a right to be upon the track, and although the engineer failed to ring the bell as was customary. St. Louis, I. M. & S. R. Co. v. Rosɛ, (Ark., May 28, 1892.) 19 S. W. Rep. 837.

Where, by mutual consent, evidenced by practice and by acquiescence therein with knowