat a charge of ■willful injury is not sustained by evidence of mere negligence;^ nor can proof of willful injury be made under a charge of negligence merely.^ § 153. Allegation that plaintiff is free from contributory negli- gence. — In setting out the facts in a declaration, complaint or petition, which constitute a cause of action, showing negligence on the part of the defendant, it is the better practice to allege that the injury occurred without any fault, carelessness or neg- ligence on the part of the plaintiff, though in many of the States the absence of such an allegation has been held not to be fatal,^ negligence on the part of the plaintiff being a matter facts, but, if the complaint does not contain it, liis remedy is by motion." Balier, J., in Cleveland &c. Ry. Co. V. Berry, Ind ; 6 Am. Neg. Rep. 45 (1899). 23 Highland Ave. &c. R. R. Co. V. Winn, 93 Ala. 306 (1890); Louis- ville &c. R. R. Co. V. Hurt, 101 id. 34 (1892); Indiana &c. Ry. Co. v. Overton, 117 Ind. 253 (1888); In- diana &c. Ry. Co. V. Burdge, 94 id. 46 (1883). 24 Pennsylvania Co. v. Smitii, 98 Ind. 42 (1884). Contra in Alabama, where it was held by the Supreme Court of that State that evidence of reckless, wanton or willful neg- ligence can be introduced on the trial if a cause in which the com- plaint avers only simple negli- gence. Louisville &c. R. R. Co. v. Hurt, 101 Ala. 34 (1892). 25 United States courts: Conroy V. Oregon Construction Co., 23 Fed. Rep. 71 (1885); Watliinds v. Southern Pac. R. R. Co., 38 id. 711 (1889 J. Alabama: Holt v. Whatley, 51 Ala. 569 (1874); Government Street R. R. Co. V. Hanlon, 53 id. 70 (1875). Arizona: Lopez v. Central Ari- zona Mining Co., 1 Ariz. 464 (1883). Colorado: See Wilson v. Denver &c. R. R. Co., 7 Colo. 101 (1883). Illinois: Chicago &c. R. R. Co. V. Coss, 73 111. 394 (1874); Consoli- dated Coal Co. V. Wombacher, 134 id. 57 (1890); Illinois Central B. B. Co. V. Weiland, 179 id. 609 (1899). Kansas: Missouri Pac. Ry. Co. V. McCally, 41 Kan. 639 (1889). Massachusetts: May v. Inhabit- ants of Princeton, 11 Mete. 442 (1846). Minnesota: Thompson y. Great Northern Ry. Co., 70 Minn. 219 (1897); Hocum v. Weitherick, 22 id. 152 (1875). Mississippi: Meyer v. King, 72 Miss. 1 (1894). Missouri: Hudson v. Wabash &c. Ry. Co., 101 Mo. 13 (1890). New Jersey: Falk v. New York &c. R. R. Co., 27 Vr. 384 (1894). Not necessary to allege that plain- tifif is free from contributory neg- ligence. New York: Lee v. Troy Citizens Gas Light Co., 98 N. Y. 115 (1885); Urquhart v. City of Ogdensburg, 23 Hun, 75 (1880). Ohio: Street R. R. Co. v. Nolt- henius, 40 Ohio St. 376 (1883). Rhode Island: Lee v. Union B. B. Co., 12 R. I. 383 (1877). South Carolina: Crouch v. Charleston &c. Ry. Co., 21 So. Car. 495 (1884). 184 PLRADHiTGS. of defense. But in some of the States the absence of such an allegation has been held fatal on demurrer.^ Texas: Texas &c. Ry. Co. v. Murphy, 46 Tex. 356 (1876). ' Virginia: Baltimore &c. R. R. Co. V. Whittington, 30 Gratt. 805 (1878). West Virginia: Snyder v. Pitts- burg &c. Ry. Co., 11 W. Va. 14 <1877); Fowler v. Baltimore &c. R. R. Co., 18 id. 579 (1881). Wisconsin: Hoth v. Peters, 55 W^is. 405 (1882). See Kelley v. ■Chicago &c. Ry. Co., 50 id. 381 (1880); 2 Thomp. Neg. 1178, n. 28 Illinois: Gerke v. Fancher, 158 Til. 375 (1895); Calumet Iron &c. •Co. V. Martin, 115 id. 368 (1885); Chicago &c. R. R. Co. v. Hazzard, 26 id. 373 (1861). See Illinois <;ases, contra, cited in previous note No. 25. Indiana: Jackson v. Indianap- olis &c. R. R. Co., 47 Ind. 454 <1874); Hildebrand v. Toledo &c. Ey. Co., id. 399 (1874); City of Fort Wayne v. De Witt, id. 391 (1874); Kessler v. Leeds, 51 id. 212 (1875) ; Louisville &c. Ry. Co. v. Boland, 53 id. 398 (1876); Sullivan v. Toledo &c. Ry. Co., 58 id. 26 <1877); Cincinnati &c. R. R. Co. v. Peters, 80 id. 168 (1881); Wilson v. Trafalgar &c. Gravel Road Co., 83 id. 326 (1882). Contra, Indianapolis &c. R. R. Co. V. Paramore, 31 Ind. 143 (1869). An express averment not necessary may appear from the facts stated. Benford &c. R. R. Co. V. Rainbolt, 99 Ind. 551 (1884). In a suit by aq, administrator, the complaint need not negative con- tributory negligence of the admin- istrator. Indiana Mfg. Co. v. Milli- can, 87 Ind. 87 (1882). Contributory negligence need not be denied ■when, from the facts stated, it is evident that there ■was no such fault. Duffy v. Ho-ward, 77 Ind. 182 (1881). "Without any fault, carelessness or negligence on plaintiff's part " is a sufficient al- legation to negative contributory negligence. City of Fort Wayne v. De Witt, 47 Ind. 391 (1874); Cin- cinnati &c. R. R. Co. V. Chester, 57 id. 297 (1877); City of Anderson v. Hervey, 67 id. 420 (1879); City of Huntington v. Breen, 77 id. 29 (1881); Wilson v. Trafalgar &c. Gravel Road Co., 83 id. 326 (1882); Rogers v. Overton, 87 id. 410 (1882) ; Gheens v. Golden, 90 id. 427 (1883). Unless the facts alleged in the pleading do not necessarily raise an inference of contributory fault. Evansvllle &c. R. R. Co. v. Krapf, 143 Ind. 647 (1895). Kentucky: A declaration is suffi- cient if it denies generally con- tributory negligence, though not the particular facts alleged to sho-w it. Louisville &c. R. R. Co. v. Wolfe, 80 Ky. 82 (1882). Maine: For the use of defective tools by servant the declaration is bad if it does not allege that de- fect was unknown to plaintiff. Buzzell V. Laconia Mfg. Co., 48 Me. 113 (1861). Maryland: Under art. 75, § 23, Form 36. State v. Baltimore &c. R. R. Co., 77 Md. 489 (1893). Massachusetts: Under Stats, of 1874, chap. 372, § 164. Fuller v. Boston &c. R. R. Co., 133 Mass. 491 (1882). Michigan: Thompson v. Flint &c. Ry. Co., 57 Mich. 300 (1885). Montana: Kennon v. Gilmer, 4 Mont. 433 (1882). PLEADIlfGS. 185 § 154. Pleadings whicli have been held sufficiently specific. — Thus, in a suit to recover damages for an injury occurring at a railroad crossing, an averment that the defendant negligently and carelessly drove a certain locomotive upon the railroad, up to, upon, and across, a certain public highway, at the crossing of the same, and the said railroad company, without giving the necessary statutpry signals, viz., ringing a bell or sounding a whistle, held, a sufficiently specific averment of defendant's negligence.^^ So a complaint which alleged that the defendant, " by the culpable carelessness, negligence, unskillfulness and mismanagement of said defendants and their employes, wrong- fully ran a locomotive, with a train of cars attached thereto," against plaintiff's horses and wagon while lawfully travelling along the public highway, was held su.fficient.^* An averment that the engineer so recklessly, negligently and unskillfully managed the engine and boilers that one of them exploded, and the plain- tiff's intestate was thereby killed, was held suflBcient on de- murrer. ^^ A complaint, in an action for damages for an injury to the person, is sufficiently certairi and particular in allegations of the act of negligence when, from the averments, it may be Tinderstood that the plaintiff was passing on the foot crossing of a public street in a city, and the defendant, without any negligence on the part of the plaintiff, carelessly and negligently drove his wagon against the plaintiff, thereby injuring him.*" The complaint averred that the defendant, a railroad company, did not use due care, diligence and skill in carrying the plain- tiff. But, on the contrary, the track of the railroad was in bad condition and repair, and the defendant, by its servants, etc., negligently, unskillfully and carelessly ran its trains of cars, whereby, etc. It was held, on demurrer, that the averment of the condition of the track was not too general.^^ Where a 27 Chicago &c. Ry. Co. v. Miller, 47 Ind. 471 (1874). In construin^f 46 Mich. 532 (1881); Thomas on a complaint against a railroad Neg. 1046. company for Injuries received by 28 Clark v. Chicago &c. Ky. Co., the plaintiff, while in the employ- 28 Minn. 69 (1881). See Johnson ment of the defendant and engaged v. St. Paul &c. R. R. Co., 31 id. in coupling cars, a general intro- 233 (1SS3j. ductory statement that the cars 29 Fitts V. Waldeck, 51 Wis. 567 were unfit for the transportation of (1881). rails, was held to be controlled by 30 Kessler v. Leeds, 51 Ind. 212 specific statements of facts show- <1875). ing that the injury was caused by 31 Ohio &c. E. R. Co. v. Selby, the manner in which the cars were 186 Pleadings. petition for damages against a railroad company, on account of the negligence of a servant — a switchman — of the company in leaving a rail so that it caused injury to the plaintiff, alleged that the defendant negligently and carelessly permitted the rail to remain so near the track as to be dangerous, but did not allege that the defendant had knowledge that the rail was there, held,, the allegation was sufficient. ^^ § 155. Pleadings which have been held not sufficiently specific. — In order that there may be a recovery by an administratrix for the killing of her intestate through the falling of a building by negligence in the construction thereof, the declaration must show that the alleged superintendent had exclusive control in the furnishing of the materials and in the erection of the build- ing.^^ In an action against a railroad company for the killing of plaintiff's intestate, the declaration alleged that the defend- ant " carelessly and improperly drove and managed its engines and cars," etc.; held, the declaration should have contained a more specific allegation as to wherein the carelessness and im- proper conduct of the company consisted, and was, therefore, demurrable.^* An allegation in a petition that a work was done " so recklessly, carelessly and wantonly, and with such indiffer- ence to the rights of others," that a person was killed, is not a full equivalent to a charge that the life was lost by the willful neglect of the person doing the work, as required by the statute.^^ loaded with rails. Indianapolis &c. 33 Hollenbecli v. Winnebago- Ky. Co. V. Johnson, 102 Ind.'352 County, 95 111. 148 (1880). In such (1885). case an allegation that the defend- 32 Hall V. Missouri Pacific Ry. ants " were possessed and had the Co., 74 Mo. 298 (1881). So where supervision and control of a certain the complaint alleged that the building," which was then " being " draw-bars " of the coupling ap- erected " for a courthouse, etc., pliances of two cars " were not held to be insufficient on that properly fastened, and were loose, point. Dicliey, J., dissenting;, defective and insufficient, and on Thomas on Neg. 1045. account thereof would not and did 3* Chicago &c. R. R. Co. v. Har- not remain in their proper places wood, 90 111. 425 (1878). when said cars were drawn to- ss City of Lexington v. Lewis,, gether, as was usual and neces- 10 Bush, 677 (1874). Requisites of sary in mailing said coupling," a petition In an action under Ken- etc, was held sufficient. Tierney tucky Act of 1854, 2 Stant. Stats. v. Minneapolis &c. Ry. Co., 31 510. Minn. 234 (1883). Pleadings. 187 § 156. Injuries to person and property — Joinder of causes of action — Husband and wife.— Tlie Supreme Court of Illinois held that an action to recover damages to the person of the plaintiff, and an action to recover damages to his horse, buggy and harness, caused at the same time and by the same neg- ligent act of the defendant, could be joined in the same count of the declaration.^'* In that case it was said that it is con- ceded that a recovery for damages to the person, and to the property of the plaintiff, might be had in the same action, if declared for in separate counts of the declaration.^'^ The general rule of the common law is, that where several causes of action of the same nature — that is, which require at the common law the same judgment, and are recoverable in the same form of action — exist between the same parties in the same right, they may all be joined by several counts in one declaration.^^ It is not permissible to unite in one count several torts, constituting distinct and separate causes of ac- tion.^^ In actions brought by husband and wife for injuries to the wife, in which the husband joins his cause of action for the indirect damage to himself under the statute, it is the better practice for the husband to present his claim by a separate count, designating the damages sought by him. The verdict should assess the damages on each claim, and the judg- ment should distinguish them accordingly.*" § 157. Pleadings in actions against municipal corporations — Notice. — In a statutory action the plaintiff must bring himself within the statutory requirements necessary to confer the right of action, and these requirements must be alleged in the plead- ing setting out the cause of action.*^ The legislature has the power to attach conditions to the maintenance of a common-law action as well as one created by statute,^ so that when the 3« Chicago &c. Ky. Co. v. In- Masters v. Town of Warren, 27 graham, 131 111. 659 (1890). Conn. 293 (1858); Gould PI., ehap. 37 Chicago &c. Ey. Co. v. In- 4, §§ 79, 85. 103; Chit. PI. 228. graham, 131 111. 659, 664 (1890). 39 Alabajna &c. R. E. Co. v.. In some cases it is held that a Shakan, 116 Ala. 302 (1896). judgment for one is a bar to an 40 Consolidated Traction Co. v. action for the other, and if dam- Whelan, 31 Vr. 154 (1897). ages are sought for both they must *i Baker v. Hannibal &c. E. E. be Joined in one action. See § 91. Co., 91 Mo. 86 (1886). 38 Chicago &c. Ey. Co. v. In- ^2 Eeining v. City of BufEalo, 102. graham, 131 111. 659, 664 (1890); N. Y. 308 (1886). 188 Plbadikgs. statute requires that notice shall be given to a municipality, or the filing of the claim as a condition precedent to the bringing of the action for injuries, a compliance with such conditions must be alleged in the pleading, otherwise the absence of such allegations will be fatal on demurrer.** Thus, in a complaint against a city for an injury caused by an obstruction in a street, it is not enough to allege that the city had negligently left the obstruction in the street, but it must also appear that it had notice of the obstruction, or that it ought to have had such notice.** § 158. Actions for causing death — Existence of beneficiaries must be alleged. — All the cases hold that it is necessary to allege in the complaint, declaration or petition, in an action for caus- ing the death of a human being by negligence, that the deceased left surviving some person entitled to the benefit of the action, i. e., the existence of beneficiaries under the statute.*^ The 43 Wentworth v. Town of Sun- nit, 60 Wis. 28 (1884); Reining v. City of Buffalo, 102 N. Y. 308 <1886); City of Madison v. Baker, 103 Ind. 41 (1885); Turner v. City of Indianapolis, 96 id. 51 (1884). In some of the States the statute does not require notice, in which case the plaintlfiC is not required to allege or prove that the defend- ant had notice of the defect. Chapman v. Milton, 31 W. Va. 384 (1888); Evans v. City of Hunting- ton, 37 id. 601 (1893); Raasch v. Dodge County, 43 Neb. 508 (1895). 44 Turner v. City of Indianap- olis, 96 Ind. 51 (1884); Town of Bushville v. Poe, 85 id. 83 (1882); City of Madison v. Baker, 103 id. 41 (1885); Worster v. Proprietors of Canal Bridge, 16 Pick. 541 (1835); Dillon on Mun. Corp. (2d ed.), § 790. 45 Tiffany on Death by Wrong- ful Act, §§ 80, 182; Geroux v. Graves, 62 Vt. 280 (1890); Westcott V. Central Vt. R. B. Co., 61 Id. 438 (1889); Burlington &c. R. B. Co. V. Crockett, 17 Neb. 570 (1885); WUtse V. Town of Tilden, 77 Wis. 152 (1890); Serensen v. Northern Pac. R. B. Co., 45 Fed. Rep. 407 (1891); Lamphear v. Buckingham, 33 Conn. 237 (1866); Quiney Coal Co. V. Hood, 77 111. 68 (1875); Mis- souri Pac. Ry. Co. v. Barber, 44 Kan. 612 (1890); Stewart v. Terre Haute &c. R. R. Co., 103 Ind. 44 (1885); Clore v. Mclntire, 120 id. 262 (1889). A complaint which states the names of the next of kin, and how they were related to the deceased, with an allegation of damage to them, is sufficient, as far as pleading the damage. Barnum v. Chicago &c. Ry. Co., 30 Minn. 461 (1883); McGlone v. New Jersey &c. R. R. Co., 8 Vr. 304 (1875) ; Jeffersonville &c. R. R. Co. V. Hendricks, 41 Ind. 48 (1872); Holton V. Daly, 106 111. 131, 188 (1882); Conant v. Griffin, 48 id. 410 (1868); City of Friend v. Burleigh, 53 Neb. 674 (1898). Contra under Act of Feb. 3, 1875, § 1; Act of March 6, 1883, inapplicable. Little Pleadings. 18& rule is the same where the remedy is by indictment,*® or where the action is brought in the name of the State, as in Maryland.*^ It is not necessary to state the names of the beneficiaries,** although it is customary to set forth the names. In Maine, where the proceeding is by indictment and the forfeiture is payable directly to the beneficiaries and not to the administrator, their names must be stated.*® In Pennsylvania the statute pro- vides that the declaration shall state who are the parties entitled to such action.®" In an action by a mother under a statute authorizing her, if the father be dead, to sue for the death of a minor child, the complaint must aver that the father is dead.®^ Aji allegation that the plaintiff is a widow is not sufiicient.®^ Rock &c. Ey. Co. v. Townsend, 41 Ark. 382 (1883); Columbus &c. Ry. Co. V. Bradford, 86 Ala. 574 (1888); Alabama &c. R. R. Co. v. Waller, 48 Ala. 459 (1872). Under chap. 145, §§ 7-9, Code 1873 of Va., it is not necessary to aver in the dec- laration for whose benefit the ac- tion is brought. Baltimore &c. E. R. Co. V. Wightman, 29 Gratt. 431 (1877); Matthews v. Warner, Id. 570 (1877). In an action by the representatives of the deceased, the declaration need not negative the existence of any relatives en- titled to compensation other than those for whose behalf the action purports to be brought. Barnes v. Ward, 9 C. B. 392 (1850); 2 C. & K. 661. *s Commonwealth v. Boston &c. R. R. Co., 11 Cush. 512 (1853); Commonwealth v. Eastern R. R. Co., 5 Gray, 473 (1855); Common- wealth V. Boston &c. R. R. Co., 121 Mass. 36 (1876); State v. Grand Trunk Ry. Co., 60 Me. 145 (1871); State v. Gilmore, 24 N. H. 461 (1852). See State v. Man- chester &e. R. R. Co., 52 Id. 528 <1873). <7 See State v. Baltimore &c. R. B. Co., 70 Md. 319 (1889). *8 McGlone v. New Jersey &c. R. R. Co., 8 Vr. 304 (1875); Conant V. Griffin, 48 111. 410 (1868); Quincy Coal Co. V. Hood, 77 id. 68 (1875); Jeffersonville &c. R. R. Co. v. Hendricks, 41 Ind. 48 (1872), over- ruling Indianapolis &c. R. R. Co. V. Keely, 23 id. 133 (1864); Howard V. Delaware &c. Canal Co., 40 Fed. Rep. 195 (1889); Harper v. Nor- folk &c. R. R. Co., 36 id. 102 (1887); O'Callaghan v. Bode, 84 Cal. 489, 498 (1890); Barnes v. Ward, 9 C. B. 392 (1850); 2 C. & K. 661. Nor the ages and resi- dences of the beneficiaries, and the extent of their dependence on the deceased, need not be averred in the declaration; if these facts are necessary to the defense the court can order a specification. Westcott V. Central Vt. R. R. Co., 61 Vt. 438 (1889). « State V. Grand Trunk Ry. Co., 60 Me. 145 (1871). 50 2 Brightly's Purd. Dig. (Pa.), p. 1267, § 4. 61 David V. Waters, 11 Or. 448 (1884). " Next of kin " must mean nearest in relationship. 52 St. Louis &c. Ry. Co. v. Yo- cum, 34 Ark. 493 (1879). 190 Pleadings. There must be an allegation of the fact of death.'* Under the Missouri statute, which gives a cause of action to the parent of a minor for causing the minor's dettth by negligence when the minor is unmarried, the fact that the minor is unmarried is jurisdictional and must be alleged in the petition and proved.®* It is not necessary to allege that the act or neglect of the de- fendant was such that if death had not ensued the person in- jured might have maintained an action.®" !N^or is it necessary that the plaintiff should allege that the action has been brought in due time, although the statute under which the action is brought contains the limitation.®* § 159. Appointment of plaintiff as administrator or executor must be alleged — The appointment of the plaintiff as adminis- trator or executor must be alleged.®^ A copy of the letters is sometimes annexed to the pleading. The appointment of the adnainistrator is not put in issue by a general denial; that issue must be raised by a special plea or denial.®* So the revocation of the administrator's authority to sue must be specially pleaded.®® § 160. Action based 'on a foreign statute — Such statute must be alleged. — When the action is based upon a foreign statute, i. e., where the action is brought in one State and the injury 53 Conant v. Griffin, 48 111. 410 the facts constituting the adminls- (1868). trator's appointment under a peti- Bi See Barker v. Hannibal &c. R. tion for letters to the Superior K. Co., 91 Mo. 86 (1886). In a statu- Court by an order duly given and tory action the person suing must made, and his qualification and bring himself within the statutory the issuance of letters under such requirements necessary to confer appointment without averring the the right of action, and this must facts giving jurisdiction to the Su- appear in the petition, otherwise perior Court. Munro v. Pacific &c. it will show no cause of action. Co., 84 Cal. 515 (1890). So, where See Baird v. Citizens Ry. Co., 146 the plaintiff sues as administra- Mo. 265 (1898). trix and refers to the deceased as 5B Philadelphia &c. R. R. Co. v. "plaintiff's intestate," it is suffi- State, 58 Md. 372 (1882). cient. Louisville &c. R. R. Co. v. 56 Chiles V. Drake, 2 Mete. 146 Trammel!, 93 Ala. 350 (1890). (1859, Ky.). 58 Ewen v. Chicago &c. Ry. Co., 67 Louisville &c. R. R. Co. v. 38 Wis. 613 (1875); Union Ry. &c. Trammell, 93 Ala. 350 (1890); Bow- Co. v. Shacklett, 119 111. 232 (1887). let V. Lane, 3 Mete. 311 (Ky. 1860); 59 Burlington &c. R. R. Co. v. City of Atchison v. Twine, 9 Kan. Crockett, 17 Neb. 570 (1885). 350 (1872). It is suflScient to aver Pleadings. 191 and death occurred in another State, the statute of such other State must be alleged and proved.*' When a count attempts to declare upon the laws of a foreign country, it is f-atally der fective, unless those laws and also the facts are set forth so specifically that the court can see that the defendant owed a 'duty to the plaintiff, and had fallen short of that duty, and therefrom the plaintiff's injury resulted."' If the declaration fails to allege the foreign statute, an amendment alleging it may be allowed,®^ although the period of limitation prescribed by the foreign statute has elapsed.*^ 60 Debevolse v. New York &c. R. -R. Co., 98 N. Y. 377 (1885); State v. Pittsburgh &c. R. R. C!o., 45 Md. 41 (1876). And the allegation must be that the laws of such State are similar to the Georgia statute in re- lation to the Injury complained of. Selma &c. R. R. Co. v. Lacy, 43 Ga. 461 (1871) ; Hyde v. Wabash &c. Ry. Co., 61 Iowa, 441 (1883); Chicago &c. R. R. Co. V. Schroeder, 18 111. App. 328 (1885); Nashville &c. R. R. Co. V. Eakln, 6 Coldw. 582 (1869); Beach v. Bay State Steamboat Co., 30 Barb. 433 (1859); Kahl v. Mem- phis &c. R. B. Co., 95 Ala. 337 (1891). But if the declaration or complaint sets out a good cause of a<.-tion, according to the law of the forum, without alleging that the killing was In the State, the dec- laration or complaint will be held good, as setting out a cause of action arising within the State. Hobbs V. Memphis &c. R. R. Co., 12 Helsk, 526 (1873). It is not necessary in such action for the ■defendant to allege that the wrong was committed in another State; it is for the plaintiff to allege and prove that the cause of action arose within the jurisdiction. Debe- volse V. New York &c. B. R. Co., ■98 N. Y. 377 (1885). 61 McLeod V. Connecticut &c. R, B. Co., 58 Vt. 727 (1886). 62 Lustig V. New York &c. E. E. Co., 20 N. Y. Supp. 477 (1892). Such amendment is not open to the objection that it set up a new cause of action. 63 The practice of the lex fori in respect to pleadings, amendments, and the general mode of procedure, will control, if it differs from the practice in the State where the cause of action arose. South Caro- lina E. E. Co. V. Nix, 68 Ga. 572 (1882). Contra, Selma &c. R. E. Co. V. Lacy, 49 Ga. 106 (1873), the mode of procedure in ascertaining the rights of the parties will be governed by the laws of the State in which the action is brought, but as to what are their rights must be determined by the laws of the State where the act complained of was done. The law of another State, whether declared by judicial deci- sions or otherwise, if relied upon to defeat an action alleged to have ac- crued in that State and sought to be enforced here, must be pleaded and proved, as judicial notice thereof will not be taken for such purpose. Cincinnati &c. R. E. Co. V. McMullen, 117 Ind. 439 (1888). See Lower v. Segal, 30 Vr. 66 (1896). 192 Pleadings. § 161. Bill of particulars. — Lord Campbell's Act provides^ " that in every such action the plaintiff on the record shall be required, together with the declaration, to deliver to the de- fendant or his attorney a full particular of the person or per- sons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered."®* Of like import is the pro- vision in the Maryland statute.*^ In New Jersey the statute provides that " on request by the defendant or the defendant's attorney, the plaintiff on the record shall be required to deliver to the defendant, or to the defendant's attorney, a particular accoimt, in writing, of the nature of the claim in respect to which damages shall be sought to be recovered.^® In ITew York, a bill of particulars has been denied.®^ In Averment, it was said that the court would order a bill of particulars.®* The bill of particulars is intended for the same purpose as in other cases. It does not refer to the circumstances attending the death; that is not what is to be called for and given; the declaration gives that, but it is to be a statement of the particu- lars of the pecuniary loss sustained. The object of this provision is to enable the defendant to know in what way the damages are to be estimated, so that he may come prepared to meet that part of the case.®* 64 England: 9 & 10 Vict., chap. Telfer v. Northern R. R. Co., 1 Vr. 93, § 4. 188, 200 (1862). New Brunswick: Cons. Stats., 67 Murphy v. Kipp, 1 Duer, 659 chap. 86, § 6. (1853). It would be unreasonable Nova Scotia: Rev. Stats. 1884, to require the plaintiff in such ac- chap. 116. tions, to state by anticipation all Ontario: Rev. Stats. 1887, chap, the items, and the amount of each, 185, § 6. Coleridge, J.: "But that the court might hold would these words will be abundantly properly enter into the computa- satisfied by a statement of the tion of damages, manner in which the pecuniary 68 Westcott v. Central Vt. R. R. loss to the different persons for Co., 61 Vt. 438 (1889). whom the action is brought is al- 69 Telfer v. Northern R. R. Co., leged to have arisen." Blake v. 1 Vr. 188, 200 (1862). It is merely Midland Ry. Co., 18 Q. B. 93, 110 directory and not mandatory, and (1852); 18 Ad. & El. (N. S.) 93, 110. if the defendant files its pleas^ 65 Pub. Gen. Laws, art. 67, § 3. without demanding it, the right to- es Rev. 1878, p. 294, § 3; Gen. it is waived. Philadelphia &c. R. Stats, of N. J. (vol. 1), p, 1188. See R. Co. v. State, 58 Md. 372 (1882)^ Pleadings. 193 § 162. Allegation of damages under the statute. — The cases are not in harmony on the point whether it is necessary to allege the facts showing pecuniary loss. This results from the construction placed upon the different statutes, some holding that pecuniary loss is implied by the death, to the beneficiaries, for which nominal damages, at least, may be recovered, while other courts hold that without pecuniary loss the action cannot be maintained for nominal damages. In Michigan and Wisconsin, it has been held that there must be alleged such facts from which it appears that there was, necessarily resulting from the death, pecuniary loss.''*' In Indiana, in an action by a father for the death of a minor child, it was held that, in ■order to recover full damages for the services of the child during his minority, or damages for the loss of future services, such damages must be specially averred and demanded in the com- plaint.''^ So in California, it was held that damages for funeral expenses, if recoverable at all, must be specially alleged.''^ In New York and Indiana, it has been held that there need be no allegation that damages have been sustained.''^ In such States which do not require an allegation of facts from which pecu- niary loss is shown, it is sufficient to allege simply that the beneficiaries have sustained damages in a certain stated amount.'* Chief Justice Beasley said that, under the ISTew Jersey statute, it is proper, though perhaps not indispensable, to allege thpt such widow or next of kin has sustained some pecuniary loss.''^ 70 Hurst V. Detroit City Ry. Co., 73 Nominal damages. Kenny v. 84 Mich. 539 (1891); Began v. Chi- New Yorli &e. R. R. Co., 49 Hun, cago &c. Ry. Co., 51 Wis. .599 .5.33 (1888); Safford v. Drew, 3 (1881); Bwen v. Chicago &c. Ry. Duer, C27 (1854); distinguished, Co., 38 id. 613 (1875); Kelley v. Korrady v. Lalje Shore &c. Ry. Chicago &c. Ry. Co., .50 id. 381 Co., 131 Ind. 261 (1891). (1880). In Nebraska it is not abso- t4 Barnum v. Chicago &c. Ry. lutely necessary that the petition, Co., 30 Minn. 461 (1883); Louis- for death based on the statute, ville &c. Ry. Co. v. Buck, 116 Ind. contain the words "damage, in- .566 (1888); Westcott v. Central Vt. jury or loss." Kearney Electric R. R. Co., 61 Vt. 4.38 (1889); Bar- Co. Y. Laughlln, 45 Neb. .390 (1895). ron v. Illinois Cent. R. R. Co,, 1 71 Pennsylvania Co. v. Lilly, 73 Biss. 412 (1863) ; Serensen v. Ind. 252 (1881), citing Gilllgan v. Northern Pac. R. R. Co., 45 Fed. New York &c. R. R. Co., 1 E. D. Rep. 407 (1891); Chicago &c. Ry. Smith. 453. Co. v. Carey, 115 111. 115 (1885). 72 Gay V. Winter, 34 Cal. 153 75 McGlone v. New .Jersey &c. (1867). R. R. Co., 8 Vr. 304 (1875). 18 194 Pleadings. § 163. Special — Exemplary damages — In common-law ac- tions. — Special damage is that which the law does not neces- sarily imply, that the plaintiff has sustained from the act com- plained of, i. e., when the consequences of an injury are peculiar to the circumstances and condition of the injured party, the law will not imply the damage simply from the act causing the in- jury. At common law such matter must be distinctly averred in the declaration in order to apprise the defendant of the nature of the claim.^® In Connecticut the rule of the common law is adhered to closely." Exemplary damages are not special damages and may be recovered, although not specially alleged 57 (1888); Stone v. Hunt, 94 Mo. 475 (1887); Hill v. Meyer Brothers Drug Co., 140 id. 433 (1897). So in Alabama, Kansas City &c. R. R. Co. V. Crocker, 95 Ala. 430 (1891), overruling Government Street R. R. Oo. v. Hanlon, 53 id. 76 (1875); North Carolina, Wallace V. Western R. R. Co., 104 Noi. Car. 442 (1889); Jordan v. City of Ash- vllle, 112 id. 743 (1893). The plain- tiff is not required to reply to the defendant's plea of contributory negligence. Watkends v. Southern Pacific R. R. Co., 38 Fed. Rep. 711 (1889). In Kentucky contributory negligence is a defense which must be affirmatively pleaded. Favre v. Louisville &c. R. R. Co., 91 Ky. 541 (1891). See Louisville &c. R. R. Co. V. Copas, 95 id. 460 (1894). 86 East St. Louis &c. Ry. Co. v. Allen, 54 111. App. 27 (1894). 87 McKay v^ Southern Bell Tel. Co., Ill Ala. 337 (1895). Whatever the plaintiff is required to prove to establish his cause of action, the defendant may disprove under a general denial. This is the gen- eral rule. Clifford v. Damm, 81 N. Y. 57. (1880) Under a plea of the general issue, the defense that a verified claim, under the Village Act of 1895, chap. 5, § 7, of Michi- gan, was not filed before commenc- ing suit, may be raised. Clark v. Village of Davison, Mich. (1898); 5 Am. Neg. Rep. 43. But a plea of the general issue will not put in issue either the character in which the plaintiff sues or the character or capacity in which the defendant is sued. McNulta v. Lockridge, 137 111. 270 (1891). 88 Whitney V. Town of Clarendon, 18 Vt. 252 (1846); Barber v. Dixon, 1 Wils. 45 (1743). If plaintiff im- properly join two or more causes 196 Pleadings. competent to show, under a plea of general denial, tliat the' servants operating the train when the injury occurred were not the servants of the company sued, but of a receiver operating the road under the decree of a court of competent jurisdiction.''^' § 165. Special pleas — Release — Statute of Limitations. — At common law, in all actions of trespass to the person, matterw in discharge of the action must be specially pleaded,** such as a release,®^ or the Statute of Limitations.®^ In speaking of the statutes which give a right of action to recover damages for- causing the death of a human being, the United States Supreme Court said the liability and the remedy are created by the same statute, and the limitations of the remedy are, therefore, to be treated as limitations of the right. It is a condition attached to the right to sue at all.^^ The right is given subject to the limitation.®* They are not strictly Statutes of Limitations;®^ and for this reason it has been held that these limitations need not be pleaded.®^ The rule is, that a statute which bars the remedy only must be pleaded, but a statute which cuts off the right need not be pleaded, but may be relied upon as a protec- of action in the same count, sucli as damage to the person and prop- erty, the error will be one of plead- ing only, and under the general Issue the defendant cannot object to the introduction of competent evidence to sustain the several causes of action. Chicago &c. Ry. Co. V. Ingraham, 131 111. 659 (1890). 89 Kansas &c. Ry. Co. v. Dor- ough, 72 Tex. 108 (1888). Under the California Code of Civil Pro- cedure, section 377, when one ac- tion for death has been brought, either by the heirs or by the per- sonal representative of the de- ceased, in another action brought by either, the pendency of the prior action may be pleaded in abatement, or the judgment ren- dered therein may be pleaded in bar of the second action. Munro V. Pacific Coast &c. Co., 84 Cal.' 515 (1890). 90 Chit. PI (vol. 1), § 496: Bird V. Randall, 3 Burr. 1353 (1762). See Barber v. Dixon, 1 Wils. 4.5 (1743). 91 Bird v. Randall, 3 Burr. 1353 (1762); Parker v. Providence &c. Steamboat Co., 17 R. I. 376 (1891). 92Macfadzen v. Olvant, 6 Bast, 387 (1805). 93 The Harrisburg, 119 U. S. 199, 214 (1886). 94 Pittsburgh &c. Ry. Co. v. Hine, 25 Ohio St. 629 (1874). The pro- vision is a condition qualifying the right of action and not a mere limitation of the remedy. 95 Taylor v. Cranberry Iron &c. Co., 94 No. Car. 525 (1886). 96Hanna v. JefCersonville R. R. Co., 32 Ind. 113 (1869); Jefferson- ville &c. R. R. Co. v. Hendricks^ 41 id. 48 (1872). Pleadings. 197 tion if the facts appear. ®'' They are not considered to be waived if not pleaded.*** If the declaration or complaint shows that the action was not brought within the time limited, it is de- inurrable.®® The appointment of an administrator is not brought in issue by a general denial, or a plea of the general issue; that issue must be raised by a special denial.^ The gen- eral issue in no case puts in issue any fact, the burden of prov- ing which, primarily, is not upon the plaintiff. An adminis- trator's title to maintain the action can only be put in issue by a plea of " ne unques administrator'."" The plea of the gen- eral issue will not put in issue either the character in whicli the plaintiff sues or the character or capacity in which the de- fendant is sued;^ that can only be raised by a special plea. A plea in confession and avoidance, setting up accord and satis- faction of a claim for personal injuries, need not expressly con- fess defendant's negligence, it is sufficient if it impliedly or hypothetically does so.* !Misnomer of the plaintiff can only be pleaded in abatement.^ § 166. Demurrers. — It is the settled rule that, by demurring to the evidence, the demurrant waives all evidence on his part that conflicts vdth that of the other party, admits the credit of the evidence demurred to, admits all inferences of fact that may be fairly deduced from the evidence, and refers it to the court to deduce all fair inferences from the evidence.® Wlien the declaration, petition or complaint shows that the plaintiff was guilty of contributory negligence, advantage may be taken 97 Bomar v. Hayler, 7 Lea, 85, * Snyder v. Witt, 99 Tenn. 618 89 (1889). (1897). Such as a satisfaction of 98 Cooper V. Lyons, 9 Lea, 596, a judgment for personal injury 601 (1882). against one tort-feasor is a bar 99 George v. Chicago &c. K. R. to an action against the other Co., 51 Wis. 603 (1881); Hanna v. joint tort-feasor. JefCersonville R. R. Co., 32 Ind. 113 b Springfield Consolidated Ry. (1869). Co. V. Hoeffner, 175 111. 634 (1898). 1 Ewen V. Chicago &c. Ry. Co., 6 Trout v. Old Dominion Cotton 38 Wis. 613 (1875); Union Ry. &c. Mills, 82 Va. 140 (1886); Trout v. Co. V. Shacklett, 119 111. 232 (1887); Virginia &c. R. R. Co., 23 Gratt. Louisville &c. R. R. Co. v. Tram- 019 (1873); Baird v. Citizens Ry. mell, 93 Ala. 350 (1890). Co., 146 Mo. 265 (1898). Plaintiff 2 Louisville &c. R. R. Co. v. may demur to a plea of the Statute Trammell, 93 Ala. 350 (1890). of Limitations, perfect In form. 3 McNulta V. Lockridge, 137 111. Chicago &c. Ry. Co. v. Gilllson, 173 270 (1891). 111. 264 (1898). 198 Pleadings. thereof by demurrer/ So if the declaration or complaint, in an action brought under the statute for causing death, shows that the action was not brought within the time limited.* By pleading the general issue, the defendant admits the sufficiency of the declaration, which he cannot afterwards question by motion to exclude the evidence under it. To question the suf- ficiency of a declaration, the defendant should demur to it or move in arrest of judgment.® § 167. Miscellaneous forms of complaints, declarations and peti- tions in the reports — For complete forms, see chapter " Forms." — • The forms referred to in the follovnng citations are not all given in full. In some, the substance only is reported; in others, only a single count is given; but reference has been made to those only which would seem to be a guide or aid to the pleader in setting up a caiise of action, vsdth facts similar to the ones referred to : Form of a complaint where a passenger on a railroad train was injured ;^^ the same for putting a pasr senger off the train, ihereby causing her to walk several miles, taking cold and suffering damages in consequence of the ex- posure. ^^ Eorm of a declaration in tort for breach of duty as a 7 Favre v. Louisville &c. K. R. lo Cincinnati &c. R. R. Co. v. Co., 91 Ky. 541 (1891); Hotli v. Chester, 57 Ind. 297 (1877); Ellet Peters, 55 Wis. 405 (1882); Meyer v. St. Louis &c. Ry. Co., 76 Mo. v. King, 72 Miss. 1 (1879). See 518 (1882). The same where the Louisville &c. R. R. Co. v. passenger was injured while step- Schmidt, 106 Ind. 73 (1885); Ohi- ping from the train. Cincinnati cago &c. R. R. Co. v. Coss, 73 111. &c. R. R. Co. v. Teters, 80 Ind. 394 (1874). Contra, Birmingham v. 168 (1881) ; Pennsylvania Co. v. Duluth &c. Ry. Co., 70 Minn. 474 Dean, 92 id. 459 (1883). The same (1897). where the passenger was travel- 8 George v. Chicago &c. R. R. ling on a shipper's pass. Ohio &c. Co., 51 Wis. 603 (1881); Hanna v. Ry. Co. v. Nickless, 71 Ind. 271 Jeffersonville R. R. Co., 32 Ind. (1880). See Nolton v. Western R. 113 (1869). R. Co., 15 N. Y. 444 (1857). Dec- 9 Chicago &c. R. R. Co. v. laration for negligently carrying Warner, 108 111. 538 (1884). See and transporting goods on a steam Camp V. Hall, 39 Fla. 535 (1897). vessel. Grill v. General Iron Screw A motion to dismiss because the Collier Co., L. R., 1 C. P. 600 (1866). plaintiff, by his pleadings, showed The same for negligently carry- no good cause of action, may be ing a horse. Austin v. Manchester made at any time. Maddox v. &c. Ry. Co., 10 C. B. 474 (1850). County of Randolph, 65 Ga. 216 u Brown v. Chicago &c. Ry. Co.^ (1880). 54 Wis. 342 (1882). Pleauings. 199 common carrier. ^^ Complaint in an action against a street rail- way company, injury to a trespassing child, sufficient averment of negligence.^^ Where one is injured on a street of a city by a defective sidewalk." Where a traveller on a turnpike was in- jured by falling into a hole.^° Complaint for an injury caused by a defective street.^® A petition where the injury was caused by falling into a ditch." A declaration for allowing a wagon to obstruct a street, thereby causing injury.^* A complaint where one, while walking on the crossing of a street, was injured by being struck by a horse and wagon.^^ A peti- tion for an injury to a person on the street of a city by a loco- motive.^ Declaration where the injury was caused by a loco- miotive at a highway crossing. ^^ Declaration for negligently tearing down a house, injuring the adjoining property.^^ A 12 Jacksonville Street Ry. Co. v. OhappeU, 22 Fla. 616 (1886). 13 Jefferson v. Birmingham &c. Electric Co., 116 Ala. 294 (1896). 1* Urquhart v. City of Ogdens- burg, 23 Hun, 75 (1880); City of Washington v. Small, 86 Ind. 462 (1882); City of Fort Wayne v. De Witt, 47 id. 391 (1874). Declara- tion for the same. Hardy v. Keene, 52 N. H. 370 (1872). The same where injury was occasioned by a collision of two teams on a public highway. Park v. O'Brien, 23 Conn. 339 (1854); Drake v. Mount, 4 Vr. 441 (1867). 15 Jonesboro &c. Turnpike Co. v. Baldwin, 57 Ind. 86 (1877); Wilson V. Trafalgar &c. Gravel Boad Co., 83 id. 326 (1882). 16 City of Madison v. Baker, 103 Ind. 41 (1885); Town of Rushville v. Poe, 85 id. 83 (1882); Turner v. City of Indianapolis, 96 id. 51 (1884). Allegation of notice es- sential. 17 Street R. R. Co. v. Nolt- henius, 40 Ohio St. 376 (1883). Declaration for the same. Clayards V. Dethick, 12 Q. B. 439 (1848). 18 Rounds V. Corporation of Stratford, 25 U. C. C. P. 123 (1875). The same for negligently leaving: a horse and colt unattended in a street, injuring a child. Lynch v. Nurdin, 1 Q. B. 29 (1841). 19 Kessler v. Leeds, 51 Ind. 212 (1875). Declaration for the same. Cotton V. Wood, 8 C. B. (N. S.> 568 (1860); Mitchell v. Crassweller, 13 C. B. 237 (1853); S. C, 17 Jur. 716. Petition for the same. Pen- dleton Street Ry. Co. v. Shires, 18 Ohio St. 255 (1868). 20 Otto V. St. Louis &c. Ry. Co., 12 Mo. App. 168 (1882). Complaint for the same. St. Louis &c. Ry. Co. V. Mathias, 50 Ind. 65 (1875). 21 Fuller V. Boston &e. R. R. Co., 133 Mass. 491 (1882); Wright V. Boston &c. R. R. Co., 129 id. 440 (1880). A complaint for the same. Pennsylvania Co. v. Krick, 47 Ind. 369 (1874). 22Bradlee v. Christ Hospital, 4 M. & G. 714 (1842); S. C, 5 Scott N. B. 79; Davis v. London &c. Ry. Co., 2 id. 74 (1840); 1 M. & G. 799. AVhere the excavation caused a warehouse to fall. Mitchell v. Harper, 4 U. C. C. P. 147 (1854). Where the excavation was made 300 Pleadixgs. complaint in an action by an employe against a railroad com- pany.^^ A declaration in an action against a railroad company for the killing of a child ;^'* the same where a servant was killed by the falling of a building.^^ A declaration in an action to recover damages for the breaking of a crane and tackle, injur- ing the plaintifE, a servant, while unloading stone at a railroad station.^® A complaint where a fireman was killed by the ex- plosion of an engine. ^^ Where a servant was injured while coupling cars;^^ the same where a servant was killed by the collision of two trains;^'' where a servant was injured by the breaking of a platform on which he was standing.^" A decla- ration where a servant was injured by the fall of a bridge, which was over a deep excavation in a mine, while passing over the bridge.^^ (Complaint where a minor, an employe, was injured by the explosion of a steam boiler.*^ A declara- tion where a girl at a ball was injured by eating unwhole- some food, improperly and negligently prepared by the ca- so near the street that plaintiff fell into it and was injured. Barnes v. Ward, 9 C. B. 392 (1850); S. C. 2 C. & K. 661. Where rub- bish was left in the highway, and plaintiff, in passing over the high- way, fell over the rubbish and was injured. Goldthrope v. Hardman, 13 M. & W. 377 (1844). See Ken- ney v. Morley, 2 U. C. C. P. 226 (1852). 23 Hildebrand v. Toledo &c. Ry. Co., 47 Ind. 399 (1874). The same for causing the death of an engi- neer. Evansville &c. K. R. Co. v. Krapf, 143 Ind. 647 (1895). 24 whaite v. Northeastern Ry. Co., El., B. & B. 719 (1858). 25 Hollenbeck v. Winnebago County, 95 111. 148 (1880). 26 King V. Great Western Ry. Co., 24 L. T. C. P. (N. S.) 583 (1871). 2T Fitts V. Waldeck, 51 Wis. 567 (1881). The same where the In- jury was caused by the engine leaving the track. Mobile &c. R. R. Co. V. Thomas, 42 Ala. 672 (1868). For not providing a safe engine. Walker v. McNeill, 17 Wash. St. 582 (1897). 28 Indianapolis &c. Ry. Co. v. Johnson, 102 Ind. 352 (1885). A petition for the same. Kersey v. Kansas City &c. R. R. Co., 79 Mo. 362 (1883). 29 Sullivan v. Toledo &c. Ry. Co., 58 Ind. 26 (1877). See also Jackson v. Indianapolis &c. R. R. Co., 47 Ind. 454 (1874); Luby v. Chicago &c. R. R. Co., 52 Iowa, 168 (1879). 30 Behm v. Armour, 58 Wis. 1 (1883). Same for injury to ser- vant while at work on the New York and Brooklyn bridge. Walsh V. Mayor &c. of New York, 107 N. Y. 220 (1887). 31 Quincy Mining Co. v. Kitts, 42 Mich. 34, 36 (1879). 32 Long V. Doxey, 50 Ind. 885 (1875). Pleadings. 201 terer;^^ tlie same against an apothecary for selling a poison- ous drug for a harmless medicine, thereby causing injury.®* A declaration against a bridge company, whose bridge was also used as a railway bridge, for frightening horses by cars, causing them to run away, doing injury and damage;®^ the same for an injury caused by a vicious horse running at large f^ the same where a customer, in going into a brewery, fell through an open trapdoor and was injured;®^ the like for backing one truck against another, injuring a person stand- ing on the latter truck.^^ Declaration for killing a horse by a steam engine.®^ Declaration for providing an unsafe place for a servant at which to work by negligently piling barrels.*** Declaration in suit against a landlord for negligence in not keeping a stairway in a tenement-house in repair.*^ 33 Bishop V. Weber, 139 Mass. 3T Chapman v. Rothwell, El., B. 411 (1885). & E. 168 (1858); S. C, 4 Jur. (N. 34 Norton v. Sewall. 106 Mass. S.) 1180; 27 L. J. Q. B. 315. 143 (1870). A complaint in an ac- 38 Bulman v. Furness Ky. Co., 32 tion against a physician for neg- L. J. Exch. (N. S.) 430 (1875). ligently and improperly treating a 39 Smith v. Eastern R. R. Co., 35 patient. Hawley v. Williams, 90 N. H. 356 (1857). Ind. 160 (1883). 40 Libhy v. Scherman, 146 111. 35 Peoria Bridge Association v. 543 (1893). The same for negU- Loomis, 20 111. 235 (1858). Dec- gently placing an iron mould so laration and pleas in full. See that it fell, injuring a servant. Worster v. Canal Bridge, 16 Pick. Joliet Steel Co. v. Shields, 146 111. 541 (1835). 605 (1893). 36 Chase v. McDonald, 25 U. C. 4i McKenzie v. Cheetham, 88 C. P. 129 (1873). See DufCy v. Me. 543 (1891). Howard, 77 Ind. 182 (1881). CHAPTER VII. EVIDENCE — PROOF. S 168. Essentials of proof in acci- § 183. dent cases — Burden of proof. 184. 169. Contributory negligence — Burden of proof — Con- flicting decisions. 170. Contributory negligence — 185. Burden of proof — Con- tinued. 186. 171. Contributory negligence — Presumptions. 187. 172. Action based on foreign statute — Such statute must be proved. 188. 173. What facts are essential to prove negligence. 174. -The evidence need not be di- 189. rect and positive — Pre- ponderance of evidence. 175. Illustrative cases — Applica- tions of the rule. 190. 176. Essentials of proof in ac- tions by servants. 177. Proof of specific acts of neg- 191. ligence by servants. 178. The same subject con- tinued — The rule in 192. Pennsylvania. 179. Collisions at steam rail- road crossings — Proof of 193. negligence. 180. Essentials of proof in ac- 194. tious against municipali- ties for defective high- 195. ways. 181. Presumptions of negligence 196. — Res ipsa loquitur. 182. Presumptions of negligence — Common carriers of 197. passengers. [202] Illustrative cases — AwJli- cations of the rule. Presumptions of negli- gence in cases other than those of common carriers. Illustrative cases — Appli- cations of the rule. Other presumptions — Illus- trations. Presumption that streets and sidewallis are free from pit-falls. Evidence of precautions taken after an accident, is not admissible. Evidence of precautions taken after an accident, is not admissible — Con- tinued. Evidence of previous simi- lar accidents — Conflict- ing decisions. Is admissible against mu- nicipal corporations to prove notice. Former safety of a struc- ture, appliance or ma- chine. A custom cannot justify or prove negligence. Usual practice — Course of business — Experiment?. Admissions and declara- tions — In general. Admissions and declara- tions by agents — Hus- bands and wives. Declarations as part of the res gestae — The rule stated. Evidence — Proof. 203 I 198. Declarations as part of the § 209. res gestae — Continued — In statutory actions for 210. causing death. 211. 199. Declarations as part of the res gestae — Applications 212. of the rule. 200. Dying declarations are not 213. admissible in civil ac- tions. 214. 201. Expert and opinion evi- dence — In general. 215. 202. Who are experts — Illustra- tive cases. 216. 203. Who are not experts. 204. What is the subject of ex- pert testimony — Injuries. 217. 205. What is not the subject of 218. expert testimony. 206. Photographs — X-Rays — 219. Maps — Diagrams, as evi- dence. 207. Exhibits of physical objects 220. — Injured parts of the 221. person. 208. Physical examination of the plaintiff — Before the 222. trial — Statutes — How 223. enforced. 224. Physical examination of the plaintiff — At the trial. Books of inductive science. Books of exact science — Standard mortuary tables. Failure to perform a duty imposed by statute. Violation of ordinances, as evidence. Evidence of the speed of railroad trains. Evidence of injury and damages. Expressions of pain — Made to physicians or other persons. Actions for causing death. Testimony of deceased wit- nesses. Verdict of coroners' or pe- tit juries — Police rec- ords. Impeaching witnesses. Miscellaneous points — Rules, reports, time-tables of railroad companies. Allegations and proof. Relevancy of the evidence. Sufficiency of the evidence — New trial. § 168. Essentials of proof in accident cases — Burden of proof. — At the trial of an action to recover damages for the death of a human being, or for personal injuries caused by the negli- gence of the defendant, the burden of proof is on the plaintiff to show: First. The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains,^ and a breach or neglect of that duty by the defend- ant.^ ITegligence must be shown; it cannot be presumed.^ The 1 Farls V. Hoberg, 134 Ind. 269, 274 (1892); Angus v. Lee, 40 111. App. 304 (1890); Cooley on Torts (2d ed.), 791. 2 State V. Baltimore &e. R. R. Co., 58 Md. 482 (1882); Freeh v. Philadelphia &c. R. R. Co., 39 id. .574 (1873); Chicago &c. R. R. Co. V. Gregory, 58 111. 272 (1871); Mc- Grell V. Buffalo Office Building- Co., 153 N. T. 265, 273 (1897); But- ton V. Frink, 51 Conn. 342 (1883). 3 Mitchell V. Chicago &c. Ry. Co., 51 Mich. 236 (1883). Nor can 204 Evidence — Pkoof. burden of proof to show it rests upon the plaintiff.* " The principle is quite institutional that, whenever a right of action springs from the conduct of a defendant, the plaintiff must present proof of the facts necessary to the recovery which he seeks. It is, furthermore, the general rule of law that the mere proof of the occurrence of an accident raises no presump- tion of negligence."^ Second. That the death complained of, or the injury sustained, by the plaintiff was the natural and proximate result and consequence of such neglect or breach of duty by the defendant.® To establish, by evidence, circum- stances from which it may be fairly inferred that there is rea- sonable probability that the accident resulted from the want of some precaution which the defendant might and ought to have resorted to ; and further, that the plaintiff should also show, with reasonable certainty, what particular precautions should have been taken to avoid the accident.^ But when it becomes it be found without evidence. Philadelphia &c. K. R. Co. v. Hummell, 44 Pa. St. 375 (1863); McGrell v. Buffalo Office Building Co., 153 N. Y. 265, 273 (1897); Palmer v. New Yorli &c. R. R. Co., 112 id. 245 (1889). 4 Allan V. State Steamship Co., 132 N. Y. 91 (1892); Robinson v. Denver &c. R. R. Co., 24 Colo. 98 (1897); Cox v. Norfolk &c. R. R. Co., 123 No. Car. 604 (1898). So the burden of sustaining the affirma- tive of the issue remains on the plaintiff throughout the trial. Heinemann v. Heard, 62 N. Y. 448 (1875); Dowell v. Guthrie, 99 Mo. 653 (1889); Button v. Frink, 51 Conn. 342 (1883). B Garrison, J., in Bahr v. Lom- Ijard &c. Co., 24 Vr. 233, 237 (1890). 6 State V. Baltimore &c. R. R. Co., 58 Md. 482 (1882); Pennsyl- vania Co. V. Hensel, 70 Ind. 569, 574 (1880); Holbrook v. Utica &c. R. R. Co., 12 N. Y. 236 (1855); Philadelphia &c. R. R. Co. v. Boyer, 97 Pa. St. 91 (1881); Bir- mingham Union Ry. Co. v. Hale, 90 Ala. 8 (1890); Dobbins v. Brown, 119 N. Y. 188 (1890); Mitchell v. Turner, 149 id. 39 (1896); Omaha &c. Ry. Co. v. Talbot, 48 Neb. 627 (1896); Evansville &c. R. R. Co. V. Krapf, 143 Ind. 647 (1895). The breach of duty upon which an ac- tion is based must not only be th« cause, but the proximate cause of the damage to the plaintiff. Wa- bash R. R. Co. V. Coker, 81 111. App. 660 (1898). 7 Lovegrove v. London &c. Ry. Co., 16 C. B. (N. S.) 669, 692 (1864); Philadelphia &c. R. R. Co. v. Steb- bing, 62 Md. 504 (1884); Daniel v. Metropolitan Ry. Co., L. R., 3 C. P. 216, 222 (1868). " In every case involving actionable negligence, there are necessarily three ele- ments essential to its existence: 1. The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains. 2. A failure by the defendant to perform that duty; and 3. An injury to the plaintiff from such failure of the Evidence — Proof. 205 a question whetlier death resulted from the injury or from some disease with which it had become involved, the one causing the injury cannot escape full liability, without showing that death must have resulted if the injury had not been done.* Third. The nature and extent of the damages complained of as the natural and proximate result of the defendant's negligent act. Fottrth. In some of the States, the plaintiff must show that he, or his decedent, was without fault which contributed to the injury. § 169. Contributory negligence — Burden of proof — Conflict- ing decisions. — • In some of the States, as stated in the previotis section, though on this point the various courts of the United States are not in harmony, the plaintiff must show, as part of his case and as a condition precedent to his right of recovery, that he, or his decedent, was not negligent, nor did his negli- gence contribute to produce the injury complained of,® i. e., that defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient." Hackney, .T., in Faris v. Hoberg, 134 Ind. 269, 274 (1892). 8 Beauchamp v. Saginaw Mining Co., 50 Mich. 1G3 (1883). 9 This is so in the following States: Connecticut: Park v. O'Brien, 23 Conn. 339 (1854); Button v. Frink, 51 id. 342 (1883). See Bill v. Smith, 39 id. 206 (1872); Ryan v. Town of Bristol, 63 id. 26 (1893); Ashborn v. Town of Waterbury, 70 id. 551 (1898). Georgia: Branan v. May, 17 Ga. 156 (1855); Campbell v. Atlanta R. R. Co., -53 id. 488 (1874); 56 id. 586 (1876); Central R. B. Co. v. Moore, 61 id. 151 (1878); Central R. R. Co. V. Sears, 59 id. 436 (1877); Central B. R. Co. V. Kenney, 58 id. 485 (1877); Prather v. Richmond &c. E. R. Co., 80 id. 427 (1888). See Code, §§ 3033, 3034, 3036; Thomp- son V. Central R. R. Co., 54 Ga. 509 (1875). Illinois: Aurora Branch R. R. Co. V. Grimes, 13 111. 585 (1852); City of Chicago v. Major, 18 id. 340 (18.57); Galena &c. R. R. Co. V. Jacobs, 20 id. 478 (1858); Chi- cago &c. R. R. Co. V. Gregory, 58 id. 272 (1871); Missouri Furnace Co. V. Abend, 107 id. 44 (1883); Calumet Iron &c. Co. v. Martin, 115 id. 368 (1885); Gerke v. Fancher, 158 id. 375 (1895). Indiana: Mount Vernon v. Du- souchett, 2 Ind. 586 (1851); Toledo &c. Ry. Co. V. Brannagan, 75 id. 400 (1881); Lyons v. Terrc Haute &c. R. B. Co., 101 id. 419 (1884); Cincinnati &c. B. R. Co. v. Mc- Mullen, 117 id. 439 (18S8); Indiana &c. Ry. Co. V. Greene, 106 id. 279 (1885); Baltimore &c. Ry. Co. v. Conoyer, 149 id. 524 (1897). There are other cases in the Indiana re- ports not cited. Iowa: Rusch v. City of Daven- port, 6 Iowa, 443 (1858); Donald- 206 Etidence — Peoof. he was himself in the exercise of due care. The plaintiff is not required to prove due care on his part by direct afflrmative son V. Mississippi &c. R. R. Co., gence. Pub. Stats., chap. 112, 18 id. 280 (1865); Greenleaf v. § 212; McKimble v. Boston &c. K. Illinois Central R. B. Co., 29 id. 14 B. Co.. 139 Mass. 542 (1885). (1870); Benton v. Central R. R. There are other cases in the Co., 42 id. 192 (1875); Bonce v. Massachusetts reports not cited. Dubuque Street Ry. Co., 53 id. 278 Michigan: Detroit &c. R. R. Co. (1880); Hawes v. Burlington &c. v. Van Steinburg, 17 Mich. 99 Ry. Co., 04 id. 315 (1884). See Ray- (1868); Lake Shore &c. R. R. Co. mond V. Burlington &c. R. R. Co., v. Miller, 25 id. 274 (1872); Michi- 65 id. 152 (1884). There are other gan Central R. R. Co. v. Coleman, cases in the Iowa reports not cited. 28 id. 440 (1874) ; Teipel v. Hilsen- Louisiana: Moore v. Mayor &c. degen, 44 id. 461 (1880); Myun- of Shreveport, 3 La. Ann. 645 ning v. Detroit &c. E. R. Co., 67 (1848). id. 677 (1888). Maine: Foster v. Inhabitants of Mississippi: Mississippi Central Dixfield, 18 Me. 380 (1841); French R. R. Co. v. Mason, 51 Miss. 234 V. Inhabitants of Brunswick, 21 (1875); City of Vicksburg v. Hen- id. 29 (1842) ; Benson v. Titcomb, nessy, 54 id. 391 (1877). 72 id. 31 (1881); State v. Maine New York: Spencer v. Utica Central R. R. Co., 76 id. 357 (1884); &c. R. R. Co., 5 Barb. 337 (1849); Chase v. Maine &c. R. R. Co., 77 Wilds v. Hudson River R. R. Co., id. 62 (1885) ; Leasan v. Maine Cen- 24 N. Y. 430 (1862) ; Ernst v. Hud- tral R. R. Co., id. 85 (1885); Mc- son River R. R. Co., 24 How. Pr. Lane v. Perkins, 92 id. 39 (1898). 97 (1862); Warner v. New York Massachusetts: Adams v. Inhab- &c. R. R. Co., 44 N. Y. 465 (1871); itants of Carlisle, 21 Pick. 146 Cordell v. New York &c. R. R. <1838); Tourtellot v. Rosebrook, 11 Co., 75 id. 330 (1878); Hart v. Mete. 460 (1846); Robinson v. Hudson River Bridge Co., 80 id. Fitchburg &c. R. R. Co., 7 Gray, 622 (1880); 84 id. 56 (1881); Lee v. 92 (1856); Gaynor v. Old Colony Troy Citizens Gas Light Co., 98 &c. R. R. Co., 100 Mass. 208 id. 115 (1885); Tolman v. Syracuse (1868); ChafCee v. Boston &c. R. &c. R. R. Co., 98 id. 198 (1885); 18 R. Co., 104 id. 108 (1870); Crafts Alb. L. J. 144, 164, 184; Beach on V. City of Boston, 109 id. 519 Cont. Neg. (3d ed.), § 433 et seq. <1872); Corcoran v. Boston &c. R. There are many other cases in the R. Co., 133 id. 507 (1882); Riley v. New York reports not cited, from Connecticut River R. R. Co., 135 which it would seem that the id. 292 (1883); Stock v. Wood, 136 New York courts have tried to id. 353 (1884) ; Walsh v. Boston take a middle ground between two &c. R. R. Co., 171 id. 52 (1898); rules. Thus Denio, C. J., said: Taylor v. Carew Mfg. Co., 143 id. " The rule respecting the onus 470 (1887); Tumalty v. New York often depends upon the special &c. R. R. Co., 170 id. 164 (1898). circumstances of the case, and it It is not necessary to show that a not infrequently happens that a passenger was free from negli- party is ooiiged to establisk a Evidence — Peooe. 207 evidence; the inference of sucli care may be drawn from the absence of all appearance of fault, either positive or negative, on his part, or the circumstances under which the injury was received.^** But in some of those courts it has been held that there is no presumption that the plaintiff is free from contribu- tory negligence. ^^ I 170. Contributory negligence — Burden of proof — Continued. / — ■ In England and in the Federal courts of the United States, as also in most of the State courts, contributory negligence is a matter of defense, and the burden of proving it rests on the defendant. ^^ In some courts the absence of negligence on the negative proposition." Sheldon v. Hudson River R. R. Co., 14 N. Y. 218, 221 (1856); Johnson v. Hudson River R. R. Co., 20 id. 65 (1859). In 1885, Mr. Justice Finch, of the New Yorlc Court of Appeals, stated the rule to be " The bur- den was upon the plaintiff of showing atfirmatively, either by di- rect evidence or the drift of sur- rounding circumstances, that the deceased was himself without fault." Tolman v. Syracuse &c. R. R. Co., 98 N. Y. 198, 202 (1885). North Carolina: Manly v. Wil- mington &c. R. R. Co., 74 No. Car. 655 (1876); Doggett v. Richmond &c. R. R. Co., 78 id. 305 (1878); Owens V. Richmond &c. R. R. Co., 88 id. 503 (1883). Changed by Stats. 1887, chap. 33. Wallace v. Western R. R. Co., 104 No. Car. 442 (1889); Jordan v. City of Ashe- ville, 112 id. 743 (1893). Oregon: Kahn v. Love, 3 Or. 206 (1869); Walsh v. Oregon &c. Ry. O)., 10 id. 250 (1882). See Grant V Baker, 12 Or. 329 (1885); Oonroy V. Oregon Construction Co., 23 Fed. Rep. 71 (1885). Vermont: Hill v. Town of New Haven, 37 Vt. 501 (1865); Barber v. Town of Essex, 27 id. 62 (1854); Walker v. Town of Westfield, 39 id. 246 (1867); Bovee v. Town of Danville, 53 id. 183 (1880); Lazelle V. Town of Newfane, 69 id. 306 (1897). Contra, Lester v. Town of Pittsford, 7 Vt. 158 (1835). 10 Mayo V. Boston &c. R. R. Co., 104 Mass. 137 (1870). This princi- ple is stated in many cases. Com- monwealth V. Metropolitan R. K. Co., 107 Mass. 236 (1871); Mendota V. Fay, 1 111. App. 418 (1877); St. Louis &c. B. B. Co. v. Andres, 16 Id. 292 (1885); Missouri Furnace Co. V. Abend, 107 111. 44 (1883); Button V. Hudson River B. R. Co., 18 N. Y. 248 (1858); Hart v. Hud- son River Bridge Co., 80 id. 622 (1880); Tolman v. Syracuse &c. R. R. Co., 98 id. 198, 202 (1885); Rusch V. City of Davenport, 6 Iowa, 443 (1858); Lazelle v. Town of New- fane, 69 Vt. 306 (1897); Ryan v. Town of Bristol, 63 Conn. 26 (1893). 11 Warner v. New York &c. R. R. Co., 44 N. Y. 465 (1871); Wiwi- rowski V. Lake Shore &c. R. R. Co., 124 id. 420 (1891); Bonce v. Dubuque Street By. Co., 53 Iowa, 278 (1880). 12 This is so in England: Byrne v. Boadle, 2 208 Evidence — Proof. part of the plaintiff may be inferred or presumed from the love Hurlst. & C. 722 (1863); Holden v. Liverpool New Gas &c. Co., 3 C. B. 1 (1846); 3 Man., Gr. & S. 1. Canada: Cornish v. Toronto St. Ky. Co., 23 U. C. C. P. 355 (1873). United States courts: Wastiing- ton &e. R. K. Co. v. Gladmon, 15 Wall. 401 (1872); Indianapolis &c. R. R. Co. V. Horst, 93 TJ. S. 291 (1876); Hough v. Texas &c. Ry. Co., 100 id. 213 (1879); Washington &c. R. R. Co. V. Harmon, 147 id. 571 (1892); Crew v. St. Louis &c. Ry. Co., 20 Fed. Rep. 87 (1884); Conroy v. Oregon Construction Co., 23 id. 71 (1885); Wabash &c. R. R. Co. v. Central Trust Co., id. 738 (1885); Tolson v. Inland &c. Coast- ing Co., 6 Mackey, 39 (1887); Se- cord v. St. Paul &c. Ry. Co., 5 Mc- Creary, 515 (1883); Morgan v. Illi- nois Bridge Co., 5 Dill. 96 (1878). Overruled, Hull v. Town of Rich- mond, 2 Woodb. & M. 337 (1846); Beardsley v. Swann, 4 McLean, 333 (1847). Alabama: Smoot v. Mayor &c. of Wetumpka, 24 Ala. 112 (1854); Holt V. Whately, 51 id. 569 (1874); Mobile &c. Ry. Co. v. Crenshaw, 65 id. 566 (1880); East Tennessee &c. R. R. Co. V. Clark, 74 id. 443 (1883); Montgomery &c. Ry. Co. v. Chambers, 79 id. 338 (1885). Arizona: Lopez v. Central Ari- zona Mining Co., 1 Ariz. 484 (1883). See Hobson v. New Mexico &c. B. R. Co., 11 Pac. Rep. 545 (1886). Arkansas: Texas &c. Ry. Co. v. Orr, 46 Ark. 182 (1885); Little Rock &c. Ry. Co. V. Atkins, 46 id. 423 (1885); Little Rock &c. Ry. Co. v. Cavenesse, 48 id. 106 (1886); Little Rock &c. Ry. v. Leverett, 48 id. 333 (1886); Little Rock &c. Ry. Co. V. Eubanks, 48 id. 460 (1886). California: May v. Hanson, 5 Cal. 360 (1855); Finn v. Vallejo St. Wharf Co., 7 id. 253, 255 (1857); Gay V. Winter, 34 id. 153 (1SC7); Robinson v. Western Pacific R, R. Co., 48 id. 409 (1874); McQuilkin v. Central Pacific R. R. Co., 50 id. 7 (1875); MacDougal v. Central R. R. Co., 63 id. 431 (1883). Colorado: City of Denver v. Dunsmore, 7 Colo. 328 (1884); White V. City of Trinidad, 10 Colo. App. 327 (1897). Dakota: Sanders v. Reister, 1 Dak. 151 (1875). Delaware: Wilkins v. Mayor of Wilmington, 2 Marvel, 132 (1895). Florida: Louisville &c. R. R. Co. V. Yniestra, 21 Fla. 700 (1886). Idaho: Hopkins v. Utah North- ern Ry. Co., 2 Idaho, 277 (1887); 13 Pac. Rep. 343. Kansas: Kansas &c. R. R. Co. v. Phillibert, 25 Kans. 583 (1881); St Louis &c. Ry. Co. v. Weaver, 35 id. 412 (1886); Missouri Pac. Ry. Co. V. McCally, 41 id. 639 (1889). Kentucky: Louisville &c. Canal Co. V. Murphy, 9i Bush, 522, 529 (1872); Paducah &c. R. R. Co. v. Hoehl, 12 id. 41 (1876); Kentucky Central R. R. Co. v. Thomas, 79 Ky. 160 (1880). Maryland: Northern Central Ry. Co. V. State, 31 Md. 357 (1869); Freeh v. Philadelphia &c. R. R. Co., 39 id. 574 (1873); State v. Bal;i- more &c. R. R. Co., 58 id. 481: (1882); County Commissioners of Prince George County v. Burgess, 61 id. 29 (1883); Baltimore &c. R. R. Co. V. State, 60 id. 449 (1883). Minnesota: Hocum v. Weithe- rick, 22 Minn. 152 (1875). Missouri: Thompson v. North Mo. R. R. Co., 51 Mo. 190 (1873); Evidence — Proof. 209 of life or the instinct of self-preservation and the known dis- Buesching v. St. Louis Gas Light ker v. Westmoreland &c. Gas Co., Co., 73 id. 219 (1880); Mitcbell v. 157 id. 593 (1893). Some of the City of Clinton, 99 id. 153 (1889); cases seem to be contra and hold Hudson V. Wabash &c. Ry. Co., 32 that the onus is on the plaintiff. Mo. App. 667 (1888). Federal Street &c. Ry. Co. v. Gib- Montana: Nelson v. City of Hel- son, 96 Pa. St. 83 (1880); Baker v. ena, 16 Mont. 21 (1895); Prosser v. Fehr, 97 id. 70 (1881); Philadelphia Montana Cent. R. R. Co., 17 id. 372 &e. R. R. Co. v. Boyer, id. 91 (1895). (1881); Farley v. Philadelphia Trac- Nebraska: City of Lincoln v. tion Co., 132 id. 58 (1890). Walker, 18 Neb. 224 (1885). Rhode Island: Cassidy v. AngelJ, New Hampshire: White v. Con- 12 R. I. 447 (1879). cord R. R. Co., 30 N. H. 188, 207 South Carolina: Banner v. South (1855); Smith V. Eastern R. R. Co, Carolina R. R. Co., 4 Rich. 329 35 Id. 356, 366 (1857). (1851); Carter v. Columbia &c. R. New Jersey: Durant v. Palmer, R. Co., 19 So. Car. 20 (1882). 5 Dutch. 544 (1862); Central R. R. South Dakota: Smith v. Chicago Co. V. Moore, 4 Zabr. 824 (1854); &c. Ry. Co., 4 So. Dak. 71 (1893). New Jersey Express Co. v. Nichols, Tennessee: See East Tennessee 3 Vr. 166; 4 id. 434 (1867); Drake v. &c. R. R. Co. v. Stewart, 13 Lea, Morent, 4 id. 441 (1867). 432 (1884); Stewart v. City of Nash- North Carolina: So by statute ville, 96 Tenn. 50 (1896); Bam- 1887, chap. 33; Wallace v. Western berger v. Citizens Street Ry. Co., R. B. Co., 104 No. Car. 442 (1889); 95 id. 18 (1895). Jordan v. City of Asheville, 112 id. Texas: Texas &c. R. R. Co. v. 743 (1893); Cox v. Norfolk &e. R. Murphy 46 Tex. 356 (1876); Hous- R. Co., 123 id. 604 (1898). ton &c. Ey. Co. v. Cowser, 57 id. North Dakota: Ouverson v. City 293 (1882); Dallas &c. Ry. Co. v. of Grafton, 5 No. Dak. 281 (1895). Spicker, 61 id. 427 (1884); San An- Ohio: Cleveland &c. R. R. Co. v. tonio &c. Ry. Co. v. Bennett, 76 1.1. Crawford, 24 Ohio St. 631 (1874); 151 (1890). Contra, Texas &c. Ry. Robinson v. Gary, 28 id. 241, 250 Co. v. Crowder, 63 id. 502 (1885); (1876); Baltimore &c. R. R. Co. v. Walker v. Herron, 22 id. 55 (185S). Whitaere, 35 Id. 627 (1880). Utah: Anderson v. Ogden &c. Oregon: Grant v. Baker, 12 Or. Co., 8 Utah, 128 (1892). 329 (1885). Virginia: Baltimore &c. R. R. Pennsylvania: Beatty v. Gilmor , Co. v. Whittington, 30 Graft. 805 IC Pa. St. 463 (1851); Pennsylvania (1S78); Moon v. Richmond «S;c. R. Canal Co. v. Bentley, 66 id. 30 R. Co., 78 Va. 745 (1884); Norfolk (1870); Cleveland &c. R. R. Co. v. &c. E. R. Co. v. Ferguson, 79 id. Rowan, Id. 393 (1870); Pennsyl- 241 (1884); Gordon v. City of Rich- vania R. R. Co. v. Weber, 76 id. mond, 83 Id. 436 (1887); Southera 157 (1874); Mallory v. GnfEey,85id. Ry. Co. v. Bryant, 95 Id. 212 (1897); 275 (1877); Bradwell v. Pittsburgh id. 125 (1897). &c. Ky. Co., 139 id. 404 (1890); Ba- Washington: Northern Pac. R. R. 14 SIO Evidence — Peoof. position of men to avoid injury. ^^ But it is only when there is mo reliable proof to the contrary, or there is rational doubt upon the evidence as to the acts or conduct of the parties, that such presumptions can be invoked." When there is nothing in plaintiff's evidence tending to show contributory negligence the presumption is against it.'^ If the proof of the cause of tlhe injury, with its attendant circumstances, raises a presump- tion that the plaintiff was not in the exercise of due care, he must show affirmatively that he was not guilty of contributory negligence, ^^ because if contributory negligence be shown on the part of the plaintiff, he must fail.^'^ But if the plaintiff Oo. V. O'Brien, 1 Wash. St. 599 Neg. 1179, § 27. Contra, wlien the <1888); Sp-nrrier v. Front Street Ry. burden is on the plaintiff to estab- Co., 3 id. 659 (1892). lish freedom from negligence, it West Virginia: Snyder v. Pitts- may give character or force to Ijurgh &c. Ey. Co., 11 W. Va. 14 facts already proven, but it does 1(1887); SliefC v. City of Huntington, not, of itself, add or create proof. 16 id. 307 (1880). Ghase v. Maine Central R. R. Co., Wisconsin: Achtenhagen v. City 77 Me. 62 (1885). looked, or might have heard had York, 109 N. Y. 134 (1888). he listened, that a jury. In the ei Turner v. City of Newburgh, absence of evidence upon the ques- 109 N. Y 301 (1888); Wilson v. tion, is authorized to find that he City of Troy, 135 id. 98 (1892). did not look and did not listen. 62 Reining v. City of Buffalo, 102 Smedis v. Brooklyn &c. R. R. Co., N. Y. 308 (1886); Foley v. New 88 N. Y. 13 (1882). York, 1 App. Div. 586 (1896); 37 N. es Tucker v. New York &c. R. Y. Supp. 465; Dorsey v. City of R. Co., 124 N. , Y. 308 (1801); Raoine, 60 Wis. 292 (1884); Maddox Connerton v. Delaware &c. Co., v. County of Randolph, 65 Ga, 216 169 Ra. St. 339 (1895); Chicago &c. (1880). In Vermont the notice is. Evidence — Proof. 225 ■was so notorious as to be evident to all persons passing.*^ It ia no defense to an action against a city for an injury, caused by its negligence to repair a street, that the city has no funds on hand for that purpose.®* But the absence of the necessary funds and of the legal means of procuring them, will excuse the non- performance of this duty, such absence of means should be shown as a defense.*** § 181. Presumptions of negligence — Res ipsa loquitur. — The general rule of law is that the mere proof of the occurrence of an accident does not raise a presumption of negligence,** expressed by the phrase res ipsa loquitur. But when the testi- mony which proves the occurrence by which the plaintiff was injured, discloses circumstances from which the defendant's negligence is a reasonable inference, a case is presented which calls for a defense.*^ Negligence must be proved; it will not held to be no part of the cause of action but pertains merely to the remedy and evidence. Kent v. Town of Lincoln, 32 Vt. 591 (1860). Contra, under act of 1870, notice by husband alone, of injury to wife and claim for damages is suf- ficient. Babcock v. Town of Guil- ford, 47 Vt. 519 (1875). In Massa- chusetts the notice cannot be waived under Stat, of 1877, chap. 224. Gay v. City of Cambridge, 128 Mass. 387 (1880). See Hughes v. City of Fond du Lac, 73 Wis. 380 (1889). 63 Burns v. City of Bradford, 137 Pa. St. 361 (1891). On this general subject see Elliott on Roads & Streets, 638 et seq. The authori- ties recognize two kinds of notice, actual and constructive; notice imparted by the nature of the work itself, or given to some officer of the municipality, may be con- sidered as actual notice, while no- tice inferred from lapse of time or other circumstances may be con- sidered as constructive notice. El- 15 liott on Eoads & Streets, 645; Dis- trict of Columbia v. Payne, 13 App. Cas. (D. O. 1898). 64Evanston v. Gunn, 99 U. S. 660 (1878); Erie City v. Schwingle, 22 Pa. St. 384 (1853); Shartle v. City of Minneapolis, 17 Minn. 308 (1871). 65 Hines v. City of Lockport, 50 N. Y. 236 (1872). See Eveleigh v. Hainslitxu, 34 Hun, 140 (1884). 66Balir V. Lombard &c. Co., 24 Vr. 233 (1890); Excelsior Electric Co. V. Sweet, 28 id. 224 (1894); Lawson on Law of Presumptive Evidence, pp. 121-134. But this rule is not to be confounded with tiic rule which declares that negli- gence may be inferred from facts and circumstances (§ 174), for the rules are separate and distinct and there is no conflict between them. Elliott on Roads & Streets, 639. 67Bahr v. Lombard &c. Co., 24 Vr. 233 (1890); Excelsior Electric Co. V. Sweet, 28 id. 224 (1894); Sey- bolt V. New York &c. R. E. Co., 95 N. Y. 562 (1884). 236 Evidence — Proof. be presumed.®* There are seeming exceptions to this rule and a class of cases in which, either from the legal relation of the parties, one to the other, such as exists between passenger and carrier, or from the nature of the cause or event producing or inflicting the injury, such as injuries to persons from explosions, or injuries on the streets caused by obstructions, excavations smd the like; proof of the injury, with its attendant circum- stances, by the plaintiff, raises a presumption of fact that the injury was caused by negligence, which casts upon the defend- ant the burden of satisfactorily explaining the cause which pro- duced the injury.*® § 182. Presumptions of negligence — Common carriers of pas- sengers. — As applied to carriers of passengers, especially in conveyances propelled by steam, electricity, or compressed air, where the consequences of an accident are frequently fatal to human life, it is said that such a rule is a reasonable one, be- es see § 168; East End Oil Co. v. Tennsylvanla Torpedo Co., 190 Pa. St. 353 (1899); Keegan v. "Western R. R. Co., 8 N. Y. 175 (1853); Lynd- say V. Connecticut &c. R. R. Co., 27 Vt. 643 (1855); McGrell v. Buf- falo Office Building Co., 153 N. Y. 265, 273 (1897); Palmer v. New York &c. R. R. Co., 112 id. 245 (1889); Jacksonville Street Ry. Co. V. Chappell, 21 Fla. 175 (1885). Nor will It be presumed that a per- son will violate the law. Interna- tional &c. Co. V. Gray, 65 Tex. 32 (1885). 89 Thompson on Neg. (vol. 2), p. 1227, § 3; Ray on Negligence of Im- posed Duties, § 188; Shearm. & Redf. on Neg. (5th od.) §§ 59, 00; Louisville &c. Ry. Co. v. Snyder, 117 Ind. 435 (1888). Mr. Thomas, in his book on Neg- ligence, at page 574, says the rule that negligence must be proved " is of very general applica- tion, and the exceptions to it are limited, and may be classified un- der two heads: (1) When the re- lation of carrier and passenger ex- ists and the accident arises from some abnormal condition in the de- partment of actual transportation; (2) where the injury arises from some condition or event that is, in its very nature, so obviously de- structive of the safety of person or property, and is so tortious in its quality, as in the first instance, at least, to permit no inference, save that of negligence on the part of the person in the control of the injurious agency. This sec- ond class principally concerns in- juries to people in the street from flying or falling missiles, obstruc- tions, excavations and the like, but it may also include casualties in any relation where the elements stated in the definition are pres- ent" Evidence — Peoof. 227 cause the carrier has in its possession and under its control, almost exclusively, the means of knowing what occasioned the injury and of explaining how it occurred, while, as a general rule, the passenger is destitute of all knowledge that would enable him to present the facts and fasten negligence on the company in case it really existed. Any other rule would practi- cally absolve railway carriers from liability in a great majority of cases, for the passenger would seldom be able to ascertain the real cause of the accident™ " As the cars and the track are within the exclusive possession and control of the company, it is incumbent upon it to explain the cause of an accident, it not being ordinarily in the power of the passengers to do so. Oars can ordinarily be run with safety, and when they are not, that fact itself is evidence of fault or defect somewhere, requir- ing explanation. The maxim res ipsa loquitur applies in such a case."^^ One reason for this rule is said to be that, when an event takes place which, according to the ordinary course of things, would not happen if proper care was exercised, it is presumed that such care was not exercised.''^ Mr. Justice Euggles said : " It is incorrect to say that the negligence of the carrier is to be presumed from the mere fact that an injury has been done to the plaintiff. The presumption arises from the cause of the injury, or from other circumstances attending it, and not from the injury itself."'^ The accurate statement of the law is not that negligence is presumed, but that the cir- cumstances amount to evidence, from which it may be inferred by the juiy.^* 70 Delaware &c. R. E. Co. v. Na- son v. Giant Powder Co., 107 Cal. pheys, 90 Pa. St. 135, 141 (1879); 549 (1895). Terre Haute &c. R. R. Co. v. Buck, t3 Holbrook v. TJtica &c. R. R. 96 Ind. 346, 364 (1884); Bridges v. Co., 12 N. Y. 236, 237 (1855). North London R. R. Co., L. R., 6 " Something in the facts that Q. B. 377, 391 (1871); Ray on Neg., speaks of the negligence of the de- p. 146; Thompson on Neg. (vol. 2), fendant." Bahr v. Lombard &c. p. 1227; Smith on Neg. p. 246. Co., 24 Vr. 233 (1890); Kaples v. 71 Peters, J., in Stevens v. Euro- Orth, 64 Wis. 535 (1884). pean &c. Ry. Co., 66 Me. 74, 76 74 Mitchell, J., in East End Oil (1876). Co. V. Pennsylvania Torpedo Co., 72 Caldwell v. New Jersey Steam- 190 Pa. St. 353 (1899). boat Co., 47 N. Y. 282 (1872); Jud- 238 Evidence — Peoof. § 183. Illustrative cases — Applications of the rule. — As ap- plied to carriers of passengers/^ the rule res ipsa loquitur has 7B England : From the breaking of an axle-tree of a coach. Christie V. Griggs, 2 Campb. 79 (1809); Great Western Ry. Co. v. Braid, 1 Moore P. C. (N. S.) 101 (1863). Carriage breaking down or run- ning off the rails. Dawson v. Man- chester &c. Ky. Co., 7 Hurlst. & N. 1037 (1862); Skinner v. London &c. Ry. Co., 5 Exch. 787 (1850); Gee v. Metropolitan Ry. Co., L. R., 8 Q. B. 161 (1873); Smith v. Robertson, L. R., 8 Vict. 256 (1882). United States: Upsetting of a stage coach. Stokes v. Saltonstall, 13 Pet. 181 (1839). Train coming In collision with landslide. Gleeson V. Virginia &c. R. R. Co., 140 U. S. 435 (1S90). Alabama: Derailment of a car. Alabama &c. R. R. Co. v. Hill, 93 Ala. 514 (189()). Car turned over. Montgomery &c. R. R. Co. v. Mal- lette, 92 Ala. 209 (1890). Two cars colliding. Georgia Pacific Ry. Co. V. Love, 91 Ala. 432 (1890); Louis- ville &c. R. R. Co. V. Jones, 83 id. 376 (1887). Arkansas: Broken rail, car thrown from the track. George v. St. Louis &c. Ry. Co., 34 Ark. 613 (1879). Car leaving track. Eureka Springs Ry. Co. v. Timmons, 51 Ark. 459 (1888). Broken rail and defective crosstie, derailing train. Arkansas &c. Ry. Co. v. Griffith, 63 Ark. 491 (1897). California: Overturning of a coach. Boyce v. California Stage Co., 25 Oal. 460 (1864). Train running off of the track. Mitchell v. Southern Pacific R. R. Co., 87 Cal. 62 (1890); McCurrie v. South- ern Pacific Co., 122 id. 558 (1898). Colorado: Overturning of a car. Denver &c. Ry. Co. v. Woodward, 4 Colo. 1 (1877). Giving way of a bridge. Kansas Pacific Ry. Co. v. Miller, 2 Colo. 442 (1874); Wall v. Livesay, 6 id. 465 (1882); Sanderson V. Frazier, 8 id. 79 (1884). When the fact is established that an in- jury has been inflicted upon a pas- senger by escaping electricity a prima facie case of negligence is established. Denver Tramway Co. V. Reid, 4 Colo. App. 53 (1893); Eickhof V. Chicago &c. Ry. Co., 77 111. App. 196 (1898). Connecticut: Donovan v. Hart- ford Street Ry. Co., 65 Conn. 201 (1894); Fuller v. Naugatuck R. R. Co., 21 id. 557 (1852). Georgia: Augusta &c. R. R. Co. V. Randall, 79 Ga. 304 (1887). Illinois: Breaking of a car wheel. Toledo &c. Ry. Co. v. Beggs, 85 111. 80 (1877). Car thrown from the track. Peoria &c. R. R. Co. v. Rey- nolds, 88 111. 418 (1874). Falling of a stage plank placed for the use of passengers landing from a steam- boat. Eagle Packet Co. v. Defrles, 94 111. 598 (1880); New York &c. R. R. Co. V. Blumenthal, 160 111. 40 (1896). Indiana: Collision of two trains operated by defendant. Sherlock V. Ailing, 44 Ind. 184 (1873). Breaking of a rail. Cleveland &c. Ry. Co. V. Newell, 75 Ind. 542 (1881). Train brought to a full stop on a dangerous trestle-work. Terre Haute &c. R. R. Co. v. Buck, 96 Ind. 346 (1884). Train breaking through a bridge. Bed- ford &c. R. R. Co. V. Rainbolt, 99 Ind. 551 (18§4). Car thrown from track and upset. Pittsburgh &c. R. R. Co. V. Williams, 74 Ind. 462 Evidence — Proof. 839 teen applied by the courts in many cases. In Georgia, this ia (1881); 104 id. 264 (1885). Servant of carrier injured a passenger. Menipliis &c. Packet Co. v. Mc- Cool, 83 Ind. 392 (1882). Falling of a bridge. Louisville &c. Ry. Co. V. Schneider, 117 Ind. 435 (1888); Louisville &c. Ry. Co. v. Pedigo, 108 id. 481 (1886). Collision. Louis- ville &c. R. R. Co. v. Taylor, 126 Ind. 126 (1890). Iowa: Separation of train. Tut- tle V. Chicago &c. Ry. Co., 48 Iowa, 236-239 (1878); Pershing v. Chicago &c. Ry. Co., 71 id. 561 (1887). Kansas: Derailment of a train. Southern Kansas Ry. Co. v. Walsh, 45 Kan. 653 (1891). Kentucky: Collision with a car. Louisville &c. R. R. Co. v. Ritter, 85 Ky. 368 (1887). Maine: Cars running off the track. Stevens v. European &c. Ry. Co., 66 Me. 74 (1876). Maryland: Baltimore &c. R. R. Co. v. State, 63 Md. 135 (1884); Yorktown Turnpike Co. v. Leon- hardt, 66 id. 70 (1886). Massachusetts: Car running off the track. Feital v. Middlesex R. R. Co., 109 Mass. 398 (1872). From the fall of a shade of a lamp af- fixed to the upper part of a car. White V. Boston &c. E. R. Co., 144 id. 404 (1887). Michigan: See Mitchell v. Chi- ■eago &c. Ry. Co., 51 Mich. 236, 238 (1883). Minnesota: Wilson v. Northern Pacific R. R. Co., 26 Minn. 278 (1879). Case of street railway. Smith V. St. Paul City Ry. Co., 32 Minn. 1 (1884). Mississippi: New Orleans &c. R. R. Co. V. Albritton, 38 Miss. 242 <1859). Missouri: Derailment of a car. Norton v. St. Louis &c. Ry. Co., 40 Mo. 642 (1860); Furnish v. Mis- souri Pacific Ry. Co., 102 id. 438 (1890). Breaking of a paddle- wheel of a steamboat. Yerkes v. Keokuk &c. Packet Co., 7 Mo. App. 265 (1879). Nebraska: Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890 (1893). New Jersey: A "lurch" or " jerk " occurred as would have been unlikely to occur if proper care had been exercised. Consoli- dated Traction Co. v. Thalheimer, 30 Vr. 474 (1896). Conductor stumbled, injuring passenger. , Whalen v. Consolidated Traction Co.. 32 Vr. 606 (1898). New York: Something striking against the side of a car. Hol- brook V. Utica &c. R. R. Co., 12 N. Y. 236 (1855). Spreading and breaking of rails. Curtis v. Roch- ester &c. R. R. Co., 18 N. Y. 534 (1859). Crack in the iron axle of a car. Alden v. New York Central R. R. Co., 26 N. y. 102 (1862). Car running off the track. Edger- ton V. New York &c. R. R. Co., 39 N. Y. 227 (1868). Explosion of the boiler in a steamboat. Caldwell v. New Jersey Steamboat Co., 47 N. Y. 291 (1872); Carroll v. Staten Island R. R. Co., 58 id. 126 (1874). Broken axle. Seybolt v. New York &c. R. R. Co., 95 N. Y. 562 (1884). Passenger's arm struck by swing- ing door of a passing freight car. Breen v. New York Central &c. R. R. Co., 109 N. Y. 297 (1888). Ovet- turning of car on the track. Web- ster V. Rome &c. R. R. Co., 115 N. Y. 112 (1889). Breaking of appa- ratus wholly under defendant's 230 Evidence — Phoof. so by statute. ''' In Mississippi, the statute is limited to suits by those who, being neither shippers nor passengers, have been injured in their persons or property J^ Such a presumption of negligence does not arise where the accident is shown to have been caused by the act of God,''* or where the cause of the accident by which the passenger was injured is known as well to the passenger as to the carrier,''* or at stations, passengers control. Miller v. Ocean SS. Co., 118 N. Y. 199 (1890). North Carolina: Collision of two passenger trains on the same track. Kinney v. North Carolina K. R. Co., 122 No. Car. 961 (1898). Ohio: Iron R. R. Co. v. Mowery, 36 Ohio St. 418 (1881). Fall of a berth in a sleeping car. Cleveland &c. R. R. Co. V. Walrath, 38 Ohio St. 461 (1882). Pennsylvania: Laing v. Colder, 8 Pa. St. 479, 483 (1848); Pitts- burgh &c. R. R. Co. V. Pillow, 76 id. 510 (1874). A collision or de- fect in any part of the machinery. Delaware &c. R. R. Co. v. Na- pheys, 90 Pa. St. 135 (1879). De- fective bridge. Philadelphia &c. R. R. Co. V. Anderson, 94 Pa. St. 351 (1880). Texas: Texas &c. Ry. Co. v. Suggs, 62 Tex. 323 (1884); Texas &c. Ry. Co. V. Kirk, id. 227 (1884). See San Antonio &c. R. R. Co. V. Robinson, 73 id. 277 (1889). Virginia: Overturning of train. Baltimore &c. R. R. Co. v. Wight- man, 29 Graft. 431 (1877); Balti- more &c. R. R. Co. V. Noell, 32 id. 394 (1879). See Redf. on Carr., § 341; 2 Greenl. on Bv., § 227; Cooley on Torts, pp. 660, 663; Shearm. & Redf. on Neg. (5th ed.), § 516; Thomas on Neg. 574; Ray on Negligence of Imposed Duties, § 188. , 76 Georgia: Code 1882, p. 760, { 3033; Central R. R. Co. v. Brin- son, 64 Ga. 475, 479 (1880); Savan- nah &e. Ry. Co. V. Stewart, 71 id. 427 (1883). "The company may rebut the presumption and relieve itself by showing that its agents have exercised all ordinary and reasonable care and diligence to avoid the injury, or it may show that the damage was caused by the plaintiff's own negligence, or it may further show that the plaintiff, by ordinary care, could have avoided the injury to him- self." Crawford, J. lb.; Central R. R. Co. V. Sanders, 73 Ga. 513 (1884); Central R. R. Co. v. Freeman, 75 id. 331 (1885); Augusta &c. R. R. Co. V. Randall, 79 id. 304 (1887); East Tenn. &c. R. R. Co. v. Hart- ley, 73 id. 5 (1884). " Chicago &c. R. R. Co. v. Trotter, 60 Miss. 442 (1882); Rev. Code of Miss. 1880, p. 310, § 1059. The burden imposed by the stat- ute upon the railroad company, af- ter proof of the injury, to show the exercise of proper care, is not met by simply proving that the whistle was heard blowing at the time of the accident. Mobile &c. R. R. Co. V. Dale, 61 Miss. 206 (1883). TSGleeson v. Virginia &c. R. R. Co., 5 Mackey, 356 (1887). A land- slide in a railway cut is not an " act of God." Gleeson v. Virginia &c. R. R. Co., 140 V. S. 435 (1890). ra Fearn v. West Jersey Ferry Co., 143 Pa. St. 122 (1891). From Evidence — Peoof. 231 embarking or alighting.*** Before such a presumption of negli- gence arises, it must first be shown that the injury complained of resulted from the breaking of machinery, collision, derail- ment of cars, or something improper or unsafe in the conduct of the business, or in the appliances of transportation.^^ A good reputation upon the part of the builder of a railway equip- ment selected is no defense to a carrier for an injury to a pas- senger and will not be accepted, and ought not to be accepted by the public as a substitute for good material or good work.** The carrier must show that the accident was produced by causes wholly beyond his control.*^ the mere existence of snow dur- ing a storm on the deck of a ferry- boat. so Ray on Negligence of Imposed Duties, § 188e; Welfare v. Lon- don &c. R. K. Co., L. R., 4 Q. B. 693 (1869); Haynan v. Pennsyl- vania R. K. Co., 118 Pa. St. 508 (1888); East Tennessee &c. R. K. Co. V. Mitchell, 11 Heisk. 400 (1872); Delaware &e. R. R. Co. v. Napheys, 90 Pa. St. 135 (1879); Pennsylvania Co. v. Marlon, 104 Ind. 239 (1885); Chicago &c. R. R. Co. V. Trotter, 60 Miss. 442 (1882); Mitchell V. Chicago &c. R. R. Co., 51 Mich. 236 (1883). 81 Thomas v. Philadelphia &c. R. R. Co., 148 Pa. St. 180 (1892); Pennsylvania R. R. Co. v. Mac- Kinney, 124 id. 462 (1889); Louis- ville &c. R. R. Co. V. Jones, 83 Ala. 376 (1887). 82 Ray on Negligence of Imposed Duties, § 17; Grote v. Chester &c. Ry. Co., 2 Exch. 251 (1848); Louis- ville &c. R. R. Co. V. Snyder, 117 Ind. 435 (1888); Hegeman v. West- ern R. R. Co., 13 N. Y. 9 (1855). 83 Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890 (1893). It is a question of fact for the jury to decide, whether upon the evi- dence a railroad company is guilty of negligence in not ascertaining the utility of, and adopting an im- provement to protect passengers from injuries by accident to which the cars are liable. Hegeman v. Western R. R. Co., 13 N. Y. 9 (1855). But a railroad company cannot be required to adopt any particular method of construction, * or any particular contrivance or device, In order to be in the exercise of ordi- nary care. Chicago &c. R. R. Co. V. Drlscoll, 176 111. 330, 334 (1898). Negligence will not be presumed from the fact of injury to an em- ploye, but it must be shown, since the rule applicable in case of in- jury to passengers does not apply to an employe under section 1059, Code 1880. Short v. New Orleans &c. R. R. Co., 69 Miss. 848 (1892); Knight V. Cooper, 36 W. Va. 232 (1892) ; Stewart v. Ohio River R. R. Co., 40 id. 188 (1895); Brownfield V. Chicago &c. Ry. Co., 107 Iowa, 254 (1899). There was no pre- sumption of negligence in the fol- lowing eases: Passenger in a street car thrown down by the starting of the car before he was seated. .Jacksonville Street Ry. Co. V. Chappell, 21 Pla. 175 (1885). From a collision of a street rail- way car with a wagon in the 1i32 Evidence — Peoof. § 184. Presumptions of negligence in cases other than those of common carriers. — There is a class of cases in whicli it is said tliat the mere proof of the fact that the accident happened and a consequent injury to the plaintiff, without more, will not raise a presumption of negligence on tho part of the defendant, «xcept in contractual relations, such as exists between passen- ger and carrier.** But the plaintiff must show either actual neg- ligence or conditions which are so obviously dangerous as to admit of no inference other than that of negligence. Mr. Jus- tice Garrison, of the Court of Errors and Appeals of New Jersey, has said : " The existence of such a rule is among the unsettled matters of the law, being asserted in guarded terms ' in some jurisdictions and emphatically denied in others."*® Negligence is prima facie presumed from the fact of the ex- plosion of a nitro-glycerine factory, in the absence of evidence showing care on the part of the employes. The prima facie street. Federal Street &e. Ky. Co. V. Gibson, 96 Pa. St. 83 (1880); Potts V. Chicago City Ry. Co., 33 Fed. Rep. 610 (1887); Quialan v. Sixth Ave. R. R. Co., 4 Daly, 488 <1873). Or with a locomotive at a street-car crossing. Central Pas- senger Ry. Co. V. Kuhn, 86 Ky. 578 (1888). A passenger stum- bling over an obstruction in the car. Farley v. Philadelphia Traction Co., 132 Pa. St. 58 (1890). From a clothes-wringer falling out of the parcel rack, which was placed there by another passenger. Morris V. New York &c. R. R. Co., 106 N. Y. 678 (1887). From clothes catching in a broken spring-hook on an open railway car. Kelly v. New York &c. R. R. Co., 109 N. Y. 44 (1888). While alighting from front platform for passing to rear platform on a street car. Brown v. Congress &c. Ry. Co., 49 Mich. 153 (1882). While driving ofE of a ferry-boat, sleigh striking against the drop of the slip. Le Barron v. East Boston Ferry Co., 11 Allen, 312 (1865). Nor for the killing of a trespasser on trains — boy steal- ing a ride on a train. Sommers v. Mississippi &c. R. R. Co., 7 Lea, 201 (1881). 84 Thompson on Neg. (vol. 2) 1227; Pollock on Torts, 636; Cosu- lick V. Standard Oil Co., 122 N. Y. 118, 128 (1890); Stearns v. Ontario Spinning Co., 184 Pa. St. 519 (1898); 3 Am. Neg. Rep. 485, note. Cases will be found there collected on the doctrine of res ipsa loquitur. See Denver Consolidated Electric Co. V. Simpson, 21 Colo. 371 (1895); Judson V. Giant Powder Co., 107 Cal. 556 (1895). ssBahr v. Lombard &c. Co., 24 Vr. 233, 239 (1890). It has been said that if it is necessary to intro- duce extrinsic evidence to estab- lish the fact that the defendant caused the injury, the doctrine of res ipsa loquitur does not apply. Hygienic Plate Ice Mfg. Co. v. Raleigh &c. K. R. Co., 122 No. Car. 881 (1898). Evidence — Pkoof. 233 case of negligence arising from the fact of the explosion is strengthened and made complete by- expert testimony to the effect that, if the factory was properly conducted and the em- ployes were careful during the process of manufacturing, an explosion would not occur. ^® The presumption of negligence which arises from the proof of the injury, with its attendant circumstances, is a rule of evidence. It is not conclusive, and may be rebutted by the defendant.*^ Whether the evidence meets and rebuts the presumption of negligence is for the jury.^* There is a distinction between a prima facie case which is made out by certain proved facts and a presumption of law arising from a given state of facts.*® § 185. Illustrative cases — Applications of the rule. — As ap- plied to cases other than the carrier of passengers, a pre- sumption of negligence has been held to arise from the facts proved in many cases.®" Thus the bare fact that gas escaped 86 Judson v. Giant Powder Co., 107 Gal. 549 (1895). The reason of the rule is not founded in the relations existing between the party injuring and the party in- jured. The presumption arises from the inherent nature and char- acter of the act causing the injury. Presumptions arise from the doc- trine of probabilities. Id. 556. See Schoepper v. Hancocli Ghemical Co., 113 Mich. 582 (1897). 87 Great Western Ry. Co. v. Braid, 1 Moore P. C. (N. S.) 101 (1863); Denver &c. Ey. Co. v. Woodward, 4 Colo. 1 (1877); Wa- bash &c. R. R. Co. V. Koenigsam, 13 111. App. 505 (1883); Philadel- phia &c. R. R. Co. V. Anderson, 94 Pa. St. 351 (1880); Toledo &c. Ry. Co. V. Beggs, 85 111. 80 (1877); Bed- ford &c. R. R. Co. V. Rainbolt, 90 Ind. 551, 558 (1884); Cooley on Torts, p. 663. 88 Bldridge v. Minnesota &c. Ry. Co., 32 Minn. 253 (1884); Kenney V. Hannibal &c. R. R. Co., 80 Mo. 573 (1883). 89 Henry, .T., in Kenney v. Han- nibal &c. R. R. Co., 80 Mo. 573, 578 (1883). For a discussion of what facts constitute a prima facie case and the shifting of the bur- den of proof, see Gannon v. La- clede Gas Light Co., 145 Mo. 502 (1898). 90 Prom obstructions, excava- tions, etc., in streets, failure to keep a building adjoining a street safe. Vincent v. Cook, 6 Thomp. & C. 562; 4 Hun, 318 (1875); Mullen V. St. John, 57 N. Y. 567 (1874). From the fall of a wall of a cistern which fell by its own weight. Mulcairns v. City of Jamesville, 67 Wis. 24 (1886). Telegraph wire left swinging across a public street. Western Union Tel. Co. v. State, 82 Md. 293 (1896); Haynes V. Raleigh Gas Co., 114 No. Car. 203 (1894); Thomas v. Western Union Tel. Co., 100 Mass. 156 (1868); Larson v. Central R. R. Co., 56 111. App. 263 (1893); Shel- don V. Western Union Tel. Co., 51 Hun, 591 (1889); Denver Con- 234 Evidence — Proof. from the defendant's pipe is priiiia facie evidence of some neg- lect on its part, from which a jury is at liberty to draw the solldated Electric Co. v. Simpson, (1871), affirming 5 id. 411 (1870). 21 Colo. 371 (1895). Fall of a Cocliburn, C. J. "Where it is the broken bolt from an elevated rail- duty of persons to do their best to way into the street. Vollimar v. keep premises, or a structure, of Manhattan Ry. Co., 134 N. Y. 418 whatever kind it may be, in a (1892); Hogan v. Manhattan Ry. proper condition, and we find it Co., 149 id. 23 (1896). Bursting out of condition, and an accident of a cylinder falling into the happens therefrom, it is incum- street. Contra, cinder or hot coal bent upon them to show that they from locomotive on elevated rail- used that reasonable care and dill- way. Weidmer v. New York &c. gence which they were bound to R. R. Co., 114 N. Y. 462 (1889); use, and in the absence of which Searles v. Manhattan Ry. Co., 101 it seems to me may fairly be pre- id. 661 (1886). See Lowery v. sumed from the fact that there Manhattan Ry. Co., 99 id. 158 was the defect from which the ac- (1885). Guy rope sagged across cident has arisen." Id. 415. Bar- the pubUc street. See Geer v. rel of flour fell into the street, in- Darrow, 61 Conn. 220 (1891). juring a person on the street. Electric light wire. See Brush Byrne v. Boadle, 2 H. & C. 722: Electric Co. v. Kelley, 126 Ind. (1863). See 3 id. 596 (1865). Falling 220 (1890) ; Snyder v. Wheeling of a sign in a street, the absence of Electrical Co., 43 W. Va. 661 that care may fairly be presumed (1897). Pall of an electric light from the fact that the defect hanging over a street. Excelsior existed from which the accident Electric Co. v. Sweet, 28 Vr. 224 arose. Morris v. Strobel &c. Co., (1894). Fall of an elevator killing 81 Hun, 1 (1894); St. Louis &c. Ry. employe who had charge of same. Co. v. Hopkins, 54 Ark. 209 (1891). See Fairbank Canning Co. v. See Cummings v. National Fur- Innes, 24 111. App. 33; 125 111. 410 nace Co., 60 Wis. 603 (1884). From (1888). Lamp projecting over a the falling of a chisel striking highway; the fastening by which plaintiff while walking on a side- the lamp was attached to the walk. Dixon v. Pluns, 98 Cal. 384 lamp-iron was in a decayed state. (1893). From the fall of a brick Tarry v. Ashton, 1 Q. B. D. 314 while plaintiff stopped at defend- (1876). Piece of zinc falling from ant's door-sill. Murray v. Mc- roof of building on person on the Shane, 52 Md. 217 (1879). Cross- street. See Khron v. Brook, 144 ties falling from a car. Howser v. Mass. 516 (1887). Or other mate- Cumberland &c. R. R. Co., 80 Md. rial. Dohm v. Dawson, 84 Hun, 146 (1894). From ice and snow fall- 110 (1895); 32 N. Y. Supp. 59; 90 ing from roof of a building on one Hun, 271 (1895); 35 N. Y. Supp. passing in the street. Shepard v. 984. Falling of a brick from an Creamer, 160 Mass. 496 (1894). From overhead bridge on person below a switch-stick that flew from the on highway. Kearney v. London hands of a conductor while he was &c. Ry. Co., L. R., 6 Q. B. 759 using it on top of an electric street Evidence — Peoof. 235 inference of want of due care in conducting the gas.®^ In the following cases it was held that there was no presumption of negligence.®^ § 186. Other presumptions — Illustrations.- an important branch of the law of evidence. Presumptions are They are simply car to free the trolley, injuring one on the sidewalk. Manning v. West End Street Ry. Co., 166 Mass. 230 (1896). From the fall of a bale of hay. Dehring v. Corn- stock, 78 Mich. 153 (1889). From the fall of bricks from a new building. Sheridan v. Foley, 29 Vr. 230 (1895). Not from the fall- ing of a building injuring a work- man engaged in tearing the build- ing down. Weideman v. Tacoma Ry. &c.Co.,7 Wash. St. 517 (1893). From the escape of electricity from a street railway injurying a horse, being driven on a public street, is presumptive proof of neg- ligence in the operation of the railway. Trenton Passenger Ry. Co. V. Cooper, 31 Vr. 219 (1897). From the blowing of a locomo- tive whistle loudly and repeatedly under a bridge constantly used by all kinds of vehicles. Mitchell v. Nashville &c. Ry. Co., 100 Tenn. 329 (1897). 91 Carmody v. Boston Gas Light Co., 162 ^Mass. 539 (1895). See Ottersbach v. Philadelphia, 161 Pa. St. Ill (1894); Citizens Gas Light &c. Co. V. O'Brien, 118 111. 174 (1886); Schmeer v. Gas Light Co., 147 N. y. 529 (1895). 92 Servant was injured by the explosion of pipes while refining crude oil. Bahr v. Lombard &c. Co., 24 Vr. 233 (1890). See Illi- nois Central R. R. Co. v. Phillips, 55 111. 194 (1870). From defects in approaches to stations, stairways or station platforms, sleet and sno-w on the stairway of a station. Kelly V. Manhattan Ry. Co., 112 N. Y. 443 (1889). From fall of a bust in a hall. Kendall v. City of Boston, 118 Mass. 234 (1875). In- juries to adjoining property from an explosion on premises ad- jacent thereto. Cosuhch v. Stand- ard Oil (Bo., 122 N. Y. 118 (1890); Losee v. Buchanan, 51 N. Y. 476 (1873), distinguishing Hay v. Cohoes Co., 2 id. 159 (1849). Ex- plosion of dynamite on a car in defendant's yard. Walker v. Chi- cago &c. Ry. Co., 71 Iowa, 658 (1887). Explosion of a steam boiler injuring an employe. Huff V. Austin, 46 Ohio St 386 (1889); Oliver v. Whitney Marble Co., 103 N. Y. 292 (1886); Young v. Brans- ford, 12 Lea, 232 (1883); Snod- grass V. Carnegie Steel Co., 173 Pa. St. 228 (1896). Collision of steam car with horse car, in which plaintiff was riding, no presump- tion of negligence against the non- carrying company. Philadelphia &e. R. R. Co. V. Boyer, 97 Pa. St. 91 (1881). Bridge giving way by an extraordinary flood. Livezey v. Philadelphia, 64 Pa. St. 106 (1870). Plaintiff struck by something in defendant's store. Huey v. Gahl- enbeck, 110 Pa. St. 238 (1888). Negligence will not be presumed from the mere fact that a horse runs away. McCauley v. Mayor &c. of New York, 67 N. Y. 602 (1876). ■236 Evidence — Proof. inferences or deductions made from the facts proven in the case, links in the chain of evidence. In the reports there are many illustrations of this branch of the law of evidence applied by the courts to accident cases.®^ When the injury is proved to have been caused by an engine and car while being operated 93 If there is any presumption •of law in such matters, it is that all parties act with ordinary care, ^nd such presumption continues until overthrown by evidence. Spears v. Chicago &c. R. K. Co., 43 Neb. 720 (1895). The presumption is, until the contrary is shown, "that every man has performed his duty. Cosulich v. Standard Oil ■Co., 122 N. Y. 118 (1890); HufC v. Austin, 46 Ohio St. 386, 387 (1889); St. Louis &c. Ry. Co. v. Weaver, 35 Kan. 412, 424 (1886). Of love of life and instinct of self-preser- vation. Cleveland &c. R. R. Co. v. Rowan, 66 Pa. St. 393 (1870). Known disposition of men to avoid injury to themselves. Northern Central Ry. Co. v. State, 31 Md. 357 (1869). That a traveller did stop, look and listen upon cross- ing a railroad track and will pre- vail in the absence of direct testi- mony on the subject. Wynning v. Detroit R. R. Co., 64 Mich. 93 <1887); Chicago &c. Ry. Co. v. Hinds, 56 Kan. 758 (1896); Texas &c. R. R. Co. V. Gentry, 163 U. S. 353 (1896). Contra, Tucker v. New York &c. R. R. Co.. 124 N. Y. 308 (1891). From the fact that the de- fendant owned tlie horses that did the injury it was presumed that those in charge of them were de- fendant's servants. Norris v. Kohler, 41 N. Y. 42 (1869). That truck had defendant's name on it. Seaman v. Koehler, 122 N. Y. 646 <1890). There is no presumption that a gas lamp in a city is lighted at night. Fisher v. Rankin, 78 Hun, 407 (1894). A cable of an elevator in use three or four years without accident will not justify a presumption that it will con- tinue so. Goodsell v. Taylor, 41 Minn. 207 (1889). Starting of horses while a passenger is get- ting into or out of a coach creates a presumption either that the driver was careless, or the horses not safe and steady. Roberts v. Johnson, 58 N. Y. 613 (1874). When a train of cars stops at or about the usual time and place after the announcement of a sta- tion, a traveller is justified in pre- suming it is for the discharge of passengers. McNulta v. Bnsch, 31 111. App. 100 (1888); Richmond &c. R. R. Co. V. Smith, 92 Ala, 237 (1890). It is presumptively a neg- ligent act for a passenger to at- tempt to alight from a moving train. Burrows v. Erie Ry. Co., 63 N. Y. 556 (1876). A person at- tempting to cross a steam railroad track has a right to presume that the railroad company will give the signals required by law. Texas &c. R. R. Co. V. Spradling, 72 Fed. Rep. 152 (1896); 18 C. C. A. 496, Or that a railroad company will obey an ordinance limiting the speed of trains in a city. Kellny V. Missouri Pac. Ry. Co., 101 Mo. 67 (1890). Passengers on boats protected by chains or other guards have a right to assume, when the chain or guard is let down, that It is safe for them to proceed. Ferris v. Union Ferry Co., 36 N. Y. 312 (1867). Evidence — Pkoof. 23T on the defendant's track, it is unnecessary to prove the owner- ship of such engine and car, or that the persons operating them were the servants of the defendant, they are presumed to be- long to, and to be employed by, the defendant.** § 187. Presumption that streets and sidewalks are free from pitfalls. — When persons are injured, while passing on streets or sidewalks, by obstructions or pitfalls illegally placed or made therein, it is to be presumed that such streets and sidewalks are free from obstructions or pitfalls their full width.®' A person walking along the sidewalk of a street in a city, not near a crossing, has a right to assume chat the place is safe.®® § 188. Evidence of precantions taken after an accident, is not admissible. — Precautions taken subsequent to the alleged neg- ligent act which caused the injury are inadmissible in evidence for the purpose of showing antecedent negligence.®^ On this point there is a contrariety of decisions and reasoning by the courts, but it now seems to be settled by the weight of authority and the trend of recent decisions of the highest courts of most of the States in which the question has arisen in favor of the rule, that precautions taken subsequent to an accident do not involve an admission that prior precautions were insufficient.®* The Supreme Court of Minnesota at first followed the rulings of the Pennsylvania courts, which have held that repairs, after 94 Lake Erie &c. R. K. Co. v. Neg. (5th ed.), § 60; Mullen v. St. Carson, 4 Ind. App. 185 (1891). John, 57 N. Y. 567 (1874); McKune 95Durant v. Palmer, 5 Dutch, v. Santa Clara Valley Mill &c. 544 (1862); Noblesville Gas &c. Co. Co., 110 Cal. 480 (1895). V. Loehr, 124 Ind. 79 (1890). 97 Nally v. Hartford Cai-pet Co., 96 Barry v. Terkildsen, 72 Cal. 51 Conn. 524, 527 (1884); Columbia 254 (1887). He must use such care &c. R. R. Co. v. Hawthorne, 144 and circumspection as the circum- U. S. 202 (1891); Hart v. Lanca- stances require. Quimby v. Filter, shire &c. Ry. Co., 21 L. T. (N. S.) Vr. ; 2 Mun. Corp. Cas. 23, 261 (1869) ; Hager v. Southern Pac. n. (1899). When obstructions are Co., 98 Cal. 309 (1893); Cleveland placed In streets or sidewalks, it &c. R. R. Co. v. Doerr, 41 111. App. Is said, on such a state of facts, 530 (1891); Sievers v. Peters &c. the presumption is that the defend- Co., 151 Ind. 42 (1898). ant has violated the duty which 98 lb. ; Corcoran v. Village of the lawimposesupon hlm,of using Peekskill, 108 N. Y. 151 (1888); due care to keep his property off Getty v. Town of Hamlin, 127 id. the highway. Shearm. & Redf. on 636 (1891). 238 Evidence — Peoof. an accident, of a structure, the defects of which were the alleged cause of the injury, were evidence tending to show the previous unsafe condition of the thing repaired, provided the repairs or changes were made so soon after the accident, and under such circumstances as to indicate that they were sug- gested by it, and were done to remedy the defect which caused it.®* The question being again presented to the court, Mr. Jus- tice Mitchell, referring to its previous decisions, said: "But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is, on principle, wrong; not for the reason given by some courts, that the acts of the employes, in making such repairs, are not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others — the more likely he would be to do so — and it would seem unjust that he could not do so without being liable to have such acts construed as an ad- mission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence."^ Mr. Justice Loomis, speaking for the Supreme Court of Errors of Connecti- cut, said: " We may well adopt the reasoning of the Minnesota court as covering the entire ground in a few words. Courts 99 Where a platform was Shaber v. St. Paul &c. Ry. Cb., Id. changed. Pennsylvania R. R. Co. 103 (1881). To the same effect are V. Henderson, 51 Pa. St. 315 (1865). the Kansas cases: St. Louis &e. Where a railroad track was after- Ry. Co. v. Weaver, 35 Kan. 412 wards moved. West Chester &c. R. (1886); Atchison &c. E. R. Go. v. R. Co. V. McElwee, 67 Pa. St. 311 McKee, 37 id. 592 (1887). (1871). Where defendant after- i Morse v. Minneapolis &c. Ry. wards put a light at the opening Co., 30 Minn. 465, 468 (1883). To of a cellar. McKee v. Bidwell, 74 the same effect are Taylor v. City Pa. St. 218 (1873), followed in of Austen, 82 Minn. 247 (1884); O'Leary v. City of Mankato, 21 Day v. Akeley Lumber Co., 54 Minn. 65 (1874); Kelly v. Southern Minn. 522 (1893). Minnesota Ry. Co., 28 Id. 98 (1881); Evidence — Pkoof. 239 that have taken a different view of this question seem to us to have overlooked the changed conditions under which the acts subsequent to the accident have been done. The fact that an accident has happened, and some person has been injured, im- mediately puts a party on a higher plane of diligence and duty, from which he acts with a view of preventing the possibility •of a similar accident, which should operate to commend rather than condemn the person so acting. If the subsequent act is made to reflect back upon the prior one, although it is done upon the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negli- gence which has no business there, not being in existence at -the time."^ § 189. Evidence of precautions taken after an accident, is not admissible — Continued — The same principle has been adopted in Iowa, although it would seem to be placed upon the narrow ground that such acts, having been done by agents of the de- fendant, were not binding on the latter, because not contempo- raneous with the injury complained of, where it was held that evidence that a sidewalk had been subsequently repaired was not admissible as an admission of negligence at the time of the accident.* So, after the accident, evidence that the engineer had been discharged by the defendant was not admissible as tending to show that he was incompetent or careless.* But if the jury is permitted to view the premises, it is proper to show that the gates at the crossing were erected subsequent to the accident." The same rule has been adopted by the Court of Appeals of New York, where it was held incompetent to show 2 Nelly T. Hartford Carpet Co., b Lederman v. Pennsylvania K. 51 Conn. 524, 531 (1884). In this B. Co., 165 Pa. St. 118 (1895). Or case It was held that evidence of If the defendant attempts to show safeguards placed at the place of that no similar accidents have danger, after the accident, was in- happened since the one under in- admissible, vestigation, the plaintiff may a Cramer v. City of Burlington, show that it is due to subsequent 45 Iowa, 627 (1877); Hudson v. improvements. Tetherow v. St. Chicago &c. R. B. Co., 59 Id. Joseph &e. R. E. Co., 98 Mo. 74 581 (1882); Beard v. Guild, 107 id. (1888). 476 (1899). 4 Couch V. Watson Coal Co., 46 Iowa, 17 (1877). 240 Evidence — Proof. that a truss bridge of wood was, a few months after the acci- dent, replaced by a wider one of iron trusses.^ Nor is evidence of floods admissible subsequent to the one which occasioned the injury.'' 6 Dale V. Delaware &c. R. B. T Kansas Pae. Ry. Co. v. Miller, Co., 73 N. Y. 468 (1878). It may be 2 Colo. 442 (1874); Denver &c. R. an admission that the former B. Co. v. Morton, 3 Colo. App. 155 bridge was Improperly con- (1893). The same principle has structed, but not that the defects been followed in: were attributable to negligence. Kentucky: Standard Oil Co. v. Corcoran v. Village of Peekskill, Tlerney, 14 L. R. A. 677 (1891). 108 N. Y. 151 (1888). Same prln- Indiana: Terre Haute &c. R. R. clple, space on a boat afterwards Co. v. Clem, 123 Ind. 15 (1889); boarded up. Dougan v. (^hamplain Sievers v. Peters &c. Co., 151 id. Transportation Co., 56 N. Y. 1 42 (1888). (1874). Scow was towed at less Illinois: Hodges v. Percival, 132 speed after the accident than be- 111. 53 (1890). fore. Baird v. Dalj', 68 N. Y. 547 Michigan: Lombar v. Elast (1877). Repairs in a derrick. King Tawas, 86 Mich. 14 (1891); Ful- V. New York &c. R. R. Co., 4 Hun, ton Iron &c. Works v. Township 769, 776 (1875). New planks placed of Kimball, 52 Id. 146 (1888). at a railroad crossing. Payne v. Massachusetts: Shinners v. Pro- Troy &c. R. R. Co., 9 Hun, 526 prietors &c. Canals, 154 Mass. 168 (1877); Harvey v. New York Cen- (1891). tral &c. R. R. Co., 19 id. 556 (1880). Missouri: Ely v. St. Louis &c. Railing placed on a bridge. Mor- By. Co., 77 Mo. 34 (1882). rell T. Peck, 24 Hun, 37 (1881). Texas: Missouri Pacific Ry. Cb. New oilcloth placed upon the v. Hennessey, 75 Tex. 155 (1889); stairs. Henkel v. Murr, 31 Hun, 28 Gulf &c. Ry. Co. v. McGowan, 73 (1883). Evidence that, since the oc- id. 355 (1889). currence, cinders had not fallen to Wisconsin: Lang v. Sanger, 76- 80 great an extent as before, admit- wis. 71 (1890) ; Heucke v. Mil- ted. Searles v. Manhattan Elevated waukee City Ry. Co., 69 id. 401 Ry. Co., 17 Jones & S. 425 (1883). (1887); Anderson v. Chicago &c. Evidence of vicious acts of horses, Ry. Co., 87 id. 195 (1894); Elliott both before and after the accl- on Roads & Streets, 647. Though dent, admissible. Kennon v. Gil- It was held competent to show mer, 5 Mont. 257 (1884). Dis- that a railroad company, imme- charge of a driver, whose negli- diately after the accident, em- gence is the alleged cause of the ployed an additional switchman, accident, admissible. Martin v. Harvey v. New York Central, etc., Fowle, 59 N. H. 31 (1879), over- R, R^ Co., 19 Hun, 556 (1880). ruled by Aldrich v. Concord &c. R. R. Co., 29 Atl. Rep. 408. Evidence — Peoof. 241 § 190. Evidence of previous similar accidents — Conflicting de- cisions. — Evidence of previous similar accidents at the same place is not admissible.® Where the condition of a sidewalk is in issue, it has been held, by a class of cases, that proof of the happening of a prior accident in the same place- is compe- tent upon the ground that it tended to show that the walk, tested by actual use, had been demonstrated to be in an unsafe and improper condition, and that such was its condition at the time the accident occurred.® In ISTew Jersey, it was held in- competent for the defendant to show that over ten thousand persons had passed and repassed, without accident, an area open- ing into a public street, every year since it had been built. ^^ In the Xew Jersey case it is said, the evidence competent to prove or disprove the matter in issue, when an action is brought to recover compensation for injiiries sustained by falling into an excavation of this kind, is as to the character of the footway, the situation of the area with reference to it, and the means 8 Hudson V. Chicago &c. R. R. Co., 59 Iowa, 581 (1882); Davis v. Oregon &c. R. R. Co., 8 Or. 172 (1879); Grand Rapids &c. R. R. Co. v. Huntley, 38 Jlich. 537 (1878); Parlier v. Portland &c. Co., 69 Me. 173 (1879); Whitney y. Gross, 140 Mass. 232 (1885) ; Menard v. Boston &e. R. R. Co., 150 id. 386 (1890). See 1 Thomp. on Neg. 801; Shearm. & Redf. on Neg. (5th ed.), § 60b. Contra, Galveston &e. Ry. Co. v. Evaniseh. 63 Tex. 54 (1885); City of Indianapolis v. Emmelman, 108 Ind. 5.30 (1886); Field v. Davis, 27 Kan, 400 (1882). 9 Gillrie v. City of Lockport, 122 N. Y. 403 (1890); District of Colum- bia V. Armes, 107 U. S. 519 (1882); Quinlan v. City of Utica, 11 Hun, 217 (1878) ; Lombar v. East Tawas, 86 Mich. 14 (1891) ; Hubbell v. City of Tonkers, 104 N. Y. 434 (1887); id. 459 (1887); Ester v. City of Seattle, 18 Wash. St. 304 (1897). To make such evidence competent similar conditions should be 16 shown. Ster v. Tuety, 45 Hun, 49 (1887). Evidence that other sidewalks in the " locality near " were out of repair is inadmissible. Ruggles V. Town of Nevada, 63 Iowa, 185 (1884); City of Bloom- ington V. Legg, 151 111. 9 (1894). 10 Temperance Hall Assn. v. Giles, 4 Vr. 260 (1869i). Approved in Anderson v. Taft, 39 Atl. Rep. 191; Sup. Ct. R. I., Jan. 13, 1898, where it was held that the high- way on which plaintiff was injured had been used in the same con- dition it was in on the night of the accident for twenty years, without accident, is incompetent on the question of negligence. A number of cases are cited by Mat- teson, C. J., for and against the admission of such evidence, and the rule which rejects such evi- dence is said to be founded on the soundest principles. Approved in Moore v. City of Richmond, 85 Va. 538 (1888); Blair v. Pelham, 118 Mass. 420 (1875). 243 Evidence — Pkoof. that have been taken to protect such persons as lawfully might use it, from the danger of being accidentally precipitated into it. These are all matters of fact, susceptible of direct proof. It would not be competent for the party suing to prove, as tending to show that it was a nuisance, that at other times other persons fell into the excavation. Nor is it competent for the defendant to introduce evidence that other persons, at other times, when the area was in the same condition, passed the place complained of without receiving any injury. The reason for excluding all evidence of this character is, that it would lead to the trial of a multitude of distinct issues. ^^ In a case in Minnesota, where the sufficiency or safety of the instrument which is claimed to have caused the accident is in issue, evidence of similar accidents, resulting from the same cause, was held com- petent. Such facts are, in their nature, experiments to show the actual condition of the instrument.-'^ So where the plain- tiff's sleigh was upset by striking against a street railroad switch, evidence of other accidents happening at the same place was held admissible.-'^ In Texas the testimony of a witness to the effect, that another child had been hurt on the same evening, that plain- tiff was injured, was held admissible, in an action for damages for injuries done to a child, by the failure of a railroad company to secure properly its turntables.-'* In Montana it was held that, in an action to recover damages for injiiries occasioned by the upsetting of the defendant's coach, evidence of former acci- dents, occurring with the same driver, was admissible to prove a bad condition of the road, or a want of familiarity with it, but not to prove his negligence at the time of the accident.-'® 11 Temperance Hall Assn. v. R. Co., -83 N. Y. 121 (1880). So Giles, 4 Vr. 260, 264 (1869); Mar- evidence was admitted to prove vin V. City of 'New Bedford, 158 that since the occurrence cinders Mass. 464 (1893). had not fallen to so great an ex- 12 Morse V. Minneapolis &c. By. tent as before. Searles v. Manhat- Co., 30 Minn. 465 (1883). See St. tan Elevated Ry. Co., 17 Jones & I.ouis &c. Packet Co. v. Keokuk S. 425 (1883). See Bo-wer v. Chi- &c. Co., 31 Fed. Rep. 755 (18S7). eago &c. Ry. Co., 61 Wis. 457 So it -was hfeld not error to intro- (1884). duce evidence to' show that no i* Galveston &e. Ry. • Co. v. similar accident had happened for Evanlsch, 63 Tex. 54 (1885). five or six years. Field v. Davis, is Higley v. Gilmer, 3 Mont. 90 27 Kan. 400 (1882). (1878). Not competent to show 13 -^Vooley V. Grand Street &c. B. that others had passed over the Evidence — Peoof. 243 § 191. Is admissible against municipal corporations to prove notice. — In actions against municipal corporations, for injuries caused by defects in highways, it has been held ia many cases that evidence of previous accidents occurring at the same place is competent, as showing that the municipal authorities had notice of its dangerous condition.-^^ So where a dangerous place has been made in a street by a third person, and left unguarded by the municipality, evidence as to the condition of the street and the absence of lights prior to the accident, is admissible, as tending to show knowledge of the danger and defect on the part of the municipality.^^ § 192. Former safety of a structure, appliance or machine. — There is a class of cases which hold that it is competent to show that no previous accident has resulted in actual practice from the use of the particular structure, appliance or machine.^^ sidewalk without injury. Bauer v. City of Indianapolis, 99 Ind. 56 (1884). Or the absence of casual- ties on other railroads. Louisville &c. R. E. Co. V. Commonwealth, 80 Ky. 143 (1882). Nor to show other defects at other places in a railroad. Morse v. Minneapolis &c. Ky. Co., 30 Minn. 465 (1883). Contra, for the purpose of showing that the company did not take due care of its road. Texas &c. Ry. Co. V. De Milley, 60 Tex. 194 <1883) ; Mobile &c. R. R. Co. v. Ash- craft, 48 Ala. 15 (1872). Nor to show that a sidewalk was visibly out of repair in the " locality " near where the accident occurred. Ruggles V. Town of Nevada, 63 Iowa, 185 (1884). Testimony as to the condition of the street at places other than the place of the accident is inadmissible, but testi- mony showing the condition of the track at and near the place of the accident within a year is admis- sible. Cunningham v. Fair Haven &c. R. R. Co., Conn. ; 43 Atl. Ren. 1047 (1899). 16 Burrows v. Village of Lake Crystal, 61 Minn. 357 (1895); Dis- trict of Columbia v. Armes, 107 U. S. 519 (1882); City of Bloom- ington V. Legg, 151 111. 9 (1894); Alberts v. Village of Vernon. 96 Mich. 549 (1893); Golden v. City of Clinton, 54 Mo. App. 100 (1893); City of Goshen v. England, 119 Ind. 368 (1889); Smith v. City of Des Moines, 84 Iowa, 685 (1892); Ester V. City of Seattle, 18 Wash. St. 304 (1897); Elliott on Roads & Streets, 646. 17 Pettingill v. City of Yonkers, 116 N. Y. 558 (1889). 18 From a float-bridge used to land passengers from a ferry-boat. Loftus V. Union Ferrying Co., 84 N. Y. 455 (1881). An attachment to a bridge Birmingham v. Rome &c. R. R. Co., 137 N. Y. 13 (1893). A supporting hook of a car de- scending in a mine. Burke v. Witherbee, 98 N. Y. 562 (1885). Platform of a station. Lafilin v. Buffalo &c. R. R. Co., 106 N. Y. 136 (1887); Brady v. Manhattan Ry. Co., 127 id. 46 (1891); Mis- souri Pacific Ry. Co v. Neis- wanger, 41 Kan. 621 (ia89). 244 Evidence — Pkoof. Experimental tests, made after an accident, upon a boiler sim- ilar in construction to the one in question, are admissible in evidence for tbe purpose of showing that the defendant was not negligent in the inspection of the boiler which exploded.-^® Evi- dence was admitted to show that since the occurrence cinders from a locomotive on an elevated railroad had not fallen to so great an extent as before.^* Judge Ray, in his book on Negli- gence of Imposed Duties,^^ says the decisions may, perhaps, all be harmonized by the rule that experiments as to matters within the range of ordinary knowledge or experience will be admitted while others will be excluded. Experiments, to be admissible, must be based on conditions similar to those existing in the case on trial.^^ § 193. A cust'om cannot justify or prove negligence. — A cus- tom or usage cannot be invoked to justify a negligent act;^* hence evidence offered for that purpose is inadmissible. Such evidence would be, in effect, an excusing of defendant's negli- gence, by showing a custom to be equally negligent.^ Nor- 19 Bradley v. Hartford Steam Boiler &c. Co., 19 Fed. Rep. 246 (1883). 20 Searles v. Manhattan Ele- vated Ry. Co., 17 Jones & S. 425 (1883). 21 § 189b. 22 Leonard v. Southern Pacific R. E. Co., 21 Or. 555 (1892). Experi- ment of a witness in placing his .foot between the rails; must use the shoe worn by the deceased. Brooke v. Chicago &c. Ry. Co., 81 Iowa, 504 (1890). Jury not al- lowed to witness experiments with cars outside of the courtroom. Smith V. St. Paul City Ry. Co., 32 Minn. 1 (1884). Or to allow the jury to witness the running of ma- chinery in their presence for the purpose of showing that the in- jury could not have occurred as al- leged. Kinney v. Follterts, 84 Mich. 616 (1891). 23 Central R. R. Co. v. De Bray, 71 Ga. 406 (1883): Wright v. Bai- ler, 42 Hun, 77 (1886); Chicago &c. Ry. Co. V. Carpenter, 12 U. S.. App. 392 (1893); Eppendorf v. Brooklyn City &c. R. R. Co., 69 N. Y. 195 (1877); Lawrence v. Hud- son, 12 Heisk. 671 (1874); Mason V. Missouri Pacific Ry. Co., 27 Kan. 83 (1882); Citizens Nat. Bank V. Third Nat. Bank, 19 Ind. App. 69 (1897); Crocker v. Schureman, 7 Mo. App. 358 (1879); Temper- ance Hall Assn. v. Giles, 4 Vr. 260- (1869). No usage or custom will justify an encroachment on a pub- He highway, or the presence therein of an obstruction which renders it unsafe for the uses tO' which it is dedicated. McNerney V. Reading City, 150 Pa. St. 611 (1892). 24 Cleveland v. New Jersey Steamboat Co., 5 Hun, 523 (1875). See .Tochem v. Robinson, 72 Wis- 199 (1888). Evidence — Peoos. 345 can the proof of a custom be adduced to show negligence,^ as in the case of a child playing on a railroad company's turn- table, the custom of other companies to keep their turntables locked does not make the first company negligent.^ At a known place of danger the absence of the usual and customary precautions may be shown as bearing upon the issue of negli- gence. Thus, where a collision occurred at a street crossing, evidence that a flagman had always been kept at the crossing, and that he was absent at the time of the accident, is compe- tent.^' So the usual and ordinary distance of erecting tell-tales from the bridge;^ so that it was the custom and usage of de- fendants' train to carry passengers and the usual stopping place of freight trains at the station.^® In Iowa, evidence was held admissible that it was an order and custom of a railroad com- pany to block all frogs for the purpose of showing that the com- pany conceded that unblocked frogs were dangerous.^" In Il- linois, it was held error to refuse an inquiry to be made as to the custom in the yard of a railroad company concerning the run- ning in of cars.*^ A custom which cannot be invoked to justify 25 Gulf &c. Ry. Co. V. Bvanisch, 28 Wallace v. Central Vt. R. R. 61 Tex. 3 (1884). Co., 138 N. Y. 302 (1893). 26 Gulf &c. Ry. Co. V. Evanisch, 29 McGee v. Missouri Pacific Ry. 61 Tex. 3 (1884). Not admissible Co., 92 Mo. 208 (1887); Schultz v. to show the customary speed of Chicago &c. Ry. Co., 44 Wis. 638 trains. Cleveland &c. R. R. Co. v. (1878). If the rules of the com- Newell, 75 Ind. 542 (1881). Or pany require trains to be run that people were accustomed to slowly on certain parts of the walk on a trestle, or that the de- track, and these rules have usually ceased was accustomed to jump been complied with, the public on trains to show contributory have a right to conclude that they negligence. Peoria &c. Ry. Co. v. will be observed. International &c. Clay berg, 107 111. 644 (1883). Or Ry. Co. v. Gray, 65 Tex. 32 (1885). that other lumber dealers were ac- See Sutherland v. Troy &c. R. R. customed to pile lumber in the Co., 74 Hun, 162 (1893). same manner. Earl v. Crouch, 16 so Coates v. Burlington &c. Ry. N. Y. Supp. 770 (1891). Co., 62 Iowa, 486 (1883). 27 McGrath v. New York &c. R. si Pennsylvania Co. v. Stoelke, R. Co., 63 N. Y. 522 (1876), dis- 104 111. 201 (1882). It was held tinguishing McGrath v. New York competent to show that many per- &c. R. R. Co., 59 id. 468 (1875), sons were accustomed to walk a which reversed 1 Hun, 437; 3 track or path whereon plaintiff was Thomp. & C. 776; see Casey v. New injured for the purpose of show- York &c. R. R. Co.. 78 N. Y. 518 ing a license. Townley v. Chicago <1879); Pittsburgh &c. Ry. Co. v. &c. Ry. Co., 53 Wis. 626 (1881); Yundt, 78 Ind. 373 (1881). Cassldy v. Oregon &c. Nav. Co., 14 346 Evidence — Proof. a negligent act or to establish a liability, is that custom which is defined as a rule of conduct which a given class of persons observe spontaneously or by tacit consent."^ It refers more particularly to a locality; it is not, and cannot be, in any sense a standard or measure of legal duty, and therefore is irrelevant at the trial on an issue of negligence as not possessing any evi- dential value for that purpose.^* § 194. TJsiial practice — Course of business — Experiments. — The usual practice of others in the same business or employment, under like circumstances, may be shown to indicate whether ordinary care was used in a special instance;^* as for example, when the act of the plaintiff was not negligence per se, it is competent to show that persons experienced in the performance of the same act, under similar circumstances, performed it as he did.^^ Wtat persons customarily do under similar circum- stances has no application, as a test of ordinary care, when the act is so obviously dangerous as to constitute negligence, as a matter of law.^® But when the sufficiency of the appliance or machinery or the adequacy of the method employed in doing a particular thing can be determined only by experiment, there is a class of cases which hold that it may be shown in evidence. Or. 551 (1887); Eckert v. St. Louis &c. Ry. Co., 32 Minn. 133 (1884); &c. Ry. Co., 13 Mo. App. 352 Cass v. Boston &c. R. R. Co., 14 (1883); Western &c. R. R. Co. v. Allen, 448 (1867); Holly v. Boston Meigs, 74 Ga. 857 (1885). The cus- Gas Light Co., 8 Gray, 123 (1857); torn of employes, or danger attend- Fuller v. Naugatuck R. R. Co., 21 ing a certain course of action, ad- Conn. 557 (1852); Belleville Stone missible to show contributory neg- Co. v. Comben, 32 Vr. 353 (1898). ligence. McKean v. Burlington See Grand Trunk R. R. Co. v. &c. R. R. Co., 55 Iowa, 192 (1880). Richardson, 91 V. S. 454 (1875); 32 Rapl. & L. L. Diet. (vol. 1), p. Chicago &c. Ry. Co. v. Clark, 108 331. A rule of law cannot be HI. 113 (1883); Chicago &c. Ry. Co. changed by any local custom, v. Carpenter, 12 U. S. App. 392 Wright V. Boiler, 42 Hun, 77 (1893); Jochem v. Robinson, 72 (1886). Wis. 199 (1888). 33 Evidence that it was usual 35 Prosser v. Montana Cent. R. for tovras in that county to leave R. Co., 17 Mont. 372 (1895). See drains uncovered is inadmissible. Lawson on Usages & Customs, p. Hinckley v. Inhabitants of Barn- 318; 27 Am. & Eng. Ency. of Law stable, 109 Mass. 126 (1872). (1st ed.), p. 902. 34Maynard v. Buck, 100 Mass. 36 Douglass v. Chicago &c. Ry. 40 (1868) ; Kolsti v. Minneapolis Co., 100 Wis. 405 (1898). Evidence — Peoof. 247 that the act from which the injury resulted was done in the usual and customary way. Thus the plaintiff may show that the uncoupling of cars, while in motion, was unusual.^'^ So it is competent for the defendant to introduce evidence of the mode generally adopted by prudent railroad men in switching their cars under like circumstances.^* It is competent to prove that the fastenings to the guard of a railroad turntable were simi- lar in character to those in general use on such turntables. ^^ So, the failure to adopt a known and uniform usage among travellers, in the management of loaded teams upon a steep part of a highway, is competent evidence of negligence.*" § 195. Admissions and declarations — In general. — Admissions and declarations are admissible in evidence, either because they are supposed to have been made against the party's interest, and are, therefore, probably true, or because they are so intimately connected and interwoven with the principal event, as to consti- tute a part of the res gestae. This is an exception to the gen- eral rule of hearsay evidence. Professor Greenleaf says they are more properly admissible as a siiistitute for the ordinary and legal proof, or on the grounds of public policy and conveni- ence.*' It is not within the scope or purpose of this book to treat at length this general principle in the law of evidence, which will be found in those standard works on the law of evi- dence;*^ but to present those cases in which the courts have ap- plied the principle to accident cases ; first, admissions and decla- rations made by the plaintiff against interest. A declaration made by the deceased immediately after the accident, that he had jumped from the car, is admissible as an admission against interest;*^ or of the cause of the injury;** or, by the plaintiff, 37 .Tefifrey v. Keokuk &c. Ry. Co., ing on the speed at the time of 56 Iowa, 546 (1881). the accident. Shaber v. St. Paul 38 By experts. Houston &c. Ry. &c. Ry. Co., 28 Minn. 103 (1881). Co. V. Cowser, 57 Tex. 293 (1882). u Greenl. on Ev., § 169; 1 Phill. 39 IColsti V. Minneapolis &c. Ry. on Ev., chap. 5, § 4. See Shearm. Co., 32 Minn. 133 (1884); Kelly v. & Redf. on Neg. (5th ed.), § 60a. Southern Minnesota Ry. Co., 28 id. 42 Greenl. on Ev., § 169; 1 Phill. 98 (1881). on Ev., chap 5, 5 4. 40 Aldrick v. Monroe, 60 N. H. 43 stein v. Grand Ave. Ry. Co., 118 (1880). Evidence of the cus- 10 Phila. 440 (1875). ternary speed at which locomo- 44 Entwistle v. Felghner, 60 tives of the defendant ran as bear- Mo. 214 (1875) ; Perlgo v. Chicago 248 Evidence — Proof. of the nature and extent of the injury;^" but the declarations of a person injured, made to his physician, as to the cause of such injury, was held inadmissible.*® Admissions and declara- tions made by the defendant against his interest are admis- sible in evidence against himself,*^ on the same principle that admissions of the plaintiff are received. But the admissions of one defendant in tort are not admissible against his co- defendant,** An admission of having caused the accident or casualty is not, necessarily, an admission of having been in fault.** An assignment by the defendant of all his property on the day after the accident, without any proof of consider- ation, except the recitals in the assignment, is evidence that the ■defendant was conscious of liability, and is admissible, the weight of which is to be determined by the jury.^*' § 196. Admissions and declarations by agents — Husbands and "wives. — Admissions and declarations by officers of a corpora- tion rest upon the same principle as apply to other agents.^^ Thus, if the agent of a railroad company be in the performance of a duty of the company, and while performing that duty, ■what he says as to any defect in the structure of the road is &c. R. R. Co., 55 Iowa, 326 (1880); so Banfleld v. Whipple, 10 Allen, Stowe V. Bishop, 58 Vt. 498 (1886); 27 (1865). Zemp v. Wilmington &c. R. R. Co., 5i Pennsylvania R. R. Co. v. 9 Rich. L. 84 (1855). Books, 57 Pa. St. 339 (1868). See 45 Gardner v. Bennett, 6 Jones & Alabama &c. R. R. Co. v. Hawk, S. 197 (1874). See Firkins v. Chi- 72 Ala. 112 (1882). Statements of cago &c. Ry. Co., 61 Minn. 31 the general manager of a railroad. (1895). Krogg v. Atlanta &c. R. R. Co., 77 46 Illinois Central R. R. Co. v. Ga. 202 (1886). Declarations of a Sutton, 42 111. 438 (1867). lineman of a natural gas company. 47 De Benedetti v. Mauchin, 1 Baker v. Westmoreland Gas Co., Hilt. 213 (1856). 157 Pa- St. 593 (1893). Declara- 48 De Benedetti v. Mauchin, 1 tions and admissions of a public Hilt. 213 (1856); 1 Phlll. on Ev., officer are inadmissible to bind a chap. 5, § 4, p. 93. municipal corporation of which he 49 Lansing v. Stone, 37 Barb. 15, is the agent unless they are part 20 (1862) ; 14 Abb. Pr. 199. Al- of the res gestae. Cortland County though an admission of liability is v. Herkimer County, 44 N. Y. 22 evidence of the fact of negligence, (1870). Nor his acts subsequent to it does not in itself create liability the event in controversy. Clapper apart from the facts. Swift Elec- v. Town of Waterford, 131 N. T. trie Light Co. v. Grant, 90 Mich. 382 (1892). 469 (1892). Evidence — Peoof. 249 res gestae as to such defect, and his admissions are the admis- sions of the corporation;^^ or a declaration made by a motor- man, of an electric car, while the car was still on the body of one whom he had run down, that the reason he did not stop Avas that he could not reverse the car, is admissible in evidence as part of the res gestae in a suit for the injury.°^ Admissions made by a husband against his wife,^ or admissions made by a wife, in an action by her husband for an injury, that the de- fendant was free from negligence, are not competent evidence. ^^ § 197. Declarations as part of the res gestae — The rule stated. — The rule to test the admissibility of declarations, on the ; ground that they are part of the res gestae, was stated by Mr. Justice Fletcher, of the Supreme Judicial C'ourt of the State of Massachusetts, thus: " It is a well-established principle of the law that declarations which form a part of the res gestae, and are to be considered as a part of the transaction, do not come under the head of hearsay, but are admissible as original ■evidence. This is a settled general rule, but, like other general rules, its application to particular cases is often attended with miuch doubt and difficulty; but it is wholly impracticable to bring this class of cases within the limits of any clearly-defined and positive rules. There are, however, certain principles and tests, which are simple and intelligible, by which the admis- sion of this kind of evidence must be determined. * * * When the act of a party may be given in evidence, his declara- tions, made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations, as a part of the transaction-, and the tendency of the contemporary declara- 52Krogg V. Atlanta &e. R. K. R. Co., 34 N. Y. 29 (1865). In an Co., 77 Ga. 202 (1886). action by a widow as administra- 53 Springfield Consolidated Ry. trix such declarations are admis- Co. v. Welsch, 155 111. 511 (1895). sible for the purpose of contra- 54 Keller v. Sioux City &c. R. R. dieting her testimony at the trial, Co., 27 Minn. 178 (1880); Louisville but not for the purpose of prov- &c. R. R. Co. v. Richardson, 66 ing negligence of the deceased. Ind. 43 (1879). Fitzgerald v. Town of Weston, 52 55 Stillwell V. New York &c. R. Wis. 354 (1881). 250 Evidence — Proof. tions, as a part of the transaction, to explain the particular fact, distinguish this class of declarations from mere hearsay. Such a declaration derives credit and importance as forming a part of the transaction itseK and is included in the surrounding cir- cumstances, "which may always be given in evidence to the jury with the principal fact. There must be a main or prin- cipal fact or transaction, and only such declarations are ad- missible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive sonie degree of credit from it. * * * In general, the res gestae mean those declarations and those surrounding facts and circum- stances which grow out of the main transaction. The main transaction is not necessarily confined to a particular point of time, but may extend over a longer or shorter period, accord- ing to the nature and character of the transaction * * * to be admissible, they must be contemporaneous with the main fact or transaction; but it is impracticable to fix, by any general rule, any exact instant of time, so as to preclude debate and conflict of opinion in regard to this particular point."®® § 198. Declarations as part of the res gestae — Continued — In statutory actions for causing death. — Proximity in time with the act causing the injury is essential to make what was said by a third person competent evidence as part of the res gestae : B6 Lund V. Inhabitants of Tyngs- ter the accident to the effect that borough, 9 Gush. 36, 41, 42 (1851). there was a long train; that he Cited with approval by Earl, J., waited for it to go by, and was of the New York Court of Appeals struck by an engine which fol- in Waldele v. New York &c. R. R. lowed, held, not admissible. Re- Co., 95 N. Y. 274, 278 (1884). In versing 29 Hun, 35, for admitting the Massachusetts case declara- such testimony. For other cases tions of a physician, made at the and authorities see Commonwealth time of his examination of an in- v. M'Pike, 3 Cush. 181 (1849) ; jury, offered to show the nature Travellers Ins. Co. v. Mosley, 8 and extent of the injury, although Wall. 397 (1869); Hanover R. R. the physician be dead at the time Co. v. Coyle, 55 Pa. St. 396 (1867); for trial, was held inadmissible, 1 Greenl. on Ev., § 108; 1 Stark, not being a part of the res gestae, on Ev., § 28; 1 Phlll. on Ev. (5th In the New York case an educated Am. ed.), p. 231; Baltimore &e. R. deaf-mute was found injured by R. Co. v. Chambers, 81 Md. 371 the side of a railroad track. Dec- (1895) ; Elliott on Roads & Streets, larations made by him by means 644. of signs about thirty minutes af- Evidence — Proof. 251 that alone is insufficient; it must be part of the principal fact and so part of the act itself, that is, naturally accompanying the act or calculated to unfold its character and quality.^''^ Declarations which are merely narrative of a past transaction are not admissible as part of the res gestae f^ they must stand in immediate casual relation to the act.°® The reported cases illustrate the difficulty of applying this principle in the law of evidence to accident cases correctly. It is one thing to define a principle of law with precision and quite a different matter to apply it well. In the following cases declarations were held admissible as part of the res gestae. _ A declaration of the deceased as to the cause of the injury, made at the time and place of the occurrence;'"' so words spoken by a driver in his effort to control a runaway horse are admissible in evidence as part of the res gestae, on the trial of an action for damages for injuries resulting from the frightening of the horse.®^ Such admisi?ions and declarations, when admitted by the court, should be considered by the jury in connection with all the circumstan- ces under which they were made;*^ they are not conclusive.^' In actions brought under the statute for causing the death of a human being, declarations of the deceased, if not admissible as part of the res gestae, are not admissible in favor of the defendant as admissions, since the plaintiff in such case does 57 Butler V. Manhattan Ky. Co., though some little time may have 143 N. Y. 417 (1894). An exclama- intervened. Harriman v. Stowe, 57 tion of pain made immediately af- Mo. 93 (1874); Entwistle v. Feigh- ter the blow to which the guard ner, 60 id. 214 (1875); Casey v. made an insulting reply, such re- New York &c. R. R. Co., 78 N. Y. ply was held inadmissible, not 518 (1879); Elkins v. McKean, 79 being a part of the res gestae. Ala- Pa. St. 493 (1875) ; Brownell v. bama &c. R. R. Co. v. Hawk, 72 Pacific R. R. Co., 47 Mo. 239 (1871); Ala. 112 (1882). Whart. on Ev., § 263. Intestate 58 Waldele v. New York &c. R. immediately after the accident said R. Co., 95 N. Y. 274 (1884); Rock- he had jumped from the car. Stein well V. Taylor, 41 Conn. 55 (1874); v. Grand Ave. Ry. Co., 10 Phila. Cleveland &c. R. R. Co. v. Mara, 440 (1875). 26 Ohio St. 185 (1875). ^i Trenton Pass. Ry. Co. v. 59 Whart. on Ev., § 259. Cooper. 31 Vr. 219 (1897). 60 Stoeckman v. Terre Haute &c. 62 Perigo v. Chicago &c. R. R. R. R. Co., 15 Mo. App. 503 (1884). Co., 55 Iowa, 326 (1880). Where such declarations formed 63 Funston v. Chicago &c. Ry. connecting circumstances, al- Co., 61 Iowa, 452 (1883). 252 Evidence — Pkoof. not claim in the right of the deceased but upon a new cause of action.^* § 199. Declarations as part of the res gestae — Applications of the rule. — Declarations and admissions of servants, agents or superintendents of the plaintiff or defendant are ad- missible in favor of either party, if part of the res gestae,^ or if made at the time of the casualty, while acting within the scope of their agency®® for the party against whom they are offered.®^ The declarations of the conductor a few moments before the collision, stating what precautions, if any, he had taken to guard against danger, were held admissible.®^ 64 Tiffany on Death by Wrong- run down, are admissible. Spring- ful Act, § 194; City of Bradford v. field Consolidated Ey. Co. v. Downs, 126 Pa. St. 622 (1889); Welsch, 155 111. 511 (1895). In the Pennslyvania Co. v. Long, 94 Ind. following cases such declarations 250 (1883); Stein v. Railway Co., or admissions held not admissible: 10 Phila. 440 (1875). Contra, Perigo Of an engineer a few days after V. Chicago &c. R. R. Co., 55 Iowa, the accident. Robinson v. Fitch- 326 (1880); Lord v. Pueblo &c. Re- burg &c. R. R. Co., 7 Gray, 92 fining Co., 12 Colo. 390 (1880). (1856); Huntington &c. R. R. Co. 65 Hanover R. R. Co. v. Coyle, v. Decker, 82 Pa. St. 119 (1876); 55 Pa. St. 396 (1867); Pennsylva- Michigan Central R. R. Co. v. Gou- nia R. R. Co. v. Books, 57 id. 339 gar, 55 111. 503 (1870). Statements (1868); MuUan v. Philadelphia &c. by conductor to fireman, at the Steamship Co., 78 id. 25 (1875); next station, after the accident. Ashmore v. Pennsylvania Steam Central R. R. Co. v. Kelly, 58 Ga. Towing &c. Co., 9 Vr. 13 (1875); 107 (1877). Statement by flagman Krogg V. Atlanta &c. R. R. Co., as to how far he had gone back to 77 Ga. 202 (1886). flag a coming train. Pennsylvania 66 Lafayette &c. R. B. Co. v. R. R. Co. v. Books, 57 Pa. St. 339 Bhman, 30 Ind. 83 (1868); Hun- (1868). Of a servant of a railroad tington &c. R. R. Co. v. Decker, company, while returning on the 82 Pa. St. 119 (1876); Darling v. train with the body of the de- Oswego Falls Mfg. Co., 30 Hun, ceased. Tanner v. Louisville &c. 276 (1883); Pennsylvania R. R. Co. R. R. Co., 60 Ala. 621 (1877); Belle- V. Books, 57 Pa. St. 339 (1868). fontaine Ry. Co. v. Hunter 33 67 Abb. Tr. Ev., p. 588 § 17. Ind. 335 (1870). Collision between 68 Chicago &c. R. R. Co. v. Hoi- two carriages, defendant's serv- land, 122 111. 461 (1887). See East ant said plaintiff was not to St. Louis Ry. Co. v. Allen, 54 111. blame. Lane v. Bryant, 9 Gray App. 27 (1894). Declarations of a 245 (1857). Statement made by motorman at the time of the injury engineer and printed in a news- and made at the time the car was paper soon after the accident. East still on the body of one whom it had Tennessee &c. R. R. Co. v. Eanes Evidence — Proof. 253 § 200. Dying declarations are not admissible in civil actions. — Dying declarations are not admissible in civil actions, unless they are part of the res gestae.^ § 201. Expert and opinion evidence — In general. — The general rule of law is, that witnesses must state facts within their knowl- edge, and not give their opinions or their inferences. To this rule there are some exceptions, among which is expert evidence. It is not sufficient to warrant the introduction of expert evi- 8 Baxt. 221 (1874). By conductor lost all control, and the connee- and engineer a " few minutes " tion cord got broke." Lissak v. after the accident. Alabama, Great Croker Estate Co., 119 Cal. 442 Southern R. B. Ck). v. Hawk, 72 (1897). Declarations, either of the Ala. 112 (1882). Made an hour wife or of the deceased himself, after the accident by an agent, made one or two days after the Aldridge v. Midland Blast Fur- accident, as to the manner in nace Co., 78 Mo. 559 (1883). Of which it occurred, are not admiS' captain, soon after the accident, sible for the defense as part of that place was dangerous. Ameri- the res gestae. Fitzgerald v. Town can Steamship Co. v. Landreth, of Weston, 52 Wis. 354 (1881). 102 Pa. St. 131 (1883). Declara- Person falling into a ditch when tions of the driver, to the owner in the act of landing from a car, of the carriage and team, after what he said immediately after- his return to the stable without wards, and while being helped out the injured person. Prideaux v. of the ditch, as to the cause of the City of Mineral Point, 43 Wis. 513 accident, is a mere account of (1878). An employe who was in- a past transaction. Cleveland &c. jured, and while he was being R. R. Co. v. Mara, 26 Ohio St. 185 taken out from under the car by (1875). Statements made by the which he had been injured, and deceased after he was removed to while he was being conveyed to a hotel. Chicago &c. Ry. Co. v. the switch-house, said: "I pulled Howard, 6 111. App. 569 (1880); the pin and made a grab for the Marshall v. Chicago &c. Ry. Co., car, and there was nothing there 48 111. 475 (1868). for me to grab," held, such decla- 69 Waldele v. New York &c. R. ration inadmissible. Martin v. R. Co.. 95 N. Y. 287 (1884); Chi- New York &c. R. R. Co., 103 N. cago &c. Ry. Co. v. Howard, 6 Y. 626 (1886). Declarations made 111. App. 569 (1880); Marshall v. twenty minutes after a collision Chicago &c. Ry. Co., 48 111. 475 between a locomotive and a (1868); Brownell v. Pacific R. R. buggy. Roach v. Western &c. R. Co., 47 Mo. 239 (1871); Spatz v. B. Co., 93 Ga. 785 (1894). Admls- Lyons, 55 Barb. 476 (1870); East sions by father of the person Tennessee &c. R. R. Co. v. Maloy, injured. Taylor v. Grand Trunk 77 Ga. 237 (1886); Greenl. on Bv., Ry. Co., 48 N. H. 304 (1869). One § 156; Phill. on Ev. (5th Am. in charge of an elevator said: "He ed.), p. 236. 254 Evidence — Phoof. dence that the witness may know more of the subject of inquiry and may better comprehend and appreciate it than the jury; but to warrant its introduction, the subject of the inquiry must be one relating to some trade, profession, science or art, in which persons instructed therein, by study or experience, may be sup- posed to have more skill and knowledge than jurors of average intelligence may be presumed generally to haveJ* Scientific opinions can only be founded on established facts." The testi- mony of experts is to be considered like other testimony, it is to be tried by the same tests, it is to secure as much weight and credit as the jury may deem it entitled to, when viewed in con- nection with all the other circumstances. Its weight and value are questions for the jury and not for the court.''* The interest of an expert affects the weight and not the legality of his testi- mony.^^ The line which divides a fact from an opinion cannot always be very clearly defined. '^^ Earl, J., speaking for the 'New York Court of Appeals, says : " "We think it should not be much encouraged and should be received only in cases of necessity.""* § 202. Who are experts — Illustrative cases. — A witness called to testify as an expert concerning an occupation, trade, 70 Ferguson v. Hubbell, 97 N. Y. 75 Ferguson t. Hubbell, 97 N. Y. 507, 512 (1884); Pennsylvania Co. 507, 514 (1884). Mr. Justice Peck- V. Conlan, 101 111. 93 (1881); Les- ham, of the New York Court of ter v. Town of Pittsfield, 7 Vt. Appeals, now a justice of the Su- 158 (1835); Muldowney v. Illinois preme Court of the United States, Central Ry. Co., 36 Iowa, 462 speaking of this subject, said: (1873); 1 Greenl. on Ev., § 440; El- "Expert evidence, so called, or, in liott on Roads & Streets, p. 050; other words, evidence of the mere 12 Am. & Eng. Ency. of Law (2d opinion of witnesses, has been ed.), p. 418. used to such an extent that the 71 Grand Rapids &c. R. R. Co. evidence given by them has come V. Huntley, 38 Mich. 537 (1878). to be looked upon with great sus- 72 Atchison &c. R. R. Co. v. picion by both courts and juries, Thul, 32 Kan. 255 (1884); Sand- and the fact has become very ers V. State, 94 Ind. 147 (1883); plain that in any case where opin- Sioux City &c. R. R. Co. v. Fin- ion evidence is admissible, the layson, 16 Neb. 578 (1884). jwirticular kind of opinion desired T3 New Jersey Zinc &c. Co. v. by any party to the investigation liehigh Zinc &c. Co., 30 Vr. 189 can be readily procured by paying <1896). the market price therefor." Rob- 74Yahn v. City of Ottumwa, 60 erts v. New York Elevated R. R. Iowa, 429 (1883). Co., 128 N. Y. 455, 464 (1891). Evidence — ■ Proof. 255 profession, science or art, requiring a particular kind of knowl- edge, skill or experience must, to be competent, show himself to be possessed of such knowledge, skill or experience.^® For that purpose it is the general practice of trial courts to permit the opposite counsel to first examine the witness at length, to show his qualification to testify concerning the subject-matter for which he was called. It is difficult, if not impossible, to lay- down any rule, applicable to all cases, as to what is or is not expert testimony,'^ or who is entitled to be considered an ex- pert in regard to any matter of science or skill; it cannot be determined by any precise rule; it is a question which must be left very much to the discretion of the trial judge, and his decision is conclusive unless clearly shown to be erroneous in matter of law.^* An electrical engineer and a mechanical engineer, who had experience in putting up electric lights of the kind in question, are competent witnesses, as experts, to describe the imperfections in the appliances by which an electric light lamp was suspended over a street.''® A carpenter and joiner, who had been connected with a street railway for four years, and had made turntables for it, is competent to testify as an expert, whether a certain turntable was safe or was the most approved turntable in general use.*" A witness, who has been employed in railroad work twenty-five years, part of the time in charge of a turntable, is competent to answer the ques- tion, " Would it be practicable to lock or frame turntables ? "*^ One practiced in building locomotives and in running them on trial trips is competent as an expert to testify as to the distance 78 Hinds T. Harbou, 58 Ind. 121 78 New Jersey Zinc &c. Co. v. (18T7); Chicago &c. K. R. Co. v. Lehigh Zinc &c. Co., 30 Vr. 189 Springfield &c. E. R. Co., 67 111. (1896); Still well &c. Mfg. Co. v. 142 (1873). Phelps, 130 U. S. 520 (1888); Rog- 77 Funston v. Chicago &c. Ry. ers on Exp. Test., § 22; Perkins Co., 61 Iowa, 452 (1883). A per- v. Stickney, 132 Mass. 217 (1882); son may be qualified to testify as Commonwealth v. Sturtivant, 117 an expert, either by study without id. 122 (1875). practice or practice without study, 79 Excelsior Electric Co. v. but not by mere observation, Sweet, 28 Vr. 224 (1894). without either study or practice. so Fitts v. Cream City R. E. Co., Wheeler &c. Co. v. Buckhout, 31 59 Wis. 323 (1884). Vr. 102 (1897); Laws, on Ex. & Sp. 8i Kolsti v. Minneapolis &c. Ey. Ev. p. 210. Co., 32 Minn. 133 (1884). 256 Evidence — Peoof. within which a train of cars may be stopped by a steam, brake.** An engineer who has planned and superintended the building of bridges may testify as to the probable cost of a bridge, though he has had no experience as a practical bridge builder; and this, though he has obtained the prices of the materials from persons dealing therein.*^ So, one who is conversant with, and has. had peculiar opportunities for observing cotton may express his opinion that it will burn with such rapidity that its extinguish- ment would be impossible.^ A practical miner, who has used blasting powder for years, and also large amounts of other powder, may be asked his opiiiion, based upon his experience^ as to the safety of that powder. ^^ Persons engaged about the business of transportation, such as railroad brakemen, and ex- perienced in railroad matters, may express opinions in matters involved within their line of experience.®^ § 203. Who are not experts — An experience of six months as agent for a life insurance company will not qualify a witness to testify as an expert as to the probabilities of life at a certain age.®^ Bralcemen, baggage-masters or conductors are not compe- tent to give their opinion as experts respecting the coupling of cars or the danger a brakeman would incur by attempting to make a coupling under certain circumstances.** § 204. What is the subject of expert testimony — Injuries. — Whether a railroad structure is such as to warrant fast travel 82 Eckert v. St. Louis &c. Ry. may be shown by a witness Co., 13 Mo. App. 352 (1883). See skilled in the business of railroad- Bellefontaine &c. K. E. Co. v. ing. Cincinnati &e. R. R. Co. v. Bailey, 11 Ohio St. 333 (1860); Smith, 22 Ohio St. 227, 246 (1871). Meagher v. Cooperstown &c. R. E. 83 Bryan v. Town of Branford, Co., 75 Hun, 455 (1804); Whart. 50 Conn. 246 (1882). on Ev., § 444. But a person not 84 Seals v. Edmondson, 71 Ala. connected with the managoment 509 (1882). of a train of cars and without ex- 85 Sowden v. Idaho Quartz Min- perience in the running and man- Ing Co., 55 Cal. 443 (1880). agement of trains, is not compe- 86 Fort Worth &c. Ey. Co. v.. tent to answer the question " How Thompson, 75 Tex. 501 (1889). long does it take to stop a train?" 87 Donaldson v. Mississippi, &c. Manhattan &c. Ry. Co. v. Stewart, R. R. Co., 18 Iowa, 280 (1865). 30 Kan. 226 (1883). What is a 88 Muldowney v. Illinois Central proper and what an improper Ry. Co., 36 Iowa, 462 (1873). place for the brakeman on a train Evidence — Proof. 357 is not usually a question for ordinary witnesses.^® What is\and what is not a proper place for a brakeman on a train of cars may be shown by a witness, skilled in the business of railroading.^" A locomotive engineer, who is shown to be acquainted with the business of running a locomotive, is competent to testify as an expert upon questions in respect to the management, control and running of trains.^^ A witness, shown to be an expert, may testify whether the turntable in question was one of the most approved turntables, as to defects therein and how they could be remedied f^ or where mere descriptive language is inadequate to convey to the jury the precise facts or their bearing on the issue, the description by the witness nrast of necessity be al- lowed to be supplemented by his opinion, in order to put the jury in a position to make the final decision of the facts.®* Evidence of medical experts, having knowledge of the case, as to the probability of a continuance of the injuries or of a recovery therefrom, is competent;** or that an injury re- ceived was the cause of the condition of the person injured, and that certain consequences in relation to his physical health and condition would follow as the result of the injury, as 89 Grand Rapids &e. E. R. Co. v. Huntley, 38 Mich. 537 (1878). 90 Cincinnati &c. R. R. Co. v. Smith, 22 Ohio St. 227 (1871). 91 Belief ontalne &c. R. R. Co. v. Bailey, 11 Ohio St. 333 (1860); Augusta &c. R. R. Co. v. Dar- sey, 68 Ga. 228 (1881); Eckert v. St. Louis &c. Ry. Co., 13 Mo. App. 352 (1883). 92 Pitts V. Cream City R. R. Co., 59 Wis. 323 (1884). So whether a blast could throw pieces of rock to a certain distance, being the distance at which the damage was done. Koster v. Noonan, 8 Daly, 231 (1879). 93Whitaker v. Campbell, 187 Pa. St. 113, 117 (1898). An opin- ion of the danger of cleaning the machine while the roller was in motion. 17 94 Griswold v. New York &c. R. R. Co., 115 N. Y. 61 (1889); Loiiis- ville &c. Ry. Co. v. Falvey, 104 Ind. 409 (1885). Or can say with reasonable certainty what will be the continuance of that condition in the ordinary and natural course of nature. Ayres v. Delaware &c. R. B. Co., 158 N. Y. 254 (1899). He may give an opinion as to the nature and extent of the injury, which is based, in part, on state- ments made to him by the injured person. Louisville &c. Ry. Co. v. Snyder, 117 Ind. 435 (1888); Cleve- land &c. R. R. Co. V. Newell, 104 id. 264 (1885); Consolidated Trac- tion Co. V. Lambertson, 30 Vr. 297 (1896). May give his opinion that plaintiff's injuries are permanent. Coyne v. Manhattan Ry. Co., 42 N. Y. Supp. 617 (1891). 258 Evidence — Peoof. indicated by such condition.*^ The opinions of medical ex- perts of what might follow or develop, or what was " very likely " to follow or develop, from personal injuries, are merely speculative or contingent as to the consequences and lack the requisite element of reasonable certainty to render them admissible as evidence.*® § 205. What is not the subject of expert testimony. — When the facts from which negligence is sought to be inferred are within the experience of all men of common education, the jury must determine the question of negligence without the aid of experts;®^ thus it is not the subject of expert testimony, whether 95Mc01ain v. Brooklyn City R. 81 Iowa, 313 (1890). It was held, in R. Co., 116 N. Y. 459 (1889). Or Mississippi, that it was not neces- may give an opinion as to the sary for a physician to be a gradu- cause of the injuries.- Donnelly v. ate of a medical college or have St. Paul City Ry. Co., 70 Minn, a license from a medical board to 278 (1897); Vosburg v. Putney, 86 practice, to render him compe- Wis. 278 (1893). Future conse- tent to testify as an expert. New quences, which are reasonably to Orleans &c. R. R. Co. v. Allbrit- be expected to follow an injury, ton. 38 Miss. 242 (1859). may be given in evidence. Strohm 96 Strohm v. New York &c. R. V. New York &c. R. R. Co., 96 R. Co., 96 N. Y. 305 (1884). See N. Y. 305 (1884). Other cases of Springfield Consolidated Ry. Co. v. medical experts. See Johnson v. Welsch, 155 111. 511 (1895). Evi- Central Vermont R. R. Co., 56 Vt. dence of future consequences 707 (1884); Alabama &c. R. R. Co. which are contingent, speculative V. Hill, 93 Ala. 514 (1890); Brant and merely possible is too un- V. City of Lyons, 60 Iowa, 172 certain, as the basis of ascertain- (1882); Grand Rapids &e. R. R. ing damages. Turner v. City o/ Co. V. Huntley, 35 Mich. 537 Newburgh, 109 N. Y. 301, 309 (1878); Louisville &c. Ry. Co. v. (1888). Wood, 113 Ind. 544 (1887). A 97 Shafter v. Evans, 53 Cal. 32 physician and surgeon cannot be (1878); New England Glass Co. v. asked if he would submit to such Lovell, 7 Gray, 319 (1851); Sioux an operation as he stated would City &c. R. R. Co. v. Finlayson, probably make a cure. Mont- 16 Neb. 578 (1884). Text-books re- gomery &c. Ry. Co. v. Mallette, lating to the effect of blindness in 92 Ala. 209 (1890). It is proper for horses are inadmissible in evi- a physician to state that his state- dence; it is not the subject of ex- ment of plaintiff's Injuries and pert testimony. Gould v. Scher- symptoms, and the absence of ex- mer, 101 Iowa, 582 (1897); 1 ternal appearances of injury, are Thompson on Neg. p. 513, § 16; 2 " consistent with his medical id. 799, § 14, note 2. Nor is opin- books." Blair v. Madison County, ion evidence competent as to the Evidence — Pboof. 359 at IS dangerous to leave a kerosene lamp burning in a telegraph office;^* or the speed of trains of cars;®® or how far one should retire from the track, to be out of danger from a passing train ;^ or that no railroad employe is required to get on and off a train while in motion;^ or that a sidewalk is in good repair;^ or whether a two-horse team could be turned in a certain road;* or whether leaving a horse imhitched in a millyard Avas the act of a careful and prudent man;^ or whether a signal was ^'reasonable or unreasonable," "prudent or extraordinary;"® or that a highway was or was not defective or dangerous where the accident happened ;''^ or the comparative danger of the place where the accident occurred and another place on the road;^ nor to state what cause or occasion he saw for the accident;® or whether a railroad crossing was dangerous;""* or whether the defendant lea^dng his horse tmhitched, under the circumstances, was the act of a careful and prudent man.^^ But witnesses safety of a bridge. Murray v. Board of County Commissioners, 58 Kan. 1 (1897). 98 Wood V. Chicago &c. Ry. Co., 51 Wis. 196 (1881). 99 Grand Rapids &c. R. R. Co. v. Huntley, 38 Mich. 537 (1878); Hoppe V. Chicago &c. Ry. Co., 61 Wis. 357 (1884); id. 325; Louisville &c. Ry. Co. v. Heiidrieks, 128 Ind. 462 (1891). 1 Chicago &c. Ry. Co. v. Mo- randa, 108 111. 576 (1883). 2 Central R. R. Co. v. De Bray, 71 Ga. 406 (1883). SKelleher v. City of Keokuk, 60 Iowa, 473 (1883). ■* Funston v. Chicago &e. Ry. Co., 61 Iowa, 452 (1883). sstowe V. Bishop, 58 Vt. 498 (1886). 6 Hill V. Portland &c. R. R. Co., 55 Me. 438 (1867). 7 Lester v. Town of Pittsf ord, 7 Vt. 158 (1835); Ryerson v. Inhab- itants of Abington, 102 Mass. 526 (1869); Yeaw v. Williams, 15 R. I. 20 (1885); Griffin r. Town of Willow, 43 Wis. 509 (1878); Barnes V. Town of Newton, 46 Iowa, 567 (1877). 8 Ivory Y. Town of Deer Park, 116 N. Y. 476, 485 (1889). 9 Patterson v. Colebrook, 29 N. H. 94 (1854). 19 But should state the facts dis- closing the location and suiTOund- ings, and leave the jury to deter- mine from the evidence the ques- tion of danger. King v. Missouri Pacific Ry. Co., 98 Mo. 235 (1889). In Pennsylvania, in an action to recover damages for injuries sus- tained by falling into an un- guarded areaway, it was held proper to permit a witness who is familiar with the place where the accident occurred, to express the opinion that it was a dangerous place. McNerney v. Reading City, 150 Pa. St. 611 (1892). See Gra- ham V. Pennsylvania Co., 139 Pa. St. 149 (1891). 11 Stowe v. Bishop, 58 Vt. 498 (1886). Nor whether, in his opin- ion, the accident would not have 260 Evidence — Phoof. who saw a woman thrown down by the starting of a street car^ after she had alighted from it, may give their opinion as to whether she had time to get clear of it.^^ So, a witness, in de- scribing an accident, may state, in connection with the facts,, what frightened the horses, from whose sudden starting the- injury in question resulted. Such statements are not opinions- such as, within the rule, are objectionable.^^ The plaintiff may testify as to his pain, suffering or internal condition, so far as the same is perceptible to his senses; that does not require scien- tific skill or knowledge— such evidence is of facts and not of mere opinion.-'* Testimony of witnesses, not experts, must be confined to a statement of the facts and not the giving of opin- ions.-'^ Thus it is not competent for a witness to state that he happened if, etc. Crane v. Town of Northfield, 33 Vt. 124 (1860). An opinion that a stage was not over- loaded is inadmissible. Oleson v. Tolford, 37 Wis. 327 (1875). Nor can a witness give his opinion as to -what he thought about the dan- ger of doing a certain thing. Ster- ling Bridge Co. v. Pearl, 80 111. 251 (1875). Error to admit an opinion of non-expert witness as evidence of contributory negligence, based upon a hypothetical case as to the horses, the harness, the wagon and the load. Beardslee v. Colum- bia Township, 188 Pa. St. 496 (1898). 12 Ward V. Charleston City Ry. Co., 19 So. Car. 521 (1883). isYahn v. City of Ottumwa, 60 Iowa, 429 (1883). 14 Wright V. City of Fort How- ard, 60 Wis. 119 (1884). Express- slons of present existing pain, and of its locality, axe exceptions to the general rule -w-hich excludes hearsay evidence. They are admit- ted upon the ground of necessity as being the only means of deter- mining whether pain or suffering is endured by another. Whether feigned or not is a question for the jury. Cleveland &c. E. R. Co. v. Newell, 104 Ind. 264, 269 (1885) r Travellers Ins. Co. v. Mosley, 8- Wall. 397 (1869). A physician may testify that when he first sa-sv the- plaintiff she was complaining of pain from an injury she said she had received. Birmingham Union Ry. Co. V. HaJe, 90 Ala. 8 (1890). Or he may testify what the in- jured person informed him as to the pains suffered and their lo- cality. Louisville &c. Ry. Co. v. Wood, 113 Ind. 544 (1887). See Grand Rapids &c. R. R. Co. v. Huntley, 38 Mich. 537 (1878). 15 Pennsylvania Co. v. Stoelke, 104 111. 201 (1882); Coates v. Bur- lington &c. Ry. Co., 62 Io-(va, 486 (1883); Michigan Central E. R. Co. V. Gilbert, 46 Mich. 176 (1881);. Bayley v. Eastern R. R. Co., 125 Mass. 62 (1878); Lund v. Inhab- itants of Tyngsborough, 9 Cush. 36 (1851); Montgomery &c. Ry. Co. v. Mallette, 92 Ala. 209 (1890). Nor should they be allowed to give their opinions based upon a hypo- thetical state of facts. Grant v.. Raleigh &c. R. R. Co., 108 No. Car. 462 (1891). Evidence — Pkoof. 2G1 used all the means in his power to avoid the accident, but to state what means were used;^® or that the plaintiff was guilty of negligence in attempting to drive over a defective road;^^ or that the plaintiff has been injured to the extent of $10,000.^* § 206. Photographs — X-rays — Maps — Diagrams, as evidence. — Photographs, maps or diagrams, if they are accurate or fair representations of the locus in quo of an accident, are admissi- ble in evidence as aids to the jury in understanding the situation and location,^® such as a photograph of a wrecked and broken bridge;^" or of the scene of a personal injury;^-' so a photograph of the injuted parts of the person.^ But, to be admissible in evidence, they must be verified by proof that they are correct resemblances or true representations of the subject.^ An X-ray photograph of a fracture, taken by a physician and sur- geon familiar with fractures and with the process of taking such photographs, who testifies that it accurately represents the con- dition of the leg or arm, is adnaissible in evidence.^* A plan 16 Tanner v. Louisville &e. R. R. Co., 60 Ala. 621 (187Y); North Pennsylvania R. R. Co. v. Kirk, 90 Pa. St. 15 (1879). 17 Town of Albion v. Hetrick, 90 Ind. 545 (1883). See Hollenbeck v. City of Marshalltown, 62 Iowa, 21 (1883); Street R. R. Co. v. Nol- thenlus, 40 Ohio St. 376 (1883). 18 Central R. R. &c. Co. v. Kelly, 58 Ga. 107 (1877). 19 Archer v. New York &c. R. R. Co., 106 N. Y. 589 (1887); Golds- boro V. Central R. R. Co., 31 Vr. 49 (1897); Cunningham v. Fair Haven &e. R. R. Co., Conn. ; 43 Atl. Rep. 1047 (1899); Beards- lee V. Columbia Township, 188 Pa. St. 496 (1898). 20 Locke V. Sioux City &c. R. R. Co., 46 Iowa, 109 (1877). Or of the car upon which the accident hap- pened, but not the photograph of another car. People's Passenger Ry. Co. V. Green, 56 Md. 84 (1880). 21 When they bear evidence on their face of the correctness of the representation of the scene depicted, in clearness of delinea- tion, sharpness of outline, correct perspective and the just proportion between the various objects. Nies V. Broadhead, 75 Him, 255 (1894); Church V. City of Milwaukee, 31 Wis. 512 (1872); Blair v. Pelham, 118 Mass. 420 (1875). Any differ- ence that arises from the views being taken at a different season can be explained. Dyson v. New York &c. R. R. Co., 57 Conn. 9 (1889) ; Baker v. Town of Perry, 67 Iowa, 146 (1885). 22 Albert! v. New York &c. R. R. Co., 118 N. Y. 77 (1889); Cowley V. People, 83 id. 464 (1881). 23 Goldsboro v. Central R. R. Co., 31 Vr. 49 (1897); Cunningham V. Fair Haven &c. R. R, Co., Conn. ; 43 Atl. Rep. 1047 (1889); Beardslee v. Columbia Township, 188 Pa. St. 496 (1898). 24 Bruce v. Beall, 99 Tenn. 303 (1897). 262 Evidence — Phoof. or picture, however executed, if shown to be correct, is ad- missible.^ A witness having described the place of the acci- dent, the tfestimony of another witness as to measurements taken by him, of the place pointed out by the first witness, . is competent, it appearing that the place pointed out and the place of the accident were the same.^® So an expert witness may be permitted to make illustrations upon a blackboard before the jury for the purpose of explaining his testimony and ren- dering it more intelligible to them.^ Whether the accuracy of a photograph, map or diagram is sufficiently proven is always a preliminary question for the court.^ The accuracy of a photograph may be verified by any competent eye-witness as well as by the photographer who took it.^ § 207. Exhibits of physical objects — Injured parts of the per- son. — Parts of the structure, machinery or appliance which caused the injury may be exhibited to the jury,*" or the plain- tiff may exhibit to the jury the injured part of his person.'^ 25 Udderzook v. Commonwealth, so King v. New York &c. R. E. 76 Pa. St. 340 (1874); Churcli v. Co., 72 N. Y. 607 (1878). But it City of Milwaukee, 31 Wis. 512 is error to Introduce pieces of a (1872). broken rail picked up at the place 26 Keim v. Union Ry. &c. Co., 15 of the accident six months after AIo. App. 593 (1885). the accident. Stewart v. Everts, 76 27 McKay v. Lasher, 121 N. Y. Wis. 35 (1890). The court may, in 477 (1890). It is not error for the its discretion, refuse to permit the trial court to refuse an application Jury to view the premises where to allow the jury to witness ex- the plaintiff claims to have been perlments with cars upon a rail- Injured. Mulliken v. City of Co- way track, outside of the court- ruma, 110 Mich. 212 (1896). room, though bearing on the ques- ^i Indiana Car Co. v. Parker, 100 tlon of the probability of an al- Ind. 181 (1884); Barker v. Town leged collision. Smith v. St. Paul of Perry, 67 Iowa, 146 (1885) ; Mul- City By. Co., 32 Minn. 1 (1884). hado v. Brooklyn City R. R. Co., 28 Blair v. Pelham, 118 Mass. 30 N. Y. 370 (1864); Hess v. Low- 420 (1875); HoUenbeck v. Inhabit- rey, 122 Ind. 225 (1889); Louisville- ants of Rowley, 8 Allen, 473 (1864) ; &c. Ry. Co. v. Wood, 113 id. 544 Goldsboro v. Central R. R. Co., 31 (1887) ; Schroeder v. Chicago &c. R. Vr. 49 (1897); Nies v. Broadhead, R. Co., 47 Iowa, 375 (1877); Lang- 75 Hun, 255 (1894). worthy v. Township of Green, 95 29 Thomas on Neg., p. 639; Nies Mich. 93 (1893); Cunningham v. V. Broadhead, 75 Hun, 255 (1894). Union Pacific Ry. Co., 4 Utah, 206 See Udderzook v. Commonwealth, (1885); Jordan v. Bowen, 14 Jones 76 Pa. St. 340 (1874). & S. 355 (1880). Evidence — Phoof. 263 But in Illinois this was said to be within the discretion of the trial court. ^^ § 208. Physical examination of the plaintiff — Before the trial — Statutes — How enforced. — The power of the court to grant or order a physical examination of the plaintiff before the trial, has been passed upon by the courts of last resort in several of the States. In the absence of a statute there seem to be three distinct conclusions: First. That the court has no inherent power, in the absence of a statute conferring the right in ad- vance of the trial of an action for personal injuries, to compel the plaintiff, on the application of the defendant, to submit to an examination of his person by surgeons appointed by the court, with a view to enable them to testify at the trial, as to the existence or extent of the alleged injury. This is the rule of the United States Supreme Court, the Court of Appeals of JSTew York and the Supreme Court of Indiana and Illinois.^* Second. That the court has inherent power to make such an or- der.^* Third. That the court has inherent power to make such 32 Chicago &c. E. R. Co. v. 128 id. 554 (1891); Hess v. Lowrey, Clausen, 173 111. 100 (189S). 122 id. 225, 233 (1889); Kern v. 33 Union Pacific Ky. Co. v. Bets- Bridwell, 119 id. 226, 229 (1889) ; ford, 141 U. S. 250 (1891). This Ind. Rev. Stats. 1881, chap. 2, § 538. decision is based upon the ground Illinois, .loliet Street Ry. Co. v. that the jurisdiction of the United Call, 143 111. 177, 182 (1892). States Circuit Courts is limited by 34 This is the rule in powers conferred by Congress and Alabama: Alabama &c. R. R. the Constitution. New York, Mc- Co. v. Hill, 90 Ala. 71 (1889). In Quigan v. Delaware &c. R. R. Co., the discretion of the court. 31 Cent. 129 N. T. 50 (1891); Roberts v. Og- L. J. 376, note. See McGufC v. densburg &c. R. R. Co., 29 Hun, State, 88 Ala. 147 (1889). The se- 154 (1883); Winner v. Lothrop, 67 lection of a physician is entirely id. 511, 514 (1893); Newman v. within the discretion of the trial Third Ave. R. R. Co.. 18 Jones & judge; his refusal to appoint a par- S. 412 (1884) ; McSwyny v. Broad- ticular physician at the instance of way &c. R. R. Co., 27 N. Y. St. the defendant is not reversible on Rep. 3G3 (1889), overruling Walsh error or appeal. Alabama &e. R. V. Sayre, 52 How. Pr. 334 (1868); R. Co. v. Hill, 93 Ala. 514 (1890). Shaw V. Van Rensselaer, 60 id. 143 Illinois: Chicago &c. R. R. Co. v. (1880). Since authorized by stat- Holland, 122 111. 461 (1887); City ute. Chap. 721, Laws 1893, § 873, of Galesburg v. Benedict, 22 111. Code. Lyon v. Manhattan Ry. Co., App. 114 (1886); St. Louis Bridge 142 N. Y. 298 (1894). Indiana, Co. v. Miller, 138 111. 465 (1891). Pennsylvania Co. v. Neumeyer, 129 Contra, Parker v. Enslow, 102 id. Ind. 401, 409 (1891). See Terre 272 (1882); Joliet Street Ry. Co. v. Haute &c. R. R. Co. v. Brunker, Call, 143 id. 177 (1892). 264 Evidence — Peoof. an order where the injury is alleged to be permanent.^^ In some of the States there are statutes authorizing the courts to make such an order.^® These statutes are not an infringement on the constitutional right of a party in a civil suit to be eon- fronted by the witnesses.^^ In those courts which hold that it Iowa: Leading case. Schroeder V. Chicago &c. R. K. Co., 47 Iowa, 375 (1877). Kansas: The court exercising In all such cases a sound judicial dis- cretion. Atchison &c. R. R. Co. v. Thul, 29 Kan. 466 (1883). Michigan: Graves v. City of Bat- tle Creek. 95 Mich. 266 (1893). Missouri: Discretionary with the court. Sidelsum v. Wabash &c. Ry. Co., 93 Mo. 400 (1887); Owens v. Kansas City &c. R. R. Co., 95 id. 169 (1888); Shepard v. Missouri &c. Ry. Co., 85 id. 629 (1885); Kin- ney V. City of Springfield, 35 Mo. App. 97 (1889). A refusal to make such an order will not be disturbed unless an abuse of such discretion is shown. Norton v. St. Louis &c. Ry. Co., 40 Mo. App. 642 (1890), overruling Loyd v. Hannibal &c. R. R. Co., 53 Mo. 509 (1873). Nebraska: Stuart v. Havens, 17 Neb. 211 (1885); Sioux City &c. R. R. Co. V. Finlayson, 16 id. 578 (1884). Ohio: Miami &c. Co. v. Baily, 37 Ohio St. 104 (1881). Pennsylvania: Hess v. Lake Shore &c. R. R. Co., 7 Pa. Co. Ct. Rep. 565 (1890). Texas: International &c. Ry. Co. v. Underwood, 64 Tex. 463 (1885); Missouri &c. R. R. Co. v. Johnson, 72 Tex. 95 (1888). Contra, Gulf &c. Ry. Co. V. Pendery, 14 Tex. Civ. App. 60 (1896). Wisconsin: White v. Milwaukee &e. R. R. Co., 61 Wis. 536 (1884). 35 But where the evidence of ex- perts Is already abundant, the court must exercise its sound dis- cretion and its action is subject to review in case of abuse. This is the rule In Arkansas: Sibley v. Smith, 46 Ark. 275 (1885). Georgia: Richmond &c. R. R. Co. V. Childress, 82 Ga.719 (1889). For a discussion of this subject see Ray on Negligence of Imposed Duties, chap. 35, § 190; 1 Thomp. on Trials, § 859. 36 New Jersey: P. L. 1896, chap. 202, p. 344. When the action is pending in the Supreme Court, ap- plication to examine the plaintiff must be made to the court and not to a single judge. Hagan v. Hoboken &c. Electric Ry. Co., N. J. L. J. March, 1898, p. 82; Mc- Govern v. Hope, Vr. ; 42 Atl. Rep. 830 (1899). New York: Chap. 721, Laws 1893, § 873, Code. Lyon v. Man- hattan Ry. Co., 7 Misc. 401 (1894); affirmed by the Court of Appeals, 142 N. Y. 298 (1894). Sufficiency of the affidavit to procure such examination. See Green v. Middle- sex R. R. Co., 10 Misc. 473 (1894). 37 McGovern v. Hope, Vr. ; 42 Atl. Rep. 830 (1899). In that case it was said the court should give the parties an equal oppor- tunity of having qualified wit- nesses present at the examination, which should be so conducted as to subject plaintiff to no unneces- sary annoyance or exposure of her person. Evidence — Proof. 2G5 has inlierent power to make such an order, it has been enforced by refusing to try the case until a compliance is had with the order,^ or the action may be dismissed.^* § 209. Physical examination of the plaintiff — At the trial.— The same question has arisen, viz., the power of the court to order an examination at the trial. It has been held that an application made during the trial may be denied; if desired, it should be made before the trial begins,*" especially where no reason is shown for the delay,*^ or if it appears to the court as not necessary.*^ Never, when the party is willing to be examined by competent and disinterested surgeons, without such order.*^ A refusal by the plaintiff to permit himself to be examined by a particular expert, who is obnoxious to him, will not afford ground for reversal when the plaintiff expressed his willingness to be examined by any other respectable phy- sician.** In Minnesota, it was held that the court had the power, in a proper case, to compel the plaintiff to perform a physical act in the presence of the jury, to show the nature and extent of the injuries.*' A refusal to afford an opportunity for a physical examination of the injured person may be 38 Hess V. Lake Shore &e. R. R. 42 Sioux City &c. R. R. Co. v. Co., 7 Pa. Co. Ct. Rep. 565 (1890). Finlayson, 16 Neb. 578 (1884); St. Or refuse to allow the plaintiff to Louis Bridge Co. v. Miller, 138 111. give evidence to establish the in- 465, 472 (1891); Joliet Street Ry. jury. Miami &c. Co. v. Baily, 37 Co. v. Call, 143 id. 177, 181 (1892). Ohio St. 104 (1881). « Gulf &c. Ry. Co. v. Norfleet. 39 Miami &e. Co. v. Baily, 37 78 Tex. 321 (1890); International Ohio St. 104 (1881); Shepard v. &c. Ry. Co. v. Underwood, 64 id. Missouri Pacific Ry. Co., 85 Mo. 463 (1885); Sioux City &c. R. R. 629, 634. (1885). Co. v. Finlayson, 16 Neb. 578 40 Stuart V. Havens, 17 Neb. 211 (1884). (1885) ; Sioux City &c. R. R. Co. v. 44 Missouri &c. R. R. Co. v. Finlayson, 16 id. 578 (1884). Johnson, 72 Tex. 95, 101 (1888). 41 Miami &c. Co. v. Baily, 37 45 Such as to require the plain- Ohio St. 104 (1881); Hess v. Low- tiff to walk across the courtroom rey, 122 Ind. 225 (1889); Terre in the presence of the jury. But Haute &c. R. R. Co. v. Brunker, the propriety of doing so in a given 128 id. 554 (1891); Kinney v. City case rests largely in the discretion of Springfield, 35 Mo. App. 97 of the trial court. Hatfield v. St. <1889) ; Sidekum v. Wabash &c. Ry. Paul &c. R. R. Co., 33 Minn. 130 Co., 93 Mo. 400 (1887); City of (1885). Galesburg v. Benedict, 22 111. App. Ill, 114 (1886). 2G6 Evidence — Proof. shown;*® it is competent evidence against the plaintiff as bear- ing upon his good faith.*^ Physicians appointed by the court, to make examination of the physical injuries of the plaintiff, become the witnesses of the court, and if the parties refuse to call them the court has a right to do so.*® § 210. Books of inductive science. — Books of inductive sci- ence, such as standard medical works, are inadmissible in evi- dence to prove the opinions contained in them.*® The reason for excluding such books is that they are statements wanting the sanction of an oath, and the statements therein contained are made by one not present and not liable to cross-examina- tion.""* In Connecticut it was held that standard medical works « City of Preeport v. Isbell, 93 111. 381 (1879). Not where the court refused to make an order on the ground that the application was not made at an earlier date. Kinney v. City of Springfield, 35 Mo. App. 97 (1889). See Pennsyl- vania Co. V. Neumeyer, 129 Ind. 401, 412 (1891). 47 Union Pacific Ry. Co. v. Bots- ford, 141 U. S. 250 (1891). Not until after the court had made the order and plaintiff had then re- fused. Kinney v. City of Spring- field, 35 Mo. App. 97 (1889). *8 Fordyce v. St. Louis &c. Ry. Co., 144 Mo. 519 (1898). 49 England: Collier v. Simpson, 5 Car. & P. 73 (1831). California: Gallagher v. Market Street R. R. Co., 67 Cal. 13 (1885). Illinois: North Chicago Rolling Mill V. Monka,! 107 111. 340 (1883); Connecticut Mut. Ins. Co. v. Ellis, 89 id. 516 (1878). Indiana: " Evans Millwright Guide." Corey v. Silcox, 6 Ind. 39 (1854); Epps v. State, 102 id. 539 (1S85). Iowa: Broadhead v. Wiltse, 35 Iowa, 429 (1872). See Rev., § 3395; Quackenbush v. Chicago &c. Ry. Co., 35 Iowa, 429 (1872); 35 N. W. Rep. 523 (1887). Maryland: Davis v. State, 3& Md. 15 (1873). Massachusetts: Ashworth v. Kit- tridge, 12 Cush. 93 (1853); Com- monwealth v. Wilson, 1 Gray, 337 (1854). Michigan: Pinney v. Cahill, 48 Mich. 584 (1882); 22 Am. L. Reg. (N. S.) 104. New Jersey: New Jersey Zinc &c. Co. V. Lehigh Zinc &c. Co., 30 A^r. 189 (1896). New York: Harris v. Panama E. R. Co., 3 Bosw. 7 (1858). North Carolina: Huffman v. Click, 77 No. Car. 55 (1877); Melvin V. Easbey, 1 Jones, 386 (1854). Texas: Fowler v. Lewis, 25 Tex. 380 (1860). See Wade v. De Witt, 20 id. 398 (1857). Wisconsin: Stilling v. Town of Thorp, 54 Wis. 528 (1882); Boyle V. State, 57 id. 472 (1883); City of Ripon V. Bittel, 30 id. 614 (1872); Kreuziger v. Chicago &c. Ry. Co., 73 id. 158 (1888); Waterman v. Chi- cago &c. R. R. Co., 82 id. 613 (1892). 50 Ashworth v. Kittridge, 12 Cush. 193 (1853); Whart. on Ev.» § 665. Evidence — Proof. 267 on insanity may be read to the jury by the counsel for the accused, upon the question of his insanity. A long practice, the court said, has established this rule in that State.^* It is not competent for a medical expert to read from and testify to what is in the book,^^ nor to read from the book to the jury, although the witness testifies that he concurs in the views therein expressed.^* But a book which a witness has cited to- sustain his views may be used to contradict or discredit him.^* So, on cross-examination, it has been held proper, in order to test the learning of an expert witness, to refer to books of ap- proved authority iipon the subject under investigation.^^ § 211. Books of exact science — Standard mortuary tables. — Books of exact science and mortuary tables of undisputed accii- racy, such as the ISTorthampton Tables, American Tables of Mortality, Wigglesworth's, Carlisle Tables, and the like, show- ing the life expectancy, or the probable duration of life, recog- nized by the court as accurate, or shown to be such by the testi- mony of a qualified witness, are competent, and may, when the probable duration of life is a subject of inquiry, be read in evi- dence.^® In Illinois a book on mechanics was held incompe- 51 state V. Hoyt, 46 Conn. 330 examination as one of the means (1878). of testing his linowledge, and tliis 52 Marshall v. Brown, 50 Mich, is, in no just sense, reading such 148 (1883). Nor for counsel to read books to the Jury. Connecticut such to the jury. Boyle v. State, Mut. Life Ins. Co. v. Ellis, 89 111. 5T Wis. 472 (1883). 516 (1878); Fisher v. Southern 53 Commonwealth v. Sturtivant, Pacific R. R. Co., 89 Cal. 399 (1891). 117 Mass. 123 (1875). 56 Abb. Tr. Ev. 724; 22 Am. L. 54 City of Ripon v. Bittel, 30 Reg. 105, n.; 59 Am. Dec. 185, n.; Wis. 614 (1872); Huffman v. Click, 15 Am. & Eng. Ency. of Law (1st 77 No. Car. 55 (1877); 24 Alb. L. J. ed.), 882; Huffman v. Click, 77 No. 268; New Jersey Zinc &c. Co. v. Car. 55, 58 (1877); Coates v. Bur- Lehigh Zinc &c. Co., 30 Vr. 189) lington &c. Ry. Co., 62 Iowa, 486' (1896); Hess v. Lowrey, 122 Ind. (1883); Scheffler v. Minneapolis &c. 225 (1889); Gallagher v. Market Ry. Co., 32 Minn. 518 (1884); Vicks- Street Ry. Co., 67 Cal. 13 (1885); burg &c. R. R. Co. v. Putnam, 118 Pinney v. Cahill, 48 Mich. 584 U. S. 545 (1886); Hunn v. Michi- (1882). Otherwise of a book not gan Cent. R. R. Co., 78 Mich. 513 cited. Knoll v. Slate, 55 Wis. 249 (1889) ; Sauter v. New York &c. R. (1882). K- Co., 66 N. Y. 50 (1876). Carlisle- 55 Hess V. Lowrey, 122 Ind. 225 tables. Camden &c. R. R. Co. v. (1889). He may be asked if he Williams, 32 Vr. 646 (1898); Blair agrees with the author on cross- v. Madison County, 81 Iowa, 313 268 Evidence — Proof. tent.^^ The court will take judicial notice of their genuine- ness.''® In ascertaining the damages to be awarded for im- paired ability to earn a livelihood, standard life and annuity tables are competent evidence to be considered.^® When the injiiry is permanent, the expectancy of plaintiff's life must be considered. The life tables are admissible for that purpose, the damage being, continuing and ending only with the plaintiff's life, or with his inability to labor on account of age.''" A stand- ard mortuary table must be proved to be authentic, and its character and office should be explained to the jury.*^ § 212. Failure to perform a duty imposed by statute. — Where a statute imposes a duty upon an individual or corporation, any person having a special interest in the performance thereof may sue for a breach, causing him injury.®^ The failure to perform (1890). " Forrey on Catechism of a Locomotive." Sioux City &c. R. R. Co. V. Finlayson, 16 Neb. 578, S87 (1884). Held, not admissible ■where the deceased was under ten years of age. Rajnowski v. De- troit &c. R. R. Co., 74 Mich. 20 (1889). 57 North Chicago Rolling Mills Co. V. Monka, 107 111. 340 (1883). So in New Jersey. " Whitney's Metallic Wealth of the United States;" New Jersey Zinc &c. Co. V. Lehigh Zinc &c. Co., 30 Vr. 189, 192 (1896). 58 Scheffler v. Minneapolis &c. Ey. Co., 32 Minn. 518 (1884). " Carlisle's Table of Mortality " may be assumed to be a standai-d table. Camden &c. R. R. Co. v. Williams, 32 Vr. 646 (1898). 59Whelan v. New York &c. R. R. Co., 38 Fed. Rep. 15 (1889); Ar- kansas &c. Ry. Co. V. Griffith, 63 Ark. 491 (1897). If the facts are found and made definite which form a basis for a computation from the principle on which an- nuities are purchased, the jury may properly use annuity tables in estimating the amount to be al- lowed. Rooney v. New York &c. R. R. Co., Mass. ; 6 Am. Neg. Rep. 78 (1899). The practical difficulty in using annuity tables in such cases pointed out. lb. soKnapp V. Sioux City &c. Ry. Co., 71 Iowa, 41 (1887). 61 Camden &c. R. R. Co. v. Wil- liams, 32 Vr. 646 (1898). 62 Willy V. Mulledy, 78 N. Y. 310 (1879). In that case the statute re- quired that owners of tenement- houses In the city of Brooklyn should have fire-escapes upon such houses. It was held, in an action to recover damages for the death of plaintife's wife, that this duty is for the benefit of the tenants, and for a breach thereof, causing damage, a tenant may maintain an action against his landlord. Donnegan v. Erhardt. 119 N. Y. 468 (1890); Indiana &c. Ry. Co. v. Barnhart, 115 Ind. 399 (1888) ; Mor- ton V. Smith, 48 Wis. 265 (1879); Wise V. Morgan, 101 Tenn. 273 (1898). See Grant v. Slate Mill &c. Co., 14 R. I. 380 (1884); Shearm. & Redf. on Neg. (5th ed.), §§ 18, 4G7. RVIDRNCE PhOOF. 269 a duty imposed by statute, where, as the consequence, an injury results to another, is evidence upon the question of negligence of the party chargeable with such failura^" § 213. Violation of ordinances, as evidence. — The violation of an ordinance is some evidence of negligence, but not necessarily negligence.^ In 1876 it was said by the Court of Appeals of New York to be an open question in that court whether the violation of a municipal ordinance was negligence per se,^ but it was subsequently held not to be conclusive.''® Proof of a municipal ordinance and a violation thereof is held, by all the cases, to be competent evidence upon the question of negligence to be submitted to the jury.®^ In a case in Maryland it was said tbat if a railroad company does not conform to the city ordi- nances, providing certain safeguards in the use of its engines, it is not in the lawful pursuit of its business, and is responsible for any injury which it may occasion, if the party injured be 63 McRickard v. Flint. 114 N. Y. 222, 226 (1889); Connolly v. Knick- erbocker Ice Co., id. 104 (1889); Georgia Pacific Ky. Co. v. Hughes, 87 Ala. 610 (1888). Under a min- ing statute. Bartlett Coal &c. Co. V. Roach, 68 111. 174 (1873); Con- solidated Coal Co. V. Bokamp, 111. ; 54 N. E. Rep. 567 (1899); Carrell v. Burlington &c. R. R. Co., 38 Iowa, 120 (1874); Huckshold v. St. Louis &c. Ry. Co., 90 Mo. 548 (1886). 64McGrath v. New York &c. R. R. Co., 63 N. Y. 522 (1876); Lane V. Atlantic Works, 111 Mass. 136 (1872); Hanlon v. South Boston Horse R. R. Co., 129 id 310 (1880). Running a train of cars through a city at a rate of speed prohibited by ordinance raises a presumption of negligence; it is not negligence itself, but merely raises a presump- tion of negligence. Illinois Central R. R. Co. V. Ashline, 171 111. 313 (1898). 65Massoth V. Delaware &c. Canal Co., 64 N. Y. 531 (1876). 66Knupfle V. Knickerbocker Ice Co., 84 N. Y. 488 (1881); Meek v. Pennsylvania Co., 38 Ohio St. 632 (1883). 67 Jetter v. New York &c. R. R. Co., 2 Abb. Ct. App. Dee. 458; 2 Keyes, 154 ' (1865), overruling T'Towu V. Buffalo &c. R. R. Co., 22 N. Y. 191 (1860). To the same ef- fect are McGrath v. New York &c. R. R. Co., 63 N. Y. 522 (1876); Massoth V. Delaware &c. Canal Co., 64 id. !j24 (1876); Briggs v. New York &c. R. R. Co., 72 id. 26 (18/6); Knupfle v. Knickerbocker Ice Co., 84 id. 488 (1881); Atlanta Cons. Street By. Co. v. Foster, Ga. ; 33 S. E. Rep. 886 (1899). See § 23; Shearm. & Redf. on Neg. (5th ed.), § 13; Lane v. Atlantic T^'orks, 111 Mass. 136 (1872); Isabel V. Hannibal &c. R. R. Co., 60 Mo. 475 (1875); Meek v. Pennsylvania Co.. 38 Ohio St. 632 (1883); Penn- sylvania Co. V. Hensil, 70 Ind. 569 (1880); Western &c. R. R. Co. v. Meigs, 74 Ga. 857 (1885); Siemers V. Eisen, 54 Cal. 418 (1880). See Dolfinger v. Fishback, 12 Bush> 474 (1876). 270 Evidence — Peoof. not in fault.*® So it has been held in some of the other States that a failure to comply with a city ordinance in running trains is negligence per sef^ that it may be proved, although the existence of the ordinance is not pleaded.™ An ordinance which limits the rate of speed of railroad trains to less than that permitted by statute is inadmissible;^^ a city ordinance prohibiting the use of the whistle by railroad trains is admis- sible.^^ So, in an action against a municipality to recover dam- ages for injuries sustained by falling into an unguarded area- way, it is proper to admit in evidence an ordinance of the city requiring such openings to be properly guarded.''* § 214. Evidence of the speed of railroad trains. — The rate of speed at which a railroad train was running at the time of the injury, may be considered by the jury in determining the ques- tion of negligence.''* Testimony as to the speed of trains should not be merely relative, without some standard of rapidity, but it should show approximately, at least, the actual rate, and that should be shown to be unsafe, before the question whether it was negligent can be left to the jury.''^ The fact that a train 68 Baltimore &c. R. R. Co. v. to Faber v. St. Paul &c. Ry. Co., State, 29 Md. 252 (1868). See Cum- 29 Minn. 465 (1882). berland &c. R. R. Co. v. State, 73 7i Chicago &c. R. R. Co. v. id. 74 (1890); Philadelphia &c. R. Dougherty, 12 111. App. 181 (1882). R. Co. V. Stebbing, 62 id. 504 (1884) ; 72 Pennsylvania Co. v. Hensil, Reidel v. Philadelphia &c. R. R. 70 Ind. 569 (1880). Co., 87 id. 153 (1897). 73 McNerney v. Reading City, 69 Missouri: Karlev. Kansas City 150 Pa. St. 611 (1892). &c. R. R. Co., 55 Mo. 476 (1874); T4 Martin v. New York &c. R. Neiver v. Missouri Pacific Ry. Co., R. Oo., 27 Hun, 532 (1882); Wor- 12 Mo. App. 25 (1882); Schlereth v. then v. Grand Trunk Ry. Co., 125 Missouri &c. Ry. Co., 96 Mo. 509 Mass. 99 (1878); Pennsylvania Co. (1888). So in v. Conlan, 101 111. 93 (1881); Mis- Georgia: Western &c. R. R. Co. souri &c. Ry. ); Ehr- 9 Dixon, J., in Wiley v. West gott v. Mayor &c. of New York, .Jersey R. R. Co., 15 Vr. 247, 251 96 N. Y. 264, 281 (1884); Fowlkes (1882); Newark &c. R. R. Co. v. v. Southern Ry. Co., 96 Va. 742 McCann, 29 id. 642, 644 (1896). (1899). In a charge in which the Proximate damages are such as trial judge used the expressions are the ordinary and natural re- " likely to experience," " and is suits of the defendant's negligent likely to sustain during the re- acts of commission or omission, mainder of his life; " it was held and are such as might reasonably that the measure of damages was be anticipated would flow there- correctly stated. Scott Township from. The law regards only the di- v. Montgomery, 95 Pa. St. 444 rect and proximate result of the (1880). negligent acts of a party creating n Leeds v. Metropolitan Gas liability against him. Braun v. Light Co., 90 N. Y. 26, 29 (1882). Craven, 175 111. 401 (1898). See 12 Ehrgott v. Mayor &c. of New Jucker v. Chicago &c. Ry. Co., 52 York, 96 N. Y. 264 (1884). Damages for Personal Injuries. 287 tion, the law implies damages. He may recover such as neces- sarily and immediately flow from the injury, which are called general damages, under a general allegation that damages were sustained." Direct proof of any specific, pecuniary loss is not indispensable to a recovery.^* § 229. The rule of recovery is compensation — Three principal items. — The principle which may be said to be common to all these classes of cases in estimating damages, and which is recog- nized by all the cases, is, that damages are given or assessed as compensation}^ for the loss and injury sustained. The rule of recovery is compensation, as distinguished from what is called in the books punitive damages or smart money, or as a solatium for injured feelings, in cases resulting in death. In aggravated cases, such as willful negligence, which will be noted in section 243 ; punitive damages or smart money may be awarded against the defendant to deter the wrongdoer from repeating the wrong. In some States this is expressly permitted by statute. Damages for a personal injury consist of three principal items: First. The expenses to which the injured person is subjected by reason of the injury complained of. Second. The inconveni- ence and suffering naturally resulting from it. Third. The loss of earning power, if any, and whether temporary or per- manent, consequent upon the character of the injury." There is no standard by which permanent injuries to the person can be valued, nor can there be any direct evidence of the amount 13 Gnmb v. Twenty-third Street tion for pain and suffering," is not Ry. Co., 114 N. Y. 411, 414 (1889). to be understood as meaning price So when there Is no special alle- or value, but as describing an al- gation of permanent injuries, lowance looking towards recom- Tyler v. Third Ave. R. R. Co., 41 pense for, or made because of, the N. Y. Supp. 523 (1896). suffering consequent upon the in- 14 Fisher v. Jansen, 128 111. 549 jury. Williams, J., in Goodhart v. (1889). Pennsylvania R. R. Co., 177 Pa. St. 15 Elliott on Roads & Streets, 1, 15 (1896). Compensatory dam- 652; 8 Am. & Bng. Ency. of Law ages are such as measure the ac- (2d'ed.), p. 537; Leeds v. Metro- tual loss and are given as amends polltan Gas Light Co., 90 N. Y. 26 therefor. Talbott v. West Virginia (1882); Smedley v. Hestonville &c. &c. Ry. Co., 42 W. Va. 560 (1896). Ry. Co., 184 Pa. St. 620 (1898); 16 Goodhart v. Pennsylvania R. Barbour County v. Horn, 48 Ala. R. Co., 177 Pa. St. 1, 14 (1896); 566 (1872). The word " compen- Smedley v. Hestonville &c. Ry. Co., sation," in the phrase " compensa- 184 id. 620 (1898). 388 Damages for Personal Injuries. of money which will compensate for them. But it is sufficient to show the jury the extent of the injuries, and the amount of their verdict is to be determined by an intelligent discretion. The amount will not be disturbed, unless it is so excessive as to indicate passion or prejudice." § 230. Medical expenses — Nursing — Gratuitous services. — Necessary medical and other expenses incurred by the plaintiff in effecting a cure are elements of damage. The value of such expenses should be shown by the plaintiff. All the cases hold that it is competent for the plaintiff to show, by evidence, the value of the expenses incurred, such as expenses for medical ser- vices, medicines and nursing. ■** To recover for such services, some of the cases hold that the plaintiff must show, by evidence, either that he has paid for the services or is liable therefor.^* There can be no recovery for services rendered gratuitously.^" Other cases hold that there may be a recovery for the value of the services, even though rendered gratuitously.^ Testimony in plaintiff's behalf, of expenditures incurred by him in trips made to healing springs and wells in aid of recovery from such IT Clare v. Sacramento Electric never sustained, nor for money &c. Co., 122 Cal. 504 (1898). which he Is not legally liable to 18 Chicago &c. K. R. Co. v. Wil- pay. Duke v. Missouri Ry. Co., 99- son, 63 111. 167 (1872); Klein v. Mo. 347 (1889); Drinkwater v. Thompson, 19 Ohio St. 569 (1869); Dinsmore, 80 N. Y. 390 (1890). "Vicksburg &c. R. R. Co. v. Put^ 20 Drinkwater v. Dinsmore, 80 nam, 118 U. S. 545 (1886); Goodno N. Y. 390, 393 (1880). It was V. City of Oshkosh, 28 Wis. 300 said, "the defendant may show (1871); Folsom v. Town of Under- that the plaintiff was doctored at a hill, 36 Vt. 580 (1864) ; Scott Town- charity hospital, or at the expense ship V. Montgomery, 95 Pa. St. 444 of the town or county, or gratui- (1880) ; Morris v. Chicago &c. R. R. tously. In such case, the doctor's Co., 45 Iowa, 29 (1876); Huizega v. bill could not be an element of his Cutler Lumber Co., 51 Mich. 278 damage." Paid by the brother of (1883); Central Passenger Ry. Co. the plaintiff. See Peppercorn v. V. Kuhn, 86 Ky. 578 (1888); Ram- City of Black River Falls, 89 Wis. som V. New York &c. R. R. Co., 15 38 (1894). N. Y. 415 (1857); Whelan v. New 21 City of Indianapolis v. Gaston, York &c. R. R. Co., 38 Fed. Rep. 58 Ind. 224, 227 (1877); Pennsyl- 15 (1889). vania Co. v. Marion, 104 Id. 239, 19 Morris v. Grand Avenue Ry. 24J (1885); Klein v. Thompson, 19 Co., 144 Mo. 500 (1898). That he Ohio St. 569 (1869). See Metcalf cannot recover for a loss he has v. Baker, 57 N. Y. 662 (1874). Damages fob Personal Injuries. 289 injury, is competent — the necessity and reasonableness of such expenditiires to be passed upon by the jury as a question of f act.^^ " jS'ursing and medical attendance " include all ex- penses which, as shown by the evidence, plaintiff incurred in procuring medical assistance and medicines.^ The expenses for which a plaintiff may recover must be such as have been actually paid, or such as in the judgment of the jury are reason- ably necessary to be incurred.^ The plaintiff may procure a trained nurse, or other competent person, to take care of him, and recover the cost thereof as a portion of the damages.^ The value of the medical attendance and medicines must be estab- lished by evidence.^* When the fact that nursing was done has been proved, the value of such services may be included in the award of damages, without proof of their value.^^ The liability of a defendant for the plaintiff's doctors' and nurses' bills rests upon the ground, that they were rendered necessary by the 22 Hart V. Charlotte &c. R. R. Council Bluffs, 52 Iowa, 698 (1879); Co., 33 So. Car. 427 (1890). The Donnelly v. Hufschmidt, 79 Cal. 74 plaintiff is entitled to recover as (1889). a part of the damages, reasonable 25 Kendall v. City of Albia, 73 and necessary outlays in an at- Iowa, 241 (1887). And evidence tempt to be cured of the injuries that he had a wife and a grown resulting from the negligence of son and daughter, who could have the defendant. Sherwood v. Chi- given him necessary care and at- cago &c. Ry. Co., 82 Mich. 374 tention without expenses, is not ad- (1890). missible. lb. A person who, as the 23Knapp V. Sioux City &c. Ry. result of an injury. Is compelled Co., 71 Iowa, 41 (1887). to employ a servant to do her 24 Goodhart v. Pennsylvania R. household work is entitled to dam- R. Co., 177 Pa. St. 1, 14 (1896). The ages for the expense of keeping plaintiff cannot recover for the such servant. Willis v. Second nursing and attendance of the Avenue Traction Co., 189 Pa. St. members of his own household, 430 (1899). unle*ss they are hired servants; the 26 Reed v. Chicago &c. Ry. Co., value of such services may be 57 Iowa, 23 (1881); Bckerd v. Chl- shown though furnished gratui- eago &c. Ry. Co., 70 id. 23 (1886); tously. See Varnham v. City of Duke v. Missouri Pacific Ry. Co., Council Bluffs, 52 Iowa, 698 (1879); 99 Mo. 347 (1889); Smith v. Chi- Hewltt V. Eisenbart, 36 Neb. 794 cago &c. R. R. Co., 108 id. 243 (1893). Not necessary that they (1891). have been actually paid. Wilson 27 Murray v. Missouri Pacific Ry. V. Southern Pacific Co.. 13 Utah, Co.. 101 Mo. 236 (1890). 352 (1896); Varnham v. City of 19 290 Damages poe Personal Injdeies. defendant's neglect of duty, and it is not altered, by any ar- rangement the plaintiff may have made for the payment of such bills, or whether he ever pays them.^ A wife cannot recover expenses, such as physicians' or nurses' bills, for which her husband is liable,^^ unless she has charged her separate estate therefor.^" She may treat them as her own debt and pay them, in which case she can recover such expenses.^^ § 231. Physical and mental pain — Fright — Miscarriage — Question for the jury. — All the cases hold that, when the action is brought to recover damages for direct injuries to the person of the plaintiff, the physical and mental pain which the plaintiff has suffered, as a natural result of the injuries, are proper ele- ments of compensation,*^ that which it is reasonably certain the plaintiff will suffer in the future.** Pain is proved by proof of mangling and crushing.** Pain and suffering are not capable of being exactly measured by an equivalent in money.*^ Por pain and siiffering there can be no measure of compensa- 28 Denver &c. R. R. Co. v. Lor- Gr. 474 (1875, N. J.); Wilson v. entzen, 79 Fed. Rep. 291 (1897). Pennsylvania R. R. Co., 132 Pa. 29 Relyea v. Minneapolis &c. Ry. St. 27 (1890) ; Louisville &c. R. R. Co., 61 Minn. 224 (1895); Moody v. Co. v. Blnion, 107 Ala. 645 (1894); Osgood, 50 Barb. 628 (1868). Ransom v. New Yorli &e. R. R. 30 Moody V. Osgood, 50 Barb. Co., 15 N. Y. 415 (1857); Central 628 (1868). Passenger Ry. Co. v. Kuhn, 86 Ky. 31 Atlantic &c. R. R. Co. v. Iron- 578 (1888) ; District of Columbia v. monger, 95 Va. 625 (1898); City of Woodbury, 136 U. S. 450 (1889). Columbus T. Strasser, 138 Ind. 301 S3 Ayres v. Delaware &c. R. R. (1894); Lucas v. Detroit R. R. Co., Co., 158 N. Y. 254 (1899); Holyoke 92 Mich. 412 (1892). v. Grand Trunk Ry. Co., 48 N. H. 32 Village of Sheridan v. Hib- 541 (1869) ; Filer v. New York Cent, bard, 119 111. 307 (1887); McLaugh- R. R. Co., 49 N. Y. 42 (1872); Mem- lin V. City of Corry, 77 Pa. St. phis &c. K. R. Co. v. Whitfield, 109 (1874); Pennsylvania &c. Canal 44 Miss. 466 (1870); Frink v. Co. V. Graham, 63 id. 290 (1869); Schroyer, 18 111. 416 (1857); Fry v. Scott Township v. Montgomery, 95 Dubuque &c. Ry. Co., 45 Iowa, 416 id. 444 (1880); Kennon v. Gilmer, (1877); Swift v. Raleigh, 54 111. 131 U. S. 22 (1888) ; Mason v. In- App. 44 (1894) ; Meeteer v. Manhat- habitants of Ellsworth, 32 Me. tan Ry. Co., 63 Hun, 533 (1892). 271 (1850); Hammond v. Town of 34 Chicago &c. R. R. Co. v. Mukwa, 40 Wis. 35 (1876); City of Warner, 108 111. 538 (1884). Indianapolis v. Gaston, 58 Ind. 224 35 Goodhart v. Pennsylvania R. (1877); Klein v. Jewett, 11 C. E. R. Co., 177 Pa. St. 1, 14 (1896). Damages foe Pehsonal Injueies. 291 tion, save the arbitrary judgment of a jury. This is a rule of necessity.^® The mental suffering must be that which accom- panies actual injury.*^ The action being for personal injuries, there can be no recovery for mental suffering, accompanied by no other injury.^* In Connecticut it was held that the jury have a right to consider the peril and danger to which the person of the plaintiff was exposed, by the accident producing the injiiry.^® Where there is actual physical injury, damages resulting from incidental fright may be recovered.*" Although mental suffering alone will not support an action for damages, yet it constitutes an aggravation of damages when it naturally ensues from the act complained of.*^ A shock or injury to the nervous system, occasioned by a tort, must be regarded as a physical injury producing suffering to the body rather than to the mind, although the mind may be at the same time injuri- ously affected.*^ There may be a recovery for a miscarriage resulting from fright.*^ Any physical or mental suffering at- 36 Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26, 29 (1882). 37 Smitli Y. Pittsburgh &c. Ry. Co., 2 Ohio St. 10 (1872); Ferguson v. Davis County, 57 Iowa, 601 <1881) ; Smith v. Holeomb, 99 Mass. 552 (1868); McMahon v. Northern Central Ey. Co., 39 Md. 438 (1873) ; Porter v. Hannibal &c. R. R. Co., 71 Mo. 66 (1879); Memphis &c. R. R. Co. V. Whitfield, 44 Miss. 466 (1870); Kennon v. Gilmer, 131 TJ. S. 22 (1888); Sloane v. Southern Cal. Ry. Co., Ill Cal. 668 (1896). 38 Canning v. Inhabitants of Wil- liamstown, 1 Cush. 451 (1848); In- dianapolis &c. R. R. Co. V. Stables, 62 111. 313 (1872); Johnson v. Wells &c. Co., 6 Nev. 224 (1870); Wyman V. Leavltt, 71 Me. 227 (1880); Fltz- patrick v. Great Western Ry. Co., 12 Up. C. Q. B. 645 (185.5); Con- solidated Traction Co. v. Lambert- son, 30 Vr. 297 (1896). Such as fright. Mitchell v. Rochester Ey. Co., 151 N. Y. 107 (1896); Buchanan V. New Jersey R. E. Co., 23 Vr. 265 (1890). Fright or terror unac- companied by physical injury, even though a nervous shock and subse- quent illness result. Braun v. Craven, 175 111. 401 (1898). 39 Seger v. Town of Barkham- sted, 22 Conn. 290 (1853); Masters V. Town of Warren, 27 id. 293 (1858). *o Consolidated Traction Co. v. Lambertson, 30 Vr. 297 (1896) ; Pur- cell V. St. Paul City Ry. Co., 48 Minn. 134 (1892); Mack v. South Bound R. R. Co., 52 So. Car. 323 (1897). *i Sloane v. Southern Cal. Ry. Co., Ill Cal. 668 (1896). 42 Sloane v. Southern Cal. Ry. Co., Ill Cal. 668 (1896). 43 Oliver v. Town of La Valle, 36 Wis. 592 (1875); Brown v. Chi- cago &c. Ry. Co., 54 Wis. 342 (1882); Purcell v. St. Paul City Ry. Co., 48 Minn. 134 (1892); Chicago &c. Ry. Co. V. Hunerberger, 16 111. 293 Damages foe Peesonal Injuhies. tending the miscarriage is a proper element of compensation.** The amount of such compensation as damages must be left to the fair discretion and judgment of the jury.*^ But a deter- mination of damages cannot be left to the mere caprice of the jury. The jury must be limited to compensatory damages.** § 232. Loss of physical and mental capacity — Earnings — Profits. — • The plaintiff's loss of capacity, physical and mental, to attend to his usual business or perform the kind of labor for which he is fitted, are elements of compensation.*^ The damages must cover present loss and that which may arise from App. 387 (1885). Contra, Fitzpat- rick V. Great Western R. E. Co., 12 Up. C. Q. B. 645 (1855). " Any damage arising from the injury and resulting in depriving the plaintiff of prospective offspring." Such a charge was held error, ac- tion by the husband. Butler v. Manhattan Ry. Co., 143 N. Y. 417 (1894). See Mitchell v. Rochester Ry. Co., 151 id. 107 (1896). 4* Bovee v. Town of Danville, 53 Vt. 183 (1880). But the rule goes no further. Any injured " feel- ings " following the miscarriage, not part of the pain naturally at- tending it, are too remote to be considered elements of damage. lb. There can be no recovery for the death of the child and its prema- ture birth as a result of the in- juries. Hawliins v. Front Street Cable Ey. Co., 3 Wash. St. 592 (1892); TunnicUffe v. Bay City Cons. Ey. Co., 102 Mich. 624 (1894); Thomas v. Gates, Cal. ; 58 Pac. Rep. 315 (1899). *5 Ward V. Blackwood, 48 Ark. 896 (1886) ; New Jersey Express Co. V. Nichols, 4 Vr. 434 (1867); Mor- ris V. Chicago &c. E. E. Co., 45 Iowa, 29 (1876); Howard Oil Co. V. Davis, 76 Tex. 630 (1890); John- son V. Wells i&c. Co., 6 Nev. 224 (1870); Montgomery &c. Ey. Co. v. Mallette, 92 Ala. 209 (1890); Eich- mond &e. E. E. Co. v. Allison, 86 Ga. 145 (1890). To the experience and good sense of the jurors. Walker v. Erie Ey. Co., 63 Barb. 260 (1872). To the judgment and common sense of the ordinary juror. Brunswig v. White, 70 Tex. 504 (1888). Damages to a large extent rest in the discretion of the jury. Chicago &c. E. E. Co. v. Warner, 108 111. 538 (1884); Spring- field Consolidated Ey. Co. v. Hoeffner, 175 id. 634 (1898). *6Heil V. Glanding, 42 Pa. St. 493 (1862); Collins v. Leafey, 124 id. 203 (1889). 47 New Jersey Express Co. v. Nichols, 4 Vr. 433 (1867); Mc- Laughlin V. City of Corry, 77 Pa. St. 109 (1874); Goodhart v. Penn- sylvania E. E. Co., 177 id. 1 (1896); George v. City of Haverhill, 110 Mass. 506 (1872); City of Chicago V. Jones, 66 111. 349 (1872); Hall v. City of Fond du Lac, 42 Wis. 274 (1877); Morris v. Chicago &c. E. E. Co., 45 Iowa, 29 (1876); Fisher v. Jansen, 128 111. 549 (1889); District of Columbia v. Woodbury, 136 XJ. S. 450 (1889); Haden v. Sioux City &c. Ey. Co., 92 Iowa, 226 (1894). Damages foe Peesonal Injueies. 393 future incapacity.** E-\ddence of the nature and extent of the plaintiff's business and the general rate of profit he has realized therefrom, which has been interrupted by the defendant's wrongful act, is properly received, not on the ground of its furnishing a measure of damages to be adopted by the jury, but to be taken into consideration by the jury, to guide them in the exercise of that discretion which, to a certain extent, is always vested in the jury.*® It is competent for the plaintiff to show, by evidence, his previous physical condition and ability to labor, or to follow his usual avocation, as well as his condition since the injiiry.^" The permanent nature of the injury, its effect upon his capacity as a physician to pursue his professional calling, resulting from the injury ;^^ or that a physician had no other means of support.®^ The plaintiff may introduce evidence to show the kind and amount of mental and physical labor which he had been accustomed to do, before receiving the in- jury, as compared with that which he has been able to do since, for the purpose of aiding the jury to determine what com- pensation he should receive for his loss of mental and physical capacity.^^ The jury, in estimating damages, is to consider the health and condition of the plaintiff before the injury com- plained of, as compared with his health and condition conse- quent upon the injury. Whether it is, in its nature, perma- nent and how far it is calculated to disable the plaintiff from engaging in those mechanical pursuits and employments for *8 Klein ,v. Jewett, 11 C. E. Gr. ss Ballou v. Parnum, 11 Allen, 73 474 (1875). (1865). Evidence tbat the plaintiff 49 New Jersey Express Co. v. could read and was studying medi- Nichols, 4 Vr. 433, 437 (1867) ; Bier- cine and going to school before bach V. Goodyear Kubber Co., 54 the injury, but could not read af- Wis. 208 (1882); Hanover R. R. ter the occurrence, is admissible. Co. V. Coyle, 55 Pa. St. 396 (1867). Bruce v. Beall, 99 Tenn. 303 (1897). 50 City of Joliet v. Conway, 119 Damages for nursing wife and 111. 489 (1887); Ehrgott v. Mayor doing her work, the value of a &c. New York, 96 N. Y. 264 (1884) ; competent servant to perform same Richmond &c. R. R. Co. v. Allison, duty and not wages such as hus- 86 Ga. 145 (1890). band would have earned at his 51 City of Indianapolis v. Gas- trade. Hazard Powder Co. v. ton, 58 Ind. 224 (1877). See Met- Volger, 58 Fed. Rep. 152 (1893); calf V. Baker, 57 N. Y. 662 (1874). Town of Salida v. McKinna, 16 52 Stafford v. City of Oskaloosa, Colo. 523 (1891). 64 Iowa, 251 (1884). 294 Damages foe Peesonal Injueibs. which, in the absence of such injury, he would have been quali- fied.^* The plaintiff may show how much he had been earning and was capable of earning, by testifying to the amount of his annual earnings for six or seven years prior to the accident.^^ The extent of a physician's practice may be shown ;^® or that the plaintiff was engaged in a particular business, such as a distiller and manufacturer of turpentine. ^^ Where the business is of such a nature that the profits therein are uncertain, proof of plaintiff's past profits is incompetent, such as the uncertain future profits of commercial business, or the amount of past profits derived therefrom.^* Or where earnings depend upon skill and capital combined, it has been held error to allow proof of them.^^ The loss of profits in conducting a business involv- ing the labor of others, arising from the suspension of the business by reason of personal injiiry tO' the owner, is not a necessary consequence of such injury, the extent of recovery being what his services were worth in conducting the business.** 54 McMahon v. Northern Central 56 Nebraska City v. Campbell, 2 Ry. Co., 39 Md. 438 (1873); Water- Black, 590 (1862, U. S.); Cleveland man v. Chicago &c. K. R. Co., 82 &c. Ry. Co. v. Gray, 148 Ind. 266 Wis. 613 (1892); Consolidated Coal (1897). Co. v. Haenni, 146 111. 614 (1893). 57 Wade v. Leroy. 20 How. 34 In ascertaining the damages for (1857, IT. S.). Impaired ability to earn a liveli- 58 Masterton v. Village of Mt. hood, standard life and annuity Vernon, 58 N. Y. 391 (1874). The tables are competent evidence to plaintiff in that case was a tea be considered. Whelan v. New merchant. In a Wisconsin case it York &c. R. R. Co., 38 Fed. Rep. was held error to admit proof of 15 (1889). But not absolute guides the average profits of plaintiff's to control their decision. Vicks- business while he carried it on, as burg &c. R. E. Co. v. Putnam, 118 a basis of estimating his damages, U. S. 545 (1886). such a basis being of too uncer- 55 Ehrgott V. Mayor &c. New tain and speculative a character. York, 96 N. Y. 264, 275 '(1884). Bierbach v. Goodyear Rubber Co., That was the case of a book can- 54 Wis. 208 (1882). vasser, and the court illustrated 69 Johnson v. Manhattan Ry. Co., the principle by citing the case of 52 Hun, 111 (1889). a lawyer, physician and dentist. so Silsby v. Michigan Car Co., 95 So in the case of a peddler, evi- Mich. 204 (1893). Amount of prof- dence of the annual amount of his its which a theatrical troupe ex- sales and the profits he made pected to realize too remote, from them was held competent. Southern Ry. Co. v. Myers, 87 Fed. Hanover R. R. Co. v. Coyle, 55 Pa. Rep. 149 (1898). St. 396 (1867). Damages foe Personal Injuries. 295 Nor profits plaintiff would have made by siiperintending the sales of property which he was unwilling to entrust to others.®^ § 233. Earnings of plaintiff cannot be capitalized by the jury. — The jury cannot capitalize the earnings of the plaintiff and give him a sum, the interest of which would be equal to what his earnings had been in previous years.*^ Nor can the dam- ages be determined by the number of years that the disability will continue to exist, multiplied by the yearly compensation the plaintiff has earned in the past.^ § 234. Loss of time — Past and future. — All the cases hold that the loss of time from business is an element of compensation in the award of damages.®* The value of the time lost must be proved.®' When the plaintiff had been employed at a salary and his employer continues to pay his salary during the time that he is disabled, loss of time is not an element of compensa- tion.®® 61 Phyfe V. Mantiattan Ry. Co., 63 city of Denver v. Sherret, 88 30 Hun, 377 (1883). Profits de- Fed. Rep. 226, 236 (1898). rived from an investment or the 64 Hulzega v. Cutler &e. Lumber management of a business enter- Co., 51 Mich. 272 (1883); Morris v. prise are not earnings. The word Chicago &c. R. R. Co., 45 Iowa, " earnings " means the fruit or re- 29 (1876) ; Houston &c. Ry. Co. v. ward of labor, the price of ser- Boehm, 57 Tex. 152 (1882); Nones vices performed. Profits represent v. Northouse, 45 Vt. 587 (1874); the net gain made from an invest- Tomlinson v. Town of Derby, 43 ment or from the prosecution of Conn. 562 (1876); City of. Indian- some business after the payment apolis v. Gaston, 58 Ind. 224 (1877); of all expenses incurred. The net City of Chicago v. Jones, 66 111. gain depends largely on other cir- 349 (1872); City of Ripon v. Blttel, cumstances than the earning ca- 30 Wis. 614 (1872); Pennsylvania pacity of the persons managing &c. R. R. Co. v. Graham, 63 Pa. the business. Williams, J., in St. 2S0 (1869); Tefft v. Wilcox, 6 Goodhart v. Pennsylvania R. R. Kan. 46 (1870); Leeds v. Metropoli- Co., 17T Pa. St. 1, 15 (1896). tan Gas Light Co., 90 N. Y. 26 62 Gregory v. New Tork &c. R. (1882); Chicago &c. R. R. Co. v. B. Co., 55 Hun, 303, 308 (1890). Starmer, 26 Neb. 630 (1889). The plaintiff is entitled only to 65 Leeds v. Metropolitan Gas their present worth. Kinney v. Tol- Light Co., 90 N. Y. 26 (1882); kerts, 84 Mich. 616, 624 (1891); Baker v. Metropolitan R. R. Co., Goodhart v. Pennsylvania R. R. 118 id. 533 (1890). Co. 177 Pa. St. 1, 17 (1896). 66 Drlnkwater v. Dinsmore, 80 N. 296 Damages foe Pebsonal Injuries. § 235. Prospective or future damages. — Where the injury is permanent, the plaintiff may recover prospective as weU as past damages.®^ To enable a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reason- able certainty that they will result from the original injury.®* The limit in respect to future damages is, that they must be such as it is reasonably certain -wiU. inevitably and necessarily result from the injury.®^ That they are likely to so develop is insufficient,'^* or a mere possible continuance of disability by reason of an injury is not a proper element of damages,^^ or Y. 390 (1880); Montgomery &c. Ry. sTHodsoll v. Stallebrass, 11 Ad. Co. v. Mallette, 92 Ala. 209 (1890). & E. 301 (1840); Weisenberg v. The plaintiff cannot recover, in ad- City of Appleton, 26 Wis. 56 dition to the value of the loss of (1870); Whitney v. Town of Clar- time, what he has paid another to endon, 18 Vt. 252 (1846); Wallace labor in his place. Blaclsman v. v. Western R. R. Co., 104 No. Car. Gardiner Bridge, 75 Me. 214 (1883). 442 (1889); Gorham v. Kansas City "The plaintiff was entitled to re- &c. Ry. Co., 113 Mo. 408 (1892); cover a reasonable compensation Lake Shore &c. Ry. Co. v. Johnsen, for the time which she had lost, 136 111. 641, 654 (1891). and for the pain and suffering, es Strohm v. New Yorli &c. R. R. both bodily and mental, which Co., 96 N. Y. 305, 306 (1884); fol- she had endured to the time of the lowed, Tozer v. New Yorls; &c. R. trial, and also for the time which R. Co., 105 id. 617 (1887); AyreB v. It was reasonably probable that Delaware &c. R. R. Co., 158 id. she would lose, and for the pain 254 (1899). and mental anxiety which it was 69 Filer v. New York &c. R. R. reasonably probable that she Co., 49 N. Y. 42, 49 (1872); Feeney would endure after the trial, by v. Long Island R. R. Co., 116 id. 375 ; reason of such inJurieSj taking (1889); Washington &c. R. R. Co. ' into consideration the Impaired v. Harmon, 147 TJ. S. 571 (1892); usefulness of the limb, both past Waterman v. Chicago &c. R. R. and future, and its loss of sym- Co., 82 Wis. 613, 635 (1892); Prop- metry, if that circumstance affects som v. Leatham, 80 Id. 608, 615 its usefulness. She was also en- (1891); White v. Milwaukee &c. titled to recover her necessary ex- Ry. Co., 61 id. 536, 541 (1884); penses for surgical attendance." Woodward v. City of Boscobel, 84 Lyon, J., in Goodno v. City of Osh- id. 226 (1893); Chilton v. City of kosh, 28 Wis. 300, 304 (1871). For St. Joseph, 143 Mo. 192 (1897). the rule of damages, approved by to strohm v. New York &c. R. R. the Supreme Court of Michigan, Co., 96 N. Y. 305, 306 (1884). see Sherwood v. Chicago &c. Ry. '^i White v. Milwaukee &c. Ry. Co., 82 Mich. 374, 383 (1890). Co., 61 Wis. 536, 541 (1884). Damages foe Pehsonal Injuhies. 297 " may endure hereafter," or " likely to suffer hereafter.'"^ The prospective disablement may be inferred from the nature of the injury, or proved by the opinions of experts.'^* There can be no award of damages for future pecuniary loss, unless there is evidence given as to the circumstances and condition in life of the plaintiff, his earning power, skill and capacity.^* § 236. Injury aggravated by disease — Disease developed by injury. — The fact that the injury was aggravated by disease is immaterial. ^^ If the disease causing suffering or permanent injury results, proximately, from personal injuries inflicted by the negligence of the defendant, the suffering caused by that disease constitutes an element in estimating damages.^® Where an already-existing disease is aggravated by the injury, the plaintiff is entitled to full compensation.'^''' If the disability already existed, then the defendant is only liable for such addi- tional disability as resulted from the injury caused by him.''* 72 Hsirdy v. Milwaukee Street tt Ohio &c. R. R. Co. v. Hecht, Ry. Co. 89 Wis. 183 (1895). The 115 Ind. 443 (1888); Shumway v. rule is " a reasonable certainty " Walworth &c. Mfg. Co., 98 Mich, that the injury will be permanent. 411 (1894); Montgomery &e. Ry. 75 Ayres v. Delaware &c. R. R. Co. v. Mallette, 92 Ala. 209 (1890) ; Co., 158 N. Y. 254 (1899). Louisville &c. R. R. Co. v. North- T4Staal V. Grand Street &c. R. ington, 91 Tenn. 56 (1891); Louis- R. Co., 107 N. Y. 625 (1887). ville &c. Ry. Co. v. Jones, 108 Ind. T5 Baltimore City Ry. Co. v. 551 (1886) ; Woodward v. City of Kemp, 61 Md. 74 (1883); Stewart Boscobel, 84 Wis. 226 (1893). It V. City of Ripon, 38 Wis. 584 is an injury wrongfully to cause, (1875); Allison v. Chicago &c. R. aggravate or protract illness. Bray R. Co., 42 Iowa, 274 (1875); Hous- v. Latham, 81 Ga. 640 (1889). ton v. Traphagen, 18 Vr. 23 (1885); 78 whelan v. New Yorli &c. R. Vosburg V. Putney, 86 Wis. 278 R. Co., 38 Fed. Rep. 15 (1889). In (1893). Question of fact for the an action based upon a second ac- Jury to determine whether a can- cident, the plaintiff, in addition to cer did result from the injury re- damages for any new injury, the ceived, the fact that the plaintiff result of that accident, may also may have had a tendency or pre- recover for any increase or aggra- disposition to cancer can afford no vation of the old injuries by objection to a claim for damages, reason of the second accident. Baltimore City Ry. Co. v. Kemp, Brooks v. Rochester Ry. Co., 156 61 Md. 74 (1883). K. Y. 244 (1898). 76 Houston &o. Ry. Co. v. Les- lie, 57 Tex. 83 (1882). 298 Damages fob Pehsonal Injuhies. Full recovery may be had, although the injured person was, on account of previous condition of life, predisposed to injury.™ A latent disease, which might never have exhibited itself, was developed by, and resulted from, an injury. It was held to be a proper element of damage.^ Although the plaintiff be in delicate health, she is not limited to damages that would have followed if she had been in good bodily health.*^ After the injury, the plaintiff drove several miles, exposed to the rain, and caught cold and aggravated the injury; such exposure was the natural result of the injury.*^ The fact that the plaintiff may have had a tendency or predisposition to cancer is not a defense.*^ It is an element of damages that the injuries might render child-bearing perilous to life.^* § 237. Plaintiff must use reasonable efforts to mitigate injury. — The plaintiff must use such reasonable efforts as are in his power to mitigate the consequences of the injury.^ Failing to use such reasonable means, he cannot recover for the suffer- 79 Fright causing nervous con- (1883) ; Driess v. Priederlck, 73 Tex. vulsions and illness. Purcell v. St. 461 (188&); Owens v. Kansas City Paul &c. Ry. Co., 48 Minn. 134 &c. R. R. Co., 95 Mo. 169 (1888); (1892); Crane Elevator Co. v. Lip- Sloane v. Southern Gal. Ry. Co., pert, 63 Fed. Rep. 942 (1894); 11 111 Oal. 669 (1896). 0. C. A. 521. 82Bhrgott v. Mayor &c. NeW 80 La Plelne v. Morgan &c. Co., Yorli, 96 N. Y 264 (1884). When 40 La. Ann. 661 (1888); Louisville the injury caused insanity, which, &c. Ry. Co. V. Falvey, 104 Ind. in turn, caused suicide, the death 409 (1885); 7 Am. & Eng. Ency. of was too remote. Scheffer v. Wash- Law (2d ed.), p. 388. Plaintiff had ington &c. R. R. Co., 105 tJ. S. Bright's disease. Louisville &c. 249 (1881). Ry. Co. V. Snyder, 117 Ind. 435 83 Baltimore City Pass. Ry. Co. (1888). Scrofulous tendency. Stew- v. Kemp, 61 Md. 74 (1883). art V. City of Rlpon, 38 Wis. 584 84 Alabama Southern R. R. Co. (1875). Consumption. Hurley v. v. Hill, 93 Ala. 514 (1890). New York &c. Brewing Co., 43 N. 8S city of Elgin v. Riordan, 21 Y. Supp. 259 fl897). Erysipelas. 111. App. 600 (1886); Louisville &c. Dickson v. HoUister, 123 Pa. St. R. R. Co. v. Falvey, 104 Ind. 409 421 (1889). Paralysis. Bishop v. (1885) ; City of Bradford v. Downs, St. Paul City Ry. Co., 48 Minn. 26 126 Pa. St. 622 (1889); Pullman (1892). Catarrh. Quackenbush v. Palace Car Co. v. Bluhm, 109 111. Chicago &c. Ry. Co., 73 Iowa, 458 20 (1884); Citizens R. R. Co. v. (1887). Hobbs, 15 Ind. App. 610 (1896); 81 Tice V. Munn, 94 N. Y. 621 Field on Damages, p. 130. Damages foh Pehsonal Injuries. 399 ing and loss of capacity caused by his neglect to use such means.** If the plaintiff employs a physician, the damages will not be mitigated, although his condition might have been improved by more skillful treatment.^'' It is not necessary that the plaintiff employs the best medical and surgical skill to be had in effecting a cure. If he used reasonable and ordinary care in the selection of a physician or surgeon, it is sufficient.** ISTegligence of the plaintiff in stich cases is generally a question for the jury.*^ § 238. Deformity — Anguish of mind — Inconvenience. — Dis- figurement of the person is an element of damage;^ or perma- nent annoyance caused by deformity.®^ It v^as held not error to 86 7 Am. & Eng. Ency. of Law tie v. Farmington, 58 N. H. 13 (2(1 ed.) p. 388. It is his duty to (1876). employ such servants and nurses ss Collins v. City of Council as ordinary prudence in his situa- Bluffs, 32 Iowa, 324 (1871); Moore tion may require, and to use ordi- v. City of Kalamazoo, 109 Mich, nary judgment and care in doing 176 (1896); Heintz v. Caldwell, 10 so, and to select only such as are of Ohio C. C. 630 (1898); New York at least ordinary skill and care in &e. Telephone Co. v. Bennett, their profession. Pullman Palace Vr. (1899); 5 Am. Neg. Rep. Car Co. V. Bluhm, 109 111. 20 057. Even though the operation is (1884); Citizens' Street Ry. Co. v. the immediate cause of the death. Hobbs, 15 Ind. App. 610 (1896). Sauter v. New York &c. R. R. Co., The law does not make him an in- 60 N. Y. 50 (1870). See Lyons v. surer in such case. lb. Erie Ry. Co., 57 N. Y. 489 (1874). 87 Collins V. City of Council But damages caused by plaintiff's Bluffs, 32 Iowa, 324 (1871); Rice negligence in the employment of V. City of Des Moines, 40 id. 038 medical aid are not chargeable to (1875); Sullivan v. Tioga R. R. Co., the defendant. City of Crete v. 112 N. Y. 643 (1889); Loeser v. Childs, 11 Neb. 252 (1881). The Humphrey, 41 Ohio St. 378 (1884); injured person is not bound to re- Selleck v. City of Janesville, 100 frain from taking exercise. Foels Wis. 157 (1898); Pullman Palace v. Town of Tonawanda, 59 Hun, Car Co. V. Bluhm, 109 111. 20 567 (1891); 14 N. Y. Supp. 46. (1884). The defendant is liable for 89 Bardwell v. Town of Jamaica, the increased damages, if any, 15 Yt. 438 (1843). arising from the unskillful treat- 90 Mayor &c. of Birmingham v. ment of the plaintiff, without any Lewis, 92 Ala. 352, 357 (1890); fault on his part, by a surgeon of Newbury v. Getchel &c. Mfg. Co., ordinary professional skill and 100 Iowa, 441 (1896). knowledge. Stover v. Inhabitants 9i Sherwood v. Chicago &c. Ry. of Bluehill, 51 Me. 439 (1803); Tut- Co, 82 Mich. 374, 383 (1890). 300 Damages foe Personal Injuhies.' charge tlie jury tiiat " mortification and anguish of mind which he has suffered, and will in the future suffer, by reason of the mutilation of his body, and the fact that he may become an object of curiosity or ridicule among his fellows."®^ Serious injury of a young girl, which impairs her prospects of marriage when she reaches a marriageable age, is an element of dam- age.*' Inconvenience is not included in compensatory dam- ages,®* or lack of personal enjoyment.®^ Anguish of mind, arising from a contemplation of disfigurement of the person, is not an element of damages.®" § 239. Mitigation of damages — Accident insurance. — Tlie fact that the plaintiff held an accident insurance policy when injured, does not affect or diminish the damages.®^ § 240. Character of plaintiff or defendant not in issue. — The character of the plaintiff cannot b© considered as an element of calculation, in estimating the amount of damages. An in- struction submitting it to the jury for such purpose is error.®* So of the defendant. ISTor is it admissible to introduce evidence of the poverty or wealth of the plaintiff or defendant.®® Evi- 92 Heddles v. Chicago &c. Ry. tiff had, after the injury, received Co., 77 Wis. 228 (1890). It was a salary as postmaster, is to be held that such charge, not being considered on the question of intended to specify new elements damages. Goodhart v. Pennsyl- or grounds of damages, but merely vania R. R. Co., 177 Pa. St. 1, 16 to indicate the causes from which (1896). mental pain and suffering would 98 Johnson v. Wells &c. Co., 6 be likely to arise, was not error. Nev. 224 (1870). Moral character 93 Smith V. Pittsburg &c. Ry. of the plaintiff. Indianapolis &c. Co., 90 Fed. Rep. 783 (1898). Ry. Co. v. Bush, 101 Ind. 582 94 Jenson v. Chicago &c. Ry. Co., (1884). 86 Wis. 589 (1893). ' 99 Chicago &c. Ry. Co. v. Bay- 95 City of Columbus v. Strassner, field, 37 Mich. 205 (1877); Shea v. 124 Ind. 4ffi (1890). Potrero &c. R. R. Co., 44 Cal. 414 96 Chicago &c. R. R. Co. v. (1872); Green v. Southern Pacific Hines, 45 111. App. 299 (1892). Co., 122 Cal. 563 (1898); Eagle 97 Harding v. Town of Town- Packet Co. v. Defries, 94 111. 598 send, 43 Vt. 536 (1869) ; Althorf v. (1880) ; Barbour County v. Horn, 48 Wolfe, 22 N. T. 355 (1860); Coulter Ala. 566 (1872); Driess v. Fred- V. Pine Township, 164 Pa. St. 543 erick, 57 Tex. 70 (1882); Chicago (1894). But the fact that the plain- City &c. Ry. Co. v. Henry, 62 111. Damages fob Pehsonal Injuries. 301 dence that the plaintiff was a man of intemperate habits, and when intoxicated was unable to transact business, is not admis- sible on the question of damages.^ § 241. Special damages — Exemplary damages distinguislied. — " Special damage is that which the law does not necessarily imply that the plaintiff has sustained from the act complained of. It is often very difficult to distinguish general from special damage. The necessary result of an injury is often and easily confounded with the natural and proximate result, and all legal damage, whether general or special, must naturally and proxi- mately result from the act or default complained of. It is difficult to lay down any general rule by which to determine when the law implies the damage and when it does not. It would seem that when the consequences of an injury are pecu- liar to the circumstances and condition of the injured party, the law could not imply the damage simply from the act causing the injury."^ Exemplary damages are not special damages. They may be recovered, although not specially alleged and claimed in the complaint.^ § 242. Special damages — Pleading. — Some of the courts hold that if special damages are to be proved, i. e., such dam- ages as do not necessarily arise from the act complained of, and 142 (1871); Schwanzer v. Brooklyn 2L,oomis, J., in Tomllnson v. K. R. Co., 45 N. Y. Supp. 889 Town of Derby, 43 Conn. 562, 56T (1897) ; Belknap V. Boston &c. R. K. (1876). In Connecticut the tech- Co., 49 N. H. 358 (1870) ; Barnes v. nical rule of the common law Is ad- Keene, 132 N. T. 13 (1892) ; 18 App. hered to closely; that where the Dlv. 205; Missouri Pacific B. R. damages from an act complained Co. V. Lyde, 57 Tex. 505 (1882). of are special, the matter must be 1 Baltimore &c. R. R. Co. v. Bo- distinctly averred in the declara- teler, 38 Md. 568 (1873). Nor can tlon in order to apprise the de- the plaintiff show that he has de- fendant of the nature of the claim, pendent children, a large or small See Squier v. Gould, 14 Wend. 159 family, for the purpose of enhanc- (1835) ; Oarples v. New York &c. ing damage. Shaw v. Boston &c. R. R. Co., 44 N. Y. Supp. 670 R. R. Co., 8 Gray, 45 (1857); City (1897); 16 App. Div. 158. of Joliet V. Conway, 119 111. 489 3 Wilkinson v. Searcy, 76 Ala. 176 (1887); Kreuziger v. Chicago &c. (1884j; Alabama &c. R. B. Co. v. Ry. Co., 73 Wis. 158 (1888). Arnold, 84 id. 159 (1887). 303 Damages foe Peesonal Injueies. consequently not implied by law at the time of the injury, they should be specially pleaded.* § 243. Punitive — Vindictive — Exemplary damages. — Punir tive, vindictive and exemplary damages are, in legal contem- plation, synonymous terms.^ They are sometimes called smart money.® These terms do not imply that the award of such damages is intended by law as a punishment for a violation of criminal law.'' Exemplary damages may be allowed in actions based upon negligence, when such negligence is so gross and culpable as to evince utter recklessness.^ The injury need not be willful.^ There must be willful misconduct or conscious indifference to consequences.-"* In Kentucky they are allowed 4 See § 163. wrongdoer from repeating the tres- Oonnecticut: Taylor v. Town of pass. Chattanooga &c. R. R. Co. v. Monroe, 43 Conn. 36 (1875); Tom- Liddell, 85 Ga. 482 (1890); Samuels llnson v. Town of Derby, id. 562 v. Richmond &c. R. R. Co., 35 So. (1876). Car. 493 (1891). Illinois: City of Chicago v. » Thomas on Neg. 476; Lake O'Brennan, 65 111. 160 (1872). Shore &c. Ry. Co. v. Prentice, 147 Massachusetts: Plaintiff's occu- U. S. 101 (1892); Columbus &c. Ry. pation and means of earning sup- Co. v. Bridges, 86 Ala. 448 (1888); port. Baldwin v. Western R. R. Alabama &c. R. R. Co. v. Arnold, Co., 4 Gray, 333 (1855). Decided 80 id. 600 (1886) ; Alabama &c. R. R. under Practice Act, Stats. 1852, Co. v. Hill, 90 id. 71 (1890); 93 id. chap. 312, § 6. 514. See Fay v. Parker, 53 N. H. Michigan: Silsby v. Michigan 342 (1872). Car Co., 95 Mich. 204 (1893). Such » Wilkinson v. Searcy, 76 Ala. as loss of profits. 176 (1884). Are not special dam- New York: Squier v. Gould, 14 ages and may be recovered, al- Wend. 159 (1835). though not specially alleged and Wisconsin: Luck v. City of claimed in the complaint. See Ripon, 52 Wis. 196 (1881). also 84 Ala. 159 (1887). 5 Chiles V. Drake, 2 Mete. 146 lo McFee v. Vicksburg &c. R. R. (18594 Ky.). Co., 42 La. Ann. 790 (1890); Chat- 6 Lake Shore &c. Ry. Co. v. tanooga &c. R. R. Co. v. Liddell, Prentice, 147 XJ. S. 107 (1892). 85 Ga. 482 (1890); Hoffman v. 7Bixby V. Dunlap, 56 N. H. 456 Northern Pacific R. R. Co., 45 (1876); Augusta &c. R. R. Co. v. Minn. 53 (1890); Roberts v. Mason, Randall, 79 Ga. 304 (1887); Louis- 10 Ohio St. 277 (1859); Hart v. ville &c. Ry. Co. v. Wolfe, 128 Ind. Charlotte &c. R. R. Co., 33 So. Car. 347 (1890). They are given not as 427 (1890); Douney v. Chesapeake a punishment, but to deter the &c. Ry. Co., 28 W. Va. 732 (1886). Damages foe Pehsonal Injueies. 303 for gross negligence/^ or wliere the commission of the act com- plained of is accompanied with circumstances of aggravation.^^ A corporation, like a natural person, may be held liable in exemplary or punitive damages for the act of an agent vrithin the scope of his employment, provided the criminal intent nec- essary to warrant the imposition of such damages is brought home to the corporation.''^ So a corporation may recover ex- emplary damages for a malicious and oppressive trespass.-'* " In actions of tort, the jury, in addition to the sum awarded by way of compensation for the plaintiff's injury, may award exemplary, punitive or vindictive damages, sometimes called smart money, if the defendant has acted wantonly, or oppress- ively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations. But such guilty in- tention on the part of the defendant is required to be proved in order to charge him with exemplary or punitive damages."^' They cannot be awarded against a municipal corporation.''' 11 Louisville &c. R. R. Co. v. 129 id. 26 (1889). The propriety Mitchell, 87 Ky. 327 (1888). See and legality of the imposition of Missouri Pacific R. R. Co. v. John- punitive damages for a violation of son, 72 Tex. 95 (1888); Patterson duty have been recognized by re- V. South &c. R. R. Co., 89 Ala. 318 peated judicial decisions for more (1889). than a century. Mr. Justice Field 12 Chiles V. Dralie, 2 Mete. 146 in last case. When the negligence (1859, Ky.). This is said to be a is willful. Emblen v. Myers, 6 settled rule of law in Kentucky. Hurlst. & N. 54 (1860). 13 Lake Shore &c. Ry. Co. v. is " The inhabitants of the lo- Prentice, 147 U. S. 101, 111 (1892); cality, constituting, as they do, the Atlantic &c. Ry. Co. v. Dunn, 19 corporation (?. e., the municipal cor- Ohio St. 162 (1869); id. 590; Hagan poration), really pay the damages, V. Providence &c. R. R. Co., 3 R. and where punishment in the form I. 88 (1854). of exemplary damages is inflicted 14 International &c. R. R. Co. v. it falls on them, and this is neither Telephone &c. Co., 69 Tex. 277 just nor consistent with the under- (1887) lying principle which sustains the 15 Mr. Justice Gray in Lake rule declaring that vindictive dam- Shore &c. Ry. Co. V. Prentice, 147 ages may be recovered." Elliott on U. S. 101, 107 (1892). See Missouri Roads & Streets, 652; Field on Pacific Ry. Co. v. Humes, 115 id. Dam., § 86; City of Chicago v. 512 (1885); Barry v. Edmunds, 116 Kelly, 69 111. 475 (1873); City of id. 550 (1885); Denver &c. Ry. Co. Parsons v. Lindsay, 26 Kan. 426, V. Harris, 122 id. 597 (1886); Min- 434 (1881). neapolls &g. Ry. Co. v. Beckwith, 304 Damages fob Personal Injubies. Nor for negligence simply, unless aggravating circumstances, or the elements of willfulness, are present." 17 Alabama: Alabama &c. K. E. Co. V. Arnold, 84 Ala. 159 (1887); 80 id. 600; Patterson v. Southern &c. R. E. Co., 89 id. 318 (1889). There must be circumstances of aggravation or willful wrong. Ala- bama &c. R. E. Co. V. Sellers, 93 Ala. 9 (1890). Arkansas: The element of will- fulness or conscious Indifference to consequences must be present from which malice may be in- ferred. St. Louis &c. Ey. Co. v. Hall, 53 Ark. 7 (1890). California: Yerian v. Linkletter, 80 Cal. 135 (1889). Colorado: Not in a civil action, although the tort causing the in- jury sued for Is willful and is not punishable criminally. Greeley &c. Ry. Co. V. Yeager, 11 Colo. 345 (1888). Connecticut: Negligence must be gross or wanton. Gibney v. Lewis, 68 Conn. 392 (1896). Florida: Florida Southern Ey. Co. V. Hirst, 30 Fla. 1 (1892). Georgia: Chattanooga &c. E. E. Co. V. Liddell, 85 Ga. 482 (1890). Indiana: When malice and op- pression weigh in the controversy and the act is punishable as a crime. Louisville &c. Ey. Co. v. Wolfe, 128 Ind. 347 (1890). Iowa: Cameron v. Bryan, 89 Iowa. 214 (1893). Kentucky: Givens v. Kentucky Central Ey. Co., 89 Ky. 231 (1884). Louisiana: In Louisiana, it is said that the doctrine of exem- plary or punitive damages, as ap- plicable to common carriers, is not yet definitely settled. Eutherford V. Shreveport &c. E. E. Co., 41 La. Ann. 793 (1889). See McPee v. Vicksburg &c. R. R. Co., 42 id. 790 (1890). Maryland: Eliason v. Grove, 85 Md. 215 (1897). Massachusetts: If there is wan- tonness or mischief, causing addi- tional bodily or mental damages, in the injurious act of the servant within the scope of his employ- ment, that wantonness or mischief will enhance the damages against the master. Hawes v. Knowles, 114 Mass. 518 (1874). Michigan: Lucas v. Michigan Central E. R. Co., 98 Mich. 1 (1893). Minnesota: Hoffman v. Northern Pacific E. E. Co., 45 Minn. 53 (1890). Mississippi: Alabama &c. Ey. Co. V. Purnell, 69 Miss. 652 (1892). Missouri: Stoher v. St. Louis &c. Ey. Co., 91 Mo. 509 (1887). Nebraska: Boyer v. Barr, 8 Neb. 68 (1878). New Hampshire: Bixby v. Dun- lap, 56 N. H. 456 (1876); Taylor y. Grand Trunk Ry. Co., 48 Id. 304 (1869); Fay v. Parker, 53 id. 342 (1872). Not against an insane per- son. Jewell V. Colby, N. H. ; 24 Atl. Rep. 902 (1891). New York: Townsend v. New- York &c. R. R. Co., 56 N. Y. 295 (1874); Cleghom v. New York &e. E R. Co., id. 44 (1874); Muckle- V. Rochester &c. Ey. Co., 79 Hnn, 32 (1894); 29 N. Y. Supp. 732. North Carolina: Holmes v. Caro- Damages fob Peksonal Injubies. ' 305 § 244. Damages resulting indirectly from injuries to the per- son. — The second class of cases is that in which the action is brought to recover damages for the injuries, resulting indi- rectly from the injury to the person, the plaintiff standing in a legal relation to the person directly injured, such as hus- band and wife, parent and child, master and servant. In case of the wife being injured, in addition to the recovery of dam- ages by the vdfe, which, at common law, are limited to the injury done to the wife,** the husband has a right of action to recover for his loss, growing out of the personal injury to his wife, from the same wrongful act. § 245. Damages to husband from injury to wife. — The hus- band has a right of action to recover damages as compensation for the expenses incurred in his wife's cure.*® He can also lina Central E. R. Co., 94 No. Car. West Virginia: Talbot v. West 318 (1886); Hansley v. Jamesvllle Virginia Ey. Co., 42 W. Va. 560 &c. R. R. Co., 115 Id. 602 (1894). (1896). See 12 Am. & Eng. Ency. Oregon: Sullivan v. Oregon Ey. of Law (2d ed.), p. 4. Co., 12 Or. 392 (1885). is Thomas on Neg. 455, 458; Pennsylvania: Lake Shore &c. Puller v. Naugatuck R. R. Co., 21 Hy. Co. V. Rosenzwelg, 113 Pa. St. Conn. 557 (1852); Baltimore City 519 (1886); Philadelphia Traction Ey. Co. v. Kemp, 61 Md. 74 (1883); Co. V. Orbann, 119 id. 37 (1888). Barnes v. Hund, 11 Mass. 59 (1814) ; Ehode Island: Hagan v. Provi- Smith v. City of St. Joseph, 55 Mo. denee &e. E. E. Co., 3 E. I. 88 456 (1874); Heirn v. M'Caughan, 32 <1854). Jliss. 17 (1856); Lewis v. Babcock, South Carolina: Samuels v. Eich- 18 Johns. 443 (1821); Brooks v. mond &c. E. E. Co., 35 So. Car. Schwerln, 54 N. Y. 343 (1873); City 493 (1891); Mack v. South Bound of Joliet v. Conway, 119 111. 489 R. R. Co., 52 id. 323 (1897). (1887); Klein v. Jewett, 11 C. E. Tennessee: East Tennessee &c. Gr. 474 (1875, N. J.). A married Ry. Co. V. Lee, 90 Tenn. 570 (1891). woman can recover for expenses Texas: Houston &p. R. E. Co. incident to her sickness when the V. Baker, 57 Tex. 419 (1882) ; Mis- sole credit was given to her. Lucas aouri Pacific E. E. Co. v. Johnson, v. Detroit City Ey. Co., 92 Mich. 72 id. 95 (1888); id. 165. 412 (1892); Atlantic &c. E. E. Co. Virginia: Norfolk &c. R. E. Co. v. Ironmonger, 95 Va. 625 (1898); V. Lipscomb, 90 Va. 137 (1893). City of Columbus v. Strasser, 138 Washington: Not in Washington Ind. 301 (1894). when the defendant is guilty of 19 Klein v. Jewett, 11 C. E. Gr. gross negligence. Spokane Truck 474 (1875, N. J.); Tuttle v. Chicago Co. V. Hoefer, 2 Wash. St. 45 &c. E. R. Co., 42 Iowa, 518 (1876); ^1891) Northern Central Ey. Co. v. Mills, 20 306 Damages foe Pehsonal Injubies. recover compensation, as an element of his damages, for the loss of his wife's services.^ He cannot recover anything for his wife's personal sufferings,^* nor for damages arising from the injury which results in depriving the husband of prospective offspring. ^^ The husband may bring a suit alone to recover the damages caused to him by the injury to his wife.^ The measure of damages will be the loss of the services of his wife and the costs incurred by him for medical attendance, nursing, etc.** In Missouri it was held, that in aggravated cases, 61 Md. 355 (1883); Hawkins v. his wife. Ainley v. Manliattan Ry. Front Street Cable Ky. Co., 3 Co., 47 Hun, 206 (1888). Wash. St. 592 ( 1892) ; Henny v. 21 Union Pacific Ry. Co. v. Jones, Klopfer, 147 Pa. St. 178 (1892); 21 Colo. 340 (1895). When the suit Union Pacific Ry. Co. v. Jones, 21 is by the husband for injuries to Colo. 340 (1895); Tompkins v. the wife, the mental suffering of West, 56 Conn. 478 (1888). the wife is an element of damages. 20 Filer v. New York &c. R. R. Campbell v. Harris, 4 Tex. Civ. Co., 49 N. Y. 47 (1872); McDonald App. 636 (1893). Injury to the wife V. Chicago R. R. Co., 26 Iowa, 124 caused by a fellow servant of the (1868); Klein v. Jewett, 11 C. E. husband; suit in the name of the Gr. 474 (1875, N. J.); Brooks v. husband; the rule of fellow ser- Schwerin, 54 N. Y. 343 (1873) ; Hop- vants is not applicable, kins V. Atlantic &c. R. R. Co., 36 22 Butler v. Manhattan Ry. Co., N. H. (1857); Hawkins v. Front 143 N. Y. 417 (1894). Street Cable Ry. Co., 3 Wash. St. 23 See § 113; Thomas on Neg. 592 (1892); Citizens Street Ry. Co. 456; Rogers v. Smith, 17 Ind. 323 V. Twiname, 121 Ind. 375 (1889); (1861); McKinney v. Western Stage MetropoUtan Street R. R. Co. v. Co., 4 Iowa, 420 (1857); Long v. Johnson, 91 Ga. 466 (1893); Lind- Morrison, 14 Ind. 595 (1860); sey V. Town of Danville, 46 Vt. 144 Hawkins v. Front Street Cable Ry. (1878); Readdy v. Borough of Co., 3 Wash. St. 592 (1892). Shamokin, 137 Pa. St. 98 (1890); 24 Mowry v. Chaney, 43 Iowa, Henny v. Klopfer, 147 Pa. St. 178 609 (1876) ; Tuttle v. Chicago &c. R. (1892); Hopkins v. Atlantic &c. R. R. Co., 42 Iowa, 518 (1876); Smith R. Co., 36 N. H. 9 (1857). But he v. City of St. Joseph, 55 Mo. 456 cannot recover for the society, (1874); Meier v. Missouri Pacific companionship and solace of his By. Co., 12 Mo. App. 35 (1882); wife. Hawkins v. Front Street Washington &c. R. R. Co. v. Cable Ry. Co., 3 Wash. St. 592 Hickey, 12 App. Cas. (D. C.) 269, (1892); Board of Commissioners v. 275 (1898); Kavanaugh v. City of Legg, 93 Ind. 523 (1883). Contra, Janesville, 24 Wis. 618 (1869); Union Pacific Ry. Co. v. Jones, 21 Hawkins v. Front Street Cable Ry. Colo. 340, 345 (1895). May recover Co., 3 Wash. St. 592 (1892). for the assistance and society of Damages fok Personal Injtjbies. 307 the husband may recover compensation for his own services in waiting upon his wife during her illness.^ § 246. Damages to parent from injury to child. — A parent has a right of action to recover compensation, as elements of damage, for the loss of services caused by an injury to a minor child.^ The plaintiff is entitled to recover not only for the loss of services up to the time of the trial, but for prospective loss during the child's minority. Also, for expenses actually and necessarily incurred, or which are immediately necessary, in consequence of the injury, in the care and cure of the child.^ 25 Smith v. City of St. Joseph, business, which thereby suffers 55 Mo. 456 (1874); Hazard Powder detriment. Tuttle v. Chicago &c. Co. T. Volger, 58 Fed. Kep. 152 E. K. Co., 42 Iowa, 518 (1876). Ac- (1893). In New York it was held tlon by a married woman to re- under the provisions of the Act cover damages for personal inju- of 1860 (chapter 90, Laws of 1860), ries; it was held error to permit concerning the rights and liabill- her to testify that her husband, ties of husband and wife, as modi- who lived apart from her, con- fled in 1862 (chapter 172, Laws of tributed nothing towards her sup- 1862), which authorizes a married port. Burleson v. Village of Read- woman to perform any labor or ing, 110 Mich. 512 (1896). service on her separate account, 26 See § 120; Elliott on Roads & and gives her her earnings there- Streets, 654; Shearm. & Redf. on for, and empowers her to bring Neg. (5th ed.), § 763; Oakland Ry. an action in her own name for in- Co. v. Fielding, 48 Pa. St. 320 juries to her person, the services (1864); Karr v. Parks, 44 Cal. 46 of the wife in the household still (1872). For a period not exceeding belong to her husband, and so far the minority of the child. Traver as an injury to her disables her v. Eighth Ave. R. R. Co., 42 N. Y. from performing such services the 497; 3 Keyes, 497 (1867); Barnes v. loss is his, and he, and not she, Keene, 132 N. Y. 13 (1892). From can recover therefor. But when which must be deducted the cost she labors for another, her services of maintenance and support. Ben- and earnings no longer belong to ton v. Chicago &c. R. R. Co., 55 her husband, but to herself, and Iowa, 496 (1881); St. Louis &c. Ry. so far as she is disabled from per- Co. t. Freeman, 36 Ark. 41 (1880) r forming such services, she can re- Pennsylvania Co. v. Lilly, 73 Ind. cover for the loss. Brooks v. 252 (1881); Morgan v. Southern Schwerin, 54 N. Y. 343 (1873). In Pacific Ry. Co., 95 Cal. 510 (1892). Iowa it was held that the wife 27 Cuming v. Brooklyn City R. cannot recover for the loss of time R. Co., 109 N. Y. 95 (1888). Future caused by the injury to herself, prospective contingent expenses unless she is engaged in the prose- can only be recovered, if at all, in cutlon of a separate, independent an action by the child; such as 308 Damages foe Peesonal Injuries. The parent may recover for the future increased expenses in bringing up the child in consequence of the injury.^ The mental suffering of the parent, caused by the injury to the child, cannot be included in the damages.^ But the pain suffered by the child, in so far as it prevented the child from being of service to the parents, may be considered in estimating damages.^** Al- though there be no loss of service, such damages are not those resulting from the death of the child, and the right of recovery is not affected by the death of the child.^^ When the injury results in death, such loss of services only as accrued, inter- mediate to the injury and the death, may be recovered. ^^ § 247. Damages to master from injury to servant. — The master has a right of action against the wrongdoer to recover com- pensation, as elements of damage, for the loss of the services of his servant, when deprived of them by an injury to the servant.^* The measure of damages in such cases is the value of the services lost. § 248. Interest. — It has been a mooted question whether in- terest can be added by the jury to the damages awarded, in expenses for a surgeon, that may 29 City of Galveston v. Barbour, be necessary. Netherland-Ameri- 62 Tex. 172 (1884); Pennsylvania can Steam Co. v. Hollander, 59 R. R. Co. v. Kelly, 31 Pa. St. 372 Fed. Rep. 417 (1894); 8 C. C. A. 169; (1858). DoUard v. Roberts, 130 N. T. 269 30 Walker v. Second Ave. R. R. (1891). The fact that a child has Co., 6 N. Y. Supp. 536 (1889). attained its majority does not, 31 Trow v. Thomas, 70 Vt. 580 ipso facto, work the emancipation (1898). Damages resulting from of the child, although it does give the death, such as the expenses of either the child or the parent the burial, and the loss of service be- right to renounce the relation and tween the death and majority, are avoid the duty and liability inci- not recoverable. Following Sher- dent thereto. Union Pacific Co. v. man v. Johnson, 58 Vt. 40 (1886). Jones, 21 Colo. 340 (1895). A minor 32 Davis v. St. Louis &c. Ry. Co., son whose father is entitled to his 53 Ark. 117 (1890). services cannot recover for time 33 Hall v. Hollander, 4 B. & C. lost, or inability to work during 660 (1825); Gilbert v. Schwenck, 14 minority. Stewart v. City of Ripon, M. & W. 488 (1845) ; Martinez v. 38 Wis. 584 (1875); Jordan v. Gerber, 3 Man. & 6. 88 (1841); Bowen, 14 Jones & S. 355 (1880). Woodward v. Washburn, 3 Den. 28 Lang v. New York &c. B. R. 369 (1846). Co., 51 Hun, 603 (1889); 4 N. Y. Supp. 565. Damages foe Personal Injuries. 309 actions of tort. It is the general practice of juries to award a lump sum, without stating whether interest is, or is not, in- cluded. The rule of law was stated by Simmons, J., thus: " It is held, in actions of tort, the jury may, in their discretion, calculate interest on the damages actually sustained, and add it to their verdict, but it has long been a controverted question whether, in actions of tort, interest should be given, as matter of right, in addition to the damages."^* In North Dakota it was held, that interest may be awarded or withheld at the dis- cretion of the jury.^^ In Pennsylvania it was held, error to instruct a jury to allow interest, on the damages they may award, from the date of the accident to the date of the verdict.^® Interest at the legal rate cannot be added by the jury, at their discretion, to discretionary damages awarded by them for a personal injury. Only special damages, computable upon di- rect or indirect evidence of actual values, can be thus increased.^^ In actions for causing death, by statute, in New York, where final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded interest thereupon, from the decedent's death, and include it in the judgment.^ § 249. Eeduction of verdict ty the court. — When the amount of the verdict is deemed by the court to be excessive, it is com- 34 Central E. R. Co. v. Sears, 66 Young, 81 Ga. 39T (1888); Sonnen- Ga. 499, 501 (1881). As a matter feld Millinery Co. v. Peoples Ry. of law, unliquidated demands aris- Co., .59 Mo. App. 668 (1894); Jaml- ing ex delicto do not bear interest, son v. New York &c. Ry. Co., 42 Western &c. R. R. Co. v. Brown, N. Y. Supp. 915 (1896); 11 App. 102 Ga. 13 (1897). Div. 50; Washington &c. R. R. Co. 35 Ell V. Northern Pacific R. R. v. Harmon, 147 TJ. S. 571 (1892). Co., 1 No. Dak. 336 (1891). In the See Waterman v. Chicago &c. R. District of Columbia it was held, R. Co., 82 Wis. 613 (1892); Duryee the jury may, in their discretion, v. Mayor &c. of New York, 96 N. allow in their verdict interest on Y. 477 (1884). the money actually laid out and 38 Chap. 78, Laws 1870; Bank's expended by the plaintifE, by way Ann. Code Civ. Pro. 1888; Salter of damages. Washington &c. R. R. v. Utica &c. B. R. Co., 86 N. Y. Co. V. Hiekey, 12 App. Cas. (D. C.) 401 (1881) ; Manning v. Port Henry 269 (1898). &c. Co., 91 id. 665 (1883); 27 Hun, 36 Pittsburgh &c. Ry. Co. V. Tay- 219; Erwin v. Neversink Steam- ier, 104 Pa. St. 306 (1883). See boat Co., 23 Hun, 578 (1881). See Plymouth Township v. Graver, 125 Tiffany on Death by Wrongful Id. 24 (1889). Act, § 175. 37 Western &c. R. R. Co. v. 310 Damages eoe Personal Injuries. mon practice to allow the verdict to stand, upon condition that the plaintiff remit a part of the sum awarded.^® This is said to be good practice to the end of saving vexatious, expensive and prolonged litigation,*" because courts are more reluctant to grant new trials for excessive damages in actions for personal injuries, than in any other class of cases.'*' In New York it has been held, that the Court of Appeals, in an action for negli- gence, cannot reverse a judgment on account of excessive dam- ages.*^ In Illinois it has been held, that the reasonableness of the damages belongs to the appellate court.** Where a portion of the verdict was limited so as to come within the measure of damages proved, a new trial was properly refused.** In New Jersey, by statute, the excessiveness of the verdict may be as- signed as a cause of error on appeal by writ of error.*' 39 Tiffany on Death by Wrong- ful Act, § 178; Clapp v. Hudson Kiver R. R. Co., 19 Barb. 461 (1854); Missouri Pacific Ry. Co. v. Dwyer, 36 Kan. 58 (1886); Florida Ry. &c. Co. V. Webster, 25 Fla. 426 (1889). In Wisconsin it Is al- lowable only when the illegal por- tion of the judgment is readily severable from the rest. Potter v. Chicago &c. R. R. Co., 22 Wis. 615 (1868). Or only in a clear case. Wright V. City of Fort Howard, 60 Wis. 119 (1884). The United States Supreme Court held it to be error for the court, to reduce the verdict by the entering of an absolute judgment. Kennon v. Gil- mer, 131 U. S. 22 (1888). Such practice disapproved by Eakin, J., in a dissenting opinion, in Little Rocli &c. Ry. Co. V. Barker, 39 Ark. 491, 517 (1882). Distinction made between actions under the statute for injuries causing death where the damages are wholly compensatory for pecuniary loss, and actions for willful torts or for personal injuries, in which puni- tive damages or damages for in- juries not pecuniary in their na- ture, such as injuries to the feel- ings, for mental and physical pain and suffering, are allowed. Hutch- ins V. St. Paul &c. Ry. Co., 44 Minn. 5 (1890). 40 Florida Ry. &c. Co. v. Web- ster, 25 Fla. 426 (1889). *i Quinn v. South Carolina Ry. Co., 29 So. Car. 388 (1888). The Supreme Court of New Jersey said, in suits to recover for personal in- juries, or for death by wrongful act, a verdict which is grossly ex- cessive will be set aside, without regard to the number of times the case had previously been tried. Graham v. Consolidated Traction Co., 33 Vr. 90 (1898). In that case the jury awarded $5,000 for the death of a child between four and five years old on two different trials. 42 Gale V. New York &c. R. R. Co.. 76 N. Y. 594 (1879). 43 Chicago &c. R. R. Co. v. O'Connor, 119 111. 586 (1886). 44 Central R. R. Co. v. Crosby, ■74 Ga. 737 (1885). 45 P. L. 1899, p. 323. Damages fob Personal Injukies. 311 § 250. Verdict may be set aside if damages awarded are in- adequate. — In an action for an injury to the person, if the dam- ages awarded be so small that, the assessment is inconsistent with the undisputed evidence, the verdict will be set aside at the instance of the plaintiff.*® The same rule is also applied by the courts in actions brought to recover damages for causing the death of a human being under the statute; where the dam- ages awarded are inadequate, the court may, in its discretion, set the verdict aside and grant a new trial.*^ § 251. Verdicts for personal injuries — Excessive. — In the following cases verdicts for personal injuries have been held ex- cessive:** Ten thousand dollars for injury to brakeman's leg;*® $6,000 for breaking kneepan;^ $13,500, reduced to $7,000, for injury to leg, causing a permanent shortage, in which the physician's bill was $1,000;" $8,00'0, reduced to $6,000, for loss of left hand of a cooper and teamster ;°^ $9,000, reduced to $5,000, for loss of leg of a mason's tender;^^ $6,000, reduced to $4,000, for breaking a leg, causing curvature and permanent shortening and deformity;®* $5,525 for injury to eye, causing permanent injury to the sight;®® $10,000 for injuries to left ankle, back and side, but not permanent, the plaintiff being 46 Miller v. Delaware &c. R. B. 46 Cal. 26 (1873) ; Wolford v. Lyon Co., 29 Vr. 428 (1896); Wilson v. &c. Co., 63 id. 483 (1883). Morgan, id. 426 (1896). Verdict 48 For a collection of verdicts in for six and one-fourth cents; pro- suits for damages for personal in- visional order for a new trial di- juries, see Ray on Negligence of recting its reversal on payment of Imposed Duties, § 206, p. 752; also $400 within thirty days, which sum Standard Oil Co. v. Tierney, 14 L. the plaintiff was unwilling to ac- R. A. 677, n. cept, it was held error. The plain- 49 Missouri Pacific Ry. Co. v. tifC being entitled to have his dam- Dwyer, 36 Kan. 58 (1886). ages assessed by a jury. Bradwell so Langley v. Sixth Ave. R. R. V. Pittsburgh &c. Ry. Co., 139 Pa. Co., 16 Jones & S. 542 (1882). St. 404 (1890). Or when it appears bi Coppins v. New York Central upon the facts proved that the &c. R. R. Co., 48 Hun, 292 (1888). jury must have omitted to take 52 Murray v. Hudson River R. R. into consideration some of the ele- Co., 47 Barb. 200 (1866). ments of damage properly involved 63 Morris v. Eighth Ave. R. R. In the plaintifC's claim. Phillips v. Co., 68 Hun, 39 (1893). Southwestern Ry. Co., L. R., 4 Q. 54 Clapp v. Hudson River R. R. B. D. 406 (1879). Co., 19 Barb. 461 (1854). 47 Tiffany on Death by Wrongful 55 Gleason v. Inhabitants of Act, § 179; Moriani v. Dougherty, Bremen, 50 Me. 222 (1862). 312 Damages fob Pebsonal Injueies. confined to his house for a few weeks;®® $1,800, reduced to $1,200, for injury to a boy between eight and nine years old, for mangling his ring and middle fingers on his left hand so as to require their amputation at the first joint ;®^ $4,000, reduced to $2,500, to an aged female, for the fracture of one of the bones on the outer side of the left ankle and the tearing of the lateral ligaments of the ankle and injury to the joint, from which she suffered great pain, being confined to her bed for three months, requiring constant care;®* $25,000 for per- manent injury, former verdict $22,500, $5,000 ordered remit- ted by court, interest may be taxed as costs on the amount of the verdict as reduced from the date of the original rendition;®* $20,750 for a broken leg, which had to be amputated, reduced to $10,750;^ $28,076 computed by jury on wrong principle;*^ $8,000, reduced to $4,000, for loss by a railroad brakeman of one foot and four toes on the other footf^ $10,000 for injuries to a married woman, when injuries were not shown to be per- manent.®* § 252. Verdicts for personal injuries — Not excessive. — In the following cases verdicts for personal injuries have been held not excessive: Fifteen thousand dollars for injury to limb, back and nervous system of a doctor;®* $10,000 for loss of arm;®^ $9,000 for loss of leg;®® $6,000 for loss of three fingers;®'" 56 Louisville &c. R. R. Co. v. 63 Becker v. Albany Ry. Co., 35 Mattlngly, Ky. (1897); 1 Am. App. Div. 46 (1898); 5 Am. Neg. Neg. Rep. 58. Rep. 231. Where a list of cases B7 Gahagan v. Aerometer Co., 67 will be found in which verdicts' Minn. 252 (1897); 1 Am. Neg. Rep. have been reduced by the courts 92. as excessive. 58 Johnson v. St. Paul City Ry. 64 Woodbury v. District of Co- Co., Minn. (1897) ; 1 Am. Neg. lumbia, 5 Macky. 127 (1886). Rep. 93. 65 Ketchum v. Texas &c. R. R. 59 Waterman v. Chicago &c. R. Co., 38 La. Ann. 777 (1886). R. Co., 82 Wis. 613 (1892). 66 Louisville &c. R. R. Co. v. 60Kennon v. Gilmer, 131 U. S. Moore, 83 Ky. 675 (1886). Injury 22 (1888). In that case it was held to a brakeman caused by the will- error to reduce the verdict by the ful or gross neglect of the con- court by the entering of an abso- ductor or engineer, lute judgment. 6'^ Murtaugh v. New York Oen- 61 Goodhart v. Pennsylvania R. tral &c. R. R. Co., 49 Hun, 456 R. Co., 177 Pa. St. 1 (1896). (1888). 62 Wood V. Louisville &c. R. R. Co., 88 Fed. Rep. 44 (1898). Damages foe Peksonal Injuries. 313 $10,000 for injuries to railroad employe who had his leg crushed, which required three amputations, and made a long stop at hospital necessary;^* $18,500 for injuries to boy seven years old, necessitating the amputation of both legs and impair- ing his mental capacities;®^ $10,000 for ankle and foot of brake- man so crushed that it had to be amputated, crippled for life ;''* $5,000 for a fracture of the thigh, followed by pain and per- manent after-effects;''^ $4,000 where plaintiff suffered severe pain for months after the injuries, and after three years had not entirely recovered — physicians differed as to whether she would ever entirely recover ;^^ $9,500 for permanent injury to engineer forty years old, earning $100 per month, and could not earn as much as before the injury;^'' $22,250 for loss of one arm and the use of the other, and being otherwise much bruised and injured;''^* $1,200 for a broken leg in three places;''^ $5,500 for broken leg and other injuries ;''® $6,500 for laboring man earning from $40 to $45 per month, nervous system per- manently diseased, doubtful if he will be ever able to perform manual labor;" $13,500 for injury to spine, permanent and progressive ;''* $5,100 for injury to back, right shoulder, arm and abdomen;''^ $4,500 for injury to knee, crippling plaintiff permanently;^" $25,000 for injury causing a disease of the spine of a permanent nature;*^ $11,500 for injury to brakeman twenty-seven years old, earning $60 to $75 per month, by which his health has been permanently impaired;*^ $3,625 for 68 HoUenbeck t. Missouri Pacific t6 Murray v. Missouri Pacific Ey. Ey. Co., Mo. (1897); 1 Am. Co., 101 Mo. 236 (1890). Neg. Rep. 101. " Olsen v. Great Northern Ey. 69 Heddles v. Chicago &c. Ey. Co., 68 Minn. 155 (1897). Co., 77 Wis. 228 (1890). '^8 Fordyce v. St. Louis &c. Ey. TOLouisviUe &c. E. E. Co. v. Co., 144 Mo. 519 (189S). Mitchell, 87 Ky. 327 (1888). 79 Sproul v. City of Seattle, 17 71 O'Connell v. St. Louis &c. Ey. Wash. St. 256 (1897). Co., 1'06 Mo. 482 (1891). 80 Moore v. City of Kalamazoo, 72 Heucke v. Milwaukee City Ey. 109 Mich. 176 (1896). Or injury to Co., 69 Wis. 401 (1887j. ankle, $4,500 not excessive. Foels TSKnapp V. Sioux City &c. Ey. v. Town of Tonawanda, 59 Hun, Co., 71 Iowa, 41 (1887). 567 (1891). 74 Shaw V. Boston &c. E. E. Co., 8i Bhrgott v. Mayor &c. of New 8 Gray, 45 (1857). York, 96 N. Y. 264, 277 (18S4). 75 Ehoades v. Varney, 91 Me. 82 Missouri &c. Ey. Co. v. Cham- 222 (1898). hers, 17 Tex. Civ. App. 487 (1897). 314 Damages foe Pbesonal Injuries. permanent injury to arm of a minor ;^ $15,000 for permanent injuries to a married woman ;^ $10,000 for permanent in- juries;^ $18,000 for loss of a leg below the knee, and per- manent injury to the other foot, by a man forty-one years of age, who was earning $45 per month.*® 83 Stewart v. City of Eipon, 38 85 Foster v. Missouri Pacific Ky. "Wis. 584 (1875). Co., 115 Mo. 165 (1892). 84 Collins V. City of Council 86 Galveston &c. By. Oo. v. Bluffs, 32 Iowa, 324 (1871). Hynes, Tex. Civ. App. ; 6 Am. Neg. Rep. 208 (1899). CHAPTER IX. DAMAGES FOR CAUSING DEATH. I 253. Damages in actions for causing deatli — Statutes — Constitutions. 254. Pecuniary loss the basis of damages. 255. Elements of proof to be considered in estimating damages. 256. Standard mortuary tables as evidence. 257. Damages cannot be given as a solatium. 258. Injury to deceased — Phy- sical and mental sufCer- ing. 259. Exemplary — Punitive — Damages — Statutes. 260. Funeral expenses — Family mourning. 261. Mitigation of damages — Insurance money. 262. Nominal damages. 263. Question of fact for the jury. § 264. Seven classes of cases. 265. Action by wife for causing death of husband — Wife living In open adultery — Divorce. 266. Action by husband for caus- ing death of vrife — Re- marriage of husband. 267. Action by parent for caus- ing death of minor child — Question for the jury. 268. Action by parent for caus- ing death of adult child. 269. Action by minor child for causing death of parent. 270. Action by adult for causing death of parent. 271. Action by beneficiaries for causing death of collat- eral relatives. 272. Verdicts for causing death — Excessive. 273. Verdicts for causing death — Not excessive. § 253. Damages in actions for causing deatli — Statutes — Con- stitutions. — The third class of cases is that, in which the plaintiff in the action sues in a representative capacity for causing the death of a human being. As was pointed out in Chapter III, section 98, at common law " in a civil court, the death of a human being could not be complained of as an injury." In 1846, the act of 9 and 10 Victoria, chapter 93, was enacted, known as Lord Campbell's Act, which is the parent of all legis- lation on this subject. Since that time statutes of like purport have been enacted in all the States and territories of the United States, the District of Columbia, and the colonies of Great Britain, under which an action will lie for causing the death of a human being by wrongful act, neglect or default of another, [315] 316 Damages foe Causing Death. permitting damages to be recovered for causing such death, limiting usually the damages the jury may give in such action to the amount the jury may think " proportioned to the injury resulting from such death," or such as the jury " shall deem fair and just with reference to the pecuniary injury resulting from such death; " some of the statutes provide that the dam- ages shall not exceed a stated amount, such as $5,000. The language of the various statutes, on the point of damages, is dis- similar, although the general principles upon which damages are computed are substantially the same. Damages for caus- ing death being wholly the creature of statutes, the decisions, except on the general principles, have a limited application out- side of the jurisdiction of the court where rendered. They must be read in connection with the statute of the jurisdiction where made. The provisions in the several statutes are as 1 England: "The jury may give such damages as they may think proportioned to the injury result- ing from such death." 9 & 10 Vict, chap. 93, § 2. New Brunswick: " The jury may give such damages, by way of fair compensation, as they may think proportioned to the pecuni- ary loss resulting from such death, provided the reasonable ex- pectation of pecuniary benefit from the continuance of the life of the deceased shall not be estimated for a period exceeding ten years." Cons. Stats., chap. 86, § 2. Nova Scotia; "The jury may give such damages as they may think proportioned to the injury resulting from such death." Rev. Stats. 1884, chap. 116, § 2. Ontario: Rev. Stats. 1887, chap. 135, § 3. Quebec: "All damages occa- sioned by such dpath." Civil Code L. Can., art. 1056. Alabama: " Such damages as the jury may assess." Code 1887, §§ 2588, 2589. Arizona: " The jury may give such damages as they may think proportioned to the injury result- ing from such death." Rev. Stats. 1887, § 2155. Maryland: Pub. Gen. Laws, art. 67. § 2. South Carolina: Gen. Stats. 1882, § 2184. Texas: Sayles' Civil Stats., art. 2909. Arkansas: "The jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death." Mansf. Dig., § 5226. Illinois: 1 Starr & C. Ann. Stats., i chap. 70, § 2; amended by Laws of 1893. Maine: Acts 1891, chap. 24. Life lost through defect in highway, etc., " such sum as the jury may deem reasonable as damages." Rev. Stats. 1883, chap. 18, § 80. Michigan: How. Stats., § 8314; Montana, Comp. Stats. 1888, p. 911,. § 982. Nebraska: Comp. Laws 1881, chap. 21, $ 2. California: " Such damages may Damages for Causing Death. 3ir noted. ^ Some of the statutes limit the amount that the jury he given as, under all the circum- stances of the case, may be just." Code Civ. Pro., § 377. Idaho: Rev. Stats. 1887, § 4100; Montana, Oomp. Stats. 1888, p. 62, § 14; Utah, Comp. Lavrs 1888, § 3179. Colorado: "The jury may give such damages as they may deem fair and just, not exceeding $5,000, with reference to the neces- sary injury resulting from such death, having regard to the miti- gating or aggravating circum- stances attending any such vrrong- ful' act, neglect or default." Gen. Stats. 1883, § 1032. Missouri: Rev. Stats. 1889, § 4427. Connecticut: " Just damages not exceeding $5,000." Gen. Stats. 1888, § 1009. Delaware: " May maintain an action for, and recover damages for, the death thus occasioned." Rev. Code 1852, p. 644, as amended by Laws of 1874, p. 644. District . of Columbia: " Such damages shall be assessed with reference to the injury resulting from such act, neglect, or default causing such death." Act of Con- gress, Feb. 17, 1885. Florida: "The jury shall give such damages as the party or par- ties entitled to sue may have sus- tained by reason of the death of the party killed." Laws of 1883, No. 27, § 2. Georgia: " The full value of the life of the deceased, as shown by the evidence," without any " de- duction for necessary or other per- sonal expenses of the deceased had he lived." Code 1882, § 2971, as amended by Laws of 1887, No. 588, p. 43. Kentucky: May " recover dam- ages in the same manner that the person himself might have done for any injury where death did not ensue." Gen. Stats., chap. 57, § 1. Louisiana: " Recover the dam- ages sustained." Civil Code, art. 2315, as amended by Act No. 71, 1884, p. 94. Mississippi : " The jury may give such damages as shall be fair and just, with reference to the Injury resulting from such death." Code 1892. § 663. Nevada: " The jury in every such action may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pe- cuniary injury resulting from such death to the kindred as herein named." Gen. Stats. 1885, § 3899; New Mexico, Comp. Laws 1884, as amended by Laws of 1891, chap. 49, § 2310. New Jersey: " The jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death." Rev. 1878, p. 294, § 2; Gen. Stats, (vol. 1), p. 1188, § 2. Vermont: Rev. Laws 1880, § 2139; Wisconsin, Rev. Stats., § 4256. New York: " Deems to be a fair and just compensation for the pe- cuniary injuries resulting from the decedent's death." Banks' Ann. Code Civ. Pro. 1888, § 1904. North Carolina: Code 1883, § 1499. North Dakota: " Recover dam- ages in the same manner that the person might have done for any injury where death did not ensue; " recover damages " for the loss or destruction of the life aforesaid." 318 Damages fok CAtrsiNG Death. can award in any case;^ while in others no such limitation is specified. The Constitution of Pennsylvania, 1874, article Comp. Laws Dakota 1887; Const. No. Dak., Schedule, § 2. South Dakota: Comp. Laws Dak., §§ 5498, 5499, same as No. Dak. Ohio: "The jury may give such damages as they may think pro- portioned to the pecuniary injury resulting from such death." Rev. Stats, as amended by Act of April 13, 1880, § 6135. Pennsylvania: Actions against common carriers, " only such com- pensation for loss and damage shall be recovered as the evidence shall clearly prove to have been pecuniarily suffered or sustained." 2 Brightly's Purd. Dig., p. 1268, S 7. Rhode Island: " Damages for the injury caused by the death of such person." Pub. Stats., chap. 204, §§ 15, 20. Tennessee: " Damages resulting to the parties." Mill & V. Code, § 3134. Virginia: " The jury may award such damages as to it may seem fair and just." Code 1887, § 2903. West Virginia: Code, chap. 103, § 6; Wyoming, Rev. Stats. 1887, § 2364b. Washington: " The jury may give such damages, pecuniary or exemplary, as, under all circum- stances of the case, may to them seem just." Hill's Ann. Stats. & Code 1891, § 138 (8). 2ColoiacIo: For death caused by negligence in running any locomo- tive or car, etc., or any coach or other public conveyance, shall for- feit and pay for every person and passenger so injured a sum not ex- ceeding $5,000 and not less than $3,000. Gen. Stats. 1883, § 1030. For death caused by wrongful act, neglect or default jury may give damages not exceeding $5,000. Gen. Stats. 1883, § 1032. Connecticut: Damages not ex- ceeding $5,000. Gen. Stats. 1888, § 1009. Illinois: 1 Starr & C. Ann. Stats.f chap. 70, § 2. Maine: Act 1891,. chap. 124; Minnesota, Laws of 1891, chap. 123, i 1. Missouri: Rev. Stats. 1889, § 4425; § 7074, Miners Act. Nebraska: Comp. Laws 1881, chap. 21, § 2; New Mexico, death caused by negligence of any rail- road, stage coach or other public conveyance not exceeding $5,000. Comp. Laws 1884, as amended by Laws 1891, chap. 49, § 2308. Oregon: Hill's Code, § 371; Wis- consin, Rev. Stats. 1878, § 4256. Wyoming: Rev. Stats. 1887, § 2364b. District of Columbia: Damages not exceeding $10,000. Act of Con- gress, Feb. 17, 1885. Indiana: Rev. Stats. 1881, § 284. Kansas: Gen. Stats. 1889, par. 4518. Ohio: Rev. Stats., as amended by Act of April 13, 1880, § 6135. Oklahoma: Stats. 1890, chap. 70, art. 4, par. 4338. Utah: Comp. Laws 1888, § 2962. Virginia: Code 1887, § 2903; West Virginia, Code, chap. 103, § 6. Maine: If life is lost by negli- gence of any railroad, steamboat, stage coach or common carrier it shall forfeit not less than $500 nor more than $5,000, to be recovered by incliotment. Damages foe Causing Death. 319 3, section 21, provides that " no act of the general assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property; and, in case of death from such injuries, the right of action shall survive,* and the general assembly shall prescribe for whose benefit such actions shall be prosecuted."* § 254. Pecuniary loss the basis of damages. — The principle on which damages are awarded in this class of cases is compensa- tion for the pecuniary loss or injury. There must be evidence of pecuniary loss to the survivors or beneficiaries to enable them to recover substantial damages.^ Denio, J. : " The word ' pecuniary ' was used in distinction to those injuries to the affections and sentiments which arise from the death of rela- tives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes, Massachusetts: Pub. Stats., trospectively, but the statutory chap. 112, §§ 212, 213, as amended limitation applies in cases of In- by Stats. 1883, chap. 243, Pub. juries suffered before Jan. 1, 1895. Stats., chap. 112, § 213; Stats. 1886, Isola v. Weber, 147 N. Y. 329 (1895). chap. 140, Pub. Stats., chap. 73, § 5 TifCany on Death by Wrong- 6; Stats. 1887, chap. 270, as amen- ful Act, § 158; Elliott on Roads & ded by Stats. 1888, chap. 155, Streets, p. 655; Patterson on Rail- and by Stats. 1892, chap. 260. To be way Accident Law, § 401; 8 Am. & assessed with reference to degree Eng. Ency. of Law (2d ed.), p. of culpability of defendant — life 909; City of Chicago v. Major, 18 lost by defect of highway — not 111. 349 (1857); Baltimore &c. R. R. exceeding $1,000. Pub. Stats., Co. v. Mahone, 63 Md. 135 (1884); chap. 52, § 17. Cincinnati Street Ry. Co. v. Alte- Montana: Damages not exceed- meier, Ohio St. ; 6 Am. Neg. ing $20,000. Comp. Stats. 1888, p. Rep. 179 (1899); Lett v. St. Law- 911, § 982. rence &c. Ry. Co., 11 Ont. App. 1 New Hampshire: Damages not (1884); Hurst v. Detroit City Ry. exceeding $7,000. Pub. Stats. 1891, Co., 84 Mich. 539 (1891); McHugh chap. 191, § 11. V. Schloeser, 159 Pa. St. 480 (1894) ; 3 Means that such right shall Blake v. Midland Ry. Co., 18 Q. B. survive to the personal representa- 93 (1852); 18 Ad. & El. (N. S.) 93; tives of the injured party. Does Telfer v. Northern R. R. Co., 1 Vr. not apply to the wrongdoer. Moe 188 (1802); May v. West Jersey &c. V. Smiley, 125 Pa. St. 136 (1889). R. R. Co., 33 id. 63, 67 (1899); Chi- 4 Arkansas: Const, art. 5. The cago &c. R. R. Co. v. Woolridge, same provision is in the Arkansas 174 111. 330 (1898) ; , Pepper v. Constitution. Southern Pacific Co., 105 Cal. 389 New York: Const, of Jan. 1, (1895); Green v. Southern Pacific 1895, art. 1, § 18. Does not act re- Co., 122 id. 5G3 (1898). 330 Damages foe Causing Death. also, those losses which result from the deprivation of the society and companionship of relatives, which are equally in- capable of being defined by any recognized measure of value."® The loss must be such as can be computed or estimated by a money consideration.^ The damages are usually estimated upon the basis of the reasonable probabilities of the life of the deceased.* Their measure is the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased.® It is not necessary to show that the deceased was under any legal duty to the next of kin.-'" In some of the States, the statutes do not limit damages for death, to pecuniary injuries only.^* § 255. Elements of proof to be considered in estimating dam- ages. — The elements of proof, from which an estimation of damages is made, for causing the death of a human being, are many. Consideration should be given to the age of the de- sTilley v. Hudson River R. R. State, 33 Md. 542 (1870); Scheffler C!o., 24 N. Y. 471, 476 (1862): 29 id. v. Minneapolis &c. Ry. Co., 32 252 (1864). Pecuniary loss is not Minn. 518 (1884). confined to that which the bene- 9 Collins v. Davidson, 19 Fed. ficiary was legally entitled to re- Rep. 83 (1883); Pym v. Great ceive, such as loss of service, but Northern Ry. Co., 4 Best & S. 396 does Include, in addition thereto, (1863), affg. 2 id. 749; Dalton v. that which it was reasonably prob- Southeastern Ry. Co., 4 0. B. (N. able he would receive, except for S.) 296 (1858); Franklin v. South- the death. Tiffany on Death by eastern Ry. Co., 3 Hurlst & N. Wrongful Act, § 159; City of Vicks- 211 (1858); Boyden v. Fitchburg R. burg V. McLean, 67 Miss. 4 (1889). R. Co., 70 Vt. 125 (1897). 7 Demarest v. Little, 18 Vr. 28 lo Lockwood v. New York &c. R. (1885); Huntingdon &c. R. R. Co. R. Co., 98 N. Y. 523 (1885); Dalton V. Decker, 84 Pa. St. 419 (1877) ; v. Southeastern Ry. Co., 4 C. B. (N. Wynning v. Detroit &c. R. R. Co., S.) 296 (1858); Boyden v. Fitch- 59 Mich. 257 (1886); Louisville &c. burg R. R. Co., 70 Vt 125 (1897). R. R. Co. V. Berry, 96 Ky. 604 n Connecticut: Gen. Stats. 1888, (1895); Walker v. Lake Shore &c. § 1032. Just damages not exceed- Ry. Co., 104 Mich. 606 (1895); Cin- ing $5,000. Murphy v. New York cinnati Street Ry. Co. v. Altemeier, &c. R. R. Co., 29 Conn. 496 (1861) ; Ohio St. ; 6 Am. Neg. Rep. Goodsell v. Hartford &c. R. B. Co., 179 (1899). But it cannot be con- 33 id. 51 (1865). fined to any exact mathematical Tennessee: Mill & V. Code, § calculation. Stoher v. St. Louis 3134. " Damages resulting to the &c. Ry. Co., 91 Mo. 511 (1887). parties," 8 Baltimore &c. R. K. Co. v. Damages foe Cattsing Death. 321 ceased, the probable duration of life, health, character, occupa- tion, earnings, ability and strength to labor, mental and physical, habits of industry, skiU, thrift and expenditures of the deceased ; the probable increase or diminution of that ability to earn money with the lapse of time.^^ A succinct, clear and comprehensive statement of this subject was made by Mr. Justice Wood of the Supreme Court of Arkansas, thus : " How is this compensation to be determined ? By taking into consideration the age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, and the probable increase or diminution of that ability with the lapse of time; deceased's earning power, rate of wages, and the care and attention which one of his disposition and character may be expected to give his family — all these are proper elements for the consideration of the jury in determining the value of the life taken. From the amount thus ascertained, the per- sonal expenses of the deceased should be deducted, and the balance, reduced to its present value, should be the amount of the verdict."^* § 256. Standard mortuary tables as evidence. — Evidence of the probable duration of the life of the deceased may be shown by the standard mortuary tables. For this purpose they are admissible in evidence;^* such as the Carlisle, Northampton, 12 McHugh V. Schloeser, 159 Pa. Street Ey. Co. v. Altemeier, Ohio St. 480 (1894). There are many St. ; 6 Am. Neg. Rep. 179 (1899). reported cases In which this ques- is Wood, J., in St. Louis &c. Ry. tion is discussed, the following Co. v. Sweet, 60 Ark. 550, 558 among others: Burton v. Wilming- (1895). See a strong discussion of ton &c. R. R. Co., 82 No. Car. 504 this subject by Burket, J., in Cin- (1880) ; Kesler v. Smith, 66 id. 154 cinnati Street Ry. Co. v. Altemeier, (1872); James v. Richmond &c. R. Ohio St. ; 6 Am. Neg. Rep. R. Co., 92 Ala. 231 (1890); Castello 179 (1899). v. Landwehr, 28 Wis. 522 (1871); "See § 211; Tiffany on Death Telfer v. Northern R. R. Co., 1 Vr. by Wrongful act, § 174. "An ac- 188 (1862, N. J.) ; Demarest v. Lit- countant " may prove the " Car- tie, 18 id. 28 (1885) ; De Voe v. Van lisle Tables." Rowley v. London &c. Tracken, 29 Hun, 201 (1883); Bal- Ry. Co., L. R., 8 Exch. 221 (1873); timore &c. R. R. Co. v. Kelly, 24 Sauter v. New York &c. R. R. Co.. Md. 271 (1865); Donaldson v. Mis- 6i5 N. Y. 50 (1876); Schell v. Plumb, sissippi &c. K. R. Co., 18 Iowa, 280 55 id. 592 (1874); Donaldson v. Mis- <1865); Brown t. Chicago &c. Ry. sissippi &c. R. R. Co., 18 Iowa, 280 Co., 64 id. 652 (1884); Cincinnati (18C5); McDonald v. Chicago &c. R. 21 322 Damages foe Causing Death. English and other standard tables. They establish a fixed cri- terion of damages, although they are not conclusive;^' or abso- lutely essential, although they may be useful.^® They must be proved to be authentic and their character and office should be explained to the jury.^'' The present net moneyed value of the intestate's life to those dependent upon him, had he lived, is the basis of calculation.^® § 257. Damages cannot be given as a solatium Nothing can be given or allowed by way of solatium, for the grief and wounded feelings of the beneficiaries.^® Otherwise in Vir- R. Co., 26 Iowa, 124 (1868); Cooper is Pickett v. Wilmington &e. R. V. Lake Shore &c. Ry. Co., 66 Mich. R. Co., 117 No. Car. 616 (1895). 261 (1887). Tables glyen in local 19 Blake v. Midland Ry. Co., 18 statutes. Hunn v. Michigan Cent. Q. B. 93 (1852); 18 Ad. & E. (N. S.) R. R. Co., 78 Mich. 513 (1889). 93 (1852); Louisville &c. Ry. Co. v. " Northampton Tables of Mortal- Rush, 127 Ind. 545 (1890) ; Pennsyl- Ity." Georgia &c. Co. v. Oaks, 52 vania R. R. Co. v. Butler, 57 Pa. Ga. 410 (1874); Savannah &c. Ry. St. 335 (1868); Canadian Pac. Ry. Co. V. Stewart, 71 id. 427 (1883); Co. v. Robinson, 14 Can. Sup. Ct. Georgia R. R. Co. v. Pittman, 73 105 (1887); Chicago &c. R. R. Co. Id. 325 (1884); Central R. R. Co. v. v. Harwood, 80 111. 88 (1875); Don- Crosby, 74 id. 737 (1885); Central aldson v. Mississippi R. R. Co., 18 R. R. Co. V. Thompson, 76 id. 770 Iowa, 280 (1865) ; Chicago &c. R. R; (1886); Steinbrunner v. Pittsburgh Co. v. Morris, 26 111. 400 (1861); &c. Ry. Co., 146 Pa. St. 504 (1891). City of Chicago v. Scholton, 75 id. Tables prepared by the American 408 (1874); Telfer v. Northern R. Legion of Honor, admissible. San R. Co., 1 Vr. 188 (1862, N. J.); Cas- Antonio &c. Ry. Co. v. Bennett, 76 tello v. Landwehr, 28 Wis. 522 Tex. 151 (1890); O'Mellia v. Kan- (1871); March v. Walker, 48 Tex. sas City &c. R. R. Co., 115 Mo. 205 372 (1877); James v. Richmond &c. (1893). R. R. Co., 92 Ala. 231 (1890); Par- is Central R. R. Co. v. Crosby, sons v. Missouri Pacific Ry. Co., 74 Ga. 737 (1885); Camden &c. R. 94 Mo. 286 (1887); McHugh v. R. Co. V. Williams, 32 Vr. 646 Schloeser, 159 Pa. St. 480 (1894); (1898). Pym v. Great Northern Ry. Co., 4 16 Savannah &c. Ry. Co. v. Stew- Best & S. 396 (1863) ; Tiffany on art, 71 Ga. 427 (1883); Boswell v. Death by Wrongful Act, § 154, and Barnhart, 96 Ga. 521 (1895) ; Deisen cases cited. Otherwise under the V. Chicago &c. Ry. Co., 43 Minn. Scotch law. Patterson v. Wallace, 454 (1890) ; Nelson v. Lake Shore 1 Macq. H. L. Cas. 748 (1854). So, &c. Ry. Co., 104 Mich. 582 (1895); formerly, it was held in Quebec. Gulf &c. Ry. Co. V. Compton, 75 Canadian Pac. Ry. Co. v. Robln- Tex. 667 (1890). son, 14 Can. Sup. Ct. 105 (1887). 17 Camden &c. R. R. Co. v. Wil- liams, 32 Vr. 646 (1898). Damages foe Causing Death. 323 ginia.^ ISTothing can be given as damages for lacerated feel- ings or disappointed hopes ;*^ or for the loss of society of the deceased.^ In California it was held, that the loss of society, comfort and care can only be considered for the purpose of estimating the pecuniary loss.^^ § 258. Injury to deceased — Physical and mental suffering. — Nothing can be given or allowed for injury to the deceased, or for the physical or mental suffering of the deceased.^* Other- 20 Baltimore &c. R. R. Co. v. Pacific &c. Co., 84 Cal. 515 (1890); Noell, 32 Gratt. 394, 404 (1879); Pepper v. Soutliern Pac. R. R. Co., Matthews v. Warner, 29 id. 570 105 id. 389 (1895); Green v. South- (1870); Simmons v. McConneU, 86 ern Pacific Co., 122 id. 563 (1898). Va. 494 (1890). 2S Green v. Soutliern Pacific Co., 21 Pennsylvania R. R. Co. v. 122 Cal. 563 (1898). So injury Kelly, 31 Pa. St. 372 (1858) ; Blake claimed to arise by the deprivation V. Midland Ry. Co., 18 Q. B. 93, 110 of such services and counsel as a (1852); 18 Ad. & B. (N. S.) 93, 110 father might probably give to his (1852); Nelson v. Lalse Shore &c. children, must be limited to such Ry. Co., 104 Mich. 582 (1895); Mc- sen'ices and counsel as would be Gown V. International &c. Ry. Co., of pecuniary advantage, and must 85 Tex. 289 (1892); Cincinnati be determined with careful refer- Street Ry. Co. v. Altemeier, Ohio ence to the age, condition and re- st. ; 6 Am. Neg. Rep. 179 (1899). lations of the parties. Demarest v. 23 Donaldson v. Mississippi &c. Little, 18 Vr. 28 (1885). R. R. Co., 18 Iowa, 280 (1865) ; 24 Tiffany on Death by Wrongful Blake v. Midland Ry. Co., 18 Q. Act, § 156; Sweetland v. Chicago B. 93 (1852); 18 Ad. & E. (N. S.) 93 &c. Ry. Co., Mich. ; 43 L. R. (1852); Pym v. Great Northern Ry. A. 568 (1898); Franklin v. South- Co., 4 Best & S. 396 (1863); Mc- eastern Ry. Co., 3 Hurl. & N. 211 Gown V. International &c. Ry. Co., (1858); Donaldson v. Mississippi 85 Tex. 289 (1892). Formerly, in &c. R. R. Co., 18 Iowa, 280 (1865); Indiana, compensation could be Pennsylvania R. R. Co. v. Kelly, given for the loss of society and 31 Pa. St. 372 (1858). Or any in- companionship of the deceased, jury which is not susceptible of Louisville &c. Ry. Co. v. Rush, 127 being compensated by a money Ind. 545 (1890). So in California, consideration. Wynning v. Detroit Beeson v. Green &c. Co., 57 Cal. 20 &c. R. R. Co., 59 Mich. 257 (1886); (1880). Mental anguish and suf- state v. Baltimore &c. R. R. Co., fering of the parents. Cleavy v. 04 ]y[(j. 84 (1865); Baltimore &c. City R. R. Co., 76 Cal. 240 (1888). Turnpike Road v. State, 71 id. 573 Overrnled. Morgan v. Southern (1889); Long v. Morrison, 14 Ind. Pac. R. R. Co., 95 Cal. 510 (1892); 595 (1860); James v. Richmond &c. 30 Pac. Rep. 603 (1892); Munro v. R. R. Co., 92 Ala. 231 (1890). 324 Damages foe Causing Death. wise in Connecticut;^^ New Hampshire;^" and Tennessee^ hj statute. By statute in New Brunswick the jury may consider any expenses incurred or pecuniary loss sustained prior to the death, by the person injured and in consequence of such injury.^* In Georgia the full value of the life of the deceased as shown by the evidence may be recovered, which shall be held to mean " without any deduction for necessary or other personal ex- penses of the deceased had he lived. "^ In Kentucky, by statute, the personal representative may " recover damages in the same manner that the person himself might have done for any injury where death did not ensue."^" In Pennsylvania it 25 Murphy v. New York &c. R. R. Co., 29 Conn. 496 (1861); 30 id. 184 (1861); Goodsell v. Hart- ford &c. R. R. Co., 33 id. 51 (1865); Waldo v. Goodsell, Id. 432 (1866); Lamphear v. Buckingham, id. 237 (1866); Carey v. Day, 36 id. 152 (1869). 29 " The mental and physical pain suffered by him in conse- quence of the injury, the reason- able expenses occasioned to his es- tate by the injury, the probable duration of his life but for the in- jury, and his capacity to earn money, may be considered as ele- ments of damage, in connection with other elements allowed by law." Pub Stats. 1891, chap. 191, § 12. 27 " For the mental and physical suffering, loss of time, and neces- sary expenses resulting to the de- ceased from the personal injuries." Mill & V. Code, § 3134. Contribu- tory negligence may be shown in mitigation of damages. Louisville &e. R. R. Co. V. Burke, 6 Coldw. 45 (1868); Nashville &c. R. R. Co. v. Smith, 6 Helsk. 174 (1871); Louis- ville &c. R. R. Co. V. Howard, 90 Tenn. 144 (1891); Louisville &c. R. R. Co. V. Stacker, 86 Tenn. 343 (1887). 28 Cons. Stats., chap. 86, § 3. 29 Code 1892, § 2971, as amended by Laws of 1887, No. 588, p. 43. See Georgia R. R. Co. v. Pittman, 73 Ga. 325 (1884). Before that amendment such expenses were deducted. 30 Ky. Gen. Stats., chap. 57, § 1; Louisville &c. R. R. Co. v. Case, 9 Bush, 728 (1873); Kentucky Cen- tral R. R. Co. V. Gastineau, 83 Ky. 119 (1885). Under these statutes the same cause of action which the deceased had is made to survive in favor of representatives. Delaware: Code, p. 644. In a suit begun by the deceased in his lifetime and continued after his death by his administrator. Quinn V. Johnson Forge Co., 9 Houst. 338 (1892). New Hampshire: Laws of N. H., 1891, chap. 191; Act of July 18, 1879. Suffering of deceased may be recovered for. Clark v. Man- chester, 62 N. H. 577 (1883); Cor- liss V. Worcester &c. R. R. Co., 63 id. 404 (1885). Section 5498, Comp. Laws of South Dakota, is a survival statute. See Belding V. Black Hills &c. R. R. Co., 3 So. Dak. 369 (1892). Damages foe Causing Death. 335 •was held, that Avhen the plaintiff has died, and the action has survived to his personal representatives, by virtue of section 18 of the act of April 15, 1851 (P. L. 674), recovery may be had, not only for the mental and physical suffering up to the time of the plaintiff's death and diminution of earning power during a period of life, which he would have probably lived had the accident not happened; but also for the value of the life.^^ § 259. Exemplary — Punitive — Damages — Statutes. — In some of the States the statute expressly permits exemplary, as well as actual damages to be awarded by the jury.^^ But, gen- 31 Maher v. Philadelphia Trac- tion Co., 181 Pa. St. 391 (1897). 32 Arizona: " When the death Is ■ caused by the wilful act or omis- sion or gross negligence of the de- fendant, exemplary, as well as ac- tual, damages may be recovered." Eev. Stats. 1887, § 2147. Texas: Sayles' Civil Stats., art. 2901; Const. 1876, art. 16, § 26, pro- vides that if a homicide be com- mitted "through wilful act or omission, or gross neglect," ex- emplary damages may be given. International &c. Ky. Co. v. Mc- Donald, 75 Tex. 41 (1889); id. 667 (1890). Kentucky: If life Is lost by " wil- ful neglect," may recover "puni- tive damages." Gen. Stats., chap. 57, § 3. Person killed in a duel, action lies against principal, sec- onds, etc. ; jury may give " vindic- tive damages." Gen. Stats., chap. 32, § 1; Kentucky &c. Co. v. Gas- tineau, 83 Ky. 119 (188.5); Louis- ville &c. K. R. Co. V. Brooks, id. 129 (1885). Michigan: Stats. 1883, No. 191; Larzelere v. Kirchgessner, 73 Mich. 276 (1889). Missouri: Rev. Stats. 1889, § 4427; Gray v. McDonald, 104 Mo. 303 (1891). Nevada: The jury may give dam- ages, " pecuniary and exemplary." Gen. Stats. 1885, § 3899. New Mexico: The jury may give damages " compensatory and exem- plary." Comp. L. 1884, as amended by Laws 1891, chap. 49, § 2310. Washington: The jury may give " such damages, pecuniary or ex- emplary, as, under all circumstan- ces of the case, may to them seem just." Hill's Ann. Stats. & Code, 1891, § 138 (8); Klepsch v. Donald, 4 Wash. St. 436 (1892). Not in Louisiana. Hamilton v. Morgan &c. SS. Co., 42 La. Ann. 824 (1890). Under the original Cali- fornia Act, exemplary damages were expressly provided for. Myers V. City of San Francisco, 42 Cal: 215 (1871). Not allowed by the present statute. Lange v. Schoett- ler, 115 Cal. 388 (1896). Alabama: Code 1886, § 2589. " Such damages as the jury may assess;" punitive damages may be allowed. Savannah &c. R. R. Co. v. Shearer, 58 Ala. 672 (1877); Rich- mond &c. R. R. Co. V. Freeman, 97 id. 289 (1893). Otherwise under the Employers' Liability Act, § 2591. Louisville &c. R. R. Co. v. Orr, 91 Ala. 548 (1890); James v. Richmond &c. R. R. Co., 92 id. 231 (1890). 32G Damages foe Causing Death. erally speaking, in the absence of a statute, punitive, vindictive or exemplary damages cannot be given by the jury;^^ otherwise in Connecticut;^* and Tennessee.^® In Virginia the jury, by statute, " may award such damages as to it may seem fair and just."«« § 260. Funeral expenses — Family mourning In England it has been held, that the funeral expenses of the deceased cannot be recovered, under the statute, as part of the damages f or the expenses of family mourning.^* In California it was held, that such expenses are not recoverable, except as special damages, and if recoverable at all, they must be specially pleaded.^^ The I'ule, which seems to have the weight of authority to support it, is that such funeral expenses are recoverable as part of the damages where any of those, for- whose benefit the action is brought, are legally bound to pay such expenses; proof thereof is, therefore, competent ;*" so held, when the action was brought by a parent for causing the death of a minor child. *^ In Penn- sylvania it was held, in an action by a mother for causing the death of her son, that the expenses of nursing and medical at- 33 See § 243; Tiffany on Death 39 Gay v. Winter, 34 Cal. 153 by Wrongful Act, § 155; Lange v. (1867). Schoettler, 115 Cal. 388 (1896) ; *o Tiffany on Death by Wrongful Pennsylvania R. R. Co. v. Books, Act, § 157; Murphy v. New York 57 Pa. St. 339 (1868); Cleveland &c. &c. R. R. Co., 88 N. Y. 445 (1882); R. R. Co. V. Rowan, 66 id. 393 Consolidated Traction Co. v. Hone, (1870). 30 Vr. 275 (1896); reversed, 31 Vr. 34 Murphy v. New York &c. R. 444; Pennsylvania Co. v. Lilly, 73 R. Co., 29 Conn. 496 (1861). Ind. 252 (1881); Petrie v. Columbia 35 Haley v. Mobile &c. R. R. Co., &c. R. R. Co., 29 So. Car. 303 7 Baxt. 239 (1874); Kansas City &c. (1888); Gulf &e. R. R. Co. v. South- R. R. Co. V. Daughtry, 88 Tenn. 721 wick, Tex. Civ. App. ; 30 (1890). S. W. Rep. 592 (1895); Cleveland 38 Code 1887, § 2903; Matthews &c. R. R. Co. v. Rowan, 66 Pa. V. Warner, 29 Gratt. 570 (1877). St. 393 (1870). See § 243. *i Owen v. Brockschmidt, 54 Mo. 37 Dalton V. Southeastern Ry. 285 (1873) ; Rains v. St. Louis &c. Co., 4 C. B. (N. S.) 296 (1858); fol- Ey. Co., 71 id. 164 (1879); Pennsyl- lowed in Consolidated Traction Co. vania R. R. Co. v. Bantom, 54 Pa. V. Hone, 31 Vr. 444 (1897), revers- St. 495 (1867); Augusta Factory v. Ing, on this point, 30 id. 275 (1896). Davis, 87 Ga. 648 (1891); Little 38 Dalton V. Southeastern By. Rock &c. Ry. Co. v. Barker; 33 Co., 4 C. B. (N. S.) 296 (1858). Ark. 350 (1878). Damages foe Causing Death. 327 ■tendance, before the death, could be recovered as part of the damages.** § 261. Mitigation of damages — Insurance money. — It is no defense to the action, under the statute, that the life of the de- ceased was insured f^ hence, the recovery of insurance money on the life destroyed by the defendant's negligence, cannot be shown by the defendant for the purpose of diminishing dam- ages.** Nor can a provision of law whereby the widow and children might, under certain conditions, receive a government pension in consequence of the husband's death, be considered in mitigation of damages.*" Money expended by the defendant for the injured person between the time of the injury and the death, cannot be shown, in an action for the death, for the pur- pose of diminishing the damages.** § 262. Nominal damages. — A verdict for nominal damages for the death of a human being is inadequate.*^ Evidence of the bare killing and age of an employe justifies only nominal damages,** but otherwise when there was proof of his wages.*' So when the life of a person killed was not shown to be of any pecuniary value to his next of kin, nominal damages may be recovered.^ Lineal kindred of deceased are entitled to, at 42 Pennsylvania R. R. Co. v. (1885); Sherlock v. Ailing, 44 Ind. Ban torn, 54 Pa. St. 495 (1867); 184 (1873). Cleveland &c. R. R. Co. v. Rowan, « St. Louis &c. By. Co. v. Mad- «6 id. 393 (1870). clry. 57 Ark. 306 (1893). 43 Carroll v. Missouri Pacific Ry. 46 Murray v. Usher, 46 Hun, 404 Co., 88 Mo. 239 (1885); Grand (1887); 117 N. Y. 542 (1889), dis- Trunk Ry. Co. v. Jennings, L. R., tinguishlng Littlewood v. Mayor 13 App. Cas. 800 (1888). &c. New York, 89 id. 24 (1882). 44 Tiffany on Death by Wrongful See Holland v. Brown, 35 Fed. Rep. Act, I 176; Althorf v. Wolfe, 22 N. 43 (1888). y. 355 (1860); Kellogg V. New York 47 Wolford v. Lyon Gravel &e. Central &c. R. R. Co., 79 id. 72 Co., 63 Cal. 483 (1883). <1879); Terry v. Jewett, 78 id. 338 48 Louisville &c. R. R. Co. v. Orr, <1879); North Pennsylvania R. R. 91 Ala. 548 (1890). Co. V. Kirk, 90 Pa. St. 15 (1879); 49 James v. Richmond &c. R. R. Baltimore &c. B. R. Co. v. Wight- Co., 92 Ala. 231 (1890). man, 29 Gratt. 431 (1877) ; Western so Atchison &c. R. R. Co. v. Ac. R. R. Co. v. Meigs, 74 Ga. 857 Weber, 33 Kan. 543 (1885). 328 Damages fob Causing Death. least, nominal damages, without proof of loss of support.'^ But in England,^^ and in some of the States nominal damages cannot be recovered. § 263. Question of fact for the jury.— Much must be left to the discretion and judgment of the jury within the limits of the statute. It is not improper to instruct them to that effect.^ Their finding will not be disturbed, unless it is such as to show that the verdict was the result of prejudice or passion.^ As was said by Judge Earl of the New York Court of Appeals, " the courts have found it impossible to lay down any definite guide for the jury in estimating damages under the act."®° § 264. Seven classes of cases. — There may arise seven classes of cases, in actions brought to recover damages for causing the death of human beings under the statute: First. When the action is brought by a wife, to recover damages for causing the death of her husband. Second. When the action is brought ,by a husband, to recover damages for causing the death of his wife. Third. When the action is brought by a parent, to re- cover damages for causing the death of a minor child. Fourth, When the action is brought by a parent, to recover damages for causing the death of an adult child. Fifth. When the action is brought on behalf of a minor child, to recover damages for 61 Chicago &c. R. R. Co. v. Gun- Houghkirk v. Delaware &c. Canal derson, 174 111. 495 (1898). See Al- Co., 92 N. Y. 219, 224 (1883); Chi- terts V. Bache, 69 Hun, 255 (1893); cage &c. R. R. Co. v. Sweet, 45 111. O'Neill V. Brooklyn Heights R. R. 197 (1867). Co., 71 id. 114 (1893). 5* Parsons v. Missouri Pacific 82 Duckworth v. Johnson, 4 Ry. Co., 94 Mo. 286 (1887); Kane v. Hurlst. & N. 653 (1859). Mitchell Transp. Co., 90 Hun, 65 Michigan: Hurst v. Detroit &c. (1895); 35 N. Y. Supp. 581. Ry. Co., 84 Mich. 539 (1891). B5 Lockwood v. New York &c. R. Texas: McGown v. International R. Co., 98 N. Y. 523 (1885); An- &c. Ry. Co., 85 Tex. 289 (1892). drews v. Chicago &c. Ry. Co., 86 53 Tiffany on D^ath by Wrongful Iowa, 677 (1892). " It Is impossi- Act, § 177; Illinois Central R. R. ble to lay down any well-defined Co. V. Barron, 5 Wall. 90, 105 rule to guide courts and juries in. (1866); Parsons v. Missouri Pacific determining what pecuniary dam- Ry. Co., 94 Mo. 286 (1887) ; Chicago ages, if any, the next of kin sus- &c. R. R. Co. V. Shannon, 48 111. tain in these negligence cases." 338 (1867); Frank v. New Orleans Kane v. Mitchell Transp. Co., 90 &c. R. R. Co., 20 La. Ann. 25 (1868); Hun, 65; 35 N. Y. Supp. 581 (1895). Damages foe Causing Death. 339 causing the death of a parent. Sixth. When the action is brought by an adult, to recover damages for causing the death of a parent. Seventh. When the action is brought by the bene- ficiaries, to recover damages for causing the death of collateral relatives. The principle underlying the assessment of damages in all these cases, and which is common to them all, is compensa- tion for the pecuniary loss sustained by the death,^^ although the evidence admissible to prove the pecuniary loss, at the trial of each class, may be somewhat different. So the statute of each jurisdiction may enlarge or restrict the scope of the evi- dence that may be admissible at the trial in each class of cases. The statutes of all the States do not extend to injuries suffered in all the above enumerated classes of cases; so that an action will lie to recover damages therefor. Thus, in l^ew Jersey the statute of that State does not extend to an injury suffered by a husband as the result of the immediate killing of his wife. An action will not lie in that State to recover damages there- for." § 265. Action by wife for causing death of husband — Wife living in open adultery — Divorce. — When the action is brought by a wife, to recover damages for causing the death of her husband, the basis of compensation is the loss of support, which the deceased owed her.^* Damages for the widow's sorrow 56 This loss, it is said by Mr. Tif- prospective gifts; and second, fany, in his valuable work on losses of prospective inheritances. Death by Wrongful Act, § 159, The loss sustained by a husband, " may be either the loss, first, of wife, minor child, and parent of a something which the person was minor child may be of both de- legally entitled to receive, or, scriptions. The loss sustained by second, it may be the loss of some- an adult child, parent of an adult thing which it was merely reason- child, or collateral relative can ably probable the person would re- only be of the latter description." ceive. The first description of loss • 57 Grosso v. Delaware &c. R. R. is principally confined to a hus- Co., 21 Vr. 317 (1888). Contra, un- band's loss of his wife's services, der the Illinois statute. Cleveland a wife's loss of her husband's &c. R. R. Co. v. Baddeley, 150 111. support and services, a parent's 328 (1894). loss of the services of a minor 58 Hayes y. Williams, 17 Colo, child, and a minor child's loss 465 (1892). The measure of dam- of the support of a parent. The ages is the amount of money which second description of loss may the deceased would probably have be divided into: First, losses of earned during his life, for her 330 Damages foe Causing Death. cannot be considered;^® nor the mental and physical suffering of the widow;*" nor the fact that she has been deprived of his solace, comfort and affection.®^ Evidence of the dependence of the wife upon her husband for support is competent.*^ She may prove the number and ages of the children to show the burden cast upon her by her husband's death.*^ In Wisconsin it was held that a widow may show that she has no means of support except that which her husband furnished her;** or that young children are in poor health and have no means of support of their own.*^ In Maryland it was held, that the jury may consider the probable duration of their joint lives when the injury occurred.** The subsequent marriage of the widow can- not affect the measure of damages;*^ nor the fact that the widow has a policy of insurance on her husband's life.** A benefit, taking into consideration his age, ability and disposition to work, and habits of living and ex- penditure. Tiffany on Death by Wrongful Act, § 160. B9 Chicago &c. Ey. Co. v. Gillam, 27 111. App. 386 (1888). «o Railroad Co. v. Wynick, 99 Tenn. 500 (1897). 61 Gulf &c. By. Co. V. Finley, 11 Tex. Civ. App. 64 (1895);. Walker v. McNeill, 17 Wash. St. 582 (1897). See Wells v. Denver &c. Ry. Co., 7 Utah, 482 (1891). 62 Pennsylvania Co. v. Keane, 143 111. 172 (1892); Chicago &c. R. R. Co. V. May, 108 id. 288 (1884). 63 Abbot V. MeCadden, 81 Wis. 563 (1892); Tetherow v. St. Joseph &c. R. R. Co., 98 Mo. 74 (1888). " We take it that the rule deducible from the cases is substantially this: That it is not competent to show what the pecuniary circum- stances of the widow, family, or next of kin are, or have been, since the decease of the intestate, but that it is competent to show that the wife, children, or next of kin were dependent upon him for sup- port before and at the time of his death. This view is in consonance with the statute that gives the ac- tion, and which provides that such damages shall be given as are a fair and just compensation for the pecuniary injuries resulting from the death to the wife and next of kin of the deceased person." Mr. Justice Baker in Pennsylvania Co. V. Keane, 143 111. 172, 175 (1892) See Tiffany on Death by Wrong ful Act, § 173; Chicago &c. Ry. Co- V. Moranda, 93 111. 302 (1879) Compare Central R. R. Co. v, Moore, 61 Ga. 151 (1879); Lock wood V. New York &c. R. R. Co., 98 N. Y. 523 (1885). 64 Annas v. Milwaukee &c. B. R. Co., 67 Wis. 46 (1886). Contra, Chi- cago &c. Ry. Co. V. Moranda, 93 111. 302 (1879). 65 McKeigue v. City of Janes- ville, 68 Wis. 50 (1887). 66 Baltimore &c. Turnpike Go. v. Grimes, 71 Md. 573 (1889). 67 Georgia R. R. &c. Co. v. Garr, 57 Ga. 277 (1876). 68 North Pennsylvania R. R. Go. v. Kirk, 90 Pa. St. 15 (1879); Al- thorf V. Wolfe, 22 N. Y. 355 (1860); Kellogg V. New York Central &c. Damages foe Causing Death. 331 widow who, at and before her husband's death, was living apart from him in open adultery cannot recover damages f^ nor when there has been a divorce.^" § 266. Action by husband for causing death of wife — Re- marriage of husband. — When the action is brought by a hus- band, to recover damages for causing the death of his wife, the pecuniary injury to the husband resulting from the death of his wife includes the loss of her services. The measure of damages is their reasonable value.^* It is the excess in pecuniary value of the wife's services, over the cost of suitably maintaining her.''^ In some States the loss of a wife's society may be included. ''' Under the Illinois statute, the husband may recover for the pecuniary injury resulting to him as husband, from his wife's death.''* He need not show that he suffered pecuniary loss on account of his vsdfe's death.'^^ It is not proper to show that the K. R. Co., 79 id. 72 (1879). See §§ 239, 261. Amount of policy not to be deducted from the damages. Grand Trunk Ky. Co. v. Jennings, L. R., 13 App. Cas. 800 (1888). Case of pension. See St. Louis &c. Ry. Co. V. Maddry, 57 Ark. 306 (1893). 69 Stimpson v. Wood, 57 L. J. Q. B. 484 (1888); 59 L. T. 218. In a house of prostitution. Fort Worth &c. Ry. Co. v. Floyd, Tex. Civ. App. ; 21 S. W. Rep. 544 (1893). TO See §§ 115, 135. 71 Tiffany on Death by Wrongful Act, § 163; Nelson v. Lake Shore &c. Ry. Co., 104 Mich. 582 (1895). In such cases not necessary to prove special damages. Delaware &c. R. R. Co. v. Jones, 128 Pa. St. 308 (1889). T2Gulf &c. Ry. Co. V. South- wick, Tex. Civ. App. ; 30 S. W. Rep. 592 (1895). The husband is not entitled to damages for the cost of nursing a deceased wife, when there was no evidence of the value of the nurse's services. 73 New York: Cregin v. Brooklyn &c. B. B. Co., 83 N. Y. 595 (1881). Utah: Action by widow for the death of husband. Wells v. Den- ver &c. Ry. Co., 7 Utah, 482 (1891). Contra, Missouri: Schaub v. Hannibal &c. R. R. Co., 106 Mo. 74 (1891); Atchison &c. R. R. Co. V. Wilson, 4 U. S. App. 25; 48 Fed. Rep. 57 (1891). 74 Cleveland &c. R. R. Co. v. Baddeley, 150 111. 328 (1894). The statute gives the action in favor of the husband as well as the wife. 75 Delaware &c. R. R. Co. v. Jones, 128 Pa. St. 308 (1889). In an action by husband, as adminis- trator of his wife, who was killed by the defendant's negligence, leaving children, it was held: (1) The jury might consider the nur- ture, instruction, physical, moral and intellectual training which the mother gave to the children; (2) the damages were not necessarily confined to the children's minority if the jury are legally persuaded that they will continue after that age; (3) the prospective losses might be considered; (4) the busi- ness capacity of the mother may 333 Damages foe Pausing Death. husband is again married;''® or that he is engaged to be mar- ried.''^ In ISTew Jersey, the statute does not extend to injuries suffered by a husband, as the result of the immediate killing of his ■wifeJ* § 267. Action by parent for causing death of minor child — Question for the jury. — When the action is brought by a parent, to recover damages for causing the death of a minor child, the principle on which damages are awarded under the statute, is compensation for the actual pecuniary loss sustained, on the theory of a parent's right to the services of the child during minority.'^® The measure of recovery is said to be the value of the child's services from the time of the injury until he would have attained his majority, in connection with his pros- pects in life. iN'ecessary expenses, such as medical and nursing, attending the injury, and funeral expenses incurred for a proper burial;*" less support and maintenance.*^ In some of the States it is held, that the jury in estimating damages is not be considered as aiding the jury Co., 21 Vr. 317 (1888). Contra, un- In determining ttie pecuniary bene- der the Illinois statute. Cleveland fit which the mother was to her &c. R. R. Co. v. Baddeley, 150 111. children, and as to her capacity to 328 (1894). give them such training and edu- T9 Mobile &c. R. R. Co. v. Watly, cation as would be pecuniarily ser- 69 Miss. 145 (1891); Pierce v. Con- vlceable to them in after life. The ners, 20 Colo. 178 (1894). habitual employment and value of so See § 260. the earnings of the mother were 81 Mayhew v. Burns, 103 Ind. competent to show general capac- 328, 334 (1885); Pennsylvania Co. ity. Tilley v. Hudson River R. R. v. Lilly, 73 id. 252 (1881); Benton Co., 29 N. Y. 252 (1864); 24 id. 471 v. Chicago &c. R. R. Co., 55 Iowa, (1862). In a suit by husband as ad- 496 (1881); Walters v. Chicago &c. ministrator of his wife, the value R. R. Co., 36 id. 458 (1873); Rains of her services to him does not en- v. St. Louis &c. R. R. Co., 71 Mo. ter into the estimate of damages, 164 (1879); Lehigh Iron Co. v. and evidence thereof is inadmis- Rupp. 100 Pa. St. 95 (1882); Penn- sible. Dicklns v. New York Central sylvania R. R. Co. v. Kelly, 31 id. R. R. Co., 28 N. Y. 158 (1861). 372, 379 (1858); Pennsylvania R. R. 76 Georgia R. R. &c. Co. v. Garr, Co. v. Zebe, 33 id. 318 (1858); Rock- 57 Ga. 277 (1876); Davis v. Guar- ford &c. R. R. Co. v. Delaney, 82 nieri, 45 Ohio St. 470 (1887). 111. 198 (1876); Cooper v. Lake 77 Dimmey v. Wheeling &c. R. Shore &c. Ry. Co., 66 Mich. 261 R. Co., 27 W. Va. 32 (1885). (1887). 78 Grosso V. Delaware &c. R. R. Damages pok Causing Death. 333 confined to the loss of services during minority.^^ When the evidence shov7s a reasonable expectation of pecuniary benefit from the continuance of the life beyond minority,** and the child had manifested an intent to aid the parents after that time.®* The question vsrhether there would be a financial profit in bringing up the child in a city and without a home is for the jury.^ So the question whether decedent would have continued to contribute to the support of his parents, after attaining his majority, is for the jury.*® In an action by a 82 Illinois: Illinois Cent. R. R. Missouri: Parsons v. Missouri Co. V. Slater, 129 111. 91 (1889); Pae. Ry. Co., 94 Mo. 286 (1887). "West Chicago &c. R. R. Co. v. Pennsylvania: Pennsylvania R. Dooley, 76 111. App. 424 (1898). R. Co. v. Zebe, 33 Pa. St. 318 New York: Birkett v. Knicker- (1858); Caldwell v. Brown, 53 id. bocker Ice Co., 110 N. Y. 504 453 (1866); Lehigh Iron Co. v. (1888). Rupp, 100 id. 95 (1882). Texas: Gulf &c. Ry. Co. v. 83 Johnson v. Chicago &c. Ry. Compton, 75 Tex. 667, 674 (1890). Co., 64 Wis. 425 (1885); Ewen v. Wisconsin: Thompson v. John- Chicago &c. Ry. Co., 38 id. 613 ston Bros. Co., 86 Wis. 576 (1893); (1875). In Potter v. Chicago &c. Johnson v. Chicago &c. Ry. Co., 64 Ry. Co., 21 Wis. 372 (1867), it was Id. 425 (1885) ; Ewen v. Chicago &c. said the pecuniary advantage of Ry. Co., 38 id. 613 (1875) ; Potter v. the life of the deceased after his Chicago &c. Ry. Co., 21 id. 372 minority can be considered, only af- (1867); 22 id. 615 (1868). ter proof of the indigent or depend- Contra, Arkansas: Little Rock ent condition of the parents. Bir- &c. Ry. Co. V. Barker, 33 Ark. 350 kett v. Knickerbocker Ice Co., 110 (1878); St. Louis &c. Ry. Co. v. N. Y. 504 (1888); Keenan v. Freeman, 36 id. 41 (1880); distin- Brooklyn City R. R. Co., 145 N. Y. guished, St. Louis &c. Ry. Co. v. 348 (1895); 5 App. Div. 121. Davis, 55 id. 462 (1892). Contra, 84 st. Louis &c. Ry. Co. v. Davis, Atchison &c. R. R. Co. v. Cross, 58 55 Ark. 462 (1892); distinguished Id. 424 (1897). from Little Rock &c. Ry. Co. v. Georgia: Augusta Factory v. Barker, 33 id. 350 (1878); St. Louis Davis, 87 Ga. 648 (1891). &c. By. Co. v. Freeman, 36 id. 41 Maryland: State v. Baltimore (1880). &c. R. R. Co., 24 Md. 84 (1865); 85 A child eleven years old. Citi- Agrlcultural &c. Assn. v. State, 71 zens Street Ry. Co. v. Lowe, 12 id. 86 (1889); Baltimore &c. Turn- Ind. App. 47 (1894). pike Co. V. Grimes, id. 573 (1889). 86 St. Louis &e. R. R. Co. v. Michigan: Cooper v. Lake Shore Davis, 55 Ark. 462 (1892); Colorado &c. Ry. Co., 66 Mich. 261 (1887); Coal &c. Co. v. Lamb, 6 Colo. App. Hurst V. Detroit City Ry. Co., 84 255, 268 (1895); McLean &c. Co. v. id. 539 (1891). McVey, 38 111. App. 158 (1890). 334 Damages fok Causing Death. parent for the death of a child, damages may be recovered for nursing, medical expenses before death, and funeral ex- penses.*^ Mental suffering of parents for the death of a child is not a ground of recovery.** Loss of society for the death of a child, by a father, or comfort in rearing him to manhood, can- not be considered.*^ There is no rule governing damages allow- able for the death of young children;®" it rests in the sound dis- cretion of the jury.^^ The jury may give more than nominal damages;®^ but they must not be wholly a matter of conjec- ture.^' The law implies a pecuniary loss to a parent from the death of a minor child, for which compensation under the stat- ute may be given for the loss of service.®* A parent is not limited to his actual pecuniary injury in an action for damages for the loss of a child's services.®® When the child was in- capable of earning anything, the loss is a matter of conjecture 87 Pennsylvania: Cleveland &c. by you as best you can from yonr K. R. Co. V. Rowan, 66 Pa. St. 393 own judgment, common sense and (1870); Pennsylvania R. R. Co. v. sound discretion, and the evidence Bantom, 54 id. 495 (1867); Penn- before you." sylvania R. R. Co. v. Zebe, 33 id. 92 Oldfield v. New York &c. R. R. 318, 330 (1859). Co., 14 N. Y. 310 (1856); Prender- Texas: Cost of medical and other gast v. New York &c. R. R. Co., like expenses. City of Galveston v. 58 id. 652 (1874); Birkett v. Knlek- Barbour, 62 Tex. 172 (1884). See erbocker Ice Co., 110 Id. 504 (1888). § 260. 93 Houghkirk v. Prest. &c. Canal 88 Chicago &c. Bottling Co. v. Co., 92 N. Y. 219 (1883). "While, Tietz, 37 111. App. 599 (1890); as has been well said, a jury in Munro v. Pacific Coast &c. Co., 84 these cases must, to a large ex- Cal. 515 (1890) ; Pennsylvania R. R. tent, form their estimate of dam- Co. V. Zebe, 33 Pa. St. 318, 330 ages on conjectures and uncertain- (1859). ties, yet, where the evidence fur- 89 Mobile &c. R. R. Co. v. Watly, nishes some standard for valuation 69 Miss. 145 (1891). Compensation of damages, a verdict wholly dis- is limited to the actual pecuniary regarding such standard ought not loss sustained, on the theory of the to stand." Jackson v. Consolidated parent's right to the services of Traction Co., 30 Vr. 25, 28 (1896). the child during minority. 94 Stafford v. Rubens, 115 111. 196 90 Chicago &c. R. R. Co. v. Wil- (1885) ; City of Chicago v. Hesing, son, 35 111. App. 346 (1889). 83 id. 204, 207 (1876); City of Chi- 91 See Tiffany on Death by cago v. Scholton, 75 id. 468 (1874) ; Wrongful Act, § 180; 15 Cent. L. J. Bradley v. Sattler, 156 id. 603 286; Brunswig v. White, 70 Tex. (1895). 504 (1888). " And the value of the 95 Nehrbas v. Central Pacific R. child's services during the period R. Co., 62 Cal. 320 (1882). of her minority is to be ascertained Damages fob Causing Death. 335 and may be determined by the jury without the testimony of witnesses.®® Chances of promotion of deceased may be con- sidered.®^ 'No deduction should be made for the support of the child subsequent to the injury.®® The condition of the family, with respect to a child killed, may be considered so far as it bears upon pecuniary loss.®® In an action by a married woman for the death of her son damages may be apportioned between mother and father.^ § 268. Action by parent for causing death of adult child. — "When the action is brought by a parent, to recover damages for causing the death of an adult child, the compensation for the pecuniary loss " would be such sum as would purchase an annuity if such security was in the market, equal to the value of the pecuniary aid which the plaintiff would have derived from the deceased, calculated upon the basis of all the facts and circumstances of the particular case, reasonably accessible in evidence, and including the probable duration of life as shown by approved tables — such as the circumstances of the de- ceased, his occupation, age, health, habits of industry, sobriety and economy, his skill and capacity for business, the amount of his property, his annual earnings, and the probable duration of life."^ Evidence of contribution by the child to the parent must be given where the child was of full age at the time of the death;' such as giving assistance to parent, contributing money to the support of the parent, or that the parent had reasonable 96 Little Kock &c. Ry. Co. v. affairs. lb.; Cooper v. Lake Shore Barker, 39 Ark. 491 (1882). &c. Ry. Co., 66 Mich. 261 (1887); 97 Davis v. St. Louis &c. Ry. Co., Illinois Central R. R. Co. v. Slater, 53 Ark. 117 (1890); St. Louis &c. 129 111. 91 (1889); Overholt v. Ry. Co. V. Johnston, 78 Tex. 536 Vieths, 93 Mo. 422 (1887). (1890). ^ Missouri Pacific Ry. Co. v. 98 Schmitz V. St. Louis &c. Ry. Henny, 75 Tex. 220 (1889). Co., 46 Mo. App. 380 (1891). 2 Bonner, J., in Houston &c. R. 99 Louisville &c. Ry. Co. v. Rush, R. Co. v. Cowser, 57 Tex. 293, 304 127 Ind. 545 (1890). Take into ac- (1882). count all the services the child 3 Cherokee &c. Co. v. Limb, 47 might reasonably have performed Kan. 469 (1891); Fordyce v. Mc- in the family until it attained its Cants, 51 Ark. 509 (1889). Contra, majority, including actual labor in Mollie Gibson Co. v. Sharp, 5 Colo, helping to carry on the household App. 321 (1894). 336 Damages foe Causing Death. expectation of pecuniary profit from the continued life of the child.* § 269. Action by minor child for causing death of parent. — When the action is brought on behalf of a minor child, to re- cover damages for causing the death of a parent, the measure of damages is the loss of support which the parent owed the child until its arrival at full age.' Such compensation should begin from the death of the parent and not from the date of the injury;^ reasonable expectation of pecuniary benefit to children in their support or otherwise, is a proper element of damage.'^ Loss of physical, intellectual and moral training and proper nurture by a child, are within the meaning of the term " pecuniary loss."* Especially so in the case of a father, if he was a man of industrious habits, of good character, a duti- ful father, and tried to educate his children properly.® So a mother's care in case of a young child has been held to be in- cluded in the term " pecuniary."^" § 270. Action by adult for causing death of parent. — The fact that the children were all of age when their parent's death was * Fordyce v. MeCants, 51 Ark. &e. Ky. Co., 91 Mo. 511 (1887); Red- 509 (1889). field v. Oakland Cons. Street By. 5 Atlanta &c. E. R. Co. v. Yen- Co., 110 Cal. 277 (1895); Searle v. able, 67 Ga. 697 (1881); McPherson Kanawaha &c. Ry. Co., 32 W. Va. V. St Louis &c. By. Co., 97 Mo. 370 (1889); Walker v. McNeill, 17 253 (1888); Baltimore &c. B. B. Co. Wash. St. 582 (1897); St. Louis &c. V. Trainor, 83 Md. 542 (1870); Bal- Ry. Co. v. Maddry, 57 Ark. 306 timore &c. Turnpike Road v. State, (1893) ; Baltimore &c. B. B. Co. v. 71 Md. 573 (1889). Not confined to Stanley, 54 111. App, 215 (1894). age of majority, her care and la- 9 St. Louis &c. B. B. Co. v. Mad- bor, her education, character and dry, 57 Ark. 306 (1893); St. Louis ability to train and guide them. &c. By. Co. v. Sweet, 60 id. 550 Bedfleld v. Oakland Cons. Street (1895). There being no testimony By. Co., 110 Cal. 277 (1895); Tiffany in the case tending to show that on Death by Wrongful Act, § 160. the deceased was fitted by nature 6 Atlanta &c. B. B. Co. y. Ven- or education, or by disposition, to able, 67 Ga. 697 (1881). furnish his children instruction, or 7 Under Wis. Bev. Stats., § 4256; moral, physical or intellectual Tuteur v. Chicago &c. By. Co., 77 training, an instruction based on Wis. 505 (1890). such facts was held improper. Chi- 8 Mclntyre v. New York Central cago &c. B. E. Co. v. Austin, 69 R. B. Co., 37 N. Y. 287 (1867); Til- 111. 426 (1873). ley V. Hudson Biver E. B. Co., 24 lo Tilley v. Hudson Biver B. B. Id. 471 (1862); Stoher v. St. Louis Co., 29 N. Y. 252 (1864). Damages for Causing Death. 337 caused by negligence, would not preclude a recovery for the loss of such pecuniary benefit, as they had a reasonable expecta- tion of securiug from the parent's additional accumulations.^^ § 271. Action by beneficiaries for causing death of collateral relatives. — When the action is brought by the beneficiaries, to recover damages for causing the death of collateral relatives, the measure of damages is compensation for their pecuniary loss, based upon a reasonable expectation of pecuniary ad- vantage from the continuation of the life of the deceased.^^ The loss may consist of losses of prospective inheritances/* or prospective gifts. ^* It is not necessary to maintain the action, that the next of kin should have a legal claim upon the deceased for services or support, a reasonable expectation of pecuniary advantage from the continuation of the life of the deceased being enough. ^^ 11 Tuteur v. Chicago &c. Ry. Co., 77 Wis. 505 (1890); Demarest v. Little, 18 Vr. 28 (1885). See Locli- wood V. New York &c. K. R. Co., 98 N. Y. 523 (1885). Contra, in Texas when not supported by the parent. St. Louis &c. R. R. Co. v. Johnston, 78 Tex. 536 (1890). 12 Boyden v. Fitchburg R. R. Co., 70 Vt 125 (1897). 13 Tiffany on Death by Wrong- ful Act, §§ 159, 171. 14 Tiffany on Death by Wrong- ful Act, §§ 166-170. 15 Boyden v. Fitchburg R. B. Co., 70 Vt. 125 (1897); Kelly v. Twenty- third Street Ry. Co., 14 Daly, 418 (1888); Paulmier v. Erie R. R. Co., 5 Vr. 156 (1870); Illinois Central R. R. Co. V. Barron, 5 Wall. 90 (1866); Dalton \. South Eastern Ry. Co., 4 C. B. (N. S.) 296 (1858). Not by a nonresident alien mother, in Penn- sylvania. Deni v. Pennsylvania R. R. Co., 181 Pa. St. 525 (1897). Lineal kindred of deceased are entitled to at least nominal damages without proof of loss of support. Chicago &c. R. R. Co. V. Gunderson, ■ 22 174 111. 495 (1898). The word " pecuniary " is not to be con- strued in a strict sense. The recovery is not limited to the pres- ent loss in money, but prospective advantages of a pecuniary nature may be considered. City of Vicks- burg V. McLain, 67 Miss. 4 (1889). " Life, by law, had a value for the loss of which the survivors had a right to be compensated, in view of its circumstances." Peiinsyl- vania R. R. Co. v. Keller, 67 Pa. St. 308 (1871). The evidence need not afford data from which the extent of the pecuniary loss " can be ascertained with reasonable certainty." Ohio &c. Ry. Co. v. Wangelin, 152 111. 138 (1894). But remote and purely conjectural con- tingencies cannot be considered. Tennessee Coal &c. R. R. Co. v. Herndon, 100 Ala. 451 (1893). See Duval V. Hunt, 34 Fla. 85 (1894); Tiffany on Death by Wrongful Act, §§ 166-170; Howard v. Dela- ware &c. Canal Co., 40 Fed. Rep. 195 (1889); Tuteur v. Chicago &c. Ry. Co., 77 Wis. 505 (1890). 338 Damages foe Causing Death. § 272. Verdicts for causing death — Excessive. — In the follow- ing cases, verdicts for injuries causing death were held by the courts excessive: $4,000 for death of an unmarried man, aged thirty-three;^® $9,000 for death of son, aged over twenty- one years;^^ $10,000 for death of unmarried man, aged twenty- four years — reduced to $5,000;^® $25,000 for death of son, eighteen years old — reduced to $2,000;^^ $7,500 — reduced to $6,000 — for death of an unmarried man, twenty-two years oH;^'' $7,500 — reduced to $1,000 — for death of man, sixty- two years old;^^ $12,000 for death of man fifty-seven years old, in declining health, whose monthly earnings were $25;^^ $5,000 for death of a common laborer, in the absence of evidence showing what wages he received ;^^ $4,000 for death of one in- solvent and in failing health, but able to superintend his busi- ness as innkeeper;^ £5,000, in suit for wife and children;^ $4,000 for death of a married woman, aged twenty, no other evidence of pecuniary loss;^® $1,500 for death of a boy four years old;^^ $4,500 — $3,500 on second trial — remitted, $1,235, for death of a boy;^* $2,000, without evidence of pe- cuniary loss;^® $3,400 for death of young man, eighteen years old, who earned $1.40 per day;^" $4,000 for death of a boy eight years old;^^ $5,000 for death of a brakeman, eighteen years old;^^ $2,250 for death of a young man, eighteen years old, earning $50 per month ;^^ $936 and $1,056 for death of 16 Carpenter v. Buffalo &c. R. R. 25 Moi-ley v. Great Western Ry. Co., 38 Hun, 116 (1885). Co., 16 Up. Can. Q. B. 504 (1858). IT Houston &c. Ry. Co. v. Cow- ir. Mitchell v. New York &c. K. ser, 57 Tex. 293 (1882). R. Co., 2 Hun, 535 (1874). 18 Rose V. Des Moines &c. R. R. 27 Lehman v. City of Brooklyn, Co., 39 Iowa, 246 (1874). 29 Barb. 234 (1859). iSMyhan v. Louisiana Electric 28 Little Rock &c. Ry. Co. v. Light &c. Co., 41 La. Ann. 970 Barker, 33 Ark. 350 (1878); 39 Id. . (1889). 491 (1882). 20 McFee v. Vicksburg &c. R. R. 29 Lake Shore &c. Ry. Co. v. Co., 42 La. Ann. 790 (1890). Sunderland, 2 111. App. 307 (1878). 21 Cline V. Crescent City R. R. 30 Chicago &c. Ry. Co. v. Bay- Co., 43 La. Ann. 327 (1891). field, 37 Mich. 205 (1877). 22 Louisville &c. R. R. Co. v. 3i City of Vicksburg v. McLain, Stacker, 86 Tenn. 343 (1887) Rule 67 Miss. 4 (1889). for damages stated. 32 Parsons v. Missouri Pacific Ry. 23 Illinois Central R. R. Co. v. Co., 94 Mo. 286 (1887). Weldon, 52 111. 290 (1869). 33 Hickman v. Missouri Pacific 24 Hutton V. Windsor, 34 Up. Ry. Co., 22 Mo. App. 344 (1886). Can. Q. B. 487 (1874). Damages fok Causing Death. 339 two boys aged thirteen and fifteen, respectively;^* $12,000 — reduced to $10,000 — for death of husband, a railroad em- ploye;^ $1,500 for death of son grown up, no evidence of having contributed to the parents;^® $40,000 — reduced to $25,000 — for death of husband, leaving wife and minor children, who was kind and affectionate, twenty-five years old, in good health, sober, industrious, good business manager and earning $150 per month ;*^ $10,000 for death of son, no evidence of pecuniary loss to next of kin;^^ $9,000, no evidence of pecuniary loss;^® $3,500 — reduced to $2,000 — for death of son;*" $3,000 for death of son;" $1,750 for death of a bridge carpenter, no evi- dence of pecuniary loss;*^ £13,000 for death of father with family;*^ $27,500 — reduced by court to $15,000 — for death of father with family;** $3,500 — reduced to $1,500 — for death of a widow, aged forty-eight, who left three children, all of age;*^ $1,800 for death of child five years old;*« $7,000 for •death of wife, fifty-six years old;*'' $20,000 for death of daughter, two years old;** $3,000 for death of boy, fifteen years old, earning capacity about $20 per month — reduced to $1,500,*^ $5,000 for death of a child between four and five years old."^ § 273. Verdicts for causing death — Not excessive. — In the fol- lowing cases verdicts for injuries causing death were held by the courts not excessive: $5,000 for death of a young unmarried man, twenty-five years old;®^ $4,000 for death of a single 34Telfer v. Northern R. R. Co., « pym v. Great Northern Ry. 1 Vr. 188 (1862). Co., 2 B. & S. 759; 4 Id. 396 (1863). 35 Central R. R. Co. v. Crosby, 4* Demarest v. Little, 18 Vr. 28 74 Ga. 737 (1885). (1885). 36 Cherokee &c. Co. v. Limb, 47 *5 Mclntyre v. New York Central Kan. 469 (1891). R. R- Co., 37 N. Y. 287 (1867). 37 Walker v. McNeill, 17 Wash. *6 Pennsylvania Co. v. Lilly, 73 St. 582 (1897). Ind. 252 (1881). 38 Atchison &c. R. R. Co. v. *'' Nelson v. Lake Shore &c. Ry. Brown, 26 Kan. 443 (1881). Co., 104 Mich. 582 (1895). 39 Houston &c. Ry. Co. v. Cow- *« Morgan v. Southern Pacific R. ser, 57 Tex. 293 (1882). R. Co., 95 Cal. 510 (1892). 40 Hutehins v. St. Paul &c. Ry. *^ May v. West Jersey &c. R. R. Co., 44 Minn. 5 (1890). Co., 33 Vr. 67 (1898). « Paulmier v. Erie R. R. Co., 5 so Graham v. Consolidated Trac- Vr. 151 (1870). tion Co., 33 Vr. 90 (1898). 42 Serensen v. Northern Pac. R. bi Bierbaur v. New York Central R. Co., 45 Fed. Rep. 407 (1891). &c. R. R. Co., 15 Hun, 559 (1878); affirmed, 77 N. Y. 588. 340 Damages fok Causing Death. woman, thirty-six years old;^^ $2,000 for death of an unskilled laborer, married, fifty-five years old;^^ $2,500 for death of a boy, seven years old;" $10,000 for the death of a brakeman, where negligence was wilful;®^ $8,000 for death of a husband;^* $2,000 for death of a boy, eighteen months old;^^ $10,000 for death of a man whose expectancy of life was forty-two years, and his earnings $650 annually;®^ $3,000 for death of son, twenty- eight years oldf^ $4,995 for death of a man, twenty-eight years old;®* $2,000 for death of son;«^ $3,550 for death of son, twenty-two and one-half years old;^^ $1,500 for death of daugh- ter;^* $2,400 for death of son, twenty-one years old, healthy and industrious;^* $4,200 for death of son, twenty-six years old;*^ $3,750 for death of son, thirty-five years old, who had been a judge;®® $1,000 for death of widow, sixty-one years old;®' $3,500 for death of girl,' aged fourteen years;®* $5,000 for death of engineer;®^ $1,000 for death of unmarried man, no evidence of pecuniary contribution to relatives and next of kin;™ $7,500 for death of married man, fifty-two years old;''^ $800 for death of a child less than four years old;'^ $2,600 for death of a workman, fifty-five years old, in fair health, with a large family, who could earn $2.25 per day;'''* $8,000 52 Bowles V. Rome &e. R. R. Co., 63 City of Salem v. Harvey, 29 46 Hun, 324 (1887). 111. App. 483 (1888). 63 Mulcairns v. City of Janes- 64 Chicago &c. R. R. Co. v. Ad- ville, 67 Wis. 24 (1886). ler, 28 111. App. 102 (1887). t>4 Johnson v. Chicago &c. Ry. 65 Texas &c. Ry. Co. v. Lester, Co., 64 Wis. 425 (1885). 75 Tex. 56 (1889). B5 Louisville &c. R. R. Co. v. 66 Illinois Cent. R. R. Co. v. Bar- Brooks, 83 Ky. 129 (1885). ron, 5 Wall. 90 (1866). 56 Cook v. Clay Street Hill R. R. 67 Tuteur v. Chicago &c. R. R. Co., 60 Cal. 604 (1882). Co., 77 Wis. 505 (1890). 57 Sehrier v. Milwaukee &c. Ry. 68 Pineo v. Nevs- York Cent. &c. Co., 65 Wis. 457 (1886). R. R. Co., 34 Hun, 80 (1884). 58 McDermott v. lovra Falls &c. 69 Brwin v. Neversink Steam- Ry. Co., 85 Iowa, 180 (1892); 47 N. hoat Co., 23 Hun, 573 (1881). W. Rep. 1037. 70 Kelly v. Twenty-third Street 59 O'Oallaghan v. Bode, 84 Cal. Ry. Co., 14 Daly, 418 (1888). 489 (1890). 71 St. Louis &c. Ry. Co. v. Mad- 60 Wells v. Denver &c. Ry. Co., dry, 57 Ark. 306 (1893). 7 Utah, 482 (1891). '^2 city of Chicago v. Scholton, 61 Chicago &c. R. R. Co. v. Shan- 75 111. 468 (1874). non, 43 111. 338 (1867). 73 Annas v. Milwaukee &c. R. R. 62 Missouri Pacific Ry. Co. v. Co., 67 Wis. 46 (1886). Henny, 75 Tex. 220 (1889). Damages foe Causing Death. 341 for deatli of a man with thirty-one years of expectation of life;'^* $15,000, deceased was careful, and defendant's engineer very reckless;''^ $5,000 for death of a healthy man, forty-eight years old, who left a wife and three children ;''® $5,000 for death of laboring man, thirty-six years old,- who left a wife and six yoimg children;" $3,500 for death of a fireman thirty-nine years old;^^ $5,000 for death of man thirty-one years old, who was sober and industrious, who had lived separate and apart from his wife for a year before the death ;''^ $2,000 for death of son six or seven years old;*" $3,000 for death of a boy eleven years and eight months old;*^ $1,550 for death of a strong, healthy girl eleven years old;*^ $2,500 for death of a healthy five-years-old boy;*^ $2,500 for death of a boy nine years old;** $1,000 for death of a boy sixteen months old;*^ $1,200 for death of boy eight years old;*^ $2,500 for death of boy seven years old;*^ $2,000 for death of boy eighteen months old;®* $10,000 for death of laborer " stout, healthy and sober," thirty- five years old, who left a widow and two infant children;*® $5,000 in favor of widow and seven-years-old daughter, each, for death of father earning $125 per month ;^ $10,000 for death of an engineer, twenty-nine years old, earning $125 per month ;®^ £3,000 for death of wife and children ;®2 $1,500 for 74 Tennessee &e. R. K. Co. v. 84 Ewen v. Chicago &c. Ry. Co., Roddy, 85 Tenn. 400 (1886). 38 Wis. 613 (1875). 75 Chesapealce &c. R. R. Co. y. 85 Hoppe v. Chicago &c. Ry. Co., Hendricks, 88 Tenn. 710 (1890). 61 Wis. 357 (1884). 76 Bolinger v. St. Paul &c. R. R. 86 Strong v. City of Stevens ' Co., 36 Minn. 418 (1887). Point, 62 Wis. 255 (1885). 77 Board of Comrs. Howard Co. 97 Johnson v. Chicago &c. Ey. V. Legg, 110 Ind. 479 (1886). Co., 64 Wis. 425 (1885). 78 Smith V. Wabash &c. Ry. Co., 88 Schrier v. Milwauliee &c. Ry. 92 Mo. 359 (1887). Co., 65 Wis. 457 (1886). 79 Dallas &c. Ry. Co. v. Spicker, 89 Missouri Pacific Ry. Co. v. 61 Tex. 427 (1884). Lehmberg, 75 Tex. 61 (1889). 80 Chicago &e. R. R. Co. v. 90 St. Louis &c. Ry. Co. v. John- Becker, 84 111. 483 (1877). ston, 78 Tex. 536 (1890). 81 Union Pacific Ry. Co. v. Dun- 9i Texas &c. Ry. Co. v. Geiger, den, 37 Kan. 1 (1887). 79 Tex. 13 (1890). 82 Cooper V. Lake Shore &c. Ry. 92 Secord v. Great Western Ry. Co., 66 Mich. 261 (1887). Co., 15 Up. Can. Q. B. 631 (1858). 83 Koss v. Texas &e. Ry. Co., 44 Fed. Rep. 44 (1890). 343 Damages foe Caxtsing Death. death of a boy eleven years old;*^ $5,000 for death of child six years old, bright, intelligent and healthy;®* $10,000 for death of man thirty-two years old, who contributed at least $800 annually to the support of his wife and children;"® $6,908.98 for death of a man earniag $630 per annum, with twenty-six and seventy-two one-hundredth years of probable f duration of life, who left him surviving no widow, but infant children;®* $Y,500 for death of a married man, with wife and children, fifty-two years old, of industrious habits and ordinary business habits;®'' $14,000 for death' of a wife and mother;** $5,000 for death of laboring man, who left a wife and two chil- dren, earned $1.50 per day.®® 93 O'Mara v. Hudson River E. R. si st. Louis &c. Ry. Co. v. Mad- Co., 38 N. Y. 445 (1868). dry, 57 Ark. 306 (1893). 9* Houghkirk v. Delaware &c. 98 Redfield v. Oakland Cons. Co., 92 N. Y. 219 (1883). Street Ry. Co., 110 Cal. 277 (1895). 95 St. Louis &c. Ry. Co. v. Sweet, 99 Baltimore &c. R. R. Co. v. 60 Ark. 550 (1895). Stanley, 54 111. App. 215 (1894). 86 Louisville &c. R. R. Co. v. Graham, 98 Ky. 688 (1896). CHAPTER X. QUESTIONS OF LAW AND FACT. § 274. Negligence — When a ques- tion of law or fact. 275. Province of the court and jury — The rule stated. 276. Test of the right to go to the jury — Not what the court would find. 277. Scintilla of evidence — Not sufficient. 278. Applications of the rule — Illustrative cases. 279. Contributory negligence — When a question of law or fact. § 280. Proximate cause — Question of fact for the jury. 281. Master and servant — Ques- tions of fact. 282. Streets and public highways — Questions of fact. 283. Damages — Personal inju- ries — Death. 284. Other questions of fact ger- mane to the issue of neg- ligence. § 274. Negligence — When a question of law or fact. — Whether negligence, in a particular case, is a question of law solely for the court, or a question of fact to be passed upon by a jury, under proper instructions, as to the law, by the court, is a question in the law of accident cases on which the courts are somewhat confused. The confusion and conflict are not so much about the principle as an abstract proposition of law, as in its application to particular cases in practice. The courts do not disagree upon the principle, but upon its application.* Thus, it has been ruled in many cases, that when the evidence is con- . flicting, negligence is a mixed question of law and f act.^ When 1 Wyatt v. Citizens Ry. Co., 55 Mo. 492 (1874). Mr. Justice Wood- ward says: " It is one thing to define a principle of law, and a very different matter to- apply it well. The rights and duties of parties grow out of the circum- stances in which they are placed." Pennsylvania R. R. Co. v. Kilgore, 32 Pa. St. 296 (1858). 2Gaagg V. Vetter, 41 Ind. 254 (1872); Pittsburgh &c. R. R. Co. v. Spencer, 98 id. 186 (1884); Green- leaf V. Illinois &c. R. R. Co., 29 Iowa, 14 (1870); Pittsburgh &c. R. R. Co. V. Evans, 53 Pa. St. 250 (1866); McKee v. Bidwell, 74 id. 218 (1873); Norris v. Litchfield, 35 N. H. 271 (1857) ; Trow v. Vermont Central R. R. Co., 24 Vt. 487 (1852); Needham v. Louisville &c. R. R. Co., 85 Ky. 423 (1887). [343] 344 Questions op Law and Fact. undisputed, and the facts not contradicted, it is for the court.* But when the facts are disputed and the inferences from those facts are uncertain, and different conclusions may be drawn by different minds, it is for the jury to make them.* It becomes important, as was said in a Connecticut case, to distinguish be- tween law and fact. The law determines the duty; the evi- dence shows whether the duty was performed. What duty rested upon the defendant is a question of law; was that duty properly performed is a question of fact.^ l^egligence, there- fore, is a question of law and fact. The court determines the legal duty; the jury determines, from the evidence, whether that duty, as a fact, has been omitted or performed.® ISTegli- gence is not a fact to be decided by the court or by the opinion of witnesses, bvit an inference or conclusion to be drawn from all the surrounding f acts.^ SMoebus V. Becker, 17 Vr. 43 (1884); Flemming v. Western Pa- cific R. R. Co., 49 Cal. 253 (1874); Fletcher v. Atlantic &c. R. R. Co., 64 Mo. 484 (1877); Anderson v. Cape Fear Steamboat Co., 64 No. Car. 399 (1870); Nelson v. Chicago &c. Ry.Co.,60 Wis. 320 (1884); Bast Tennessee &c. R. R. Co. v. Bayliss, 74 Ala. 150 (1883); City of India- napolis V. Cook, 99 Ind. 10 (1884); Philadelphia &c. R. R. Co. v. Ritchie, 102 Pa." St. 425 (1883); Baker v. Westmoreland &c. Gas Co., 157 id. 593 (1893). 4 McNamara v. North Pacific R. R. Co., 50 Cal. 581 (1875); McCur- rie V. Southern Pacific Co., 122 id. 558 (1898); Woolfolk v. Macon &c. R. R. Co., 56 Ga. 457 (1876); Penn- sylvania Co. V. Conlan, 101 111. 93 (1881); Newark Passenger Ry. Co. V. Block, 26 Vr. 608 (1898); New York &c. R. R. Co. v. Marion, 28 id. 94 (1894); Comben v. BellvlUe Stone Co., 30 id. 226 (1896); Com- monwealth V. Vermont &c. R. R. Co., 108 Mass. 7 (1881); Baltimore &c. R. R. Co. V. Fitzpatrick, 35 Md. 44 (1871); Philadelphia &c. R. R. Co. V. Killips, 88 Pa. St. 405 (1879); Wilson v. Pennsylvania R. R. Co., 177 id. 503 (1896); Alex- ander V. Maryland Steel Co., 189 id. 582 (1899); Texas &c. Ry. Co. V. Levi, 59 Tex. 674 (1883) ; Hoye v. Chicago &c. By. Co., 62 Wis. 666 (1885); Beach on Cont. Neg. (3d ed.), § 444 et seg. Many other cases to the same effect may be found cited in the cases given. 5 Nolan V. New York &c. B. R. Co., 53 Conn. 461, 471 (1885); 70 id. 159 (1898); Detroit &c. R. R. Co. v. Van Stelnburg, 17 Mich. 99, 122 (1868). 6 Detroit &c. R. R. Co. v. Van Steinburg, 17 Mich. 99, 122 (1868). See Fuller v. Citizens Nat. Bank, 15 Fed. Rep. 875 (1882). 1 Kaples V. Ortb, 61 Wis. 531 (1884); Hoye v. Chicago &c. Ry. Co., 62 Id. 666 (1885). " Negligence, in one sense, is a quality, attach- ing to acts dependent upon, and arising out of, the duties and re- lations of the parties concerned, and is as much a fact to be found by the jury, as the alleged acts to which it attaches, by virtue of Questions or Law and Fact. 345 § 275. Province of the court and jury — The rule stated. — The most concise rule lo be found in the boolcs is that stated- by Lord Cairns, viz. : " The judge has to say whether any facts have been established from which negligence may be reason- ably inferred; the jurors have to say whether, from those facts, when submitted, negligence otight to he inferred."^ The rule is stated with more elaboration by Mr. Justice Williams, of the Supreme Court of Pennsylvania, thus: " The law is well settled that what is and what is not negligence, in a particular case, is generally a question for the jury and not for the court. It is always a question for the jury when the measure oi duty is or- dinary and reasonable care. In such cases, the standard of duty is not fixed, but variable. Under seme circumstances, a higher degree of care is demanded than under others. And, when the standard shifts with the- circumstances of the case, it is, in its very nature, incapable of being determined as mat- ter of law, and must be submitted to the jury, to determine what it is and whether it has been complied with. But, when the standard is fixed, when the measure is defined by the law, and is the same under all circumstances, its omission is negli- gence, and may be so declared by the court. And so, when there is such an obvious disregard of duty and safety as amounts to misconduct, the court may declare it to be negli- gence, as matter of law. But when the duty is not unvarying, where a higher degree of care is demanded under some circum- stances than under others, when both the duty and the ex- tent of its performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved."® It is the province of the jury to pass upon the facts and the inferences to be drawn from them. The court may, and should, pass upon the question whether there is any such duties and relations." Rob- 9 West Chester &c. R. R. Co. v. erts, C. J., in Texas &e. Ry. Co. v. McElwee, 67 Pa. St. 311, 315 (1871). Murphy, 45 Tex. 866 (1876). To the same effect are McCully v. 8 Metropolitan Ry. Co. v. Jack- Clarke, 40 id. 390 (1861); Penn- son, L. R., 3 App. Cas. 197 (1877). sylvania Canal Co. v. Bentley, 66 Approved by Mr. Justice Gray, of id. 30 (1870); Baker v. Westmore- the United States Supreme Court, land &c. Gas Co., 157 Id. 593 in Randall v. Baltimore &e. R. R. (1893). Co., 109 U. S. 478 (1883); also in Newark Passenger Ry. Co. v. Block, 26 Vr. 607 (1893). 346 Questions of Law and Fact. evidence from which negligence may be inferred, or the legal sufficiency of the evidence to support a verdict, if found by the jury.^" The line which divides the province of the jury from that of the court is: the one has to do with finding the existence or non-being of facts, and the inferences and conclusions to be drawn from them; the other has to pass upon the legal sufficiency of the facts to support a verdict, if found, or to declare that the facts proven in the case are such, that negligence may or may not be inferred by the jury.^^ § 276. Test of the right to go to the jury — Not what the court would find.— The test to determine whether the facts proved will warrant the trial judge in submitting the case to the jury, and whether there is any evidence from which neg- ligence may be inferred by the jury, is not that suili facts, and the inferences to be drawn from them, would be sufficient to convince the court, if sitting on the jury, that the conclusion of negligence ought to be found, or a verdict in favor of the plaintiff should be rendered by the jury.-'^ The courts have used various expressions to determine when a case should not be withdrawn from the jury, such as when the facts are in " substantial dispute "^^ the trial judge must submit them to the jury, or a case should not be withdrawn from the jury 10 Flori V. City of St. Louis, 3 12 Hart v. Hudson River Bridge Mo. App. 231 (1877); Gerke v. Cali- Co., 80 N. Y. 622 (1880); approved fornia Steam Nav. Co., 9 Cal. 251 and followed, Quaife v. Chicago (1858). &c. Ey. Co., 48 Wis. 520.(1879); 11 The process of reasoning, says Morrell v. Peck, 24 Hun, 38 (1881) ; Dr. Wharton, by which the con- Jones v. New York &c. E. E. Co., elusion of negligence is reached, 28 id. 364 (1882); Payne v. Troy is inductive, not deductive; a pos- &c. E. E. Co., 83 N. Y. 574 (1881); teriori, not a priori; it is logical Newark Passenger Ey. Co. v. and social, not juridical; a conclu- Bl0L.i, 26 Vr. 608 (1893). sion drawn from facts and circum- is Newark Passenger Ey. Co. v. stances, and not a certain deduc- Block, 26 Vr. 608 (1893). Or "if tion from fixed, absolute rules, the facts be controverted, or not Whart. on Neg., § 420. It pertains manifest." Aycrigg v. New York particularly to the province of the &c. E. E. Co., 1 Vr. 460 (1864). Or jury to make the process of logical if there is no dispute about the reasoning and the inferences to be facts if they are numerous in the drawn from the facts on which details. Central Branch Union the conclusion of negligence is Pacific R. E. Co. v. Hotham, 22 founded. Kan. 41 (1879). Questions of Law and Pact. 347 ■unless the conclusion follows as matter of law, that no recovery can be had upon any view which can be properly taken of the facts, that the evidence tends to establish.^* Or if the facts and circumstances, although undisputed, are ambiguous, and of such a nature that reasonable men, unaffected by bias or prejudice, might have disagreed as to the inference or conclusion to be drawn from them, then the case should be submitted to the jury.^^ l^egligence is a question of fact for the jury, even when there is no conflict in the evidence, if different conclusions upon the subject can be naturally drawn from the evidence; but if only one conclusion can be reached from the evidence, it is a question of law for the court. ^® § 277. Scintilla of evidence — Not sufficient.— To authorize the submission of the question of negligence to the jury, it is not enough that there is a mere scintilla of evidence; although in some courts a scintilla of evidence was held sufficient. It is believed that a few of the State courts still adhere to that rule.^'^ But the tendency of the more recent cases is to repudiate the scintilla rule of evidence''* as being insufficient to submit the defendant's negligence to the jury. 14 Gardner v. Michigan Cent. R. Wheeling &c. Iron Co., 43 W. Va. R. Co., 150 V. S. 361 (1893). When 219 (1897). there is uncertainty as to the exist- 17 Abbott's Trial Brief, p. 124; ence of either negligence or con- Cotton v. Wood, 8 C. B. (N. S.) 568 tributory negligence, the question (1860). " It is now well settled in is not one of law, but of fact. Met- all the English and the chief ropolitan R. R. Co. v. Hammett, 13 American courts that a mere App. Cas. (D. C.) 370 (1898). For scintilla of evidence is not enough many other expressions of the rule to go to the jury." Shearm. & see Shearm. & Redf. on Neg. (5th Redf. on Neg. (5th ed.j, § 56. ed.), § 54, where many cases are is Abbott's Trial Brief, p. 124; cited. Morris v. Lake Shore &e. Ry. Co., 15 Hoye v. Chicago &c. Ry. Co., 148 N. Y. 182 (1896). And to adopt 62 Wis. 666, 672 (1885); Consoli- the general test as to the propriety dated Traction Co. v. Scott, 29 Vr. of refusing to submit a point to 686 (1896). See McCann v. Consoli- the jury which is whether their dated Traction Co., 30 "Vr. 481 verdict, on the point, if against the (1896). moving party, must be set aside 16 Herbert v. Southern Pacific as contrary to or against the Co., 121 Oal. 227 (1898). Or " when weight of evidence. Abbott's Trial there is no room for two reason- Brief, p. 117; Chicago &c. R. R. able opinions about it." Klinker v. Co. v. Adler, 129 111. 339 (1889); 348 Questions of Law and Fact. § 278. Applications of the rule — Illustrative cases. — When the standard of duty is fixed and the measure of duty is defined by law, and it is the same under all circumstances, its omission is negligence and may be so declared by the court. ^® Thus where a statute requires certain acts to be done or precautions against injury to be taken, a failure to comply with such requirements of the statute is negligence as a matter of law. When the fact is proven that the statute has been violated the court has to declare such omissions negligence,^" without the intervention of a jury. Hence it has been held that running a railroad train within city limits at a rate of speed prohibited by statute, is neg- ligence per se.^^ An omission to ring a bell or blow a whistle, at a distance of at least eighty rods before reaching a crossing of a public highway, by a railroad company, as required by statute, is negligence.^ When a statute requires tumbling-rods of threshing-machines to be boxed, an omission to box, as required by statute, is negligence per se.^^ In some States it is held, that running trains by railroad companies in towns or cities in viola- tion of valid municipal ordinances is negligence per se.^* The weight of authority is to the effect that such violation of a valid public ordinance is simply " some evidence " of negligence which should be submitted to the jury.^ So it has been held that putting a drunken man off a train, at a point where he was in danger of being injured by another train, is negligence.^® To permit cars or other like bodies to stand so near a railroad com- Offutt v. World's Columbian Ex- 21 Correll v. Burlington &c. R. R. position, 175 id. 472 (1898). There Co., 38 Iowa, 120 (1874). must be evidence upon wbich the 22 Owens v. Hannibal &c. R. R. jury might reasonably and prop- Co., 58 Mo. 386 (1874); Houston &c. erly conclude that there was neg- Ry. Co. v. Wilson, 60 Tex. 142 ligence; there must be more than (1883). a mere surmise that there may 23 Reynolds v. Hlndman, 32 have been negligence on the part Iowa, 146 (1871); Messlnger v. of the defendant. Morris v. Lake Pate, 42 id. 443 (1876). Shore &c. Ry. Co., 148 N. Y. 182, 24 Karle v. Kansas City &c. R. 185 (1896). R. Co., 55 Mo. 476 (1874); Lake 19 West Chester &c. R. B. Co. v. Brie &c. Ry. Co. v. Zoffinger, 107 McBlwee, 67 Pa. St. 311, 315 (1871). 111. 199 (1883). 20 Whart. on Neg., § 42L, note 5; 25 See §§ 23, 213. Houston &c. Ry. Co. v. Wilson, 60 26 Central R. R. Co. v. Glass, 60 Tex. 142 (1883) ; Toledo &c. Ry. Co. Ga. 441 (1879). V. Foster, 43 111. 415 (1867). Questions of Law and Fact. 349 pany's tracks that its trains, in moving, must pass within a few inches of such bodies, has been held negligence.^^ So where a train of cars has been stopped at a station, and a pas- senger is in the act of getting off, and without allowing a reason- able time for that purpose, the train is suddenly started, whereby an injury occurs to a passenger, it is negligence in the company.^ So, it is negligence to start a street car suddenly when a passenger is getting off.^* Where defendant dug a ditch across a public sidewalk and allowed it to remain open at night, with no provisions for warning or protecting travellers, it was held that negligence was established as a matter of law, and a refusal to submit the question of negligence to the jury was not error ;^'' so the failure of a traveller at the crossing of the track of a steam railroad to stop, look and listen before crossing the track is negligence per se.^^ § 279. Contributory negligence — When a question of law or fact. — ^The rules of law in determining the negligence of the defendant whether in any particular case it is a question of law for the court or a question of fact for the jury, are ap- plicable to the question of plaintiff's contributory negligence.^^ In determining that question the court must assume that all the evidence given in the case would have remained undisputed, and then the court must give to all the facts and circumstances, the construction most favorable to the plaintiff, that they vsdll legitimately bear, including all reasonable inferences to be 27 Chicago &c. R. R. Co. v. Pon- to stop, look and listen is applica- drom, 51 111. 333 (1869); Winters ble, in part, at least, to crossing V. Hannibal &c. R. R. Co., 39 Mo. street railways. lb.; Wheelahan v. 468 (1867) ; 52 id. 253. Pliiladelphia Traction Co., 150 Pa. 28 Jeffersonville &c. R. R. Co. v. St. 187 (1892). For many other cases Hendricks, 26 Ind. 228 (1866). illustrating the application of the 29 Munroe v. Third Ave. R. R. rule by the courts, in submitting Co., 18 Jones & S. 114 (1884); the question of negligence to the Wardle v. New Orleans City R. R. jury, to be found as a fact, as well Co., 35 La. Ann. 202 (1883). as those cases which have been 30 Sexton v. Zett, 44 N. Y. 430 withdrawn by the court from con- (1871). sideration of the jury, see Chapter 31 Bhrisman v. East Harrisburg XI. City Pass. Ey. Co., 150 Pa. St. 180 32 Hoye v. Chicago &c. Ry. Co., (1892); Pennsylvania R. R. Co. v. 62 Wis. 666, 672 (1885). Beale, 73 id. 504 (1873). The rule 350 Questions of Law and Pact. dra^wii from them.^^ There are many classes of cases in which the courts have defined and fixed the standard of duty both in its application to the defendant and to the plaintiff. In such cases, where the facts are undisputed or the inferences to be drawn from them are certain, the court should decide the question of plaintiff's contributory negligence as a matter of law.^'' As a general principle, it is only where the circumstances of the case are such that the standard and measure of duty are fixed and de- fined by law, and are the same under all circumstances; or where the facts are undisputed, and but one reasonable inference can be drawn from them, that the court can interpose and declare, «s matter of law, that there is such contributory negligence, as will defeat the action of the plaintiff. As a general proposi- tion, a question of negligence is a question of fact, and must be submitted to the jury.^^ Whether one was guilty of con- tributory negligence in getting on or off of moving trains and cars, except in exceptional cases, must generally be a question 33Hoye V. Chicago &c. Ky. Co., kins v. St. Louis &c. Ry. Co., 101 62 Wis. 666, 672 (1885); Detroit &c. Mo. 93 (1890). R. R. Co. V. Van Steinburg, 17 S5 Avery, Ch. J., in Washington Mich. 99, 120 (1868). See Newarli &c. R. R. Co. v. Grant, 11 App. &c. R. R. Co. V. McCann, 29 Vr. Cas. (D. C.) 107, 114 (1897). If 642 (1896); Pierce v. Camden &c. the question Is a debatable one, it Ry. Co., id. 400 (1895); Consoli- must be submitted to the jury, dated Traction Co. v. Scott, id. 682 Mahnken v. Freeholders of Mon- <1896); ButtelU v. Jersey City &c. mouth, 33 Vr. 404 (1898). "There Ry. Co., 30 id. 302 (1896); Consoli- are four heads to this subject: (a) dated Traction Co. v. Glynn, id. When the facts are uncontroverted 432 (1896); Fernandes v. Sacra- or incontrovertible, and the ques- mento City Ry. Co., 52 Cal. 45 tion of negligence is for the court. <1877); Crities v. City of New Rich- (b) When the facts are uncontro- mond, 98 Wis. 55 (1897); Beach on verted or incontrovertible, and the Cont. Neg. (3d ed.), chap. 16, § 444. question of negligence is for the 34 Heaney v. Long Island R. R. jury, (c) When the facts are to be Co., 112 N. Y. 122 (1889); West found by the jury, and the ques- Jersey R. R. Co. v. Bwan, 26 Vr. tion whether such facts, if so 574 (1893); Piper v. New York &c. found. Impute negligence, is to be R. R. Co., 156 N. Y. 224 (1898); determined by the court. (d) Pool V. Southern Pacific Co., When the facts are to be found by Utah, ; 58 Pac. Rep. 326 (1899). the jury, and the question whether Only where no other inference can such facts, if so found, impute neg- fairly and reasonably be drawn ligence, is to be determined by the from the facts in evidence. Wil- jury." Thomas on Neg., p. 365. Questions of Law and Fact. 351 for the jury.^"' So whether it is contributory negligence to alight from a slowly-moving horse car.^^ So whether riding upon the platform of an electric street car is contributory negligence is a question for the jury.^^ So the plaintiff's neg- ligence, is a question of fact for the jury, when a passenger alights from a cable car at a street crossing and attempts to cross in front of another car coming in an opposite direction, without stopping to look and listen.^* § 280. Proximate cause — Question of fact for the jury. — One of the essential elements in the proof of negligence, is to show that the negligence complained of was the proximate cause of the injury to the plaintiff. When the proximate cause of the plaintiff's injury is at issue, it has been held in many cases, that it is a question of fact to be submitted to the jury under all the circumstances and facts proven in the case.*" But whether the cause, when found by the jury, is too remote to allow compensation by way of damages, is a question of law to be decided by th^ court.*^ The rule of law requires that the 36 Bppendorf v. Brooklyn &c. E. 70 id. 86 (1871) ; Willey v. Inhabit- R. Co., 69 N. Y. 195 (1877) ; Shearm. ants of Belfast, 61 Me. 569 (1872) ; & Redf. on Neg. (5th ed.), § 520. American Express Co. v. Risley, It is, presumptively, a negligent 179 111. 295 (1899) ; Oilman v. Noyes, act for a passenger to attempt to 57 N. H. 627 (1876); Boothby v. alight from a moving train. Bur- Grand Trunk Ry. Co., 66 id. 342 rows V. Erie Ry. Co., 63 N. Y. 556 (1890); Kellogg v. Chicago &c. Ry. (1876). Co., 26 Wis. 223 (1870); JefCs v. Rio 37 New Jersey Traction Co. v. Grande Western Co., 9 Utah, 374 Gardner, 31 Vr. 571 (1897). (1894); Hall v. Ogden City Ry. Co., 38 Watson V. Portland &c. Ry. 13 id. 243 (1896) ; Waterman v. Chi- Co., 91 Me. 584 (1898); City Ry. eago &c. R. R. Co., 82 Wis. 613 Co. V. Lee, 21 Vr. 435 (1888). (1892); Sloane v. Southern Cal. R. 39 Smith V. Union Trunk Line, R. Co., Ill Cal. 668 (1895); New- 18 Wash. St. 351 (1897); Consoli- ark &c. R. R. Co. v. McCann, 29 dated Traction Co. v. Scott, 29 Vr. Vr. 642 (1896) ; Union Pacific Ry. 682 (1896). See Chapter XIII, Co. v. Evans, 52 Neb. 50 (1897); Contributory Negligence. Galveston &c. Ry. Co. v. Sweeney, 40 Shearm. & Redf. on Neg. (5th 14 Tex. Civ. App. 216 (1896). ed.), § 55. See § 21; Milwaukee &c. 4i Mangan v. Atterton, L. R., 1 R. R. Co. V. Kellogg, 94 U. S. 469 Exch. 239 (1866); Clark v. Cham- (1876); Ehrgott v. Mayor &c. New bcrs, L. R., 3 Q. B. D. 327 (1878); York, 96 N. Y. 264 (1884); Lehigh Fowlkes v. Southern Ry. Co., 96 Valley R. R. Co. v. McKeen, 90 Pa. Va. 742 (1899) ; Clemens v. Hanni- St. 122 (1879); Fairbanks v. Kerr, bal &c. R. R. Co., 53 Mo. 366 (1873); 352 Questions of Law and Fact. damages chargeable to a wrongdoer must be shown to be the natural and proximate effects of his delinquency. The term " natural " imports that they are such as might reasonably have been foreseen, such as occur in an ordinary state of things. The term " proximate " indicates that there must be no other culpable and efficient agency intervening between the defend- ant's dereliction and the loss.*^ Thus, many cases hold, that whether the damage is the natural consequence and effect of defendant's negligence is a question of fact for the jury.*^ § 281. Master and servant — Questions of fact. — Whether a servant was acting within the scope of his employment or wa& engaged in the line of his duty at the time the injury occurred, it has been held, was properly left to the jury.** So whether one is an independent contractor;*^ or whether workmen are fellow- servants.*® "Whether due care and caution have been exercised Newark &c. R. R. Co. v. McCann, 29 Vr. 642 (1896). Whether the de- fective condition in a public high- way was the proximate cause of the injury Is for the jury. Starlv v. Lancaster, 5T N. H. 88 (1876); Lit- tleton V. Richardson, 32 id. 59 (1855); Verrill v. Inhabitants of Minot, 31 Me. 299 (1850) ; Willey v. Inhabitants of Belfast, 61 id. 569 (1872). So, whether the blowing of a locomotive whistle was the cause of the accident. Philadelphia &c. R. R. Co. V. Killips, 88 Pa. St. 405 (1879); Pennsylvania R. R. Co. v. Barnet, 59 id. 259 (1868). 42 Dixon, J., in Wiley v. West Jersey R. R. Co., 15 Vr. 251 (1882); Newark &c. R. K. Co. v. McCann, 29 id. 644 (1896). 43Whart. on Neg., § 155; Bajies V. Syracuse &c. R. R. Co., 34 Hun, 153 (1884); JefCersonville &c. R. R. Co. V. Riley, 39 Ind. 568 (1872); Perry v. Southern Pacific R. R. Co., 50 Cal. 578 (1875); Saxton v. Bacon, 31 Vt. 540 (1859); Atkinson v. Goodrich Transp. Co., 60 Wis. 141 (1884); Fairbanks v. Kerr, 70 Pa. St. 86 (1871); Patten v. Chicago &c. Ry. Co., 32 Wis. 524 (1873). In Shearm. & Redf. on Neg. (5th ed.), § 28, it is said the courts have in- dicated a disposition to leave all doubtful cases to the jury. 44Whart. on Neg., § 167; What- man V. Pearson, L. R., 3 C. P. 422 (1868); Burns v. Poulson, 8 id. 563 (1873); McKenzie v. McLeod, 10 Bing. 385 (1834); Courtney v. Baker, 60 N. Y. 1 (1875); Johnson V. Armour, 18 Fed. Rep. 490 (1883) ; Perigo V. Chicago &c. R. R. Co., 55 Iowa, 326 (1880); Walbert v. Trexler, 156 Pa. St. 112 (1893); Parkinson Sugar Co. v. Riley, 50 Kan. 401 (1893). Otherwise in Storey v. Ashton, L. R., 4 Q. B. 476 (1869); Stevens v. Armstrong, 6 N, Y. 435 (1852); Aycrigg v. New York &c. R. R. Co., 1 Vr. 460 (1864). 45 Carlson v. Stocking, 91 Wis. 432 (1895). 46 Mullen V. Philadelphia &c. Steamship Co., 78 Pa. St. 25 (1875); Toledo &c. By. Co. v. Moore, 77 111. 217 (1875); Chicago &c. Ry. Co. Questions of Law and Pact. by the master depends upon facts of a complicated character. It is a question for the jury under instructions from the court.*^ Upon the question whether a master properly explained to his servant the risks incident to his employment, the facts being in doubt, should be submitted to the jury.** The question whether, from previous experience, the servant should have comprehended the danger, so that neither warning nor instruc- tion was necessary, is for the jury.*® In a case in the Supreme Court of Indiana, Mr. Justice Mitchell, speaking for the court, said : " When an inexperienced servant is required to perform a hazardous service, in the performance of which extraordinary caution or peculiar skill is required in order to enable him to avoid dangers which may be apparent, it may be a question for a jury to determine whether, under all the circumstances, the master gave sufficient caution of the danger or adequate in- formation of the means necessary to avoid it, or whether the servant was guilty of contributory negligence in not avoiding it."^ Whether the master exercised the requisite caution in v. Moranda, 108 id. 576 (1884); of ordinary care on his part to Springside Coal Mining Co. v. observe dangers within his knowl- Grogan, 169 id. 50 (1897). The edge, are questions for the jury, definition of what constitutes a Comben v. Bellville Stone Co., 30 fellow servant may be a question Vr. 226 (1896). of law, but it is always a question 48 Ryan v. Tarbox, 135 Mass. 207 of fact, to be determined from the (1883); Wheeler v. Wason Mfg. Co.. ■evidence, whether the particular id. 294 (1883). case falls within the definition. *» Chopin v. Badger Paper Co., Wabash &c. Ey. Co. v. Mahaffee, 83 Wis. 192 (1892). 16 111. App. 290 (1885). Contra, so Atlas Engine Works v. Ran- Johnson v. Boston Tow Boat Co., dall, 100 Ind. 293, 300 (1884); Mc- 135 Mass. 209 (1883). Dougall v. Ashland Fibre Co., 91 *7Whart. on Neg., § 243; Fletcher Wis. 382 (1897). See also Mc- v. Boston &c. R. R. Co., 1 Allen, 9 Gowan v. La Plata Mining Co., 9 (1861). So where there is a fair Fed. Rep. 861 (1882); Coombs v. dispute in the evidence, or two New Bedford Cordage Co., 102 classes of conclusions can reason- Mass. 596 (1869); Sullivan v. India ably be reached from it, whether Mfg. Co., 113 id. 396 (1873); Shanny the injury to the servant was the v. Androscoggin Mills, 66 Me. 420, result of the negligence of the mas- 427 (1876) ; Daester v. Mechanics ter to exercise the care required &c. Mill Co., 11 Mo. App. 593 (1881); to provide proper machinery and Rummel v. Dilworth, 131 Pa. St. appliances for the use of the ser- 509 (1890); Mclntyre v. Empire vant, or a proper place in which Printing Co., 103 Ga. 288 (1897). to perform his work, or the want The age and intelligence of a la- 23 354 Questions of Law and Fact. guarding dangerous machinery is a question for the jury, under the circumstances.®^ Whether any precautions were required to avoid danger in using an elevator, and whether the instruc- tions given to the foreman were a sufficient precaution, are questions of fact for the jury;®^ so whether the master used due care in selecting and employing competent servants, and whether he knew a servant to be incompetent and unfitted to perform the service he was hired to execute;®^ so, too, it is a question for the jury whether a servant was aware of the de- fects in machinery, or should have been aware of them, and. knowingly incurred the risks of damages;®* likewise, whether the master knew or ought to have known that the staging which fell and injured the servant was insecure.®® ^ § 282. Streets ajid public highwajrs — ftuestions of fact.^ — In those States in which municipalities are liable for injuries on public highways caused by negligence in not keeping them safe borer injured by machinery, and his experience in the use of such machinery, may be considered by the jury in an action by him for the Injury. Hulzega v. Cutler &c. Lumber Co., 51 Mich. 272 (1883). 51 Conroy v. Vulcan Iron Works, 62 Mo. 35 (1876); Ackart v. Lans- ing, 48 How. Pr. 374 (1874); Wheeler v. Wason Mfg. Co., 135 Mass. 294 (1883). Questions of skill, negligence, care and proper management, in any business, are questions of fact to be submitted to a jury. Frankford &c. Turnpike Co. V. Philadelphia &c. R. R. Co., 54 Pa. St. 345 (1867). 52Avilla V. Nash. 117 Mass. 318 (1875). In an action for injuries received from a mining blast, the question of the necessity of pre- cautions against injury, whether any notice was given before the blast was fired, and, if so, whether it was sufficient, are for the jury. Beauehamp v. Saginaw Mining Co., 50 Mich. 163 (1883). 63 Michigan Central R. R. Co. v. Gilbert, 46 Mich. 176 (1881); Mann V. Delaware &c. Canal Co., 91 N. Y. 495 (1883). S4Whart. on Neg., §§ 217, 243; Dale v. St. Louis &c. Ry. Co., 63 Mo. 455 (1876); Johnson v. Bruner, 61 Pa. St. 58 (1869); Huddleston V. Lowell Machine Shops, 106 Mass. 282 (1871); Clarke v. Holmes, 7 Hurlst. & N. 937 (1862). Beck, J.: " The knowledge of the defects possessed by intestate, and his ability, In the exercise of ordi- nary diligence, to acquire knowl- edge thereof, are questions of fact to be determined upon the testi- mony submitted In the case, they are not questions of law." See Mayes v. Chicago &c. Ry. Co., 63 Iowa, 567 (1884); International &c. R. R. Co. v. Kindred, 57 Tex. 491 (1882). So, too, that an embank- ment was dangerous and liable to cave and fall in. Thompson v. Chi- cago &c. Ry. Co., 14 Fed. Rep. 564 (1883). 55 Arkerson v. Dennlson, 117 Mass. 413 (1875). Questions of Law and Fact. 355 and in repair, it has been held, tliat whether such a public high- way is dangerous and out of repair, or safe and convenient for travellers, is a question of fact to be submitted to the jury.^* So, too, whether a substantial railing is necessary ,^^ and suffi- cient;''^ likewise whether an excavation is deep and dangerous, and in dangerous proximity to the public highway.®* Whether 56 Maine: Merrill v. Inhabit- ants of Hampden, 26 Me. 234 (1846); Tripp v. Inhabitants of Ly- man, 37 id. 250 (1854); Lawrence V. Inhabitants of Mt. Vernon, 35 id, 100 (1852). Massachusetts: Fitz v. City of Boston, 4 Cush. 365 (1849); Billings V. City of Worcester, 102 Mass. 329 (1869). New Hampshire: Whether a stick of wood in a highway is an obstruction is for the jury. John- son V. Town of Hav-rhill, 35 N. H. 74 (1857); Winship v. Enfield, 42 id. 197 (1860); Dumas v. Hampton, 58 id. 134 (1877). New Yorli: See Bullock v. Mayor &c. New York, 99 N. Y. 654 (1885). Vermont: Green v. Town of Danby, 12 Vt. 338 (1840); Kelsey V. Town of Glover, 15 id. 708 (1843) ; Rice v. Town of Jlontpelier, 19 id. 470 (1847); Sessions v. Town of Newport, 23 id. 9 (1847); Cas- sedy V. Town of Stockbridge, 21 id. 391 (1849). Wisconsin: McWaugh v. City of Milwaukee, 32 Wis. 200 (1873); Cremer v. Town of Portland, 36 id. 92 (1874); Hammond v. Town of Mukwa, 40 id. 35 (1876); McNamara v. Village of Clinton, 62 id. 207 (1885). See Born v. Allegheny &c. Plank Boad Co., 101 Pa. St. 334- (1882); City of Provi- dence V. Clapp, 17 How. 161 (1854); Whart. on Neg., § 989; 1 Thomp. on Neg. 355, § 19. The question what is a " safe and convenient " road or bridge, or what is a " de- fect or want of repair " therein, or " an insufficiency," within the meaning of these terms as used in the statutes, is, generally, one of fact for the jury upon the circum- stances of each particular case, such as the season of the year, the hour of the day or night the ac- cident occurred, the location of the way and the use to which it is to be put, as well as the nature of the accident itself. Shearm. & Redf. on Neg. (5th ed.), § 350. 57 Leicester v. Town of Pittsford, 6 Vt. 245 (1834). Or whether a guard-rail or barrier was neces- sary. Drew V. Town of Sutton, 55 Vt. 586 (1882); Wellman v. Susque- hanna Depot, 167 Pa. St. 239 (1895); Day V. City of Mt. Pleasant, 70 Iowa, 193 (1886). 58 Lyman v. Inhabitants of Am- herst, 107 Mass. 339 (1871); Daven- port V. Ruckman, 10 Bosw. 20, 38 (1862). 59 Sanders v. Reister, 1 Dak. 151 (1875). So, what precautions against accident are required in repairing a defective sidewalk. City of In- dependence V. Jekel, 38 Iowa, 427 (1874). The law has nowhere un- dertaken to define at what dis- tance in feet and inches a dan- gerous place must be from the highway, in order to cease to be in close proximity to it. It must necessarily be a practical question to be decided by the good sense and experience of the jury. Warner v. Inhabitants of Holyoke, 112 Mass. 367 (1873). 356 Questions of Law and Fact. a turnout in a highway is sufficient is a question of fact.*® Whether a cellar along the line of a public street, unprotected by a suitable barrier, constitutes a defect, is a question for the jury.®^ Whether one was "travelling upon the highway," within the meaning of the statute, at the time of the injury to his horse, is a mixed question of law and fact.®^ Whether rolling hogsheads down skids from a truck to the sidewalk, without using danger signals or stationing any one to warn pedestrians, was negligent is a question for the jury.^ So reasonable neces- sity to justify an obstruction in a street for carrying on adjoin- ing owner's business is for the jury.®* Whether a highway should be guarded at a particular place is generally a question of fact for the jury.^ Also, whether it is negligence to leave a horse unhitched in a public highway.^® Where plaintiif was at- tempting to pass defendant, who was driving in the same direc- tion, it is for the jury to say whether defendant, in the exercise of reasonable care, should have looked behind or sidewise to avoid a collision.®^ The degree of prudence and care required of a stranger passing along a street in a populous city, after nightfall, must be left to the jury.** So, too, what constitutes ordinary care under like circumstances;*^ also, whether the 60 stark v. Lancaster, 5T N. H. N. Y. 648 (1888); Denby v. Wilier, 88 (1876). 59 Wis. 240 (1884); Jochem v. Rob- 61 Stark V. City of Portsmouth, inson, 72 id. 199 (1888) ; Callanaa 52 N. H. 221 (1872). So also v. Gilman, 107 N. Y. 360 (1887). ■whether a sidewalk was reason- 65 Burrell Township v. Unca- ably safe on account of ice having pher, 117 Pa. St. 353 (1887). accumulated. Hall v. City of Low- 66 Vinton v. Schwab, 32 Vt. 612 ell, 10 Cush. 260 (1852); Congdon (1860); Griggs v. Frankenstein, 14 I V. City of Norwich, 37 Conn. 414 Minn. 81 (1869). (1870). 67 Rand v. Syms, 162 Mass. 163 62 Cummings v. Centre Harbor, (1894). 57 N. H. 17 (1876). Compare 68 Matheny v. Wolffs, 2 Duv. 187 Sleeper v. Worcester &c. R. R. Co., (1865). 58 id. 520 (1879); Hunt v. City of 69 Stuart v. Inhabitants of Ma- Salem, 121 Mass. 294 (1876); Hardy chias Post, 48 Me. 477 (1861); Dev- V. Keene, 52 N. H. 370 (1872); Var- lin v. Bain, 11 Up. Can. C. P. 523 ney v. Manchester, 58 id. 430 (1862); Griffin v. Town of Auburn, (1878). 58 N. H. 121 (1877); Sleeper v. 63 Blaustein v. Guindon, 83 Hun, Worcester &c. R. R. Co.. id. 520 5 (1894); 31 N. Y. Supp. 559. (1879); Tuttle v. Farmlngton, id. 18 «4 Shook V. City of Cohoes, 108 (1876). Questions of Law and Fact. 35r ■town authorities had notice of a defect in a highway.™ It is a cfiiestion of fact whether, at the time of the accident, the exca- vation in a highway was without a sufficient guard or light ;''^ also, whether the danger was obvious and visible.^^ So, too, whether it was negligence in the plaintiff to walk upon a sidewalk at night, without a light.^^ It lias been held, a question for the jury to determine what notice is reasonable to give of the approach of a train of cars at railroad crossings.''* § 283. Damages — Personal injuries — Death. — The amount of damages to be awarded, as compensation for personal in- juries, is to a large extent a question of fact, to be determined by the jury.''^ What amount shall be awarded rests in the discretion of the jury;''^ in the judgment, experience and com- mon sense of the ordinary juror. '^'^ The jury must be limited to eompensatory damages.^* The amount of such damages can- not be left to the mere caprice of the jury. So damages for causing death under the statute must, within the limits of the 70 CoUey v. Inhabitants of West- brook, 57 Me. 181 (1869); Bradbury V. Inhabitants of Falmouth, 18 id. 64 (1841). Upon the circumstances ef each case it is for the jury to dfetermine whether the contin- uance of a defect in a highway amounted to a notice of its exist- ence, lb.; Sheel v. City of Apple- ton, 49 Wis. 125 (1880); City of Newport v. Miller, 93 Ky. 22 (1892) ; Enright v. City of Atlanta, 78 Ga. 288 (1886). 71 Clark V. Fry, .8 Ohio St. 358, 375 (1858); Bateman v. Ruth, 3 Daly, 378 (1871); City of Sterling V. Thomas, 60 111. 264 (1871). 72 Clayards v. Dethick, 12 Q. B. 439 (1848). 73 Maloy V. New York &c. R. R. Co., 58 Barb. 182 (1870). 74Linfield v. Old Colony R. R. Go., 10 Cush. 562 (1852). Not at a highway crossing in respect to which the statutory duty exists. Cordell v. New York «&c. R. R. Co., 64 N. Y. 535 (1876); Shaber v. St. Paul &c. Ry. Co., 28 Minn. 103 (1881). A question of law for the court. Loucks v. Chicago &c. Ry. Co., 31 Minn. 526 (1884). When special circumstances exist which might reasonably call for such pre- cautions as having gates, flagmen and watchmen stationed at rail- road crossings, it is a question for the jury, whether not having them is negligence. Shearm. & Redf. on Neg. (5th ed.), § 466. 75 See §§ 231, 263. 76 Chicago &c. R. R, Co. v. Warner, 108 111. 538 (1884); Spring- field Consolidated Ry. Co. v. HoefC- ner, 175 id. 634 (1898). 77 Brunswig v. White, 70 Tex. 504 (1888); Walker v. Erie Ry. Co., 63 Barb. 260 (1872). 78Heil V. Glanding, 42 Pa. St. 493 (18G2); Collins v. Leafey, 124 id. 203 (1889). t 358 Questions of Law and Fact. statute, be left, to be determined as a fact, to the discretion and judgment of the jury.'^'' But when the evidence furnishes some standard for valuation of damages, a verdict wholly disregard- ing such standard ought not to stand.*" § 284. Other questions of fact germane to the issue of negli- gence. — Negligence of the defendant and the contributory negligence of the plaintiff depend, frequently, upon some col- lateral or surrounding fact or circumstance which must be estab- lished before the principal question at issue can be ascertained. Such questions are usually questions of fact for the jury to find 'from the evidence. Thus, what is a " brilliant and conspicuous light on the forward end of each locomotive" is a question of fact for the jury;^^ so the proper construction of a railroad platform and its condition with reference to the track, in a suit by an employe.*^ Whether a railroad company was running its trains of cars at too great a speed through or into a populous town.*^ The sudden sounding of a steam whistle by an en- gineer, whether justifiable, prudent or proper;** whether the rate of speed of a train is dangerous when the question is affected by various considerations, and no law or ordinance regulating the speed of trains is in evidence.*^ The sufiiciency of a necessary warning to a passenger not to extend his head out of the car window, which was printed and posted in the car, and whether the plaintiff did actually hear the warning that was given in addition thereto, are questions for the jury;** so, whether a defect in a railroad track or in the coaches could have been discovered and avoided, from which an injury oc- curred to a passenger;*^ so, too, whether plaintiff was a passen- 79 See § 263; Chicago &c. R. R. 84 Hill v. Portland &c. R. R. Co., Co. V. Shannon, 43 111. 338 (1867). 55 Me. 438 (1867); Philadelphia &c. 80 Jackson v. Consolidated Trac- R. R. Co. v. Killips, 88 Pa. St. 405 tion Co., 30 Vr. 28 (1896). (1879). 81 Pennsylvania Co. v. Conlan, 85 Frlck v. St. Louis &c. Ry. Co., 101 111. 98 (1881). 75 Mo. 595 (1882). 82 Chicago &c. R. R. Co. v. Clark, 86 Laing v. Colder, 8 Pa. St. 479 11 111. App. 104 (1882). (1848). 83 Toledo &c. Ry. Co. v. Foster, 87 Edgerton v. New York &c. R. 43 111. 415 (1867); Philadelphia &c. R. Co., 35 Barb. 193 (1860). R. R. Co. V. Long, 75 Pa. St. 257 (1874). Questions of Law and Fact. 359 .88 ger.°° Whether reasonable diligence was used to discover the source of the leak in a gas pipe and to remedy it, within a reasonable time, is for the jury.*® 88 Ramm v. Minneapolis &c. Ry. Co., 94 Iowa, 300 (1895). Other questions of fact. The want of skill in the construction of a rail- way embankment. Great Western Ry. Co. V. Braid, 1 Moo. P. C. (N. S.) 101 (1863). Failure of an engi- neer to ring the bell while back- ing cars towards the plaintifE. Dit- berner v. Chicago &c. Ry. Co., 47 Wis. 138 (1879). Or to blow a loco- motive whistle. Terre Haute &c. R. R. Co. V. Jones, 11 111. App. 322 (1882); Toledo &c. Ry. Co. v. Foster, 43 111. 415 (1867). 89 Consolidated Gas Co. v. Crocker, 82 Md. 113 (1895). The questions whether dangers exist at the station or depot of a railroad company, and whether they were habitual and notorious, and whether the company had knowl- edge of them, or should have had such knowledge, where the evi- dence is in dispute, are questions which must be submitted to the jury for their determination. Ex- ton V. Central E. R. Co., 33 Vr. 7 (1898). CHAPTER XL QUESTIONS OF LAW AND FACT — CONTINTIBD. 8 285. Questions of law — Illus- trative cases. ^6. The same subject contin- ued — Illustrations. 287. The same subject contin- ued — Illustrations. 288. The same subject contin- ued — Illustrations. 289. Questions of fact — Illus- trative cases. § 290. The same subject contin- ued — Illustrations. 291. The same subject contin- ued — Illustrations. 292. The same subject contin- ued — Illustrations. 293. The same subject contin- ued — Illustrations. 294. The same subject contin- ued — Illustrations. § 286. Questions of law — Illiastrative cases. — If at the end of the plaintiff's case he leaves the case in even scales, and doea not satisfy the court, that the injury was occasioned by the negligence or default of the defendant, the plaintiff cannot succeed.^ It is not a sufficient objection to the action of the court in ordering a nonsuit, that there was some evidence from which negligence on the part of the defendant might have been inferred, unless there was evidence on which a jury might reasonably and properly conclude that there was negligence.* 1 Morgan v. Sim, 11 Moore P. C. 312 (1857). SBeaulieu v. Portland Co., 48 Me. 291 (1860). The defendant was the owner of a house, one of the windows of which, in an upper story, looked into a pas- sage-way which separated the house from the neighboring prem- ises. The plaintiff was lawfully in the passage-way, loading a truck, when a ladder, inside a room on that story, from some unexplained cause, fell against and broke the window, and a piece of the glass fell into the plaintiff's eye. There was no evi- dence as to the manner in which the room within which the lad- der was, was used by the defend- ant, or as to how the ladder got there. Held, that there was no prima facie evidence of negligence against the defendant. Higgs v. Maynard, 1 Harr. & R. 581 (1866). Held, on motion to set aside the nonsuit, that the nonsuit was right, and, to make the defend- ants liable, there r'lould' have been affirmative evidence of neg- ligence. Higgs V. Maynard, 14 L. T. (N. S.) 332 (1866). The defend- ant exposed in a public place, for sale, unfenced and without su- perintendence, a machine which might be set in motion by any [360] Questions op Law and Fact. 361 On the platf orin of a railway statio'ii tliere were two doors in close proximity to each other; the one for necessary purposes had posted over it the words, " For Gentlemen; " the other had over it the words, " Lamp Room." The plaintiff, having occa- sion to go to the urinal, inquired of a stranger where he could find it, and, kaving received a direction, by mistake opened the door of the " Lamp Eoom " and fell down some steps and was injured. In an action against the railway company, it was held, that in the absence of evidence that the place was more than ordinarily dangerous, the judge was justified in non- suiting the plaintiff, on the ground that there was no evidence of negligence on the part of the company.* passer-by, and which was dan- gerous when in motion. The plaintiff, a boy four years old, by the direction of his brother, seven years old, placed his fingers within the machine whilst an- other boy was turning the handle which moved It, and his fingers were crushed. Held, plaintiff eould not maintain an action for Hke injury. Mangan v. Atterton, L. R., 1 Exch. 239 (1866). A rail- way was crossed by a public foot- way, on a level, and was pro- tected by gates on each side of Ihe line, and caution boards were placed near the gates. The view of the line from one of the gates was obstructed by the pier of a railway bridge crossing the line; but, on the level of the line, it could be seen for 300 yards each way. A woman approaching the line by that gate was detained by a luggage train on her side, and, immediately on its having passed, crossed the line and was run down and killed by a train com- ing along the other line of rails. There was no evidence of negli- gence in the mode of running the trains. Held, there was no evi- dence of negligence on the part of the company to go to the jury. Stubley v. London &c. Ry. Co., L. R. 1 Exch. 13 (1865). s Toomey v. London &c. Ry. Co., 3 0. B. (N. S.) 146 (1857). The defendant bought a horse, and the next day took him out to " try " him in Finsbury Circus, a much-frequented thoroughfare. From some unexplained cause, the horse became restive, and, notwithstanding the defendant's well-directed efforts to control him, ran upon the pavement and killed a man. Held, no evidence of negligence which the judge was warranted in submitting to the jury. Hammock v. White, 11 C. B. (N. S.) 588 (1862); 31 L. J. C. P. 129. The defendant was a maker of locomotives, and the plaintifiE was in his employ. An engine was being hoisted for the purpose of being carried away by a travelling-crane, moving on a tramway resting on beams of wood supported by piers of brick- work. The piers had been newly repaired and the brickwork was fresh. The piers gave way, the engine fell and plaintiff was in- 3G3 Questions of Law and Fact. § 286. The same subject continued — Illustrations. — The staircase leading from a railway station to a highway — being otherwise unobjectionable — had, at the edge of each step, a jured. This was the first time the crane had been used. Held, no evidence of liability or negli- gence to be submitted to the jury, or of personal negligence on the part of the defendant, as there was nothing to show that he had employed unskillful or incompe- tent persons to build the piers, or that he linew or ought to have known that they were unsafe. Peltham v. England, L. K., 2 Q. B. 33 (1866). The defendant had on his premises, gates which were safe when open and wedged up, but liable to fall when closed. The attention of the manager had been directed to the unsafe con- dition of the gates, and orders had been given, but not carried out, to remedy this. The plaintiff, a, workman in the employ of the defendant, passed through the gates when open, but, on his re- turn, one of them was closed, and, shortly afterwards, while he was working near the gates, they fell on and injured him. There was no evidence to show how this happened, nor any evidence that the manager or other persons em- ployed by the defendant were in- competent. It was held that the defendant was not liable, as the plaintiff had not shown that the persons employed by the defend- ant were incompetent. Allen v. New Gas Co., L. R., 1 Exch. 251 (18T6). A public footway crossed a railway on a level, and the plaintiff, while crossing on the footway in the evening, after dark, was knocked down and in- jured by a train of the defend- ants, on the crossing. He stated in evidence, at the trial, that he did not see the train until it was close upon him; that he saw no lights on the train and heard no whistling. He stated, also, that he did not hear any caution or warning given to him by any servant of the company. The driver and fireman of the engine were called on behalf of the com- pany, and stated that there were lamps on the engine and train, which were lighted in due course, on the night in question, at the commencement of the journey, and which, if lighted, could be seen for a considerable distance by any one standing at the cross- ing. A porter in the defendant's employ also stated that he had seen the plaintiff at the crossing on the night in question, and had called to him not to cross. The judge, at the trial, ruled that there was evidence to go to the jury of negligence on the part of the defendants, which caused the Injury to the plaintiff. Held, on appeal, no evidence of negligence to go to the jury, Cockbum, O. J., and Cleasby, B., dissenting. Ellis V. Great Western Ry. Co., L. R., 9 0. P. 551 (1874). J. was a passenger by a railway. The carriage in which he rode was full. At Station G., three per- sons forced themselves in and were obliged to stand. There was no evidence that a complaint In Questions of Law and Fact. 363 strip of brass, which, originally, had been roughened, but which had, from constant use, become worn and slippery. The stair- case was about six feet wide, and had a wall on each side but no handrail. The plaintiff, a passenger by the railway, who was a frequent traveller by the line, in ascending from the station, slipped and fell upon the stairs, and was hurt. In an action charging the company with negligence, in not providing a reasonably safe and convenient staircase, the witnesses for the plaintiff stated that, in their opinion, the staircase was unsafe; one of them, a builder, suggested that brass nosings on the steps were improper, and that lead would have been better, be- cause less slippery, and that there should have been a hand- rail. It was held, that there was no evidence of negligence to go to the jury.* In an action for negligence against a railway this matter had been made to the railway officials, or that they knew of the fact. At Station P., some other persons opened the door of the carriage, shut It again and went away. There was afterwards a rush on the plat- form, and other persons opened the door of the carriage. J. stood up to prevent their entering. The train moved. .1., to prevent him- self from falling, put his hand upon the edge of the door of the carriage. At that moment a rail- way porter came up, pushed away the persons trying to get in, and slammed the door to, in doing which J.'s thumb was caught and crushed. Held, this evidence did not establish such negligence on the part of the company as could be said to have occasioned the in- jury, and the judge ought so to have directed the jury. Metro- politan Ry. Co. V. Jackson, L. R., 3 App. Cas. 193 (1877); L. R., 2 C. P. D. 125 (1877). 4Crafter v. Metropolitan Ry. Co., L. R., 1 C. P. 300 (1866). A water company is not negligent for an escape of water from their pipes, because their precautions proved insufficient against the ef- fects of a winter of extreme severity, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. Blyth v. Birming- ham Water Works Co., 11 Bxch. 781 (1856). Action against a rail- way company for the death of one D., an engine driver in their employment, alleging that they negligently employed one R., an Incompetent person, as switch- man, and that, by his incompe- tency, the collision occurred. It appeared that R. neglected to raise the semaphore at the east end of Stratford station, so as to prevent D.'s train, going west, from entering the yard, while a freight train was coming from the west, and thus caused the ac- cident. According to the testi- mony on both sides, R. was an Intelligent man, employed at work which, one witness said, he could learn in a day, another in two or three weeks, and, after being a 364 Questions of Law and Fact. company, the plaintiff proved that he went to their station for the purpose of travelling by their railway, and made some in- quiries respecting the departure of trains, and was directed by a porter of the defendants to look at a time-table suspended on a wall under a portico of the station. While there, a plank and roll of zinc fell through a hole in the roof, upon the plaintiff, and injured him, and, at the same time, a man was seen on the roof of the portico. The judge at the trial nonsuited the plaintiff. On appeal it was held that there was no evidence that would have justified the jury in finding the defendant was guilty of negligence, and the nonsuit was right.® The plain- week about the yard, he had per- formed this work regularly for two weeks without complaint, un- til this accident. A verdict hav- ing been found for the plaintiff, held, no evidence to go to the jury that defendants negligently employed an incompetent person. Deverill v. Grand Trunk Ry. Co., 25 Up. Can. Q. B. 517 (1866). A child was seen upon a railroad track by the engineer of an ap- proaching train, then 450 feet away. Everything possible was done to stop the train, but it could not be stopped within that distance, and the child was in- jured. Common brakes were used on the train. Held, that there was no evidence of negli- gence to be submitted to a jury. Ex parte Stell, 4 Hughes, 157 (1880). A lame boy, eight years old, chmbed upon an engine as it was moving slowly through a street in a city. The engineer at once stopped the engine, with a jerk, the fireman calling to the boy to hold on. The boy either lost his hold or jumped, and was killed. Held, there was no evi- dence of negligence to be submit- ted to a jury. Miles v. Atlantic &c. R. R. Co., 4 Hughes, 172 (1880). B Welfare v. London &c. Ry. Co., L. R., 4 Q. B. D. 693 (1869). When a train is run so closely be- hind another as to make the stat- utory signals of warning at high- way crossings unavailing as means of warning to travellers, the railroad company is guilty of negligence; the court has a right to instruct, as a matter of law, that a failure to give the statu- tory signals at public crossings constitutes negligence. Chicago &c. R. R. Co. V. Boggs, 101 Ind. 522 (1884). A boy four years old, accompanied by his two sisters, one five years old and the other eleven, left his home for the pur- pose of going to a shop on an errand. The elder sister went , into the shop, which was on a ! public street, leaving the boy and the younger sister on the side- walk of the street. While in the shop, she was informed by her younger sister that the boy had been run over and injured by a horse and buggy, and, on coming out, she found him sitting on the curbstone of the sidewalk on the opposite side of the street, in an injured condition. Held, in an action for the injury, that there was no evidence of due care by the plaintiff or of negligence by Questions of Law and Fact. 365 tiff's wife, on a dark night and in a snow-storm, proceeded slowly, accompanied by another female, to cross a crowded thoroughfare, whilst the defendant's omnibus was coming up on the right side of the road, and at a moderate pace, and with abundant time for the woman to get safely across if nothing else had intervened; but, in turning back to avoid another vehicle, they returned and met the danger. It was held, that the case should not be submitted to the jury, as there was no evidence of negligence.® the defendant. Stock v. Wood, 136 Mass. 353 (1884). Evidence that a chore-woman, directed by the wife of her employer to wash clothes In his house, found the tub bottom up, turned It over, put into It the clothes and a rubbing- board, drew a small quantity of water from a kettle into a dipper and poured it into the tub, into which, also, a pailful of water was poured by the wife, and then, putting her hands into the tub and rubbing the clothes against the board, was severely cut in one hand by a fragment of glass, which, on examination, was found in the tub, is not sufficient evi- dence of negligence of the defend- ant to be submitted to the jury. Flynn v.Beebe,98 Mass. 575 (1868). 6 Cottin V. Wood, 8 C. B. (N. S.) 568 (1860). One who employed a boy under fourteen years old to attend a hemp-carding machine in a cordage factory, without point- ing out to him the danger of his exposure to certain gearing, in which his hand was caught and injured, was held guilty of neg- ligence. Coombs V. New Bedford Cordage Co., 102 Mass. 572 (1869). Where the evidence showed that a passenger was injured while sitting in his seat in a railroad car, and resting his head on his arm, which rested on the window- sill of the car, by the car coming in contact with the corner of a wrecked car, which had not been sufficiently removed from the track, held, negligence on the part of the railroad company. Winters v. Hannibal &c. K. R. Co., 39 Mo. 468 (1867). In the ab- sence of any ordinance prohibit- ing exterior basement stairways or requiring them to be guarded by a gate, the leaving of the en- trance open at the end and for the width of the top step is not negligence. Bueschlng v. St. Louis Gas Light Co., 6 Mo. App. 85 (1878); 73 Mo. 219. No rate of speed of a railroad train is negligence per se. Young v. Hannibal &c. R. R. Co., 79 Mo. 336 (1883); Powell v. Missouri Pacific Ry. Co., 76 id. 80 (1882). Defendants owned and worked an iron mine. The ore was taken out of the mine upon cars drawn upon a track by a cable, to which the car was attached by a hook. Two cars were used, one of which was loaded while the other was being drawn out, and, on return of the empty car, the hook was shifted to the loaded one. As an empty car was descending, the hook in some way became de- tached, and plaintifC's intestate, a servant, was struck and killed by the car. In an action to recover 366 Questions of Law and Fact. § 287. The same subject continued — Illustrations. — The plaintiff was a passenger on the defendants' railway from A. to B. .While the train was passing through B. station, the com- pany's servants called out the name of the station, and shortly damages it appeared that in other mines as well as In this one, there were two ears thus operated; the hook was always used on account of the facility with which it could be changed from one car to an- other. It had been used in this mine over a year, night and day, without the happening of any previous accident of the kind. Held, that the evidence did not justify an inference of negligence on the part of the defendants, and that a refusal to nonsuit was er- ror, Ruger, O. J., and Danforth, J., dissenting. Burke v. Wither- bee, 98 N. Y. 562 (1885). Defend- ant leased a building, which was designed for public entertain- ments, to one K., to be used for the purpose of a pedestrian ex- hibition, the tenant to make any and all such changes in the in- terior of the building, its appoint- ments and fixtures, as he might see fit. There was no agreement on the part of the landlord to make any changes or repairs. There was at the time a gallery in the building, which was built under the supervision of an archi- tect, to accommodate a limited number of people. It was divided into boxes, in each of which was a table and chairs, so that the oc- cupants could be served with re- freshments while witnessing the performance. The structure was suitable for this purpose, and had been so used when various fes- tivals were held in the building, a higher price being charged for persons entering the gallery than for admission to other parts of the building, but it was not suit- able for such an exhibition. The tables and chairs were removed, and during the exhibition the same price was charged for ad- mission to the gallery as to the rest of the building. The boxes were crowded with noisy and turbulent people, stamping and keeping time with the music; in consequence thereof the gallery fell, and plaintiff, who was be- neath it, was Injured. In an ac- tion to recover damages for the injuries, it was held by a majo;r- Ity of the court that in the ab- sence of evidence tending to show that the defendant knew, or had reason to suppose, that there was some defect in the gallery, or that it was of insufficient strength to hold the number of people who could be contained therein, or that it would be used in such a way as to endanger its security, the testimony failed to show any actionable negligence, and that the plaintiff was properly non- suited; Kuger, 0. J., Danforth and Finch, JJ., dissenting. Edwards V. New York &c. R. R. Co., 98 N. Y. 245 (1885). It is culpable neg- ligence on the part of a railroad corporation not to stop a train en- tirely at a regular station to which it had sold a ticket, and give a passenger time and oppor- tunity to alight. It is also neg- ligence for its officers to induce a passenger to leave a train while in motion. Bucher v. New York &c. E. R. Co., 98 N. Y. 128 (1885). Questions of Law and Fact. 367 afterwards the train stopped. The carriage in which the plain- tiff travelled, stopped a little way beyond the platform, and sev- eral carriages and the engine, which were in front of that car- riage, stopped at some distance from the platform. The plain- tiff, who was well acquainted with the station, in alighting from the carriage was thrown down and injured, in consequence of the train being backed into the station for the purpose of bring- ' ing the carriages alongside the platform. A very short inter- val elapsed between the time that the train stopped and the time it was backed into the station. It wasi held, that there was no evidence of negligence on the part of the company to render it liable in an action.'^ A child between ten and eleven years of age, was permitted to walk in the street in the daytime, within sixty feet of her father's house, when there was no par- ticular reason to apprehend danger, and in a street almost entirely unused, would not, as a matter of law, be held evi- dence of negligence on the part of the parent.® The defend- ant, for the purpose of a concert, hired a public hall and em- ployed a person to decorate it. Among the decorations was a bust placed on the outside of a balcony. The plaintiff sat in a seat on the floor of the hall, immediately under the bust. The audience were requested, by the program, to rise at a certain part of the concert, and when they did so the bust fell from its place and injured the plaintiff. The plaintiff offered no evi- dence as to the manner in which the bust was secured. It was held, that the mere fact that the bust fell was not sufficient evi- dence to go to the jury, of the defendant's negligence^* § 288. The same subject continued — Illustrations. — Where there was a well on one of the streets of the city of Brooklyn, 7 Lewis V. London &c. Ry. Co., against a railroad company for an L. R., 9 Q. B. 66 (1873). Proof accident at a crossing. It is error that a woman crossing the south to leave to the jury to determine track, at a station, to get aboard whether the ■ omission to have a a passenger train that had slowed flagman at that point was neg- up, going west, on the north ligent. Houghkirk v. Delaware track, was struck and killed by &e. Canal Co., 92 N. Y. 219 (1883), a freight train going east, at the reversing 28 Hun, 407. rate of ten miles per hour, held, 8 Karr v. Parks, 40 Cal. 180 negligence on the part of the rail- (1870). road company. Terry v. Jewett, » Kendall v. City of Boston, 118 IT Hun, 395 (1879). In an action Mass. 234 (1875). 368 Questions of Law and Pact. level with the grade of the sidewalk, and usually covered with a wooden cover, having a square opening in the center, which was also covered with a lid, opening and shutting on leather hinges, and the intestate, a child four years of age, was found dead in the well, within half an hour after leaving home, held, the plaintiff was bound to show how the accident occurred, and to throw some light upon the cause which led the child to the vicinity of the well, and the condition of the opening into the well, and whether it was closed or not when the deceased came there. Merely showing the existence of the well, with its covering, and the child being found in the water, was not suffi- cient to enable the plaintiff to recover.*" Plaintiff was in- jured while attempting to cross the railroad track at night in front of three gravel cars, which were being lawfully pushed in front of a locomotive. The cars were moving at a reasonable and lawful rate of speed, the headlight of the engine was in proper condition and lighted, a brakeman was on the extreme front of the train with a lighted lantern, and the engine bell had been rung constantly while the train was passing, from a point more than 230 feet distant, to the place of the injury. It was held, that the railroad company was not guilty of any negligence which caused the injury.** 10 Lehman v. City of Brooklyn, Immediately afterwards his hat 29 Barb. 234 (1859). fell off, and. In his endeavor to 11 Bohan v. Milwaukee &c. Ry. recover It, he fell under the ce» Co., 61 Wis. 391 (1884). In an and was fatally Injured. The action against a railroad com- brakeman was at the time on the pany by the parents of A., a boy forward bumper of the rear car, six years of age, to recover dam- and there was no evidence that ages for his death, it appeared he saw A. It further appeared from the evidence that A. was that A.'s mother left him in standing at the back door of his charge of his older sister, and told father's house, about ninety feet him not to go out, and that while from the railroad; that a coal the sister was in a pantry getting train approached, upon the last something for his breakfast, he car of which two small boys were went out the back door. The riding by permission of the brake- court below granted a compulsory man; that these boys motioned to nonsuit. It was held that there A. to join them, whereupon he was no evidence of such negll- ran from the house, ascended a gence on the part of the com- flight of eight steps leading up pany's servants as to warrant the the railroad embankment, and submission of the case to the— climbed on the said last car; that jury, and, therefore, the nonsuit Questions op Law and Fact. 369 § 289. auestions of fact — Illustrative cases.— "Whether negligence is a question for the court or for the jury must be de- termined by the facts of the particular case. Negligence is, in all cases, in a certain sense, a question of fact for the jury — that is, it is for the jury to determine whether the facts bearing upon the question exist or not. But when the facts are un- disputed, or are so clearly proved as to admit of no doubt, it is the duty of the court to apply the law without submitting the question to the jury. This involves no invasion of the province of the jury, nor any infringement of their legitimate functions, any more than when the court passes upon a demurrer to the evidence, or on motion for new trial upon the ground of the want of any evidence to sustain the verdict of the jury.^^ What may be negligence under some circumstances and condi- tions, may not be so under others. It is not a fact to be trati- fled to, but only can be inferred from the res gestae from the facts given in evidence. Hence it may, in general, be said to be a conclusion of fact, to be drawn by the jury, under proper instructions from the court. It is always so where the facts, or rather the conclusions, are fairly debatable, or rest in doubt. ^' was properly granted. Wood- bridge V. Delaware &e. R. R. Co., 105 Pa. St. 460 (1884). It is not negligence for a railroad com- pany to run its trains over a pub- lic crossing in the open country at the rate of thirty miles an hour. It is only the force of special circumstances that re- quires a less rate of speed. Read- ing &c. R. R. Co. V. Ritchie. 102 Pa. St. 425 (1883). The conduc- tor, engineer, fireman and brake- man having testified that the brakeman stood on the forward end of the train with a lighted lantern, and that the bell was constantly ringing while the train was passing from a point more than 230 feet distant to the place of the injury, the testimony of the plaintiff and several other witnesses who looked only casu- 24 ally at the train, that they did not hear the bell or see the lan- tern, is held to be at most a mere scintilla of evidence, and not to have justified the submission of those questions to the jury, or to have warranted a special finding that no one stood on the forward end of the train with a lantern. Bohan v. Milwaukee &c. R. R. Co., 61 Wis. 391 (1884). 12 Barton v. St. Louis &c. R. R. Co., 52 Mo. 258 (1873). 13 Langhoff v. Milwaukee &c. Ry. Co., 19 Wis. 497 (1865). Where an engineer had a crane worked on a tramway, supported on piers of brickwork, which were of insufficient strength, and which gave way, and then caused an accident to one of the men engaged in working the crane, held, that there was evidence of 370 Questions of Law and Fact. At a level crossing, plaintiff's evidence showed that it was a dark, foggy morning at the time of the accident, the railroad was obscured by the smoke from neighboring spelter works, the plaintiff exercised due caution by looking up and down the line, the engine had no light, and the engine driver did not whistle or give any notice of his approach. Held, considering the darkness, it would have been a reasonable precaution to whistle before coming to the crossing, and, therefore, there was some evidence to go to the jury, of negligence on the part of the defendant.^* negligence for which the em- ployer was liable. Feltham v. England, 4 Fost. & F. 460 (1865). Suit brought where plaintiff's in- testate had lost his life by reason of a large stone being placed on the roof of a mine, in so danger- ous a position that it fell on the workman when engaged in dig- ging out the coal, and killed him on the spot. Held, question of negligence should be submitted to the jury. Paterson v. Wallace, 1 Macq. H. of L. 748 (1854). Where there are two modes of doing a work in a public high- way, from which damage may re- sult to a passer-by, the one mode more dangerous than the other, though both are usual modes, it is for the jury to say whether the adoption of the former amounts, under all the circumstances, to negligence. Cleveland v. Spier, 16 C. B. (N. S.) 399 (1864). A rail- way crossed on a level a public carriage and footway at a spot which, from the fact of there being a considerable curve in the line and a bridge near by, trains coming in one direction could not be seen, which was peculiarly dangerous. There were gates across the carriage-way which were kept locked, but the footway was protected only by a swing- gate on either side. No person being there to caution people passing, the plaintiff, while using the footway, was knocked down by a passing train and injured. Held, it was properly left to the jury to say whether the company had been guilty of negligence. Bilbee v. London &c. Ry. Co., 18 C. B. (N. S.) 584 (1865). In an ac- tion against a dock company for injury to the plaintiff by their alleged negligence, the plaintiff proved that he was an officer of the customs, and that whilst in the discharge of his duty he was passing in front of a warehouse on the dock and six bags of sugar fell upon him and he was Injured. Held, reasonable evi- dence of negligence to be left to the jury. Scott v. London &c. Docks Co., 3 Hurlst. & C. 596 (1865). 1* James v. Great Western Ry. Co., L. R., 2 C. P. 634, n. (1867). The defendants, a railway com- pany, had on their platform, standing against a pillar which passengers passed in going to and coming from the train, a port- able weighing machine, which Questions of Law and Fact. 371 § 290. The same subject continued — Illustrations. — Defend- ant negligently left his horse and cart unattended in the street. Plaintiff, a child seven years old, got upon the cart in play. Another chUd incautiously led the horse on and plaintiff was thereby thrown down and hurt. Held, that it was properly left to the jury whether defendant's conduct was negligent.^' was used for weighing passen- gers' luggage, and the foot of which projected about six inches above the level of the platform. It was unfenced, and had stood In the same position, without any accident having occurred to per- sons passing it, for about five years. The plaintifE, being at the station on Christmas day, inquir- ing for a parcel, was driven by the crowd against the machine, caught his foot on It and fell over it. Held, there was evidence of negligence to go to the jury, on the part of the company. Corn- man V. Eastern Counties Ry. Co.,4 Hurlst. & N. 781 (1859). The de- ceased, a boy selling newspapers, got on a street railway car, at the rear end, and passed through the car to the front platform, where the driver was standing. He stepped to one side, behind the driver, and fell off or disappeared from the car — there being no step on that side — and was liilled by the car running over him. He had said, just before, that he was going on some distance fur- ther in the car, and the conductor, at the time, stated that he had reported the want of a step to the owners of the railway, but it had not been attended to. There was plenty of room in the car, but it was proved that pas- sengers were always allowed to stand on the platform. It was not shown that the deceased had either paid or been asked for his fare, but it appeared that news- boys were allowed to enter the cars to sell newspapers without being charged. Held, evidence for the jury of negligence on the part of defendants, in the ab- sence of the step, and no such contributory negligence on the part of the deceased as should, as matter of law, prevent the plaintiff's recovery. A nonsuit was set aside. Blackmore v. Toronto Street Ry. Co., 38 Up. Can. Q. B. 172 (1876); reversed on appeal, on the ground that de- ceased was a mere licensee or volunteer. IS Lynch v. Nurdin, 1 Q. B. 29 (1841). In an action against a surgeon for malpractice in ampu- tating an arm above instead of below the elbow, several medical men of repute approved of the defendant's course. The jury found for the plaintiff. A new trial was granted, on the ground that the case should not have been submitted to the jury. Jack- son V. Hyde, 28 Up. Can. Q. B. 294 (1869). A child, six years of age, and living with his parents, brought suit against a railroad company to recover damages for an injury sustained upon a turn- table belonging to the said com- pany. The turn-table was in an open space about eighty rods 373 Questions of Law and Fact. The plaintiff who was walking in a public street, passed the de- fendant's shop, when a large barrel of ilour fell upon him from a window above the shop, and severely injured him. It was held, that there was sufficient prima facie evidence of negli- gence for the jury, and to cast on the defendant the onus of proving that the accident was not caused by his negligence.^® from the company's depot, in a hamlet or settlement of 100 to 150 persons. Near the turn-table was a travelled road. On the railroad ground, which was not Inclosed or visibly separated from the ad- joining property, was situated the company's station-house, and about a quarter of a mile dis- tant from this was the turn- table on which the plaintiff was injured. There were but few houses in the neighborhood of the turn-table, and the child's parents lived in another part of the town, and about three-fourths of a mile distant. The child, without the knowledge of his pa- rents, set off with two other boys, the one nine and the other ten years of age, to go to the depot, with no definite purpose in view. When the boys arrived there, it was proposed by some of them ' to go to the turn-table to play. I The turn-table was not attended ' or guarded by any servant of the company, was not fastened or locked, and revolved easily on its axis. Two of the boys began to turn it, and in attempting to get upon it the foot of the child in- jured, who was at the time upon the railroad track, was caught be- tween the end of the rail on the turn-table, as it was revolving, and the end of the iron rail on the main track of the road and was crushed. Held, negligence prop- erly submitted to the jury. Sioux City &c. R. R. Co. v. Stout, 17 Wall. 657 (1873). See § 81. Plain- tiff was injured by reason of some one having placed a push-car on defendant's railroad track. The car had been left unlocked by the side of the track by defendant's servants. Held, that the question of whether negligence was imput- able to the railroad company was for the jury. Harris v. Union Pacific Ry. Co., 4 McCrary, 454 (1882). Plaintiff's team, in being turned about in the street of a city, came into collision with de- fendant's team, which had been following behind. Each charged that the negligence of the other caused the accident. Held, the question of negligence and of con- tributory negligence was for the jury. Bierbach v. Goodyear Rub- ber Co., 14 Fed. Rep. 826 (1882); 15 id. 490 (1883). A fireman of an engine, while in the performance of his duty, was struck by a tele- graph pole, which was only a foot from the engine. In his action for negligence, held, the question of negligence on the part of the company in allowing the pole to stand so near the track was a question of fact for the jury. Hall V. Union Pacific Ry. Co., 16 Fed. Rep. 744 (1883); 5 McCrary, 257 (1888). 16 Byrne v. Boadle, 2 Hurlst. & C. 722 (1863). Whether it is neg- Questions of Law and Fact. 373 "Where defendant was engaged in building a railroad, and left small copper cartridges, containing an explosive compound, llgence for an engineer to run his train at a stated number of miles per hour, is generally a mixed question of law and fact, depend- ent upon many controlling cir- cumstances, such as the condition and structure of the road. Its grade, straightness or curvature, the character and capacity of the brakes, and when there is no evi- dence as to any of these control- ling facts, it is properly left to the jury to decide whether he was guilty of negligence in run- ning his train at the rate of thirty-five or forty miles per hour at the time of the accident. East Tennessee &c. K. R. Co. v. Bay- liss, 74 Ala. 150 (1883). Plaintiff got on a train at Forrest City, with the intention of going to Brinkley. Just on the outskirts of Brinkley the track of the Texas and St. Louis railway, popularly known as the " Para- more Road," crosses that of the Memphis and Little Rock rail- road. When the train on which plaintiff was a passenger had ar- rived within a short distance of the station at Brinkley, the brakeman, as usual, called out the name of the station. The train ran on a few paces further, and, arriving at the crossing of the Texas and St. Louis railway, stopped a few moments, as is cus- tomary, before crossing the track of another road. The night was dark. The plaintiff thought he had reached his destination. He arose from his seat, went out on the platform and looked out on one side. He saw no platform or other indication of a depot, only a bright light ahead, which he took to be the headlight of a loco- motive. The plaintiff then went across the platform to the other side. Just at this time the train began to move slowly forward. The plaintiff, supposing that he was about to be carried beyond his station, stepped off, fell and was taken in an insensible con- dition to a doctor's office. Held, the question of defendant's negli- gence should be submitted to the jury. Memphis &c. Ry. Co. v. Stringfellow, 44 Ark. 322 (1884). The defendants owned and ope- rated a street railway, the cars of which, drawn by horses, passed along its tracks at stated Intervals only a few minutes apart. The plaintiff was em- ployed by a gas company, and while so employed he dug a ditch running between the two tracks of the defendant's road and at right angles therewith. He knew that the cars passed frequently, but he did not watch them. While he was in the ditch, two or three feet from the track, a car ap- proached. When immediately op- posite the plaintiff, the horses plunged or shied, and one of them fell into the ditch and upon the defendant, injuring him severely. He brought an action against the railway company, in which the jury found a verdict for the de- fendant. Held, a proper case to be submitted to the jury as a question of fact. Fernandez v. Sacramento City Ry. Co., 52 Cal. 45 (1877). 374 Questions of Law and Fact. near the plaintiff's residence, which were picked up by plain- tiff's children, and while the mother was taking one of the cartridges from the child, it exploded, lacerating her hand, it was held, that the question of negligence was one of fact for the jury. 17 17 McNamara v. North Pacific K. R. Co., 50 Cal. 581 (1875). In an action against a city for in- jury to the plaintiff, occasioned by the alleged neglect of the city to keep a sidewalk in proper con- dition, it appeared that a person who was erecting a building in the city did, with the knowledge and consent of the city author- ities, in order to reach the base- ment of his building, make an excavation under the sidewalk. This excavation was kept cov- ered with loose boards, except when access to the basement was necessary. The boards, or a por- tion of them, were removed, and replaced after the necessity had passed. The opening was thus covered up until six o'clock of the evening of the injury, after which tjme some person unknown re- moved the covering, and the plaintiff — it being very dark that night — in going home, fell into the basement and broke his shoulder. Held, the question whether this covering of boards, which could be easily removed, afforded sufficient security, was properly left to the jury, and this court concurs in the opinion that it was not sufficient. City of Ster- ling V. Thomas, 60 111. 264 (1871). An employe of a railroad com- pany was killed by the falling of a bank of earth which he was engaged in excavating. His ad- ministrator brought suit for dam- ages against the company, on the alleged ground of a want of proper care on the part of the agents of the company in charge of the work, indicating the man- ner in which it should be done. The facts, as shown by the testi- mony, were substantially these: A number of laborers were en- gaged in excavating a hill, un- der the direction of a foreman. The bank at the point where the accident occurred was sixteen to twenty feet high and composed of clay commonly called " joint clay." The deceased was twenty- eight years of age. The manner of doing the work and as di- rected by the foreman, was by undermining the bank by digging under from two to three feet and prying the bank off from the top. That was not the proper and safe way to take down the bank. The foreman had control of the men, and could discharge them for disobedience of orders. On the morning of the accident, the foreman, as he was about to go elsewhere, cautioned the men about the danger. Two days pre- viously, the superintendent of the road told the men that the way they were doing the work was dangerous, that they must not cave it off that way, and that they must not dig under so far. In the forenoon of the day of the accident, several of the men — the deceased himself included — were Questions of Law and Fact. 375 § 291. The same subject continued — Illustrations. — Where a boy ten years of age was employed in a factory, and was in- jured by being caught in machinery which, it was claimed, ought to have been covered in such a manner as to prevent such an accident, it was held, that the question, whether at his age he had a sufficient understanding of the hazards of the employment to bring him within the general rule, was one of fact to be decided by the jury.^* The question as to the proper siieaking of the bank getting dan- gerous. One man left the place on that account, and another went to work somewhere else. This the deceased could have done If he had desired, as he was not required to work at that particu- lar place, but chose it for him- self, and, continuing to work there, the bank fell upon him and killed him. The court below, on this state of the case, excluded all the plaintiff's evidence from the jury and directed a verdict for the defendant. Held, this was proper. There was no suflBcient ground of recovery, the deceased having voluntarily continued in the place of danger, with full knowledge of the peril he was In. Simmons v. Chicago &c. R. R. Co., 110 111. 340 (1884). A brake- man was Injured while attempt- ing to pass from one car to an- other, the car to which he passed having no ladder or handles, as he supposed It to have. He knew that some of the cars that he had to use were deficient in these ap- pliances. Held, that the question of negligence on the company's part, and of contributory negli- gence on his own, were questions of fact for the jury. Chicago &c. R. R. Go. V. Warner. 108 111. 538 (1884). iSHayden v. Smlthville Mfg. Co., 29 Conn. 548 (1861). H., em- ployed as an engineer on a rail- road, was killed by the explosion of the locomotive of which he had charge. An action was brought against the railroad company for the use of the widow and minor child of the deceased to recover damages sustained by them by reason of his death. There was no evidence of negligence on the part of the defendant in the se- lection of faithful and competent employes. The ground of the ac- tion and the liability of the de- fendant rested on the alleged facts that the engine was un- sound and unsafe when it was purchased and put upon the road, and so continued till the time of the accident, and that the agent of the defendant, by whom it was purchased, did not exercise ordi- nary care in purchasing and pro- curing a sound and safe engine. Evidence was offered by the plaintiff as to the purchase of the engine, the explosion of which caused the death of H. The de- fendant proved that the engine was repaired about a month be- fore its explosion, and alleged that there was no evidence of the original and continued unsound- ness of the engine, and of the 376 Questions of Law and Fact. construction of a railroad platform, and its construction with, reference to the track, in a suit by an employe against the com- paay, is a question for the jury.^® It is a question of fact alleged negligence of the defend- ant in procuring it. Held, that there was evidence on these ques- tions legally sufficient to go to the jury, and they were properly sub- mitted for their decision. Cum- berland &c. R. R. Co. V. State, 45 Md. 229 (1876). In an action by a servant to recover for a per- sonal injury caused by the fall of an elevator used in the master's business for hoisting goods, and upon which the plalntifC was as- cending at the time of the in- jury, there was evidence that the defendant had instructed his fore- man to warn the men of a rule of the house against going upon the elevator. Held, the ques);ions whether any precautions were re- quired, and whether the instruc- tions given to the foreman were a sufficient precaution, were for the jury. Avilla v. Nash, 117 Mass. 318 (1875). In an action by a workman against his em- ployer for injuries caused by the falling of staging, upon which the plaintiff was at work repair- ing a building, the evidence tended to show that the plaintiff went on the staging by the de- fendant's direction; that the stag- ing was insecure, in consequence of being constructed of unsuitable materials, or by neglect to fasten it together sufficiently; that the staging was built before the plaintiff began work, by persons who were afterwards his fellow workmen, and that the defendant directed what lumber was to be used therefor. It was not con- tended that the staging was built under the direct personal super- vision of the defendant, but there was evidence that he superin- tended the work generally. Held, a jury would be warranted in finding a verdict for the plain- tiff. Arkerson v. Dennison, 117 Mass. 407 (1875). 19 Chicago &c. R. R. Co. v. Clark, 11 111. App. 104 (1882). In an action of tort for injuries sus- tained by the plaintiff by the fall- ing of a bale of goods from a wagon, the evidence showed that, at the time of the Injury, the plaintiff was upon the sidewalk, which was nine feet wide, in the act of loading a case of goods upon a truck; that he saw the wagon and knew that it was backed up for the purpose of un- loading; that the defendant's ser- vant in charge of the wagon un- fastened, in a proper place to un- load, but without giving any warning, the rope by which the bales upon the rear of the wagon were bound thereto; that the plaintiff could not see the servant unfastening the rope, and did not look to see what he was doing; that when the rope was unloosed, one of the rear bales fell upon the plaintiff, causing the injury. The evidence was conflicting, whether the plaintiff directed the servant to back up. The defend- ant's servant testified that he un- fastened the rope on one side and then went round to the rear of Questions of Law and Fact. 37r whether it is negligence on the part of parents to permit their child three and a half years old to be upon a public street un- attended.^*^ In an action by a servant against his master to re- cover for injuries occasioned by his falling into a barrel of hot water, alleged to have been negligently put by the master upon his premises, it was held, that the question of defendant's negligence, was properly submitted to the jury.^^ the wagon and unfastened it on the other side; that the plaintiff was not then behind the wagon. The plaintiff testified that he did not see the servant pass round the wagon. At the close of all the evidence, the judge refused to withdraw the case from the jury. Held, proper. Patrick v. Pote, 117 Mass. 297 (1875). 20 O'Brien v. McGlinchy, 88 Me. 003 (1878). 21 Northcoate v. Bachelder, 111 Mass. 322 (1873). In an action against a railroad corporation for personal injuries sustained by the plaintiff on a car of the defend- ant's railroad, the accident being caused by another car in which Lhe plaintiff was riding, while making a " flying switch," there was evidence that, on other occa- sions, the cars had come together with as much violence. Experts testified for the defendant, that connecting cars in this way was a safe and prudent mode of man- agement. One of them testified, on cross-examination, that there was a great dispute among rail- road experts as to the safety of " flying switches." The plaintiff put in no expert testimony on this point. Held, that he was prop- erly allowed to go to the jury on the Question whether such mode of connecting the cars, under all the circumstances of the case, was proper. White v. Fitchburg E. R. Co., 136 Mass. 321 (1883). In an action brought by a servant against his master, to recover for personal injuries received by him in breaking and falling through a floor in his master's shop, over which it was his duty to pass, it appeared that he knew that the floor was decayed, and that there were holes in it; but it did not appear that he could have ascer- tained that the place where he broke through was dangerous without examining parts of the floor not open to his inspection. Held, the court could not say that he was guilty of negligence, and that the question was for the jury. Huddleston v. Lowell Ma- chine Shops, 106 Mass. 282 (1871). In an action against a railroad corporation for personal Injuries occasioned to the plaintiff, a boy fourteen years old, the evidence tended to show that he, in com- pany with another boy, was driv- ing a horse attached to an open wagon, when it came into col- lision with the defendant's train at a grade crossing; that the street on which he was riding sloped downward through a cut for 100 feet, until it entered upon the railroad track; that, for a por- tion of this distance, the smoke- stack of an approaching engine could be seen through a picket fence, and at a distance of from fifteen to thirty-five feet a clear 378 Questions of Law and Fact. § 292. The same subject continued — Illustrations. — If a rail- road corporation has made provision for passengers to leave its cars upon one side only of the track, and it is dangerous to leave upon the other side, in an action against the corporation for negligently causing the death of a passenger, while leaving a car on the wrong side, it is a question for the jury whether it was negligence in the corporation not to have provided some means to prevent passengers from leaving on that side, or not to notify them not to do so.^ At the trial of an action view of the track could be had, and that a train could be heard by a person in that street before it came in sight through the fence. The plaintiff testified that he drove into the street towards the railroad track on an easy trot; that when he came to the crest of the hill, about 100 feet from the track, he pulled up, and af- terwards drove at a rate half way between a trot and a walk; that the other boy pointed out to him a train which had been hidden from their view by an intervening building until they were over the crest of the hill; that he looked at the train and then turned to his horse; that the other boy called his attention to the train when he was within from ten to forty- six feet of the track, and that he pulled up his horse, but, thinking he could not stop him, whipped him, drove across and the wagon was struck on the hind wheel; and that there was nothing to prevent his hearing the train ex- cept the rattle of the wagon. Both boys, and another witness who heard the train coming while sitting in a house near the track, with the windows shut, before the boys turned to look at the train above mentioned, testified that they did not remember hearing the bell on the engine ring. The engineer and fireman testified that the the same," and the several acts amendatory thereof and sup- plemental thereto, was summoned to answer , plaintiff,, in an action of tort, and thereupon the said plaintiff, by ,. his attorney, herein complains: For that, whereas, heretofore, to-wit, at Jersey City, in the county of Hudson aforesaid, the said defendant, then and now, being a corporation duly created, organized and existing, as aforesaid, and operating a line or lines of street railway between various points, and upon and through certain streets and thor- oughfares and public highways of Jersey City, aforesaid, and on. or about the 31st day of March, in the year 1894, unlawfully and wrongfully and negligently, without any fault or negligence on behalf of this plaintiff, propelled a car or motor, then owned and operated and controlled by said defendant, at the place aforesaid, which said car or motor was then and there in th& custody, management and control, and then and there was man- aged and controlled by said defendant, its agents or servants, and then and there, at or near, the junction of Grand street and Monhaouth street, in said city of Jersey City, in said county of Hudson, said defendant, its agents or servants, with great force and violence, negligently and carelessly managed, con- trolled and propelled the said car or motor, upon and against and into collision with a wagon or vehicle, then being drawn by a pair of horses and driven by said plaintiff, who then and there was seated upon the said wagon or vehicle, and who, in the ordinary course of his legitimate business, then and there was lawfully driving on that part of the public highway or street, dedicated to that use, and while crossing Grand street, at the place aforesaid, by means of which collision of the said car or motor with the said wagon or vehicle, upon which said plaintiff was then and there seated, plaintiff was violently thrown then and there with great force and violence from the said wagon or vehicle downward and upon the street or pavement, and was bruised, maimed, lamed, wounded, paralyzed, shocked, sick and sore, by means of which, without any negligence or fault on his part, plaintiff sustained great mental and bodily injuries, as aforesaid, then and there suffered and still suffers great bodily pain, mental anxiety, nervous shock and general physical dis- ability, and by means of all the foregoing the plaintiff ever BJnce the date last aforesaid, has been prevented from transact- FoBMS. 517 ing his lawful business and concerns or any other business, totally incapacitated from labor of any kind, physical or mental, and by means of the premises for a long time was and still is confined to his house and bed, and was compelled to pay and incur and has paid and incurred large sums of money for board, lodging, care of physician and medicine, and has sustained dam- age by reason of all the foregoing, at , in the county of , aforesaid, in the sum of $10,000, and therefore, he brings his suit, etc. § 392. The same for an injury to a passenger. — The , a body corporate, the defendant in this suit, was summoned to answer unto , the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by , his attorneys, com- plains for that, whereas, heretofore, to-wit, on the 30th day of September, 1894, at the city of Philadelphia, in the State of Pennsylvania, to-wdt, at Jersey City, in the county of Hudson aforesaid, the said defendant was operating a steam railroad between the said city of Jersey City, in the county of Hudson aforesaid, and the city of Washington, in the District of Columbia, for the carriage of passengers and freight, and on the day and year last aforesaid, at Jersey City aforesaid, re- ceived the said plaintiff upon one of its mail and passenger trains then being run upon the said railroad, in a car attached to said train, and undertook and agreed to transport the plaintiff from the station of the said railroad company in the said city of Jersey City to the station on said road known as Washington, in the District of Columbia, for a certain hire and reward to the defendant in that behalf for the transportation of the plain- tiff on said train and car. AVhereupon it became and was the duty of the said defendant to carry the said plaintiff on its said road in safety, and with due and proper care, yet the said de- fendant, by its servants and agents, so negligently, carelessly and unskillfully managed the operation of said railroad, that the said train, shortly after leaving the station on the railroad of the defendant at the city of Philadelphia, to-wit, at Jersey City aforesaid, came into collision with a locomotive engine, causing the car in which the plaintiff was, to be crushed, and the said plaintiff was by reason thereof caught between the end of said car, which had been forced in by the said collision, and the comer of a rack in the said car, causing the plaintiff to 518 FoKMS. sustain severe contusions, and while endeavoring to extricate himself lie was struck violently on the forehead and knocked down by the side of the said car falling in upon him by reason of such collision; and the said plaintiff then and there became wrenched, wounded, bruised and disordered, and was then and thereby forced to and did lay out and expend divers large sums of moneys in attempting to be cured, and was thereby then and there hindered and prevented from attending to his necessary business and affairs, to-wit, at Jersey City, in the county of Hudson, in the State of New Jersey aforesaid. Wherefore, the said plaintiff says he is injured and has sus- tained damage to the amount of $2,000, and thereupon he brings his suit, etc. § 393. The same by a guardian of a minor servant, a brakeman. — The was summoned to answer unto , by , his guardian, the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by , his attorney, complains: For that, whereas, heretofore, to-wit, on the 16th day of November, in the year 1887, at Wayne, in the county of Pas- saic, to-wit, at Newark, in the county aforesaid, was in posses- sion and had the management and control of a certain railroad, with its tracks and appurtenances, and was engaged in the business of a common carrier of passengers and freight thereon; and while then and there running, managing and operating its said railroad, did then and there hire and employ divers large numbers of servants and employes to work, run, manage and operate its said railroad, as incident to its business as aforesaid, for hire and reward then and there paid by the said defendant to the said servant or servants. And whereas, to-wit, on or about the 16th day of November, in the year 1887, the said Timothy O'Connell was then and there hired and employed as an employe and servant, and in the capacity of a brakeman, by the said defendant; and while then and there so employed, and in the capacity aforesaid, he was then and there set to work making connection between two freight cars, controlled, operated and run by the said defendant over its said railroad. That the cars upon which the said Timothy O'Connell was then and there set to work, in his proper and lawful capacity as brakeman, were then and there extremely dangerous, and FoHMS. 519 subjected said employe and servant then and there to great liazards, risks and danger of life and bodily peril, by reason whereof the said defendant, well knowing the premises, ought then and there carefully to have constructed, inspected and operated the said cars, and the machinery and appliances inci- dent and necessary to its proper running, and the proper appli- cation and adaptation of its machinery and appliances. Yet the defendant disregarded its duty in this behalf in that the said cars were then and there, with their construction, machinery and appliances, so negligently, carelessly, insecurely, improperly and defectively constructed, inspected, operated, managed and run, for the purposes and uses aforesaid, and the said defects in and about the construction, inspection and use of the said cars, and its appliances and machinery, were then and there so latent and hidden that the said Timothy O'Connell, while so employed then and there as a brakeman, and while then and there exercising due care and precaution, did not know and could not see the said defects and hidden dangers in and about the construction of the said cars and their machinery and appliances in and about the use and wear and tear of the said car and its machinery and appliances so as aforesaid, biTt that the said defects and dangers were then and there known to the defendant; and that the defendant did then and there so negligently, carelessly and improperly conduct itself in and about the premises and in and about the management, construc- tion and inspection of the said car and its appliances and ma- chinery as aforesaid; and that the defendant then and there employed and set to work upon said cars certain unfit, careless and improper servants, who, in their common employment, at the time aforesaid, with the knowledge and at the direction and under the control of the said defendant, wrongfully, negli- gently, carelessly and improperly ran, operated and managed the said cars; the said plaintiff being then and there unaware that such servants were unfit, incompetent and improper, as aforesaid. That the said defendant then and there set and allowed to be set to work the said Timothy O'Connell in the capacity of brakeman as aforesaid, without any caution or warning as to the hidden dangers and defects, and the unfitness and incom- petency of its servants, in an insecure and unsafe place, and at insecure and unsafe machinery and appliances, the said Tim- 520 FoHMS. othy O'Oonnell, through no fault or negligence on his part, and while in the act of making the connection between two of the said defendant's freight cars, was caught between said freight cars, his right hand was greatly injured, wounded, maimed, mangled and cut, insomuch that it became and was necessary to have it amputated, and he was otherwise severely injured, wounded, maimed, mangled, cut, hurt and bruised, and then and there became and was very sick, sore and crippled for life, and was otherwise permanently incapacitated from pursuing his customary occupation and earning his livelihood as before re- ceiving the said injuries, and has been forced and obliged to, and did then and there pay, lay out and expend divers large sums of money in procuring medical treatment and attendance. Wherefore, the said plaintiff saith that he is injured and has sustained damage to the amount of $25,000, and, therefore, he brings his suit, etc. § 394. The same for ejecting a passenger. — The , the defendant, was summoned to answer unto , the plaintiff therein, in an action of tort, and thereupon th© plaintiff, by , , his attorney, complains for that the said de- fendant, on the 31st day of December, A. D'. 1891, was, before and at the time of the committing of the griev- ances and injuries hereinafter mentioned, in the city and county of Camden, State of ISTew Jersey, was operating a rail- road, extending from the city of Camden in the county of Camden through the said counties of Camden, Gloucester, Cumberland and Atlantic, and by and along various platforms and stations on its said route for the receiving and delivering of passengers thereon and therefrom and by the station of Clementon in the county of Camden, and was engaged in the business of common carrier thereon, which railroad so running as aforesaid ran from its platform and station at the west termi- nal of Kaigns avenue in the city of Camden to its platform or station at Clementon for the landing of passengers. And the said defendant, on the day and year last aforesaid, were the common carriers of passengers and goods over and along its said railroad from the city of Camden, in the county of Camden, to the city of Atlantic City within this State, and a great many intermediate points, as well as at Clementon Sta- tion, by means of carriages and coaches drawn by locomotives FoHMS. 521 propelled by steam aforesaid for the reward to the defendant in that behalf, and thereupon the plaintiff, at the request of the defendant, became and was a passenger and was received safely by the defendant in one of their carriages, to be by them safely and securely carried and conveyed thereby from the city of Camden to the station of Clementon and to be delivered at its station on the platform thereof, in a safe and careful manner, for reward to the defendant in that behalf, to-wit, the sum of fifty cents. And thereupon it became and was the duty of the defendant to carry the plaintiff as aforesaid from the city of Camden to the station of Clementon, and there to deliver the plaintiff safely and securely; yet the said defendant, disregard- ing its duty in that behalf, did, on the 31st day of December, A. D. 1891, tcywit, at Camden and within the jurisdiction of this court, wrongfully and tortiously, with force and arms, with great violence, the train being first stopped at a short distance from the station at Camden, for the purpose and acting under the direction of the defendant by its agents, then and there present, doing and directing the acts of defendant, carried, dragged and threw plaintiff from and off the carriage or coach of defendant, in which plaintiff was a passenger by virtue of his reward paid to the defendant in that behalf as aforesaid and without any justification or excuse on the part of defendant, whereby plaintiff was prevented from reaching his destination (home) on the said the 31st day of December, A. D. 1891, and lost the consortium of his wife and family, as he otherwise would have done, and was hurt bruised and wounded by the violent treatment of the defendant, by its agents aforesaid, and was sick, sore and disabled for some days as the resvlt of said bruises and wounds, and plaintiff was injured in his dignity by the acts of defendant aforesaid, and lost the value of his trip ticket, and other injuries, to his damage $5,000, and, therefore, lie brings his suit. § 395. The same by a servant against a master. — The , "the defendant in this suit, and a body corporate, was summoned to answer unto , the plaintiff therein, upon an action sounding in tort, and thereupon the said plaintiff, by , Ms attorney, complains for that, whereas, the said defendant, to- wit, on the 7th day of November, 1893, at or near the village -of Lodi, in the county of Bergen, was operating, managing and .'i23 Forms. controlling a certain factory and shop for the culture and preparation of silk for the market, and that then and there the said defendant had this plaintiff in its employ and service for hire and reward; and while then and there so employed, he was then and there set to work, and was then and there at work by the order and direction of this defendant upon a perch or elevated platform of small dimensions, which said perch or platform was supported from beneath by a platform or car on wheels or rollers, so arranged and constructed as to be moved from one place to another about the said factory for the uses and purposes of the defendant, and that it was in the line and course of this plaintiff's employment and duties in said em- ployment to so stand as aforesaid on the top of said perch or platform and reach out from said perch or platform and move the structure on which he stood, as aforesaid, from place to place about the said factory, and that the said structure was arranged and intended to be moved by reaching out as aforesaid, from the high perch or platform by securing hold of various ropes and the beams and ceilings and thus pushing or piilling this structure about as aforesaid, and that it was in the line and course of the plaintiff's employment and duties in said employ- ment, to hang, place, arrange, sort, shift, and otherwise dispose of skeins, links and bands of silk in various stages of manu- facture or process, and that said silken stuffs, bands and skeins were suspended from the ceiling of the said factory of the defendant in which this plaintiff was employed as aforesaid. And plaintiff avers that in the said course of his employment, and in the line of his duties, this plaintiff was obliged to lean out and over the edge of the perch or top platform on which he stood, and in order to protect him from falling, as the de- fendant was in duty bound to do, a guard or railing several feet higher than the said top platform or perch, extended about it, and in order to perform his duties and reach the bands and skeins of silk and to move the platform car, this plaintiff was obliged to lean and rest a large part of his weight against said railing and guard in order that he might properly and reason- ably perform his duties in said employment. That it was the duty of the defendant to provide this plaintiff with proper tools and appliances, with a safe place in and on which to do his work, and in divers other ways to guard and protect this plaintiff in the proper performance of his duties from any danger, mis- Forms. 523 hap, disaster or accident that might arise from said defendant's negligence or imprudence. And that said plaintiff further avers that the said car and platform on which he was then and there at work in his proper and lawful capacity, and for hire and reward then and there paid to him, was then and there, by reason of the oversight and negligence of the defendant, ex- tremely dangerous and subjected this plaintiff as said employe and servant then and there to great hazards, risk and dangers of life and bodily injury, by reason whereof, the said defendant, well knowing the premises, ought then and there carefully to have constructed, inspected and operated the said car and the machinery and appliances incident and necessary to its proper running and the proper application and adaptation of its ma- chinery and appliances. And the plaintiff avers that the said defendant did then and there disregard its duties in this behalf, in that the said car was then and there, with its machinery and appliances so carelessly, negligently, insecurely and improperly and defectively constructed and inspected, erected, run, ope- rated and managed for the purposes and uses aforesaid, and the said defects in and about the construction, inspection and use of the said car and platform and appliances and machinery were then and there so latent and hidden that the said plain- tiff, while so employed then and there and while then and there exercising due care and precaution, did not know and could not see the said defects and hidden dangers in and about the construction of the said car, platform, machinery and ap- pliances, and in and about the use, wear and tear of the said car, platform, machinery and appliances so as aforesaid; and that the said defects and dangers were then and there known to the defendant, and by law the said defendant was bound to know the said dangers and defects so then and there as afore- said. And plaintiff avers that, at the place and on or about the time aforesaid, the defend.'int carelessly, negligently and imprudently acted and otherwise misbehaved itself in failing to provide this plaintiff with the proper tools, appliances and safeguards for his work, and that by reason of such negligence, carelessness and misbehavior of defendant, and by reason of defects in said railing and guards, and in various other defects of this defendant's appliances, tools and machinery, which said defendant knew and was bound to know, the guard or railing aforesaid gave away and precipitated this plaintiff a distance .524 FoHMS. of many feet to the floor below, and grievously hurt, maimed and injured his limbs and body, and he thereby sustained griev- ous internal injuries; and that at said time and place this plain- tiff was properly, cautiously and diligently performing his duties in his said employment and in no manner contributed to his said fall and injuries; but that said fall and injuries were solely •due to this defendant's negligence and carelessness. And plain- tiff avers that by said fall and injuries he sustained great pain and anguish, still shffers and will, as he is advised by his physi- cian, continue to suffer for a long time; and that he was, and stUl is, and will be, prevented from the performance of his duty and from the earning of a livelihood for himself and family, and was, is, and will be deprived of the enjoyment of his health and strength ; and that he was forced to pay, lay out, and expend and necessarily did pay, lay out and expend, divers large sums of money for nursing, medicines and for other matters inci- dental to and arising from his said injuries; and that by reason of his sufferings and injuries and loss aforesaid, he has sus- tained and suffered loss and damage, to-wit, the sum of ten thousand dollars ($10,000), and plaintiff, therefore, demands that he have of and from the defendant the sum of money above mentioned, and, therefore, he brings his suit, etc. § 396. The same by a passenger of an electric street car. — The , the defendant in this suit, was summoned to an- swer unto , the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by , his attorney, com- plains for that, whereas, the said defendant, before and at the time of the committing of the grievances hereinafter mentioned, was and stiU is a corporation duly incorporated under the laws of the State of I^ew Jersey, and was then running and operating a street railroad of electric motor cars in the county of Hudson aforesaid, from the courthouse and the southern or courthouse terminus of the North Hudson County Railway Company, in Jersey City, to and beyond Fifty-fourth street in the city of Bayonne, in and along divers public streets and avenues in each of said cities, including Ocean avenue and Fifty-third street in Jersey City, and by way of the junction of Communipaw avenue aud Grand street in Jersey City, on and by a transfer of passen- gers at said junction, from one of said motor cars going about east on said Communipaw avenue to another of said cars running Forms. 525 about south on said Grand street, and for one single fare from said courtliouse or terminus to said Fifty-fourth street, the transfer being good on such single fare to ride on such car so going on Grand street only for a limited time after being trans- ferred from such car so going from said terminus and on Com- munipaw avenue, the said defendant then and there so running and operating said railroad and said cars for hire, and then and there commonly carrying passengers thereon for hire. And, whereas, said plaintifF, on the 4th day of January, 1895, at the special invitation and request of the said defendant, and for the mutual accommodation and profit of said plaintiff and defendant, became and was a passenger upon one of the said cars so run and operated by said defendant at or near said court- house, for the purpose of riding on said railroad and of being carried safely and securely on said cars, by such transfer, from said terminus to said Fifty-fourth street for the said certain fare or reward by the plaintiff to said defendant in that behalf then and there duly paid; and said plaintiff having arrived at said junction, alighted from the said car on which he was a passenger as aforesaid, and waited at said junction to take, on his transfer as aforesaid, such other car so going along said Grand street; that the weather was bitter cold then and there, and that said defendant did not then and there provide for its passengers so transferred, while then and there waiting for the car to which they were so transferred, any shelter from the weather or elements; that the first car so running on Grand street, which came along after plaintiff had so alighted, was so crowded, both inside and on the platform, that it was impossible for plaintiff to board the same; that plaintiff was poorly clad, and that the said limited time during which said transfer was good for such single fare was about expiring when the next car so running on said Grand street came along, which also was so- crowded that it was impossible for plaintiff to get inside of said car, and very difficult for him to even get standing room on the platform thereof, when and where said plaintiff was invited and received by said defendant as a passenger on said last car to stand on the platform thereof, together with many others so invited and received as passengers to so stand then and there, and said defendant then and there took and collected from plain- tiff his said transfer ticket or coupon for such ride on said plat- form; and said plaintiff being then and there engaged in smok- 526 FOKMS. ing tobacco was invited and received by said defendant as a passenger on said last car to stand and ride on the platform thereof, with many others so invited and received as passengers to so stand and ride then and there, as said defendant was ac- customed for a long time theretofore to invite and receive per- sons so smoking tobacco as passengers to stand and ride on the platforms of said cars; and said defendant then and there t«ok and collected from plaintiff his said transfer ticket or coupon for such ride on said platform. Whereupon it became and was the duty of said defendant to use due and proper care that said plaintiff should be safely and securely carried on said car to his place of destination aforesaid; yet, the said defendant, not regarding its duty in that behalf, did not use due and proper care that the said plaintiff should be so safely ,and securely carried, but wholly neglected so to do, and so neglected to fur- nish and assign a safe and suitable place for plaintiff to ride on said car, and by its servants and agents who then and there had the care and management of said car, while said car was pro- ceeding slowly around a curve in the track of said railroad in turning or after turning from Ocean avenue into Fifty-third street aforesaid, and while plaintiff was so riding on the rear platform of said car in a careful manner and without any warn- ing to said plaintiff, although it was usual to give warning to passengers riding on the platform of the danger in going around a curve in said railroad, the said defendant so suddenly quick- ened the speed of said car that it gave a sudden, unusual, un- necessary and violent jerk, and thereby threw him off said car and upon the ground, and thereby knocked him senseless and greatly broke, bruised, maimed and lacerated his face and other parts of his head and hands, hips, knees, shoulders, back and other parts of his body, to-wit, at Jersey City, in the county of Hudson aforesaid. By means whereof the said plaintiff has almost entirely lost his hearing, and became and was sick, sore, lame, crippled and disordered, and suffered great pain and anguish of body and mind, and became and was from thence hitherto, and now is, and ever more during his natural life will be, greatly injured in his head, hearing, back, shoulders, knees and other parts of his body and limbs, and thereby hindered and prevented from pursuing his ordinary affairs and business, from which he had hitherto been accustomed to earn large sums of money, and Forms. 527 would but for said injuries now and continually hereafter earn and receive large sums of money, to-wit, $20 per week; and lias also expended, and will in future have to expend, large sums of money in and about endeavoring to be cured of his said injuries, to-wit, $500; wherefore, said plaintiff saith he hath been injured and suffered damages to the sum of $10,000. And, therefore, he brings his suit, etc. § 397. The same for a collision at a steam railroad crossing. — The , the defendant in this action, was summoned to answer , the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by , his attorneys, complains for that, whereas, the said defendant heretofore, to-wit, on the 11th day of January, in the year 1893, at the township of Bridgewater, in said county of , was in the possession, management and control of a certain railroad, which was then and there maintained by said defendant, in such manner and location as that the same then and there crossed a certain public highway called Vosseller avenue, then and there being upon the same level with said highway and so that persons approaching said railroad on said highway in vehicles drawn by horses were prevented by a certain natural bank of earth of great height, to-wit, of the height of fifteen feet, and by certain trees and fences then and there being near to the said railroad and to the said highway, from seeing any locomotive which might be ap- proaching said crossing on said railroad from a certain direction soon enough to avoid being struck thereby, upon and over which said railroad certain locomotives were then and there accustomed to be propelled and driven by steam power with great rapidity, by and with the permission and consent of the said defendant, across the said highway from the said direction in which the view from said highway of such approaching locomotives was then and there obstructed as aforesaid. Yet the said defendant so negligently and insufficiently managed and governed said railroad and guarded the said highway crossing, and suffered and permitted said locomotives to be driven and propelled over said railroad and across said highway from the direction afore- said without proper signals and warnings; that by reason of such negligent management, government and guarding as afore- said, the said plaintiff, while lawfully passing along the said highway in a certain sleigh drawn by a certain horse on the 528 FoKMS. day and year aforesaid, at Bridgewater township aforesaid, and tlien and there lawfully attempting to cross said railroad at said crossing and without any negligence on his part, being- then and there unable to see, by reason of the obstructions of view aforesaid, a certain locomotive, which was then and there approaching said crossing on said railroad from the direction aforesaid with great speed and velocity, and , not knowing of the approach of the same for want of warning or notification thereof, the said horse and sleigh of the said plaintiff were then and there struck by said locomotive so then and there approach- ing on said railroad from the direction aforesaid, and thereby not only the said horse of the said plaintiff of great value, to- wit, of the value of $300, was killed, and the said sleigh of the said plaintiff of great value, to-wit, of the value of $100, and the harness of the said plaintiff of great value, to-wit, of the value of $60, were broken and wholly destroyed, but also the said plaintiff was thrown and precipitated with great force and violence from the said sleigh to and upon the earth and stones, railroad ties and rails then and there being, and was by means thereof greatly cut, bruised and wounded in and about his head, limbs and body; and thereby the said plaintiff suffered and underwent, and still does suffer and undergo, great pain and agony, and was for a long space of time, to-wit, from thence hitherto and in the future will be hindered and pre- vented from attending to his lawful business and affairs as he otherwise might and would have done, and also the said plaintiff was in consequence thereof compelled to lay out and expend divers large sums of money, to-vsdt, $500, in and about the effort to be healed and cured of his said injuries, to-wit, at the township of Bridgewater aforesaid. Wherefore, the plaintiff saith that he is injured and hath sustained damage to the amount of $25,000, and, therefore, he brings suit, etc. § 398. The same by husband and wife, for injuries to the wife, while a passenger. — The , a corporation duly organized under and by virtue of the laws of the State of ISTew Jersery, was summoned to answer and , her husband, the plaintiffs therein, in an action of tort, and thereupon the said plaintiffs, by , their attorney, complain, for that, whereas, the said defendant, before and at the time of the making of FoHMS. 529 their promise and undertaking, as hereinafter next mentioned, was the owner and was in possession of a certain locomotive engine, with cars thereto attached, and which were managed by the defendant and its agent, running and passing from a certain place, to-wit, from Eoboken, in the county of Hudson, to a certain other place, to-wit, at Eoseville station, in the city erf N"ewark, in the county of Essex and State of New Jersey, for the carriage and conveyance thereby of passengers for a certain reasonable hire and reward to the said defendant in that behalf, to-wit, at Hoboken, in the county of Hudson, to-wit, at IsTewark, in the county of Essex aforesaid, and thereupon, here- tofore, to-wit, on the 29th day of November, in the year 1894, at Hoboken, in the county of Hudson aforesaid, in consideration that the said Sarah A. Perret, one of the plaintiffs herein, at the special instance and request of the said defendant, would take and engage a place and seat in its said passenger car to be at- tached to the said locomotive engine as aforesaid, to be carried and conveyed in and by said car from Hoboken aforesaid to Koseville station at Newark aforesaid, at and for a certain reasonable hire and reward, to-wit, the sum of fifteen cents, to be, therefore, paid by the said Sarah A. Perret to the said defendant in that behalf; it, the said defendant, then and there undertook and faithfully promised the said Sarah A. Perret to safely carry and convey her in and by the said car from Hobo- ken aforesaid to Roseville station at Newark aforesaid, and that due and proper care should be observed and taken in and about the carrying and conveying as aforesaid, and that said defendant provide a safe and secure place or platform in which the said Sarah A. Perret could safely and securely alight from said car at the end of her said journey, to-wit, at Eoseville station in the city of Newark aforesaid, when said car had first stopped for that purpose. And the said Sarah A. Perret in fact saith that she, confiding in the promise and undertaking of the said defendant, did after- wards, to-wit, on the day and year aforesaid, at Hoboken afore- SHrd, take and engage a place and seat in the said car to b© ©arried and conveyed in and by the said car from Hoboken aforesaid, to Roseville station in the city of Newark aforesaid, and did then and there pay to the said defendant the sum of fifteen cents, the same being a reasonable hire or reward to the said defendant for the carriage and conveyance of the said Sarah 34 530 Forms. A. Perret as aforesaid, and although, she, the said Sarah A. Fer- ret, confiding in the said promise and undertaking, afterwards, to- wit, on the day and year aforesaid, to-wit, at Hoboken afore- said, to-wit, at Newark aforesaid, become and was such passen- ger in and by the said car from Hoboken aforesaid, to Koseville station in the city of Newark aforesaid; yet the said defendant, not regarding its said promise and undertaking, so by it made in manner and as aforesaid, but contriving and fraudulently intending, craftily and subtly to deceive, defraud and injure the said Sarah A. Perret in this behalf, did not, nor would, use due and proper care, skill and diligence in and about carrying^ and conveying the said Sarah A. Perret in and by the said car from Hoboken aforesaid to Eoseville station at Newark afore- said, and did not use due and proper care in providing a safe and secure place or platform on which the said Sarah A. Perret could safely and securely alight from said car at Eoseville sta- tion in the city of Newark aforesaid, when said car had first stopped for that purpose, but then and there wholly neglected and failed so to do; and on the contrary thereof the said defend- ant by its servants so carelessly, improperly, negligently and unskillfully ran and managed the said locomotive engine and cars that afterwards, and when said ear had stopped at Eoseville station at Newark aforesaid, to-wit, on the day and year afore- said, that by and through the mere carelessness, negligence and misconduct of the said defendant, and in providing a safe and secure place and platform on which the said Sarah A. Perret could safely and securely alight from said car at the end of her said journey, and when she was about to alight from the plat- form of the said car, she, without any fault or negligence on her part, fell from said car to and upon the ground, whereby she, the said Sarah A. Perret, was severely and permanently injured, bruised and wounded, causing a rupture in her left side, and her back and left thigh were permanently injured and she disabled for life, whereby she became sick, sore, lame and disordered, and so remained and continued for a long space of time, to-wit, hitherto, and now is and in the future will be sick, sore, lame and disordered, during all which time she the said Sarah A. Perret, suffered and underwent great pain, and in the future vsdll suffer and undergo great pain, and was and still is and in the future will be hindered and prevented from^ transacting and performing her necessary affairs and business FoEMS. 531 by her during all tliat time to be performed and transacted, to- wit, at Hoboken in the county of Hudson, to-wit, at Newark in the county of Essex aforesaid, to her damage $10,000. Axid also by means of the premises the said Andrew Ferret, plaintiff, husband of the said Sarah A. Ferret, during all that time, hitherto lost and was deprived of the company, aid and assistance of the said Sarah A. Ferret, his wife, which he might and would otherwise have had, and the said Sarah A. Ferret, as by reason of her said injuries, became permanently disabled from rendering and affording to the said Andrew Ferret, in the future, that aid, comfort and assistance in and about his household and domestic affairs, that she otherwise could and would have done. And thereby also the said Andrew Ferret lost the services and assistance of the said Sarah A. Ferret, his wife, for a long space of time, to-wit, from the day and year aforesaid, up to and until the present time; and thereby also the said Andrew Ferret was obliged to and did devote and con- sume a large amount of time in attendance upon his said wife, and also by reason of the premises the said Andrew Ferret was obliged and forced to lay out and expend the sum of $500, in and about endeavoring to cure his said wife of her said bruises and injuries aforesaid, to-wit, at Hoboken in the county afore- said, to-wit, at Newark in the county of Essex aforesaid, to the damage of the said plaintiff of $5,000. And, therefore, they, the said Sarah A. Ferret and Andrew Perret, her husband, bring their suit, etc. § 399. The same by a passenger against a steam railroad. — The , a corporation created and existing under and by virtue of the laws of the State of ISTew York, the defendant in this cause, was summoned to answer unto , the plaintiff herein, in an action of tort; and thereupon the said plaintiff, by said , his attorney, complains, for that, whereas, the said defendant, before and at the time of committing the griev- ance hereinafter next mentioned, was a railroad company en- gaged in the business of carrying and transporting freight and passengers as common carriers from Jersey City in the county of Hudson, to and through Kearny in said county, and from and between divers other places; and being so engaged in the said business, to-wit, on the 16th day of November, in the year 1895, in the evening, after dark, of that day, at Jersey City 532 Poems. aforesaid, received into a certain passenger coach attached to a train of cars of said defendant, moved and operated by it, the said plaintiff as a passenger therein, to be carried and transported therein by said defendant from Jersey City afore- said to a station called West Arlington in the said township of Kearny, for certain fare and reward, to-wit, the sum of five ($5) dollars theretofore paid by the plaintiff for commuting or being daily carried or transported on the trains of sail railway com- pany back and forth between the said station called West Ar- lington and Jersey City aforesaid, from the 1st day of Novem- ber, A. D. 1895, to the 30th day of November, 1895; and by reason thereof, it then and there became and was the duty of the defendant to have conveyed, or caused to be conveyed, the said plaintiff in the said passenger coach from Jersey City afore- said to said West Arlington station, and to have provided proper and sufficient steps, platform, lights and means and facilities whereon and whereby the plaintiff might have safely alighted at the said station of West Arlington, yet the said defendant, not regarding its duty in that behalf, so carelessly, negligently and unskillfuUy conducted itself in that behalf that by and through the carelessness, negligence and default of said de- fendant and its servants and for want of due care and attention to their duty in that behalf, no proper station platform, no sufficient steps and no proper and sufficient lights were provided at said station of West Arlington when the said train carrying the said plaintiff arrived there, by means whereof the said plain- tiff, while, with due care and without negligence on his part, attempting to alight or descend from the said passenger coach at the said station, to-wit, on the day and year last aforesaid, fell a great distance to the ground and was thereby stunned and rendered unconscious, and while the plaintiff was so lying on the ground the said train started and the wheels thereof passed over his right foot and he was thereby greatly cut, bruised and wounded, and divers members of his body were then and there grievously injured, insomuch that his right leg was necessarily amputated, and he then and there became and was very sick, weak and disabled for a long period, to-wit, from thence to the commencement of this suit, and was permanently injured in his body, limbs and health, and was then and there forced to pay out and expend and did necessarily pay out and expend a large sum of money, to-wit, the siim of $4,000, in. FoBMS. 533 and about attempting to be cured of the cuts, bruises, woimds and injuries aforesaid, occasioned as aforesaid, and suffered and underwent great pain, and was hindered and prevented and still is hindered and prevented from performing and transacting his necessary affairs and business, and from earning his living, losing thereby a large sum of money, to-wit, the sum of $40,000. And for that, whereas, the said defendant, before and at the time of committing the grievance hereinafter next mentioned, was a railroad company engaged in the business of carrying and transporting freight and passengers as common carriers from Jersey City in the county of Hudson, to and through Kearny in said county, and from and between divers other places; and being so engaged in the said business, to-wit, on the 16th day of November, in the year 1895, at Jersey City aforesaid, received into a certain passenger coach attached to a train of cars of said defendant moved and operated by it, the said plaintiff, as a passenger therein to be carried and transported therein by said defendant from Jersey City afore- said to a station called West Arlington in the said township of Kearny, for certain fare and reward, to-wit, the sum of five ($5) dollars theretofore paid by the plaintiff for commuting or being daily carried or transported on the trains of said rail- way company back and forth between the said station called "West Arlington and Jersey City aforesaid, from the 1st day of November, A. D. 1895, to the 30th day of November, 1895; and by reason thereof, it then and there became and was the duty of the defendant to have conveyed, or caused to be con- veyed, the said plaintiff in the said passenger coach from Jersey City aforesaid to said West Arlington station, and to have pro- vided all necessary opportunity, means and facilities to enable him safely to alight at said station of West Arlington; yet the said defendant, not regarding its duty in that behalf, conducted itself so carelessly, negligently and unskillfuUy in that behalf, that, by and through the carelessness, negligence and default of said defendant and its servants, and for want of due and proper care and attention to their duty in that behalf, the said plaintiff, while with due care and without negligence on his part attempting to alight from the said passenger coach at the station of West Arlington aforesaid, was violently thrown to the ground between the cars of the said train by the sudden start- ing thereof, without warning, and the wheels of said train passed 534 FOEMS. over his right foot, and he thereby was greatly cut, bruised and wounded, and divers members of his body were then and there grievously injured, insomuch that his right leg was necessarily amputated, and he then and there became and was very sick, weak and disabled for a long period, to-wit, from thence to the commencement of this suit, and was permanently injured in his body, limbs and health, and was then and there forced to pay out and expend and did necessarily lay out and expend a large sum of money, to-wit, the sum of $4,000, in and about attempt- ing to be cured of the cuts, bruises, wounds and injuries aforesaid, occasioned, as aforesaid, and buffered and underwent great pain, and was hindered and prevented and still is hindered and pre- vented from performing and transacting his necessary affairs and business and from earning his living, losing thereby a large sum of money, to-wit, the sum of $40,000. Wherefore, the said plaintiff says that he is injured and haa sustained damages in the sum of $40,000, and, therefore, he brings this suit. § 400. The same by a passenger against a steamboat company. — The Company, the defendant, was summoned to an- swer unto , the plaintiff, in an action of tort; and thereupon the said plaintiff, by , his attorney, complains for that heretofore, to-wit, on the 19th day of January, 1893, the defendant, as a common carrier of passengers, undertook, for hire, there and then paid defendant by plaintiff, to transport plaintiff by one of its steamboats, from the city of Camden, in the State of New Jersey, to the city of Philadelphia, in the State of Pennsylvania; that the defendant negligently and carelessly and without any fault on the part of the plaintiff, ran its said steamboat against one of its docks or slips with great force, and thereby threw the plaintiff with great violence upon and against a post, being then a part of said steamboat, and thereby seriously and permanently injured the plaintiff, and ruptured him, and caused him great pain of body and mind, and caused him to ex- pend and lay out large sums o£ money in his endeavors to have himself cured of said wounds and injuries, all to his damage $10,000; wherefore, he brings his suit, etc. § 401. The same by husband and wife, for injuries to the wife, while a passenger on an electric car. — The , a corporar FoEMS. 533 "tion, tlie defendant in this suit, was sumnaoned to answer unto and , tlie plaintiffs herein in an action of tort, and thereupon the said plaintiffs, by , their attorney, com- plain : For that, whereas, the said defendant, before and at the time of the committing of the grievances hereinafter mentioned was and still is a corporation, duly incorporated and existing under the laws of the State of New Jersey, and at the said time was operating an electric street railway in the county of Bergen aforesaid, between Englewood and the borough of Undercliff in the said county, and at the said time was running and operating street cars by means of electricity under the control and man- agement of motormen and conductors on and along its tracks, for the purpose of carrying in said cars passengers for hire, for the mutual gain and advantage to itself, the said defendant, and the public wishing to travel on said railway and be carried thereon for hire; at the said time did carry the public or por- tions of the public as passengers for hire and for mutual gaiu and advantage, as aforesaid. ' And, whereas, the said plaintiff, A. B., now the vsdfe of C. I>., on the 11th day of May, 1897, at the special instance and re- quest of the said defendant and for the mutual accommodation and profit of said plaintiff and defendant, became and was at Undercliff aforesaid, a passenger upon one of the said cars and thereby paid her fare as such passenger to the conductor of said car for the purpose of being safely carried thereon to her desti- nation on said railway, to-wit, to the city of Englewood, county of Bergen, aforesaid, whereupon the said defendant, for hire, as aforesaid, then and there undertook to carry the said plain- tiff, A. B., carefully and safely to her point of destination aforesaid. Yet the said defendant, not regarding its undertaking in this behalf to safely carry the said plaintiff, A. B., to her destina- tion on said railway, negligently, carelessly and unlawfully, through its servants and agents, managed said motor car so that the said car was thrown from' the tracks and the said plaintiff, A. B was violently thrown among the machinery of said car and thereby was greatly bruised, burned, maimed and lacerated in her head, body and limbs, internally and externally, and this without any fault or negligence on her part, to-wit, at Leonia, in the county of Bergen, aforesaid. 536 FoEMS. By meajas of which wrongs and injuries the said plaintiff, A. B., became and was sick, sore, lame, paralyzed land otherwise diseased and disordered, and' therefrom suffered great pain and anguish of body and mind, and thereby became and was, and has been from thence hitherto, and there- from during all her natural life will be greatly injured in her head, body and limbs, nervous and muscular system, and thereby ever since then has been prevented from pursuing her lawful affairs and business, from which she has been heretofore ac- customed to earn and receive, ever since sustaining the same, large sums of money; and has also been thereby caused to lay out and expend, and has laid out and expended, and shall, in the future, for the balance of her natural life, lay out and expend large sums of money, in and about endeavoring to alleviate her sufferings. Wherefore, the said plaintiff, A. B., says that she has been injured and suffered damage, by reason of the negligence of said defendant, in the sum of $20,000. And, therefore, they bring their suit, etc. § 402. The same against a street railway company. — The , .the defendant in this suit, was summoned to answer unto , the plaintiff therein, in an action of tort, and there- upon the said plaintiff, by , her attorney, complains: For that, whereas, the said defendant, at all times herein- after mentioned, has been and still is a corporation duly in- corporated and existing under the laws of the State of 'New Jersey, and was before and at the time of the committing of the grievances hereinafter mentioned in said county, the proprietor, possessor and operator of a certain street railroad, running along and through divers streets and avenues in Jersey City, in said county, including Communipaw avenue and Grand street, in said city, which said avenue and street were at said time two public highways, open and dedicated to public use and travel, and was then and there the proprietor, possessor and operator of a certain motor car, which by a certain motorman and a certain conductor, as its servants and agents, by means of electricity, it then and there propelled, operated and ran along the tracks of its said railway and along and through Communipaw avenue and Grand street, aforesaid, to-wit, on the 28th day of June, 1895, at and near the intersection of said Communipaw avenue and Grand street in said city. Forms. 537 And, whereas, said plaintiff was, on tlie said day, and date last aforesaid, lawfully in and upon said Ccmmunipaw avenue at the place where the same intersects said Grand street and was then and there crossing over said avenue at the street crossing provided for pedestrians, in a careful and prudent man- ner, whereby it became and was the duty of the said de- fendant then and there towards the said plaintiff to use proper care and diligence in the operation of its said railway, track and motor ear, and to run the said motor car at a reasonably safe rate of speed and to keep a proper and reasonably careful lookout for pedestrians crossing in front of said car, and to have the said motor car under the control of its said motorman, so as not to negligently or willfully injure her, the said plaintiff, then and there, and to give proper warning of the approach of its said car by a gong, which was its usual method of warning, or by other reasonable warning. Yet, the said defendant, disregarding its duty in this be- half, and wrongfully and unjustly intending to injure, prej- udice and aggrieve the said plaintiff on the said date, in Jersey City, in the county aforesaid, and by its servants and agents, by means of electricity, unskiKuUy, negligently and un- lawfully propelled said motor car along said tracks on Communi- paw avenue at said point; and then and there unlawfully and negligently failed to keep a proper and reasonably careful lookout or to exercise due care to keep such lookout for said plaintiff, while she was crossing said street, so as to avoid danger and not injure her, the said plaintiff, while crossing said street, as aforesaid; and then and there unlawfully and negligently failed to keep the said motor car under reasonably safe control of its said motorman; and then and there unlawfully and negli- gently propelled said^otor car at an unusually high and danger- ous rate of speed, and without giving any warning of its ap- proach by sounding its gong, which was its usual signal of ap- proach, without giving any warning by any other signal of its approach, so that the said motor car was then and there, through the negligence of said defendant and its servants, as aforesaid, run into and propelled with great force and violence against the said plaintiff, and then and there violently flung her to the ground and thereby greatly bruised, dislocated, lacer- ated and fractured her head, limbs and body internally and ex- ternally, and this without any fault or negligence on her part 538 FoBMS. By means of which wrongs and injuries said plaintiff became and was sick, sore, lame, paralyzed, maimed and otherwise dis- eased and disordered and therefrom suffered great pain and anguish of body and mind, and thereby became and was and has been from thence hitherto and now is and evermore during her natural life will be permanently injured in her head, body, mind and otherwise, and thereby ever since then has been hindered and prevented from pursuing her lawful avocations, from which she has theretofore been accustomed to earn and receive, and but for said injuries would have earned and received a large sum of money, to- wit, $15 for each and every week since then, and but for said injuries during the balance of her life would earn and receive large sums of money, to-wit, $15 per week, but which, on account of said injuries, she will not be able to earn or receive; wherefore, said plaintiff says that she has been injured and suffered damage by reason of the negligence of said defend- ant in the sum of $25,000, and, therefore, she brings her smt. § 403. The same by a servant against a master. — The defend- ant in this suit was summoned to answer unto , the plaintiff therein, in an action of tort, and there upon the said plaintiff, by , his attorneys, complains for that, whereas, to-wit, on the 9th day of October, in the year of our Lord, 1894, in the city of Trenton, in the county aforesaid, the said plaintiff was employed as a servant of the said defendant, in his factory, and it was then and there the duty of the said plaintiff, amongst other things of his said employment and en- gagement, to work as a common laborer, and not to do or perform any work requiring the skill or special knowledge of a mechanic or machinist; and the said plaintiff says and avers that the said defendant, on the 2d day of December, in the year last aforesaid, and by and through its agents, ordered and directed the said plaintiff, contrary to the engagement and scope of employment of the said plaintiff, to work upon a certain boiler, and then and there to perform work requiring the knowledge and skill of a machinist and mechanic, which the said plaintiff did not pos- sess and of which the said defendant had notice, and the said defendant then and there furnished the said plaintiff with a cer^ tain chisel and pair of tongs which were out of repair, unsuitable unsafe and insufficient for the said plaintiff to do and perform the said work so directed and commanded upon him by the sdd Forms. 539 defendant, and which said tools, so unsafe, unsuitable and in- sufficient, made the work enjoined upon the said plaintiff peril- ous, dangerous and hazardous, whereof the said plaintiff was -unaware, unadvised and uninstructed by the said defendant, and which said work the plaintiff could not perform without incurring dangers, risks and perils beyond the scope and duties of his said employment; and the said plaintiff being then and there assured by the said defendant that the said tools were suffi- cient and safe for the said work, and that there were no dangers or hazards incident to the performing of the work enjoined upon said plaintiff on the said boiler on the said 2d day of December, in the year last aforesaid, so that by reason of the premises, while the said plaintiff was performing the service on the day last aforesaid on the said boiler, the said chisel, by reason of the unsafety, unsuitableness and insufficiency of the said tongs the chisel was likely and liable to slip on the said boiler and cause chips, fragments and pieces of the said boiler to fly and strike and hit the said plaintiff in his face and eyes, all of which mat- ters and things were then and there known to the said defendant and could have been known by the said defendant, by the ex- ercise of proper care, diligence, skill and inspection of the said tools and implements, so that by reason of the premises and on account of the negligence, carelessness, improvidence and mis- conduct of the said defendant, and by reason of the tongs, chisel and implements so furnished to him to perform the said work being in an unsafe condition and unsuitable and out of repair, and by reason of the failure to instruct the said plaintiff and to advise him of the dangers thereof, the said plaintiff, to-wit, on the 2d day of December, in the year A. D., 1894, while work- ing on the said boiler, was hit in the eye by chips, fragments and pieces of the said boiler, caused by the slipping of the said chisel, and by reason thereof the eye of the said plaintiff was put out, and he was thereby wounded, hurt, bruised and lacer- ated, and lost the sight of his said eye, and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to-wit, for the space of two months next following, during all of which time the said plaintiff thereby suffered and underwent great pain, and was permanently injured, and will suffer and undergo great pain in the future, and the said plaintiff thereby lost one of his eyes, and the said plaintiff was thereby hindered and preA'ented from performing and transacting his 540 FoBMS. necessary affairs and business, by Mm during that time to be performed and transacted, and was thereby forced and obliged to pay, lay out and expend large sums of money, to-wit, the sum or $500, in and about endeavoring to cure himSelf of his said wounds, and endeavoring to restore the sight of his said eye, occasioned, as aforesaid, to-wit, at Trenton, aforesaid, on the 2d day of December, A. D., 1894, and other wrongs to the said plaintiff then and there done to the damage of the said plaintiff of $10,000, and, therefore, he brings suit, etc. § 404. The same against an electric street railway company. — The , the defendant in this suit, was summoned to an- swer unto , administrator of all and singular the goods and chattels, rights and credits which were of , deceased, in an action of tort; and thereupon the said plaintiff, by , his attorney, complains for that, whereas, the said de- fendant, before and at the time of the committing of the griev- ances hereinafter mentioned, was the owner and possessor of a certain electric railway, extending from the city of Camden, in the county of Camden, to the city of Woodbury, in the county of Gloucester, in this State, occupied and operated by the de- fendant for the conveyance and reconveyance of passengers be- tween said terminal and intermediate points. And, whereas, before and at the time of committing the said grievances, to-wit, on the 29th day of October, 1893, there wss and still is a common and public highway, road or street, in the city of Camden, in the county of Camden, aforesaid, called Broadway, for all citizens of this State to travel, pass and repass, safely on foot and in carriages and other vehicles at their will at all times. And, whereas, said , in his lifetime, to-wit, on the day and year last aforesaid, was driving carefully and cautiously on and along said public highway, road or street, called Broad- way, in the city of Camden and county aforesaid; nevertheless, the said defendant then and there so carelessly, negligently and improperly drove, governed and directed its certain electric motor and cars that by and through the carelessness, recklessness and negligent conduct of the said defendant by its said servants- in that behalf, the said was then and there struck by said cars and said electric motor of defendant with great force; and the said was then and there crushed beneath the said FoEMS. 541 electric motor and cars, and was then and there cast down with great violence to and upon the ground, and by reason thereof lost his life. And plaintiff further avers, that afterwards, to-wit, on the 20th day of December, A. D., 1893, at the county of Gloucester, aforesaid, administration of all and singular the goods and chat- tels, rights and credits which were of the said A. B., deceased, at the time of his death, who died intestate was granted in due form of law by , surrogate of said county of Gloiicester, to said C. D., the said plaintiff, and which said letters he brings here into court; and the said A. B. left him surviving E. F., his widow, H. I., K. L., his daughters, and M. JST. and O. P., his sons; and the said plaintiff brings this suit for the benefit of the next of kin of the said A. B., under and according to the provisions of an act entitled " An act to provide for the recovery of damages in cases where the death of a person is caused by a wrongful act, neglect or default," and the several supplements thereto. And the plaintiff avers that he is danaaged by the said wrong- ful acts, omissions and negligence of said defendant in the sum of $25,000, and, therefore, he brings his suit, etc. § 405. The same for causing a collision. — The , a cor- poration, the defendant in this suit, was summoned to answer , the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by , his attorney, complains : For that, whereas, the said defendant, on the 23d day of February, 1895, was the owner and possessor of a certain passenger car, which was operated, propelled and run along by electric power, in and upon certain railway tracks, in the possession and under the control and management of the said defendant, said tracks being situated upon and extending along Broad street, a public street or highway in the city of Newark, in the county of Essex, afore- said; and it thereby became, and was the duty of the said de- fendant to use due and proper care in the use, management and control of said passenger car, while being operated, propelled and run along said public street or highway, and upon said tracks, as aforesaid, so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway, and to use due and proper care in operating, propel- ling and running said car along said public street or highway. 642 FoBMS. so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway, and to operate, propel and run said car at such a rate of speed, so as to keep the same within safe and proper control; yet the said de- fendant, not regarding its duty in that behalf, did not use due and proper care in the use, management and control of said pas- senger car, while said car was being operated, propelled and run along said public street or highway, upon said tracks, as aforesaid, so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway, and did not use due and proper care in operating, propelling and running said car along said public street or highway, and did not operate, propel and run said car at such a rate of speed, so as to keep the same within safe and proper control, but wholly failed and neglected so to do ; and the said defendant did, on the day and year aforesaid, at the city of Newark, in the county of Essex, aforesaid, by its servants, so carelessly, negligently and improperly operate, propel and run said car in, upon and along said public street or highway, and upon said tracks, as aforesaid, and at such a high rate of speed, so as to lose the safe and proper control of the same, and thereby then and there collided with and ran into a certain wagon, which was then and there being lawfully pulled along said public street or highway, by a horse attached to said wagon, in which the said plaintiff was then and there lawfully sitting and riding along said public street or high- way, with such force and violence as to throw said plaintiff off of said seat, and upon said street or highway, thereby seri- ously, painfully and permanently bruising, wounding and injur- ing the said plaintiff, so that his life was despaired of; and also, by means of the premises, the plaintiff became and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to-wit, hitherto, during all which time the said plaintiff suffered and underwent great pain, and in the fu- ture will suffer and undergo great pain, and was hindered and prevented, and in the future will be hindered and prevented, from transacting and attending to his necessary and lawful affairs by him, during all that time to be performed and transacted, and lost, and was deprived of, and in the future will lose and be deprived of, divers great gains, profits and advantages which he ought and otherwise would have derived and acquired; and thereby also the said plaintiff was forced and obliged to lay oiit FoEMS. 543 and expend divers large sums of money, amounting in the whole to the sum of $3,000, in and about endeavoring to be cured of the said wounds, bruises and injuries, so received, as aforesaid, at Newark, in the county of Essex, aforesaid. Wherefore, the said plaintiff says that he is injured and has sustained damages to the amount of $10,000, and, therefore, he brings his suit, etc. § 406. The same by a minor for injuries (jaused in a collision. — The , a corporation, the defendant in this suit, was sum- moned to answer , the plaintiff therein, in an action of tort, and the plaintiff being an infant under the age of twenty-one years, his father, , has been appointed his next friend to prosecute this action in his behalf, and thereupon said , by , his next friend, complains : For that, whereas, the said de- fendant, on the 23d day of February, 1895, was the owner and possessor of a certain passenger car, which was operated, pro- pelled and run along by electric power, in and upon certain railway tracks, in the possession and under the control and man- agement of the said defendant; said tracks being situated upon and extending along Broad street, a public street or highway in the city of Newark, in the county of Essex, aforesaid; and it thereby became and was the duty of the said defendant to use due and proper care in the use, management and control of said passenger car, while being operated, propelled and run along said public street or highway, and upon said tracks, as aforesaid, so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway, and to use due and proper care in operating, propelling and running said car along said public street or highway, so as to avoid collid- ing with and running into persons lawfully driving along or crossing said public street or highway, and to operate, propel and run said car at such a rate of speed, as to keep the same within safe and proper control; yet, the said defendant, not regarding its duty in that behalf, did not use due and proper care in the use, management and control of said passenger car, while said car was being operated, propelled and run along said public street or highway, upon said tracks, as aforesaid, so as to avoid collid- ing with and running into persons lawfully driving along or crossing said public street or highway and did not use due and proper care in opei'ating, propelling and running said car along 544 Poems. said public street or highway, so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway, and did not operate, propel and run said car at such a rate of speed so as to keep the same within safe and proper control, but wholly failed and neglected so to do ; and the said defendant did, on the day and year aforesaid, at the city of Newark, in the county of Essex aforesaid, by its servants, so carelessly, negligently and improperly operate, propel and run said car in, upon and along said public street or highway, and upon said tracks, as aforesaid, and at such a high rate of speed as to lose the safe and proper control of the same, and thereby then and there collided with and ran into a certain wagon, which was then and there being lawfully pulled along said public street or highway, by a horse attached to said wagon, in which the said plaintiff, , was then and there lawfully riding and driving along said public street or highway, with such force and violence as to throw said plaintiff out of said wagon and upon said street or highway, thereby seriously, pain- fully and permanently bruising, wounding and injuring the said plaintiff, so that his life was despaired of; and also, by means of the premises, the plaintiff became and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to-wit, hitherto, during all which time the said plaintiff suffered and underwent great pain, and in the future will suffer and undergo great pain, and was hindered and prevented, and in the future will be hindered and prevented, from transacting and attending to the necessary and lawful affairs by him during all that time to be performed and transacted, and lost and was de- prived of, and in the future will lose and be deprived of, divers great gains, profits and advantages which he ought and otherwise would have derived and acquired, to-wit, at ITewark, in the county of Essex, aforesaid. Wherefore, the said plaintiff says that he is injured and has sustained damages to the amount of $10,000, and, therefore, he brings his suit, etc. § 407. The same for causing a collision. — The , a oor- poration, the defendant in this suit, was summoned to answer , the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by , his attorney, complains: For that, whereas, the said defendant, on the 23d day of February, 1895, FoHMS. 545 was the owner and possessor of a certain passenger car, whicli was operated, propelled and run along by electric power, in and upon certain railway tracks, in the possession and under the control and management of said defendant, said tracks being situated upon and extending along Broad street, a public street or highway in the city of Newark, in the county of Essex, aforesaid, and it "thereby became and was the duty of the said defendant to use, due and proper care in the use, management and control of said passenger car, while being operated, propelled and run along said public street or highway and upon said tracks, as aforesaid, so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway, and to use due and proper care in operating, propelling and running said car along said public street or highway, so as to avoid col- liding with and running into persons lawfully driving along or crossing said public street or highway, and to operate, propel and run said car at such a rate of speed, so as to keep the same within safe and proper control; yet the said defendant, not re- garding its duty in that behalf, did not use due and proper care in the use, management and control of said passenger car, while said car was being operated, propelled and run along said pub- lic street or highway, upon said tracks, as aforesaid, so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway and did not use due and proper care in operating, propelling and running said car along said public street or highway, so as to avoid colliding with and running into persons lawfully driving along or crossing said public street or highway; and did not operate, propel and Tun said car at such a rate of speed, as to keep the same within safe and proper control, but wholly failed and neglected so to do; and the said defendant did, on the day and year aforesaid, at the city of Newark, in the county of Essex, aforesaid, by its ser- vants, so carelessly, negligently and improperly operate, pro- pel and run said car in, upon and along said public street or high- way, and upon said tracks, as aforesaid, and at such a high rate of speed, as to lose the safe and proper control of the same, and thereby then and there collided with and ran into a certain wagon, which was then and there being lawfully pulled along said public street or highway, by a horse attached to said wagon, in which the said plaintiff was then and there lawfully sitting and driving along said public street or highway, with such force 35 546 FoEMS. and violence as to throw said plaintiff off of said seat and ■upon said street or highway, thereby seriously, painfully and permanently bruising, wounding and injuring the said plaintiff, so that his life was dispaired of; and also, by means of the prem- ises, the plaintiff became and was sick, sore, lame and disordered^ and so remained and continued for a long space of time, to-wit, hitherto, during all which time the said plaintiff suffered and underwent great pain, and in the future will suffer and undergo great pain, and was hindered and prevented and in the future will be hindered and prevented from transacting and attending to his necessary and lawful affairs by him, during all that time to be performed and transacted, and lost and was deprived of,, and in the future vsdll lose and be deprived of, divers great gains, profits and advantages which he ought, and otherwise would have derived and acquired; and thereby, also, the said plaintiff was forced and obliged to lay out and expend divers large sums of money, amounting in the whole to the sum of $3,000, in and about endeavoring to be cured of the said wounds, bruises and injuries, so received, as aforesaid, at Newark, in the county of Essex, aforesaid. Wherefore, the said plaintiff says that he is injured and has sustained damages to the amount of $15,000, and, therefore, he brings his suit, etc. § 408. The same for injuries received at a public crossing. — The , the defendant in this suit, was summoned to answer unto , the plaintiff herein, in an action of tort, and there- upon the plaintiff, by , his attorney, complains: I. For that, whereas, heretofore, to-wit, on the 23d day of September, 1896, in the town of Morristown, to-wit, in the county of Morris, aforesaid, the plaintiff was lawfully travelling upon and along a certain public highway, then and there being called Saw-Mill lane, leading from Morris street in a north- easterly direction to and past the northerly end of the passenger station of the defendant and to and past the northerly end of the freighthouse of the defendant, and leading thence to a cer- tain mill known as C'askey's mill, in Morristown, aforesaid, across which highway and at the same level therewith there was then and there situate a certain railroad called the Morris and Essex railroad, which railroad was then and there in the pos- session and occupation of the defendant, and the defendant was Forms. 547 then and there in the possession of a certain train of cars, com- posed of a certain locomotive engine and one railroad car, to-wit, a caboose, which engine and car were made and fitted to be placed upon and run on and along the said railroad and to be driven by fire and steam in the said locomotive engine, and which locomotive engine and car were then and there being driven upon and along said railroad by the agents and servants of the defendant, under and by virtue of the orders and direc- tions of the defendant, and in and about the business of the defendant, yet the said defendant and its agents and servants, while so driving and operating said engine and car upon and along said railroad, then and there conducted themselves so carelessly and negligently in the premises that they caused the said engine and car to move at a great speed, to-wit, at the speed of thirty miles per hour, and caused the same to pass upon and along said railroad at the speed aforesaid, and then and there to cross the said public highway without giving any warning of the approach of said engine and car to said highway, either by ringing any bell or by blowing any steam whistle, or in any other manner whatsoever, and then and there so negligently and carelessly drove the said engine and car upon and along said railroad across the said public highway at the great speed aforesaid and without any warning, as aforesaid, that they thereby and then and there caused said engine and car to strike against and beat down the plaintiff then and there being in the said public highway, as aforesaid, whereby the plaintiff was greatly injured, crushed, maimed, hurt, cut and wounded so that the plaintiff then and there became and was very sick, weak, lame and disordered and so continued and remained for a long time, to-wit, from thence hitherto at the town of Morristown, to-wit, in the county of Morris, aforesaid, and by reason thereof the plaintiff was forced to lay out and expend and did neces- sarily lay out and expend divers sums of money, amounting in the aggregate to a large sum of money, to-wit, $1,000, for his board, care and nursing, and for the attendance of his phy- sicians and for drugs and medicines for his use in and about his sickness aforesaid. n. And, also, for that, whereas, heretofore, to-wit, on the 23d day of September, 1896, in the town of Morristown, to-wit, in the county of Morris, aforesaid, the plaintiff was lawfully and upon the invitation of the defendant entering upon certain 548 FoEHS. premises of the defendant, to-wit, a certain freight yard of the defendant there situate, and in so entering did pass upon and along a certain wagon eoad for that pdeposb provided by the defendant, to-wit, the wagon road entering said freight yai'd at the northerly end of the passenger station of the defendant in Morristown aforesaid, for the purpose of transacting certain busi- ness with the defendant, upon and across which wagon road at the place of entry aforesaid, and crossing said wagon road at the same level therewith, there was then and there situate a certain railroad called the Morris and Essex Railroad, which railroad was then and there in the possession and occupation of the de- fendant, and the defendant was then and there in the possession of a certain train of cars, composed of a certain locomotive engine and one railroad car, to-wit, a caboose, which engine and ear were made and fitted to be placed upon and run on and along the said railroad and to be driven by fire and steam in the said locomotive engine, and which locomotive engine and car were then and there being driven upon and along said railroad by the agents and servants of the defendant under and by virtue of the orders and directions of the defendant and in and about the business of the defendant, yet the said defendant and its agents and servants, while so driving and operating said engine and car upon and along said railroad, then and there conducted them- selves so carelessly and negligently in the premises that they caused the- said engine and car to move at a great speed, to-wit, at the speed of thirty miles per hour, and caused the same to pass along and upon sail railroad at the speed aforesaid, and then and there to cross the said wagOn road at the place of entry aforesaid, without giving any warning of the approach of said engine and car to said wagon road, either by ringing any bell or by blowing any steam whistle, or in any other manner what- soever, and then and there so negligently and carelessly drove the said engine and car upon and along said railroad and across the said wagon road at the great speed aforesaid, and without any warning, as aforesaid, that they thereby then and there caused said engine and car to strike against and beat down the plaintiff, then and there being in the said wagon road at the place of entry aforesaid, whereby the plaintiff was greatly in- jured, crushed, maimed, hurt, cut and wounded so that the plaintiff then and there became and was very sick, weak, lame and disordered and so continued and remained for a long time, Forms. 549 to-wit, from thence hitherto at the town of Morristown, to-wit, in the county of Morris, aforesaid, and by reason thereof the plaintiff was forced to lay out and expend and did necessarily lay out and expend divers sums of money, amounting in the aggregate to a large sum of money, to-wit, $1,000 for his board, care and nursing, and for the attendance of his physicians and for drugs and medicines for his use in and about his sickness, aforesaid. And so the plaintiff saith that he is injured and hath sus- tained damage to the amount of $20,000, and thereupon, he brings his suit, etc. § 409. The same for tearing up a public street. — The , the defendant in this suit, was summoned to answer unto A. B., the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by O. D., his attorney, complains, for that, whereas, the said defendant, to-wit, on the 21st day of February, 1884, at Jersey City, in said county, was operating a railroad propelled and worked by horse power, extending from Exchange place, in said city of Jersey City and county of Hudson, in and through the said city and county aforesaid, to Greenville, in the city of Jersey City, and county, as aforesaid, and was engaged in the business of common carriers of passengers thereon, which rail- road so running in a southerly and westerly direction, ran along, in, through and upon several public streets and highways, running in a southerly and westerly direction in the said city of Jersey City and county of Hudson aforesaid, among which was the public street or highway known as Ocean avenue, the said railroad was then and there laid, run and operated. And plaintiff avers that the said public street or highway known as Ocean avenue, as aforesaid, at the time of committing the grievance hereinafter mentioned, and from thence hitherto, was then and there, had been for a long time, was and still is a common public street or highway for all persons to go, return, pass and repass on foot, in, by and with coaches, carriages, wag- ons and other vehicles, at their free will and pleasure, by reason whereof the said defendant ought to have conducted itself in and about the running, operating and conducting of the said railroad in a careful, prudent and safe manner in, on, upon and through the said public street or highway, well knowing the premises; yet the said defendant, disregarding its duty in that 550 FoEMS. behalf, in that by its officers, directors and managers employed and set to work on and upon said railroad in, on and upon said public street or highway aforesaid, a certain then unfit, negli- gent and improper servant or servants under the control, at the direction and with the knowledge of the said defendant, for hire and reward then and there paid by said defendant to said servant or servants. And plaintiff further avers that the said servant or servants, in their common and lawful employment, with the knowledge, at the direction and under the control of the said defendant, did then and there, at the time aforesaid, wrongfully, negli- gently, carelessly, improperly and unjustly put and place divers large quantities of stone, dirt and rubbish in, on and upon said street or highway aforesaid; did then and there negligently, carelessly, wrongfully, improperly and unjustly tear up, exca- vate and dig holes in, on and upon the said street or highway, by reason whereof the said street or highway was then and there extremely dangerous and hazardous for all persons to go, return, pass and repass on foot, in, by and with coaches, carriages, wagons and other vehicles, and subjected said persons so travel- ling to unnecessary dangers and risks, and to such dangers and risks as could and ought to have been provided against by said defendant, and did then and there negligently, carelessly, wrong- fully, improperly and unjustly keep and continue the same therein, without fixing, placing or causing to be fixed or placed any warning, notice or signal at or near the said stones or rub- bish, at or near the said holee or excavation, to denote or warn or show persons travelling, going, returning, passing or repassing on foot or in, by and with coaches, carriages, wagons and other vehicles, that the same was so then and there extremely dan- gerous and hazardous. And the plaintiff further avers that, by means of the prem- ises and in consequence of which said negligence, carelessness, imprudence and wrong conduct of the said defendant in that respect as aforesaid then and there done by said defendant, he, the said plaintiff, while then and there travelling, going, re- turning, passing and repassing in, on and upon said public street or highway, by and with his horse and wagon, carriage and vehicle, as, by law, he had a right to do, and vnthout any negli- gence, carelessness or fault on his part, he, the said plaintiff, did then and there fall upon and against said stones, dirt and FoEiis. 551 rubbish; he did then and there fall into^ and upon said holes and excavations; he did then and there, with his horse and wagon, carriage and vehicle, drive upon and against the said dirt and rubbish; he, the said plaintiff, did then and there, with hia horse, wagon, carriage and vehicle, drive into and upon the said holes and excavations, whereby the said plaintiff, vsrith his horse, wagon, carriage and vehicle, was then and there over- turned, by reason whereof he, the said plaintiff, was then and there bruised, hurt, cut, wounded, maimed, sick and sore. And plaintiff further avers that, by reason of the premises, he was forced to pay, lay out and expend, and of necessity had to pay, lay out and expend divers large sums of money, to-wit, the sum of $1,000, for drugs, medicines, etc., and, by reason of the premises, he has sustained and suffered permanent loss, in- jury and damages, to-wit, the sum of $10,000, in consequence of which a right of action hath accrued to said plaintiff, and, therefore, he brings his suit, etc. § 410. The same against a ferry company. — The E. F. Com- pany, the defendants in this suit, were summoned to answer Tinto A. B., the plaintiff therein, in an action of tort, and there- upon the said plaintiff, by C. D., his attorney, complains: For that, whereas, before and at the time of committing the ^ievances hereinafter mentioned, the said defendants, a cor- poration existing and incorporated under the laws of the State of New Jersey, were possessed of, operating and managing cer- tain steam ferry-boats, for the transportation of passengers, horses, carriages, etc., from a point in the city and State of New York, at or near the foot of Christopher street, in said city, across the Hudson river, to a point in the city of Hoboken, in the county of Hudson aforesaid, at or near the foot of Newark street, in said last-named city, for certain fare and reward in that behalf charged and received, and were then and there possessed of, operating and managing, at or near the foot of Christopher street aforesaid, a certain ferry-house, with en- trance gates, driveways, bridge chains, bridges, slips and other appliances for embarking and disembarking passengers, horses, carriages, etc., upon and from said steam ferry-boats, and the said defendants being such possessors, operators and managers of the said steam ferry-boats and of the said ferry-house, with its •entrance gates, driveways, bridge chains, bridges, slips and other 55S Forms. appliances aforesaid, heretofore, to-wit, on the day of October, A. D. 1S84, the said plaintiff, driving a chestnut-col- ored mare of great value, to-wit, of the value of $1,500, har- nessed to a top buggy-wagon of great value, to-wit, of the value of $400, both belonging to the said plaintiff, at the special in- stance and request of the said defendants, and after the said plaintiff had paid at the entrance gates aforesaid the usual fare and reward to the said defendants in that behalf, was, by the said defendants, received into the said ferry-house as a passenger, to be, with the said mare and wagon, safely transported by one of the steam ferry-boats afore- said, from the said ferry-house to the city of Hoboken aforesaid, at a point at or near the foot of Newark street aforesaid; and it then and there became the duty of the said defendants to \ise due and proper care in the operation and management of the said ferry-house and its entrance gates, driveways, bridge chains, bridges, slips and other appliances aforesaid, for the proper safety of the said plaintiff and his said mare and wagon, while necessarily waiting in the said ferry-house to be trans- ported as aforesaid. Yet the said defendants, not regarding their duty in that behalf, did not use due and proper care in the operation and management of the said ferry-house, entrance gates, driveways, bridge chains, bridges, slips and other appliances aforesaid, for the proper safety of the said plaintiff and of his said mare and wagon, while the same were necessarily waiting in the said ferry- house to be transported as aforesaid, but, on the contrary, the said defendants, by their servants and agents, so carelessly and negligently operated and managed the same, that while the said plaintiff, with the said mare and wagon under his care and that of the said defendants, were necessarily waiting in the said ferry-house, upon the. usual driveway provided by the said de- fendants for such purpose, for the arrival of a boat of the steam ferry-boats aforesaid, upon which to be transported as aforesaid, the said mare, by reason of such careless and negligent opera- tion and 'management, was caused and enabled to and did break away from the care and control of the said plaintiff, and also, by reason thereof, was caused and enabled to and did run upon one of the bridges aforesaid, and from thence into the Hudson river, dragging with her the said wagon, and having upon her the harness with which she was harnessed to said wagon, and FoKMS. 553 thereby the said mare was drowned and the said wf.gon was greatly injured and damaged, the said harness destroyed and a lap robe and blanket then and there in said wagon were lost out and never regained, to-wit, at the city of Hoboken, in the county of Hudson aforesaid. Wherefore, the said plaintiff says he is injured and has sus- tained damage to the amount of $3,000, and, therefore, he brings his suit, etc. § 411. The same by husband and wife, for injuries to the wife, from a fall on the stairs of an apartment-house. — H. I., the de- fendant in this suit, was summoned to answer unto C. D. and A. B., the plaintiffs therein, in an action of tort, and thereupon the said plaintiffs, by E. F., their attorney, complain, for that, whereas, the said defendant, on the day of May, 1885, was, before and at the time of committing the grievances and injuries hereinafter mentioned, the owner, proprietor and lessor of a certain building and house known and designated as an apartment or tenement-house, situated at Grove street, in the city of Jersey City and county of Hudson aforesaid. And plaintiffs aver that the said building and house known and designated as an apartment or tenement-house aforesaid, was then and there divided into floors, and said floors were, by partitions, subdivided into rooms or suites of rooms, with com- mon passage-ways and staircases then tod there leading into and through the said apartment or tenement-house and into and through each floor so divided as aforesaid, and said floors then and there so divided as aforesaid, with the said passage-ways lead- ing into and through each floor, were then and there connected one with the other and with each other by means of common staircases extending from the bottom of said apartment or tene- ment-house to the top thereof, into and through each floor and into and through each passage-way of the said floors so divided as aforesaid. And plaintiffs aver that, at the said time above mentioned, they were then and there tenants and lessees of the said defend- ant, and did then and there rent, lease and hire, for a considera- tion then and there paid to said defendant, a room or suite of rooms in said apartment or tenement-house so divided as afore- said, with the privilege of then and there using, in common •with the other tenants and lessees of the said apartment or tene- S?4 Forms. ment-house, the said passage-ways and staircases, for the purpose of ingress, egress and regress from the said room, or suite of rooms so rented, hired and leased as aforesaid. And plaintiffs aver that the said passage-ways and staircases were then and there so used in common by all the tenants and lessees of the said apartment or tenement-house, for the pur- pose of i:agress, egress and regress from their said rooms or suite of rooms to the said public highway and street below, over which the said defendant then and there retained exclusive control, except the privilege and license so granted as aforesaid to each tenant to use the same then and there for the purposes of ingress, egress and regress as aforesaid. And plaintiffs aver that the said defendant, being then and there the owner and lessor of the said apartment or tenement- house as aforesaid, and then and there controlling and using the said passage-ways and staircases for the uses and purposes eo aforesaid, was bound in law then and there so to construct, use, maintain, equip, light and fui;nish the said passage-ways and staircases so that the said passage-ways and staircases could then and there be used by the said tenants and lessees and each of them for the purposes of ingress, egress and regress so as aforesaid without danger of bodily harm or injury. Yet plaintiffs aver that the said defendant, disregarding his duty imposed by law in this behalf, in that the said passage- ways and staircases were then and there so negligently, care- lessly, insecurely and improperly constructed, maintained, equipped, lighted and furnished, by the direction and with the knowledge and consent of the said defendant, for the purposes of ingress, egress and regress as aforesaid, and the said defend- ant did then and there so negligently, carelessly and improperly allow and suffer the said passage-ways and staircases, knowing the same to be so, to become, by inadequate and insufficient lighting, by imperfect and improper oilcloth carpeting and furnishing, and by unnecessary obstructions, pitfalls and holes Jn the said passage-ways and staircases, dangerous for the pur- popes then and there of ingress, egress and regress so aforesaid by the said tenants and lessees; that, by reason of the premises and of the improper construction and adaptation of such pas- sage-ways and staircases, and of the improper, careless and neg- ligent manner in which the said passage-ways and staircases were then and there lighted, furnished and equipped, the said FoHMS. 555 plaintiff, A. B., while then and there using the said passage- ways and staircases for the purposes of ingress, egress and re- gress aforesaid from her said room or suite of rooms in the said apartment or tenement-house to the street, as hy law she had a right to do, and without any fault or negligence on her part, was then and there thrown and hurled, with great force and violence, to the bottom of the said staircase, on the floor, by reason whereof she, the said plaintiff, A. B., was then and there bruised, hurt, cut, wounded, maimed, sick and sore, and, by reason of the premises she has sustained and suffered great loss, injury and damage, to-wit, the sum of $5,000', in consequence of which a right of action hath accrued to her, A. B., the plain- tiff, and, therefore, she brings her suit, etc. And the said plaintiff, C. D., complains, for that, whereas, at the time of committing the grievances and injxiries hereinabove mentioned, now is and was before the husband of the said plaintiff, A. B. ; and the said plaintiff, C. D., avers that, by reason of the premises above set forth, and of the bruises, hurts, cuts, wounds, injuries and sickness of his said wife, A. B., aforesaid, then and there done and inflicted on her by the care- lessness, negligence and wrong conduct of the said defendant, he, the said plaintiff, O. D., husband of the said A. B., has suffered great loss, damage and injury by then and there being deprived of the society, companionship and consortium of his said wife for a long space of time, to-wit, six months, and said plaintiff, C. D., avers, as such husband, by reason of the negli- gence, wrong conduct and carelessness of the said defendant as aforesaid, he had, of necessity and by law, to spend and lay out a large sum of money in effecting her cure, to-wit, the sum of $1,000; by reason of the premises, he, the said plaintiff, C. D., has suffered great loss, damage and injury, to-wit, the sum of $500, in consequence of which a right of action hath accrued to said plaintiff, CD., and, therefore, he brings his suit, etc. § 412. The same for negligently placing obstructions on a street. — A. B. and O. D., partners, trading under the firm name and style of A. B. & C. D., were summoned to answer unto E. F. who was admitted by the court here tO' prosecute an action for H. I., an infant, the plaintiff therein, in an action of tort; and thereupon the said plaintiff, by J. K., his attorney, complains, for that, whereas, the said defendants, to-wit, on the 556 FoHMS. day of January, 1885, at Jersey City, in said county, •were, before and at the time of committing the grievances and injuries hereinafter mentioned and set forth, proprietors and operators of a certain building and premises situate in HudsoiL street, at the corner of Morris street, in said city of Jersey Oity, and county aforesaid, used and operated as a cooperage estab- lishment. And plaintiff avers that the said public street or highway known as Hudson street as aforesaid, with the sidewalks thereof,, at the time of committing the grievances hereinafter mentioned and set forth, and thence hitherto, was then and there, had been for a long time and still- is a common public street or highway for all persons to go and return in and upon, travel, walk, pass and repass on foot in and upon, and in, by and Avith coaches, wagons, carriages and other vehicles, at their free will and pleasure, unmolested and in nowise obstructed, by reason, whereof the said defendants ought to have conducted them- selves in and about the operating, conducting and carrying on of their said cooperage establishment and business, and in and about the handling, moving and removing, stacking and piling- up of the materials and products for and of and the machinery and appliances incident to the said cooperage business and es- tablishment, in a careful, prudent and safe manner in and around their said building and premises, and in front of, beside, near, adjoining and opposite to their said building and premises, and in and upon the said public street or highway, and the sidewalks thereof adjacent to the said building and premises as aforesaid ; yet the said defendants, well knowing the premises, disregarded their duty in that behalf, in that they themselves, or by their managers, foremen, overseers and employes employed and set at work and caused to be employed and set at work in. and about said cooperage business and establishment and in and around their said building and premises and in and upon the said public street or highway and the sidewalks thereof in front of, beside, near, adjoining and opposite to their said building and premises, certain then unfit, careless, negligent and improper servant or servants, for hire and reward then and there paid by the said defendants to the said servant or servants. And plaintiff further avers that the said servant or servants, in the course of his or their common and lawful employment, with the knowledge, at the direction and under the control o-f FoEMS. 557 the said defendants, did then and there, at the time and place aforesaid, wrongfully, negligently, carelessly, improperly and unjustly handle, move and remove, place, stack and pile up, in divers rows and tiers, and was or were then and there wrong- fully, negligently, carelessly, improperly and unjustly handling, moving and removing, placing, stacking and piling up, in divers TOWS and tiers, certain casks, barrels, tierces and hogsheads, in large quantities and numbers, products and incidents of the said cooperage business and establishment, in and upon the said public street or highway and the sidewalks thereof, by reason whereof the said public street or highway, with the sidewalks thereof, was then and there extremely dangerous and hazardous for all persons to go and return, travel, walk, pass and repass in and upon, and subjected persons so travelling, walking, going and returning, passing and repassing in and upon the said public street or highway and the sidewalks thereof, to great and un- necessary dangers and risks, and to such dangers and risks as could and ought to have been avoided and provided against by the said defendants; and the said defendants did then and there permit, allow and cause to continue the said dangers, hazards and risks so as aforesaid, without any signal, notice or caution to warn or show persons so travelling, walking, going and re- turning, passing and repassing in and upon the said public street or highway and the sidewalks thereof, that the same were so then and there extremely dangerous and hazardous. And plaintiff further avers that, by means of the premises and in consequence of said negligence, carelessness and impru- dence and wrongdoing and misconduct of the said defendants and their said servant or servants in that respect as aforesaid, then and there, on the part of the said defendants and their said servant or servants, the said infant, while then and there travelling, walking, going, returning, passing and repassing in and upon the said public street or highway and the sidewalks thereof adjacent to the said premises of the said defendants, on foot, without any negligence, carelessness or fault on his part, was then and there struck, knocked down and felled by a cer- tain cask, barrel, tierce and hogshead, and by certain casks, barrels, tierces and hogsheads, hurled, rolled, thrown, let fall and let drop by the said defendants and their said servant or servants, whereby and by reason of the blow and the force thereof, one of the legs of the said infant was then and there 558 FoEMS. fractured, crushed and broken, and he, the said infant, was then and there bruised, hurt, cut, wounded, maimed, sick and sore, and that without any negligence, carelessness or fault on his part. And plaintiff further avers that, by reason of the premises, the said infant was forced to pay, lay out and expend, and of necessity had to pay, lay out and expend divers large sums of money, to-wit, the sum of $1,000, for drugs, medicines and medical attendance, and, by reason of the premises, he, the said infant, has sustained and suffered great loss, injury and dam- ages, to-wit, the sum of $10,000, in consequence of which a right of action hath accrued to the said plaintiff for the use and benefit of the said infant, and thereupon, he brings his suit, etc. § 413. The same by a passenger for negligence against the owners of a steamboat. — For that, whereas, the said defend- ants, before and at the time of committing the grievances next hereinafter mentioned, were owners and proprietors of a certain steamboat, moved and propelled by steam, called the " Advo- cate," by them used and employed in carrying and conveying passengers and goods, wares and merchandises, on the waters of the Hudson river, from Albany to Stuyvesant, in the county of Columbia, and to divers other places on and adjacent to the said river, and being such owners and proprietors of the said steamboat, the said defendants, on the day of , in the year of our Lord one thousand eight hundred and , at Albany, to-wit, at the city and in the county of Albany, received into the said steamboat, Maria, the wife, and Mary, Janett, Lydia, Emeline and Edward, the children and servants of the said plaintiff, as passengers therein, from Albany afore- said to Stuyvesant aforesaid, for certain fare and reward, and by reason thereof, the said defendants ought carefully to have conveyed the said wife and children of the said plaintiff in the said last-mentioned steamboat, from Albany aforesaid to Stuy- vesant aforesaid; yet the said defendants, not regarding their duty in this behalf, conducted themselves so carelessly, negli- gently and unskillfuUy in this behalf, that by and through the carelessness, negligence, unskillfulness and default of themselves and their servants, in generating the steam for propelling the said steamboat, and in managing, regulating and securing the same, and for want of due care and attention to their diitv in FoEMS. 559 that behalf afterwards, and whilst the said last-mentioned steam- boat was carrying and conveying the wife and children afore- said, of the said plaintiff as aforesaid, and before the arrival thereof at Stuyvesant aforesaid, to-wit, on the day and year last aforesaid, at Coeymans, to-wit, at the city and in the county of Albany, divers large quantities of steam escaped from the boiler and apparatus wherein the same was generated, connected with the said boat, and drove into and fell upon the said wiie and children of the said plaintiff, by means whereof the said wife and children of the said plaintiff were, respectively, greatly hurt and injured, burned and scalded, and thereby then and there became and were A^ery sick, sore, weak and distempered. And the said wife of the said plaintiff, and the said Mary and Emeline, have each remained and continued so sick, weak and distempered for a long space of time, to-wit, from thenceforth hitherto at Coeymans, to-wit, at the city and in the county of Albany aforesaid, during all which last-mentioned time the said plaintiff hath lost and been deprived of the aid and assistance of his said wife, and of the said Mary and Emeline, in the man- agement of his domestic affairs and business, and hath been forced and obliged to lay out and expend, and did actually lay out and expend divers sums of money, in the whole amounting to a large sum of money, to-wit, the sum of , in and about the attempting the cure of his said vnfe and his said several children, and the procuring necessary medicines, attend- ances, means of cure and assistance for them during their said several sicknesses, weaknesses and disorders, which ensued as aforesaid from the burning and scalding, hurts and injuries occa- sioned by the escape and driving of the said steam into and upon them and each of them as aforesaid; and the said plaintiff was thereby prevented from pursuing and prosecuting his necessary affairs and business for a long space of time thereafter, to-wit, for the space of six weeks thence next ensuing, and was otherwise greatly damnified and injured, to-wit, at the city and county of Albany aforesaid. § 414. The same averring special injury and damage to the plaintiff. — For that, whereas, the said defendants, before and at the time of the committing of the grievances hereinafter next mentioned, were lessees, owners and proprietors of two cer- tain ferries, the one thereof established from the foot of Fulton 660 FoHMS. street, in the city of New York, in the county of New York, across the East river, to the foot of Fulton street, in the city of Brooklyn, in the county of Kings, and called and known by the name of the Fulton Ferry, and the other thereof established from the foot of Whitehall street, in said city and county of New York, across the said river to the foot of Atlantic street, in the said city of Brooklyn, in said county of Kings, and called and known by the name of the South Ferry, together with all and singular the ferriage and rights of ferriage, fees and per- quisites, benefits, profits and advantages whatsoever, aad also the bulkheads, wharves, piers, slips, fioats, bridges, fixtures and appurtenances unto said ferry belonging, and also the lessees, owners and proprietors of certain steam ferry-boats, moved and propelled by steam, called and known by the following names, to-wit, the Nassau, Suffolk, Olive Branch, Jamaica and Fulton, by them, the said defendants, used and employed in carrying passengers, carriages, horses and effects in and about the busi- ness of said ferries and in the ferrying and transportation of passengers, carriages, horses and effects to and from the foot of each of the streets last aforesaid, and being such lessees, owners and proprietors of the two ferries, the bulkheads, wharves, slips, piers, floats, bridges and other fixtures, and the steam ferry- boats last aforesaid, the said defendants, heretofore, to-wit, on the 10th day of November, 1843, at Brooklyn, to-wit, at the city and county of New York aforesaid, received into one of said steam ferry-boats, to-wit, the ferry-boat called " Nassau," and running to and from the fo'ot of Fulton street, in the city of New York aforesaid, to and from the foot of Fulton street, in the city of Brooklyn aforesaid, the plaintiff, as passenger therein, for certain fare and reward to the said defendants in that behalf, to be by them, the said defendants, ferried, trans- ported and conveyed from the said city of Brooklyn to the said city of New York, and, by reason thereof, the said defendants ought carefully to have ferried, transported and conveyed the said plaintiff, in the said last-mentioned ferry-boat, to the city of New York aforesaid; yet the said defendants heretofore, to- wit, on the day and year last aforesaid, to-wit, at the city and county of New York aforesaid, well knowing the premises and not minding and regarding their duty in this behalf, by them- selves and their agents and servants, took so little and bad care in the management of said last-mentioned ferry-boat, in man- Forms. 561 aging and conducting the same to the wharf or dock, in the city of New York aforesaid, and in not keeping up a bar, chain or Tope across the front of said boat until the same was securely moored and fastened to the wharf or dock last aforesaid, and Tintil all danger from landing from said ferry-boat to said wharf or dock was over; that, by and through the carelessness, negli- gence and mismanagement of the said defendants in this behalf, and their agents and servants employed by the said defendants and in their behalf, and for want of due and proper care of the said defendants, their agents and servants, the left leg of said plaintiff, with great force and violence, was caught between the said last-mentioned ferry-boat and the wharf or dock last afore- said, as he, the said plaintiff, was attempting to laud from said ferry-boat to said wharf or dock, utterly ignoraut of any danger, whereby the said plaintiff was then and there greatly injured, bruised, hurt and wounded, and thereby then and there lost his said left leg, and became and was sick, sore, lame and disor- •dered, and so remained and continued for a great space of time, to-wit, for the space of six months, and during all that time was and still is wholly hindered and disabled from following his profession and business, and hath been put to great expense and hath laid out a large sum of money, to-wit, the sum of $2,000, in and about the amputation of said left leg and in endeavoring to be cured of the said wounds, sickness, soreness, lameness and disorder, so as last aforesaid occasioned, and hath been and is permanently crippled and disabled by said loss of his left leg, and hath been and is otherwise greatly injured and damnified, 1x>-wit, at the city of New York, in the city and county of New York aforesaid. And for that, whereas, also, the said defendants, before and at the time of the committing other the grievances next here- inafter mentioned, were lessees, owners and proprietors of other two certain ferries, the one thereof established from the foot of Fulton street, in the city of New York and county of New York, across the East river, to the foot of Fulton street, in the <;ity of Brooklyn, in the county of Kings, and known by the name of the Fulton Ferry, and the other thereof established from the foot of Whitehall street, in said city and county of New York, across the said river, to the foot of Atlantic street, in the said city of Brooklyn and county of Kings aforesaid, and tnown by the name of the South Ferry, together with all and 36 562 Forms. singular the ferriage and rights of ferriage, fees and perquisites, benefits, profits and advantages whatsoever, and also other the bulkheads, wharves, piers, slips, floats, bridges, fixtures and ap- purtenances unto the said ferries belonging, and also the lessees, owners and proprietors of certain other steam ferry-boats, moved and propelled by steam, called and known by the names of ISTassau, Suffolk, Olive Branch, Jamaica and Fulton, by them, the said defendants, used and employed in carrying passengers, carriages and horses and effects in and about the business of the said ferries, and in the ferrying and transportation of pas- sengers, carriages, horses and effects to and from the foot of each of the streets last aforesaid; and being such lessees, own- ers and proprietors of other the two ferries, the bulkheads, wharves, piers, slips, floats, bridges and other fixtures, and the steam ferry-boats last aforesaid, the said defendants heretofore, to-wit, on the 10th day of November, 1843, at Brooklyn, to- wit, at the city and county of ISTew York aforesaid, received into one of said steam ferry-boats, to-wit, the steam ferry-boat called " Nassau," and running to and from the foot of Fulton street in the city of JSTew York aforesaid, to and from the foot of Fulton street in the city of Brooklyn aforesaid, the said plain- tiff, as passenger therein, to be by them, the said defendants, ferried, transported and conveyed from the said city of Brooklyn to the said city of New York, for certain fare and reward to the said defendants in that behalf, and by reason thereof the said defendants ought carefully to have ferried, transported and conveyed the said plaintiff in the said last-mentioned ferry-boat to the city of New York aforesaid; yet the said defendants here- tofore, to-wit, on the day and year last aforesaid, to-wit, at the city and county of New York aforesaid, well knowing the prem- ises, and not minding and regarding their duty in this behalf, by themselves and their agents and servants, took so little and bad care in the management of said last-mentioned ferry-boat in conducting and bringing the same to the wharf or dock in the city of New York aforesaid, and in not providing, maintain- ing, keeping up and suspending in and upon said last-mentioned ferry-boat and the bulkheads, wharves, piers, slips, floats and bridges in the city of New York aforesaid, in the night season, sufficient and proper light to enable the said plaintiff and other passengers therein to land from said ferry-boat with safety, and in not duly fastening the last-mentioned boat to the dock before FoEMS. 563 tlie passengers were permitted to land therefrom, that by and through the carelessness, negligence, imskillfulness and misman- agement of the said defendants in this behalf, and their agents and servants employed by the said defendants, and in their be- half, and for want of due and proper care of the said defendants, their agents and servants, one of the legs of the said plaintiff with great force and violence was caught between the said last- mentioned ferry-boat and the wharf or dock last aforesaid, whilst he, the said plaintiff, in the night season, was attempting to land from the said ferry-boat to the wharf or dock aforesaid, entirely ignorant of any danger, whereby the said plaintiff was then and there greatly injured, bruised, hurt and wounded, insomuch that his life was greatly despaired of, and thereby afterwards, to-wit, on the day and year and at the place last aforesaid, lost his leg last mentioned, and became and was sick, sore, lame and dis- ordered, and so remained and continuedfor a great space of time, tO'wit, for the space of six months, and during all that time was and still is wholly hindered and disabled from follow- ing his profession and business, and hath been put to great ex- pense, and hath laid out a large sum of money, to-wit, the sum of $2,000, in and about the amputation of said leg, and in en- deavoring to be cured of the said wounds, sickness, soreness, lameness and disorder so as last aforesaid occasioned, and has become and is permanently crippled and disabled by the loss and amputation of his said leg, and hath been and is otherwise injured and damnified, to-wit, at the city of New York, in the county aforesaid. And whereas, also, heretofore, to-wit, on the day and year last aforesaid, at Albany and Troy, to-wit, in the city and county of New York, the said plaintiff was and, for a long space of time then next preceding, had been and still is a surgeon-dentist, and by means of his skill and reputation in his said profession of a surgeon-dentist, the said plaintiff, up to the day and year last mentioned, and the committing of the grievances herein- after in this count mentioned, had been enabled to earn, and had earned a large sum of money, to-wit, the sum of $4,000, in each and every year, by the practice of his said profession, and for the due practice of his said profession the use of both the legs of the said plaintiff was convenient, essential and neces- sary, to-wit, on the day and year and at the place last aforesaid ; and whereas, heretofore, to-wit, on the day and year, and at the 564 FoKMS. place last aforesaid, tlie said defendants were the proprietors, and by themselves and their agents, in that behalf, were in the actual use and occupation of a certain other ferry-boat, to-wit, the ferry-boat called " Nassau," for the carriage and conveyance of passengers from the foot of Fulton street, in the city of Brooklyn, in the county of Kings, to the foot of Fulton street, in the said city and county of New York, for hire and reward to the said defendants in that behalf; and the said defendants, being such proprietors, and in such use and occupation of the said last-mentioned ferry-boat, as last aforesaid, thereupon here- tofore, to-wit, on the day and year and at the place last afore- said, for a certain fare and reward to the said defendants in that behalf, the said plaintiff became and was a passenger in the said last-mentioned ferry-boat, to be safely and securely carried and conveyed thereby, from the said foot of Fulton street, in the said city of Brooklyn, to the said foot of Fulton street, in the city of New York; and the said defendants then and there re- ceived the plaintiff as such passenger as aforesaid, and thereby it then and there became and was the duty of the said defend- ants to use due and proper care that the said plaintiff should be safely and securely carried and conveyed by and upon the last-mentioned ferry-boat, from the said foot of Fulton street, in the said city of Brooklyn, to the said foot of Fulton street, in the said city of New York; yet the said defendants, not regard- ing their duty in that behalf, did not use due and proper care that the said plaintiff should be safely and securely carried and conveyed by and upon the last-mentioned ferry-boat, from the foot of Fulton street, in Brooklyn aforesaid, to the foot of Fulton street, in the city of New York aforesaid, but wholly neglected so to do, and then and there suffered the last-mentioned ferry-boat to be so carelessly, negligently and unskillfully man-! aged and brought up to the dock at the foot of Fulton street, in ' the city of New York aforesaid, and then and there so negli- gently and unskillfully threw down and caused to be let and thrown down the guard drawn and placed across the stem- or forward end of the last-mentioned boat, for the protection of passengers, prematurely and before it was safe for passengers to leave the last-mentioned boat, and then and there so carelessly and negligently omitted safely and securely to fasten the last- mentioned boat and both sides thereof to the dock at the foot of Fulton street last mentioned, before the passengers then FoKMS. 565 'and there on the last-mentioned boat were permitted to go ashore therefrom, and suffered and permitted the last-mentioned boat, while said passengers therein were stepping ashore therefrom, then and there to be swayed and moved by the motion of the water, and such dangerous chasm or crevice between the same and the dock at which the same boat was then and there landing, to be alternately opened and closed, and then, there in the dusk and darkness of the evening, had and kept such imperfect and insufficient lights in and about the last-mentioned boat that, by reason of the premises above, in this count mentioned, the said plaintiff, through the said negligence, carelessness and misman- agement of the said defendants, while he, the said plaintiff, was attempting then and there to land and go ashore from off the last-mentioned boat, stepped with his left leg between the same and the dock at which the same was then and there land- ing, and his said leg, by reason of the said premises, was then and there caught between the last-mentioned boat and dock, and wounded, bruised, fractured, broken and crushed, and the plaintiff was otherwise then and there greatly bruised, wounded and injured, insomuch that his life was then and there greatly despaired of; and, also, by means of the premises in this count mentioned, the said plaintiff became and was sick, sore, lame and disordered, and so continued for a long space of time, to-wit, from thence hitherto, during all which time the said plaintiff suffered and underwent great pain and was hindered and pre- vented from attending to his necessary and lawful affairs by him during all that time to be performed and transacted, and lost and was deprived of divers great gains, profits and advan- tages, which he might and otherwise would have derived and acquired; and, also, by means of the premises in this count mentioned, the said plaintiff afterwards, to-wit, on the day and year and at the place first above mentioned, was obliged to have and did have his said left leg amputated above the knee thereof and lost the same and became and is permanently disabled and crippled thereby, and also became and is permanently disabled and unfitted for carrying on his said profession and business in the introductory part of this count mentioned, and has perma- nently lost the earnings and gains in the introductory part of this count mentioned, by his said profession, which he might and otherwise would have derived and acquired thereby. And also, by means of the premises in this count mentioned, the said 566 FoEMS. plaintiff was forced and obliged to, and did then and there pay, lay out and expend divers large sums of money, amounting to a large sum of money, to-wit, the sum of $2,000, in and about the said amputation of his said leg, and in and about the en- deavoring to be cured of the said fractures, bruises and injuries so received, as in this count mentioned; and also thereby the said plaintiff was hindered and prevented from continuing his journey, and was kept and detained at a certain boarding-house, to-wit, at the house of Mrs. Hilton, in Broadway, JSTew York, to-wit, at the city and county of New York aforesaid, a long time, to-wit, for the space of eight weeks, and during that time there incurred great expenses, in the whole amounting to a large sum of money, to-wit, the sum of $500, in and about his necessary support and maintenance, to-wit, at the place last aforesaid. For that, whereas, also, the said defendants, before and at the time of committing other the grievances hereinafter next men- tioned, were the proprietors and in the actual use of a certain other ferry and of a certain other steam ferry-boat, to-wit, the ferry-boat called the " Nassau," for passage across the East river from and to the foot of Fulton street in the city of Brooklyn, and the foot of Fulton street in the city of New York, and so being such proprietors and in such use of said ferry and steam ferry-boat as in this count mentioned, the said defendants here- tofore, to-wit, on the 10th day of November, 1843, received into said last-mentioned ferry-boat the said plaintiff, as passen- ger from the city of Brooklyn to the city of New York afore- said, for certain fare and reward to the said defendants in that behalf, and by reason thereof the said defendants ought care- fully to have conveyed the said plaintiff in the said last-men- tioned ferry-boat to the city of New York aforesaid; yet the said defendants, not regarding their duty in this behalf, con- ducted themselves so carelessly, negligently and unskillfuUy that by and through the carelessness, negligence and unskill- fulness and default of the said defendants and their agents and servants in managing and conducting said ferry-boat, and in the night season in so carelessly and insufficiently lighting said ferry-boat, that said plaintiff was then and there' unable to land with safety from said ferry-boat, by means whereof, and for the want of due and proper care of the said defendants, their agents and servants in this behalf, one of the legs of the said Forms. 567 plaintiff was then and there, with great force and violence, caught and jammed between the said last-mentioned ferry-boat and the wharf or dock, at the city of New York aforesaid, as he, the said plaintiff, was then and there attempting to land from said ferry-boat, utterly ignorant of any danger; whereby the said plaintiff was greatly injured, bruise J, hurt and wounded, and thereby then and there lost his said leg, and then and there became and was sick, sore, lame and disordered, and so remained and continued for a great space of time, to-wit, for the space of six months, and during all that time was and still is wholly hindered and disabled from following his profession and busi- ness, and hath been put to great expense and hath laid out a large sum of money, to-wit, the further sum of $2,000, in and about the necessary amputation of his said leg, and in and about endeavoring to be cured of the said wounds, sickness, soreness, lameness and disorder, so as last aforesaid occasioned, and hath been and is otherwise greatly injured and damnified, to-wit, at the city of New York, in the city and county of New York aforesaid, to the damage of the said plaintiff of $50,000, and, therefore, he brings his suit, etc. § 415. The same against the owner of a coach for negligence of his servant. — For that, whereas, the said plaintiff heretofore, to-wit, on, etc., at, etc. [venue], was lawfully possessed of a certain carriage, to-wit [a chaise], of great value, to-wit, of the value of dollars, and of a certain horse [or divers, to-wit, horses] , then and there drawing the same, and in which said carriage the said plaintiff was. then riding in and along a certain public and common highway; and the said defendant was also then and there possessed of a certain other carriage and of a certain other horse [or divers, to-wit, horses], drawing the same, and which said carriage and horses of the said defendant were then and there under the care, government and direction of a certain then servant of the said defendant, who was then and there driving the same in and along the said high- way, to-wit, at, etc.; nevertheless, the said defendant then and there, by his said servant, so carelessly and improperly drove, governed and directed his said carriage and horses that, by and through the carelessness, negligence and improper conduct of the said defendant, by his said servant, in that behalf [one of the hind wheels of], the said carriage of the said defendant 568 FoHMS. then and there ran and struck, with great force and violence,, upon and against the said carriage of the said plaintiff, and thereby then and there crushed, broke to pieces, damaged and destroyed the same [and one of the wheels, and the splinter bar and of the shafts thereof], and the said carriage of the said plaintiff thereby then and there became and was rendered of no use or value to the said plaintiff, and thereby the said plaintiff was then and there cast out and thrown, with great force and violence, from and off his said carriage to and upon the ground there, and, by means of the several premises afore- said, the plaintiff was then and there greatly bruised, hurt and wounded, and became and was sick, sore, lame and disordered,, and so remained and continued for a long space of time, to-wit, hitherto, during all which time the said plaintiff suffered great pain and was hindered and prevented from performing and transacting his lawful affairs and business by him during that time to be done and transacted; and, also, by means of the premises, was forced and obliged to pay, lay out and expend, and hath necessarily paid, laid out and expended divers sums of money, in the whole amounting to a large sum of money, to-wit, the sum of dollars, in and about the endeavoring to be healed and cured of his said wounds, hurt and bruises, occasioned as aforesaid; and, also, by means of the premises, the said plaintiff hath paid, laid out and expended divers large- sums of money, amounting, in the whole, to a large sum. of money, to-wit, the sum of dollars, in and about the re- pairing of the said chaise so damaged as aforesaid, to-wit, at, etc. And whereas, also, the said plaintiff heretofore, to-wit, on, etc., at, etc. Avenue'], was lawfully possessed of a certain other carriage, to-wit, a chaise of great value, to-wit, of the value of dollars, and of a certain other horse [or " of divers, others, to-wit, horses "] , then and there harnessed to the same, and in which said carriage the said plaintiff was then riding in and along a certain public and common highway] and the said defendant was also then and there possessed of a certain other carriage and of a certain other horse [or " divers, to-wit, other horses"], drawing the same, and which said last- mentioned carriage and horse [or " horses "], the said defendant was then and there driving in and along the said highway, to- wit, at, etc. [venue] ; nevertheless, the said defendant then and there so carelessly and improperly drove, governed and directed Forms. • 569 his said carriage and horses, that, by and through the careless- ness, negligence and improper conduct of the said defendant, the said carriage of the said defendant then and there crushed, broke to pieces, damaged and destroyed the said carriage of the said plaintiff, and the said carriage of the said plaintiff thereby then and there became and was rendered of no use or value to the said plaintiff, and thereby, etc. § 416. The same against the owners of a stage coach, for over- loading and improperly driving the same. — Tbr that, whereas, the said defendants, before and at the time of committing the grievances hereinafter mentioned, were owners and proprietors of a certain stage coach, for the carriage and conveyance of passengers from, etc., to, etc., for hire and reward to the said defendants in that behalf, to-wit, at, etc. [venue], and the said defendants being such owners and proprietors of the said coach as aforesaid, thereupon heretofore, to-wit, on, etc., at, etc. [venue'], the said plaintiff, at the special instance and request of the said defendants, became and was an [outside] passenger upon [or in] the said coach, to be safely and securely carried and conveyed thereby on a certain journey, to-wit, from, etc., to, etc., for a certain fare and reward to be paid to the said defendants in that behalf, and the said defendants then and there received the said plaintiff as such [outside] passenger as aforesaid, and thereupon it then and there became and was the duty of the said defendants to use due and proper care that the said plaintiff should be safely and securely carried and conveyed by [and upon] the said stage coach on the said journey, from, etc., to, etc.; yet the said defendants, not regarding their duty in that behalf, did not use due and proper care that the said plaintiff should be safely and securely carried and conveyed by and upon the said stage coach on the said journey, from, etc., aforesaid, to, etc., aforesaid, but wholly neglected so to do, and suffered and permitted one of the wheels of the said coach to be so insufficiently secured, that the same ^hen and there came off, and also suffered and permitted the said coach to be then and there so greatly overloaded, that by reason thereof, afterwards, and whilst the said coach was proceeding with the said plaintiff thereon, in and along the highway, on the said journey from, etc., and before the arrival thereof at, etc., to-wit, on the day and year aforesaid, at, etc. [venue], the said coach then and 570 FoBMS. there became and was overturned, and by means whereof one of the legs of | the said plaintiff became and was fractured and broken, and the said plaintiff was otherwise greatly bruised, wounded and injured; and also by means of the premises the said plaintiff became and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to-wit, hitherto, during all which said time the said plaintiff ■• suffered and underwent great pain, and was hindered and prevented from transacting and attending to his necessary and lawful Af- fairs by him during all that time to be performed and trans- acted, and lost and was deprived of divers great gains, profits and advantages, which he might and otherwise would have de- rived and acquired; and thereby, also, the said plaintiff was forced and obliged to and did then and there pay, lay out and expend divers large sums of money, amounting, in the whole, to the sum of dollars, in and about the endeavoring to be cured of the said fractures, bruises and injuries so received as aforesaid; and also, thereby, the said plaintiff was hindered and prevented from continuing his said journey, and was kept and detained at a certain inn, to-wit, at , in the county of , a long time, to-wit, for the space of weeks, and during that time there incurred great expenses, in the whole amount to a large sum of money, to-wit, the sum of dollars, in and about his necessary support and maintenance, to-wit, at, etc. .[wnwe], aforesaid. And whereas, also heretofore, to-wit, on the day and year aforesaid, to-wit, at, etc. [^venue] , the said plaintiff, at the special instance and request of the said defendants, became and was a passenger by a certain other coach, to be safely and securely carried and conveyed thereby on a certain journey, to-wit, from, etc., to, etc., for certain reward to the said defendants in that behalf, and thereupon it then and there became and was the duty of the said defendants to use due and proper care that the said plaintiff should be safely and securely carried and conveyed by the said last-mentioned coach on the said journey from, etc., to, etc. ; yet the said defendants, not regarding their duty in this behalf, did not use due and proper care that the said plaintiff should be safely and securely' carried and conveyed by the said last-mentioned coach on the said journey from, etc., to, etc., but wholly neglected so to do, and, by reason thereof, afterwards, and whilst the said last-mentioned coach was proceeding, with FoHMS. 571 the said plaintiff as a passenger thereby, in and along the public highway, on the said journey from, etc., and before the arrival thereof at, etc., to-wit, on the day and year aforesaid, at, etc. [venue'], the said last-mentioned coach was overturned, and, by means whereof, one of the legs of the said plaintiff then and there became and was fractured and broken, and the said plain- tiff was then and there otherwise greatly bruised, wounded and injured; and, also, by means of the premises, the said plaintiff became and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to-wit, hitherto, during all which time the said plaintiff suffered and underwent great pain and was hindered and prevented from transacting and attending to his necessary and lawful affairs and business by him, during all that time, to be performed and transacted, and lost and was deprived of divers great gains, profits and advan- tages which he might and otherwise would have derived and acquired from the same; and thereby, also, the said plaintiff was forced and obliged to and did then and there pay, lay out and expend divers other large sums of money, amounting, in the whole, to the sum of $200, in and about the endeavoring to be cured of the said last-mentioned bruises, fractures and injuries so received as last aforesaid; and also, thereby, the said plaintiff was hindered and prevented from continuing the said journey and was kept and detained [at a certain inn] , to-wit, at , in the county of , a long time, to-wit, for the space of eight weeks, and, during that time, there incurred great expense, in the whole amounting to a large sum of money, to- wit, the sum of $700, in and about his necessary support and maintenance, to-wit, at, etc. [venue]. And whereas, also, the said defendants, before the committing of the grievances hereinafter next mentioned, were the owners and proprietors of a certain other stage coach, by them, the said defendants, used and employed for the carriage and conveyance' of passengers, at and for certain hire and reward to them in that behalf, to-wit, at, etc. [venue], and the said defendants being such owners and proprietors of the said last-mentioned coach as aforesaid, the said plaintiff heretofore, to-wit, on the day and year aforesaid, to-wit, at, etc. [venue], at the special instance and request of the said defendants, became and was a passenger by the said last-mentioned coach, to be safely and securely car- ried and conveyed thereby on a certain journey, to wit, from. ■573 FoHMS. etc., to, etc., for certain hire and reward, to be paid to the said defendants in that behalf, and, although the said plaintiff was then and there received by the said defendants as such passenger by the said last-mentioned coach as aforesaid, to be carried and conveyed thereby as aforesaid, yet the said defendants, not regarding their duty in that behalf, so carelessly, negligently, unskillfuUy and improperly loaded, drove, managed and con- ducted the said last-mentioned coach that, afterwards, and whilst the said last-mentioned coach was proceeding with the said plaintiff, as such passenger as aforesaid, on the said journey" from, etc., to, etc., to-wit, on the day aijd year aforesaid, to-wit, at, etc. [vewwe], the said last-mentioned coach was, by and through the carelessness, negligence and improper conduct of the said defendants, overturned and thrown down, with the said plaintiff therein as aforesaid, by means whereof one of the legs of thai said plaintiff became and was fractured, bruised and broken, and the said plaintiff was otherwise greatly injured, wounded and cut, insomuch that the said plaintiff then and there became and was sick, sore, lame and disordered for a long- space of time, to-wit, from thence hitherto, during all which, time the said plaintiff suffered and underwent great pain and was hindered and prevented from carrying on, transacting and proceeding in his lawful and necessary affairs and business by him during that time to be performed and transacted, and thereby lost and was deprived of divers great gains and profits which had been accustomed to arise and accrue, and which otherwise would have continued to arise and accrue to the said plaintiff from the transacting and carrying on of the same; and, also, by means of the premises last aforesaid, the said plaintiff was forced and obliged to and did then and there pay, lay out and expend divers large sums of money, amounting, in the whole, to the sum of $1,000, in and about the curing and endeavoring to cure the said last-mentioned fractures, bruises, cuts and wounds, to-wit,^ etc. [venue']. [Add other counts, as the case may suggest.] § 417. The same where plaintiff's wife was so much hurt, that after being ill for some time, she died. — For that, whereas be- fore and at the time of committing the grievances by the said de- fendant, as hereinafter next mentioned, the said defendant was owner of a certain stage coach, by him used and employed in carrying passengers from, etc., to, etc., and divers other places, to- FoHMS. 573 ^it, at, etc. [venue'], and being such owner of the said stage «oach, the said defendant, on, etc., to-wit, at, etc. Ivenue], afore- said, receiYed [into] his said coach one E. F., the wife of the said plaintiff, as a passenger [therein] to be carried and conveyed thereby on a journey, to-wit, from, etc., to, etc., for certain fare and reward to the said defendant in that behalf, and by reason thereof the said defendant ought carefully to have conveyed, or caused to be conveyed, the said E. F. by the said coach, on the said journey from, etc., to, etc. Yet the said defendant, not regarding his duty in this behalf, conducted himself so carelessly, negligently and unskillfuUy in this behalf, that by and through the carelessness, negligence, unskillfulness and default of him- self and his servants, and for want of due care and attention to his duty in that behalf, the said coach afterwards, and whilst the same was carrjdng and conveying the said E. F. on the said journey as aforesaid, and before the arrival thereof, at, etc., aforesaid, to-wit, on the day and year aforesaid, at, etc. [venue'], was overset and thrown down, by means whereof the said E. F., then being therein, was greatly cut, bruised and wounded, and divers bones of the body of the said E. F. were then and there broken, insomuch that the said E. F. thereby then and there be- came and was very sick, weak and distempered, and remained and continued so weak and distempered, for a long space of time, to- -wit, from thence until the day of in the year aforesaid, to-wit, at, etc. [venue], during all which time the said plaintiff lost and was deprived of the comfort and society of his said wife, and also her aid and assistance in the management of his domestic affairs, which he otherwise would have had and enjoyed, and was forced and obliged to lay out and expend, and did actually lay out and expend, divers sums of money, in the whole amounting to a large sum of money, to-wit, the sum of $300, in and about attempting the cure of his said wife, and the procuring necessary assistance and attendance for her during her said sickness, weak- ness and distemper, which ensued in consequence of her being so overturned and wounded as aforesaid, and which continued until the said day of in the year aforesaid, on which said last-mentioned day the said E. F. of her said wounds died, to-wit, at, etc. [venue] . [Another count may be added, stating the grievances with less particularity.]* * For other forms, see 2 Humph. Free. 752-811, and 2 Chit. PI. 32&- 333; 3 id. 375-383, 409, 412. 574 Forms. § 418. The same in an action by a brakeman of a railway com- pany against the company. — John Batterson, plaintiff herein, by Conley & Lucking, his attorneys, complains of the Chicago and Grand Trunk Railroad Company, a corporation organized and existing under the laws of Michigan, defendant herein, of a plea of trespass on the case, filing his declaration, entering rule to plead, etc., as commencement of suit. First. For that, whereas the JSTorthwestern and Grand Trunk Railroad Company was, on the 2d day of January, 1880, and prior thereto, a corporation existing and doing business under the laws of Michigan, and was the owner and operator of a line of railway between Flint, Michigan, and Lansing, Michigan, and the said plaintiff was an employe of said last-named company, and was a brakeman on one of its freight trains, and was engaged as such brakeman on one of said trains on said day, and said train reached Hamilton, Michigan, before daylight on the morning of the said day; and it then became and was necessery for the said plaintiff to make a coupling of two freight cars together, and to that end to step inside the rails and between the two cars as they came together; and at that point where it became neces- sary for plaintiff to step between the rails, there existed a deep hole or rut, and the same had existed for a long time previous thereto, and plaintiff did not see the same; and as the cars came together plaintiff stepped into said hole, and, by reason thereof, lost his balance and was thrown suddenly forward; and plaintiff, to save himself, caught hold of the link, and before he could re- cover himself and release the same, the cars came together, and his right hand was crushed off, whereby the plaintiff had suffered great pain and great loss of money, and, as he is a laboring man, his ability to gain a livelihood has been greatly diminished thereby; and it was the duty of the said last-named company to the plaintiff to have kept the said track or roadbed in good re- pair, and not to have allowed the said hole or rut to exist there ; but said company negligently and carelessly failed to perform said duty, and this plaintiff did not then, or prior thereto, know of said hole or rut, and had no reason to anticipate the same, and plaintiff was free from negligence in respect to the cause of his said injury, whereby an action accrued to plaintiff on said day against said last-named company, and said right of action con- tinued to exist down to and including the time of the consolida- tion hereinafter set out; and afterwards, to-wit, on the 6th day FoBMS. 575 of April, 1880, a consolidation was formed between said last- named company, under the statute in such case made and pro- vided, and one or more other railroad companies, forming a con- tinuous line, by which they became merged in a new corporation, whose corporate name then was and now is the Chicago Grand Trunk Railroad Company, the defendant herein; wherefore, by virtue of the statute in such case made and provided, said right of action attached to the said defendant, and now exists, against the same. Second. And for that, -whereas, also the Northwestern and Grand Trunk Railroad Company was, on the 2d day of January, 1880, and prior thereto, a corporation, and the owner and oper- ator of a line of railroad, as set out in the first count, and the plaintiff was its employe and a brakeman on one of its trains, as therein set out, the plaintifF was injured at Hamilton, Michigan, in the manner set out in the first count, and by reason of the hole or rut in the track mentioned in said first count, and plain- tiff alleges that the said hole had existed in said track for a long ;^ime previous to said time of said injury, and since the original construction of said roadbed and track, and that said track and roadbed had never been properly made, and it was the duty of said last-named company to have constructed said track properly, and not to have allowed said hole to be and remain there; but it negligently failed to perform said duty, and plaintiff did not know of said hole, had no reason to anticipate the same, and was himself wholly free from negligence in respect to his said in- jury; whereby an action accrued to the said plaintiff on said day against said last-named company, and now exists against the said defendant by reason of the facts set out in the first count ; to the plaintiff's damage $10,000, and, therefore, he brings his suit, etc.^ § 419, The same by a servant of the purchaser of an elevator against the manufacturer. — And for a second count in this be- half, the plaintiff avers that, heretofore, to-wit, on the 2d day of February, 1881, Digby V. Bell, Samuel Post and Charles B. Haynes, doing business under the name of the Detroit Soap Company, employers of said plaintiff, were engaged or about to 5 But see opinion of Graves, C. J., in Batterson v. Chicago &c. By. Co., 49 Mich. 184, 187 (1882). 57C FoKMS. engage in the manufacture of bar soap; that, from thence to tho time of the injury hereinafter mentioned, said plaintiff con- tinued to be the servant of said employers, whose duty it was, together with other servants so likewise employed, to perform general work and labor in the manufacture of said soap, and handling the same during the different processes of manufacture and preparation of the same for market; that defendant was en- gaged in the business of manufacturing and putting up ma- chinery, and professed to be skillful in the erection and setting up of hoisting apparatus known as elevators, and competent to construct and set up the same in a workmanlike manner and in such complete order that the same, with reasonable care, could be used and run without danger of injury to hunaan life; that so professing his competency as aforesaid, as a convenient means of delivering said soap from one floor to another of the building used and occupied by the employers of said plaintiff for the manufacturing purposes aforesaid, the said defendant con- structed and set up in the building aforesaid, for the employers of the said plaintiff, the said hoisting apparatus or machine called an elevator, for the use of said employers and their ser- vants, and to enable said employers and their servants to re- move soap from one floor to another of said premises as might be necessary and convenient in the manufacture of said soap, and the preparation of the same for market ; that said defendant having so constructed and provided said elevator as aforesaid, heretofore, to-wit, on the 25th day of June, 1881, professed to the employers and to the servants of said employers, and repre- sented to said employers, to said servants and to this plaintiff that said elevator in the said premises was placed and set up by him for the purposes aforesaid, and was intended by him to be used by said employers and their servants for the purpose of en- abling them so as aforesaid to remove said soap from one floor to another of said premises, as might be necessary and con- venient for said employers or for their said servants, in the due performance of their duty as workmen in and about said prem- ises; and said defendant professed and particularly represented to each and all of the parties aforesaid that said elevator was so constructed as to run either by steam or hand power, was in com- plete running order and would safely lift or carry 2,000 pounds. And thereupon the said plaintiff, confiding in the representa- tions aforesaid and by command and at the request of said de- FoHMS. 577 f endant, not knowing that the said elevator was dangerous and unsafe for such purpose, with due and proper care and skill ia that behalf, and in the ordinary performance of his duty in handling said soap, went upon said elevator; that at the time he so went upon said elevator the said elevator was wholly unsafe and dangerous, and was not in complete running order and would not safely lift or carry 2,000 pounds, and that defendant then knew, and from long before then well knew and had full means of knowing the same was dangerous, and likely to break and fall down and injure persons when used in the ordinary man- ner, for the purposes aforesaid, and with a much less weight than 2,000 pounds; that it was the duty of said defendant not to so have provided said elevator in said state for the said pur- pose, but to have properly constructed said elevator and to have taken care that the said elevator was not unsafe and dangerous, but was put up in a proper and safe state for the purposes afore- said, and would safely lift or carry 2,000 pounds, and said duty particularly devolved upon said defendant, in that any un- skillful, improper or unworkmanlike construction of the same, or the putting up of the same so that it would not safely lift or carry 2,000 pounds, would be, in the use and running of the same, imminently dangerous to human life, as defendant well knew; that, by reason of the aforesaid insecure, wrongful and improper conduct of said defendant in not taking care that said elevator was safe and sufficiently and properly constructed for the purposes aforesaid, and the dangerous, insecure and unsafe state of said elevator, the same, while being so used as aforesaid by said plaintiff, in the ordinary manner, and with due and reasonable skill and care, and while the said plaintiff was upon it, and with a weight much less than 2,000 pounds, to-wit, 1,400 pounds, and while said elevator was in the vicinity of one of the upper floors of said building, the said elevator broke, fell and dropped to the lower floor, whereby and by reason whereof the said plaintiff had two ribs broken, was injured in his spine and otherwise greatly cut, wounded, bruised, maimed and lamed, so as to be unable to perform any service for his employers or to earn any compensation therefor for a long space of time, to- wit, one month, and was so permanently injured that, though afterwards partially recovering, yet, from thence hitherto, the said plaintiff, by reason of his inability and inefficiency, occa- 37 578 FoBMS. sioned by the injury aforesaid, has been obliged to work for a much less sum than he otherwise could have earned, and will hereafter, at all times, be obliged, in consequence of said in- jury, to work for a much less sum than he otherwise would have been able to earn, and was also obliged to pay out a large sum for medical attendance, and also suffered great pain of body and mind, to-wit, in the county aforesaid.® § 420. The same in actions of negligence in ICassacImsetts — Pnblic Statutes, 1882 — Negligence of railroad corporations — Maryland. — " Beginning to answer A. B., of , in action of tort : And the plaintiff says the defendants are a corporation owning a railroad between A. and B. ; that plaintiff was a pas- senger on said railroad, and, by reason of the insufficiency of an axle of the car in which she was riding, the plaintiff was hurt; that defendants did not use due care in reference to said axle, but plaintiff did use due care." [" This form may be varied to adapt it to many cases, simply by changing the allegation as to the cause of the accident. It is not intended to restrict a party to the statement of one cause, if there were several concurrent causes; and if the plaintiff is in doubt which of several different causes occasioned the acci- dent, he may, under section 2Y, so declare."''] § 421. The same — Negligence of a town. — " And the plain- tiff says there is, in the town of , a public highway lead- ing from to , which said defendants are bound to keep in repair; that the same was negligently suffered by de- fendants to be oiTt of repair, whereby the plaintiff', travelling thereon and using due care, was hurt, and that due notice of the time, place and cause of injury was given."* « But see the opinion of Cooley, keep its streets in repair; that one J., in Necker v. Harvey, 49 Mich, of its streets, called street, 317, 520 (1883). was negligently suffered by the 7 Chap. 167, page 979 of Pub. defendant to be out of repair. Stats, of Mass. (1882); Pub. Gen. whereby the plaintiff In travelling Laws of Maryland (vol. 2), p. on said street and using due care 1104, art. 75» § 36. was hurt." Pub. Gen. Laws of ■ 8 lb. " That the defendant is an Maryland (vol. 2), p. 1104, art 75, incorporated city and is bound to § 37. FoHMS. 579 § 422. The same by a servant against a master, — , con- tractors, a corporation of the State of New Jersey, the defend- ant in this suit, was summoned to answer unto , the plaintiff herein, in an action of tort, and thereupon the said plaintiff, by , his attorney, complains: For that, whereas, the said defendant, before and at the time ■of committing of the grievances hereinafter mentioned, was, and still is, a corporation duly incorporated under the laws of the State of !N"ew Jersey, and whereas, heretofore, to-wit: On the 6th day of April, 1896, at Berry Creek, in the county of Bergen and State of New Jersey, the said defendant was en- gaged in dragging or snaMng timbers out of a certain creek or body of water, which timbers were to be placed on top of piles, at or near the bank of said stream of water, and the said plaintiff was employed by the said defendant in and about its work of dragging or snaking timbers from the said stream of water to said bank; And whereas, in so dragging or snaking timbers from said stream of water to said bank, it became and was necessary for the said plaintiff, at the request of said defendant and under instructions of the said defendant, to engage in and about the dragging or snaking and hoisting of a certain large timber of great weight into place upon piles driven down on or near the bank of said stream of water, and in so dragging or snaking and hoisting said timber, it became and was necessary for the defendant to use a rope, which was attached to the said timber at one end, and then passed through a certain block or pulley, attached to a derrick, and then connected with a certain drum on the engine ; And whereas, it became and was the duty of the said de- fendant towards the said plaintiff to supply reasonably safe and good appliances for the dragging or snaking and hoisting of said timber, and to supply a rope of sufficient strength and size to drag or snake said timber from said creek, and to supply a reasonably safe rope so that in the prosecution of said work the plaintiff should not be injured through the negligence of the defendant, and to supply a proper and safe block or pulley through which said rope ran, so that the said rope should not become frayed, and to keep said rope and pulley and appliances 580 Forms. in a reasonably safe condition, and to reasonably inspect the same; Yet the said defendant, disregarding its several duties to the said plaintiff in this behalf, failed to supply a rope of sufficient strength and size or of sufficient soundness, or to supply a rea- sonably safe rope to perform the work of dragging or snaking and hoisting said timber, and failed to supply a reasonably safe or proper block or pulley through which said rope passed, sO' that said rope became frayed and failed to keep said rope and pulley in a reasonably safe condition, and failed to reasonably inspect the same, and so negligently and carelessly supplied a rope of insufficient size and strength and of insufficient sound- ness and caused the same to be used over a pulley of improper size, so that while the said timber was being dragged or snaked and hoisted out of said creek by means of said rope and block,, the said rope broke and permitted the said timber to fall upon and strike the said plaintiff, while engaged in and about drag- ging or snaking and hoisting said timber, while the plaintiff had no knowledge of the said defective condition of said rope or pulley block, or of the appliances which should have been supplied in the exercise of reasonable care by the defendant, and thereby the said plaintiff was greatly injured in his head, limbs, body and mind, internally and externally, and by reason of the premises one of his legs was amputated, and he was other- wise greatly injured, and so remained for a long space of time, to-wit, from thence hitherto, during all which time the said plaintiff suffered and underwent great pain and anguish of body and mind, and was thereby prevented from attending to and transacting his lawful affairs and business, and from earn- ing and receiving large sums of money from his said business,, which but for said injuries he would have earned and received. And by means of the premises said plaintiff became perma- nently injured in his head, limbs, body and mind, and will so remain during the rest of his natural life, and by means of the premises the said plaintiff was forced to lay out and expend and has laid out and expended large sums of money in and about endeavoring to be healed of his said injuries. Wherefore, said plaintiff says that he has been injured and suffered damages by reason of the negligence of the said de- fendant in the sum of $50,000. And, therefore, he brings his. suit, and so forth. FoEMS. 581 § 423. The same by husband and wife, for injuries to the wife, by falling into an open areaway. — , the defendant herein, having been duly summoned to answer unto the plaintiffs herein, and , his wife, in an action of tort, and thereupon the said plaintiffs, by , their attorney, com- plain : For that the said defendant, on or about the 19 th day of February, in the year 1897, illegally and negligently made, kept and maintained on a certain public street or highway in the city of Jersey City, which said street or highway is known and designated as Monmouth street and is in the city of Jersey City, in the county of Hudson, a certain large, deep hole or excavation, which said hole or excavation, so kept and maintained by the said defendant, was a source of great danger to all per- sons travelling upon the said highway, and thereupon the said plaintiff, , on the day aforesaid, who was at that time the wife of the said plaintiff, , while walking upon the said street or highway aforesaid, and while using and exercising due care for her safety, and without fault on her part, fell into the said hole, which was unlighted and unguarded, and which was so kept and maintained by the said defendant, and was thereby, because of the negligence of the said defendant, greatly and permanently injured in body and mind, and has so remained to this day. And the said plaintiff, , has, because of the premises, been and now is deprived of the comfort, care, society and services of his said wife, to his damage $5,000, and has been forced to lay out and expend divers large sums of money, endeavoring to obtain the cure of his said wife, to-wit, the sum of $500,® and the said plaintiffs say they are injured by reason of the premises to their damages $10,000, and, therefore, they bring their suit, etc. § 424. The same for injuries received by falling into an exca- vation near a street. — , the defendant in this suit, was summoned to answer unto , the plaintiff therein, in an action of tort; and thereupon the said plaintiff, by , his attorneys, complains: For that, whereas, the said defendant heretofore, to-wit, on the 7th day of Januaiy, 1896, at Jersey City, in the county of 9 See I 156. C82 FoBMS. Hudson aforesaid, was the possessor and occupier of a certain messuage and premises, witli the appurtenances, in Jersey Citj aforesaid, and on and adjoining a certain public street in said city, known as Montgomery street, over and along which said public street the said plaintiff and all other persons might pass and repass at will, which said premises are known by the street number, as 306 Montgomery street. The said plaintiff further avers, that on the day and year aforesaid, to-wit, at Jersey City aforesaid, the said defendant was erecting upon said premises a certain building, under and in front of which he had excavated, and caused to be excavated, a cellar of great depth, to-wit, of the depth of seven feet, whicli said cellar extended to the line of said street, to-wit, on the day and year aforesaid, at Jersey City aforesaid. And the said plaintiff further avers that it then and there became and was the duty of the said defendant to so cover and protect the said cellar, that persons passing and repassing upon said public street would be safe and protected from danger of falling into or being otherwise injured by the said cellar. Yet the said defendant, well knowing the premises, to-wit, on the day and year aforesaid, at Jersey City aforesaid, wrong- fully and unjustly permitted the said cellar to be and continue so insufficiently and defectively covered and to be without rail- ing or other efficient means to protect it, that by means of the premises, and for want of sufficient railing or other protection to said cellar, the said plaintiff, who was then passing along the said highway, then and there, by means thereof, slipped and fell into the said cellar, and thereby, then and there, broke his right shoulder, and strained and broke the ligaments and muscles therewith connected, and permanently injured the joint of said shoulder, and shocked and permanently injured his nervous sys- tem, and was made deaf and unable to hear, and was so troubled that a catarrhal trouble, from which he was suffering, was greatly increased and rendered permanent, and was otherwise badly bruised and injured in and about his head, ears, face, neck, arms, shoulders, body, hands, legs, feet, membranes and nerves and thereby became and was sick, sore, lame, deaf, dis- eased, weak and disordered, and so remained, and continued for a long space of time, to-wit, from thence hitherto, and during: all of which time he, the said plaintiff, thereby suffered and underwent great pain, and was prevented from attending to and FoHMS. 583 transacting his necessary and lawful affairs and business, and was also, by means of tbe premises, forced and obliged to pay, lay out and expend, and did pay, lay out and expend a large sum of money, to-wit, the sum of $1,000, in and to the endeavor to get healed and cured of' the said wounds, sickness and dis- order, and by means of the premises will be in the future per- manently injured in his said shoulder and joint, and the muscles and ligaments connected therewith, and in his parts and organs of hearing, and will be rendered permanently deaf, and in his membranes, and will be rendered subject to a permanent ca- tarrhal affection, and in his nerves, and will remain weak and shocked in his nervous system, and thereby will be permanently disabled from attending to his necessary affairs and business, which he would otherwise be able to attend to, to-wit, at Jersey City aforesaid. Of all of which the said defendant aforesaid, to-wit, on the day and year aforesaid, had notice. Wherefore, the said plaintiff says that he is injured, and has sustained damage to the amount of $25,000, and, therefore, he brings his suit, etc. § 425. The same for injuries received on a pier. — The , a foreign corporation chartered by the Senate of the free Hanse- atic city of Bremen, and doing business, and known and desig- nated in the State of New Jersey as the North German Lloyd, the defendant in this suit, was summoned to answer unto , the plaintiff therein, in an action of tort, and thereupon the said plaintiff, by , his attorneys, complains: For that, whereas, on the 24th day of August, 1898, the said defendant, previous thereto, was at that time, and still is, the owner, occupier and in possession of a certain pier or wharf, known and designated as Pier No. 2, located in the city of Hoboken, extending out into the Hudson river in said county of Hudson, which said pier was then and there occupied and used by the said defendant in connection with its business of running a steamship line from the city of Hoboken to the city of Bremen, and other foreign ports, on and over which passen- gers and persons then and there having business with the said defendant and access to and from the said steamships had to pass and repass, and did then and there pass and repass by invi- tation and direction of the said defendant in the prosecution of .584 I'oEMS. its business of carriers of freight and passengers, and did theu and there so use the said pier for transmitting the freight from said steamships to said pier, and did then and there load and pile the same on the said pier while then and there waiting to be hauled away by the consignees of the same, by reason of the said premises the said defendant was bound to so use said pier and so pile and handle said freight that it would not injure or damage persons there on business connected with the said ■defendant, such persons exercising due care for their own safety. Yet the said plaintiff says, that on the said day, to-wit, the 24:th day of August, 1898, he was then and there on the said pier, as by law he had a right to be, for the purpose of then and there handling, hauling and taking away some freight which had been, and was then and there deposited, stacked or piled on said pier by the said defendant for that purpose; and plaintiff further avers that the said freight, to-wit, lithographic stones of great weight and size, to-wit, of the 'weight of 500 pounds, were then and there so negligently, carelessly and im- properly piled by the said defendant, one against the other, standing upright on ends, without being protected, so that when one of such stones was then and there withdrawn the others would then and there fall, and in such a manner that the danger of their falling was not known and could not then and there be seen by said plaintiff, but the danger of such falling was known, and should have been then and there known by the said de- fendant. That then and there, on the day aforesaid, some of the freight aforesaid, so piled as aforesaid, to-wit, a large litho- graphic stone, of great weight and size, did then and there, by the negligence of the defendant, fall upon said plaintiff, and did then and there, without any negligence or fault on his part, injure and damage the said plaintiff by breaking one of his legs, straining his arms and shoulders, and otherwise internally bruis- ing and permanently injuring him, the said plaintiff, the said injuries to the said plaintiff being then and there caused to him "without any fault or carelessness on his part, and wholly by the negligence, carelessness and fault of the defendant. By reason of the premises he was otherwise greatly injured and so remained for a long space of time, to-wit, from thence hitherto, during all which time the said plaintiff suffered and underwent great pain and anguish of body and mind, and was thereby prevented from attending to and transacting his lawful affairs Forms. 585 and business, and from earning and receiving large sums of money from his said business, whicli but for said injuries he ■would have earned and received. And by means of the prem- ises said plaintiff became permanently injured in his head, limbs, body and mind, and still so remains during the rest of his nat- ural life, and by means of the premises the said plaintiff was forced to lay out and expend, and has laid out and expended large sums of money in and about endeavoring ito be healed of his said injuries. Wherefore, said plaintiff says that he has been injured and suffered damages by reason of the negligence of the said de- fendant in the sum of $7,000. And, therefore, he brings his suit, etc. § 426. Form of an indictment against a railroad company for negligently killing a person at a highway crossing. — " That on the seventeenth day of December, eighteen hundred and sev- enty, the defendants, being proprietors of a csrtain railroad, etc., at Salem, in said county, by their servants in this State, to the jurors aforesaid unknown, did negligently and carelessly run a certain locomotive steam engine, and a certain train of <;ar8, on said Manchester and I>awrence railroad, upon and across a certain public highway, at a place called Ballard's Crossing, in Salem [here follows a description of the highway], on the grade or level of said highway, at a greater speed than six miles per hour, to-wit, at the speed of twenty-five miles per hour, and by the said negligence and carelessness of their said ser- vants aforesaid did then and there, at said Ballard's Crossing, surprise, overtake, strike and throw down one Benjamin Wood- bury, of Salem afoiesaid, yeoman, who was then and there not in the employment of said corporation, and was then and there peaceably and lawfully passing along said public highway at the crossing aforesaid, and him, the said Woodbury, thereby and by the negligent, careless and rapid running of the engine and cars aforesaid by the said servants of said railroad corpora- tion, did then and there instantly kill [then follows an allega- tion that one A. B. is an administrator of the estate of deceased ; that Sarah Woodbury is his widow, and that Hannah M. Gor- don and others are his surviving children] ; and so the jurors aforesaid, upon their oath aforesaid, do say that the life of the said Benjamin Woodbury, he being then and there a person not 586 POHMS. in the employment of said corporation, was lost as aforesaid, by reason of the negligence and carelessness of their servants afore- said, in this State, contrary to the form of the statute, etc. " The second count alleges that the defendants did negligently and carelessly omit to erect gates, or to place signals, notices, watchmen or guards at a certain dangerous crossing in said Salem, called Ballard's Grossing, where said Manchester and Lawrence railroad crosses a certain public and frequented high- way at the grade or level thereof. [Here follows a description of the highway.] " And by the agents and servants of the said Manchester and Lawrence railroad corporation in this State, to the jurors afore- said unknown, at the crossing aforesaid, in Salem aforesaid, on the seventeenth day of December aforesaid, did, with gross neg- ligence and carelessness, and unlawfully, run a certain locomo- tive steam engine and a certain train of cars, all of the proper goods and chattels of said Manchester and Lawrence railroad corporation, upon the said Manchester and Lawrence railroad, across said public highway at said Ballard's Crossing, at the grade or level of said public highway, at a greater speed than six miles per hour, to-wit, at the speed of twenty-five miles per hour, and did then and there, by the gross negligerice and by the carelessness of the said corporation, and of their agents and servants aforesaid, in this State, omit to give suitable and proper notice of the approach of said engine and train to said crossing, so that, at the crossing aforesaid, the said engine and cars did suddenly surprise, overtake, strike and throw down on& Benjamin Woodbury, of Salem aforesaid, yeoman, who was then and there not in the employment of said corporation, and was then and there peaceably riding and passing in a wagon, drawn by two horses, along the said public highway at the crossing- aforesaid, and him, the said Benjamin Woodbury, did then and there mangle and kill, by which gross negligence and careless- ness of said corporation, and of its agents and servants afore- said, the life of the said Benjamin Woodbury was then and there lost as aforesaid [then follows a statement of the adminis- trator, widow and children of the deceased, as in the first count] ; and so the jurors aforesaid, upon their oath aforesaid, do say that the life of the said Benjamin Woodbury, he being a person not then and there in the employment of said corpora- tion, was lost as aforesaid, by reason of the negligence and care- FoEMS. 587 lessness aforesaid of the said corporation, proprietors of the railroad aforesaid, and by the unfitness and gross negligence and by the carelessness of the agents and servants aforesaid of said corporation, in this State, contrary to the form of the statute, etc. " The third count alleges that the defendants, by their agent or agents, servant or servants, in this State, to the jurors afore- said unknown, did, by reason of the negligence and carelessness of said corporation, and by the unfitness and gross negligence and by the carelessness of their servants and agents in this State, to the jurors aforesaid unknown, so mismanage the said Man- chester and Lawrence railroad, and so neglect to place proper gates, fences, guards and watchmen, and did so neglect to give proper notice, warning and signals of the approach of the en- gine and train hereinafter mentioned, and did so improperly, rapidly, recklessly and furiously run and drive the same, that on the seventeenth day of December last past, at Salem, a certain locomotive steam engine and a certain train of cars drawn thereby, all belonging to said corporation, and run and driven then and there by the said servants and agents of said corporation, at a place in said Salem called Ballard's Crossing, where said railroad crosses at a grade a public and frequented highway [here describe the highway], did, with great speed and violence, suddenly overtake, run against and strike the wagon and person of one Benjamin Woodbury, of Salem afore- said, yeoman, the said "Woodbury not then and there being in the employment of said corporation, and being then and there peaceably and lawfully driving a pair of horses attached to a wagon, over said crossing and along said public highway, and him, the said Woodbury, by the said negligence and careless- ness of the said corporation, and by the said unfitness and gross negligence, and by the said carelessness of their servants and agents aforesaid, in this State, did then and there injure, bruise, wound and mangle, in his limbs, body and head, of which in- juries, bruises, woundings and mangling, he, the said Wood- bury, then and there died [here the administrator, widow and children of the deceased arc described] ; and so the jurors afore- said, upon their oaths aforesaid, do say that the life of the said Woodbury, he being a person not then and there in the employ- ment of said corporation, was lost as aforesaid, by reason of the negligence and carelessness aforesaid of the said corporation. 588 FoKMS. proprietors of the said railroad as aforesaid, and by the unfit- ness and gross negligence, and by the carelessness of the ser- vants and agents aforesaid of said corporation, in this State, •contrary to the statute," etc.^" § 427. Pleas — General issue — Special pleas — Statute of Ximitations — Pajnnent — Release. — General issue. — And the said defendant, the , by , its attorneys, comes and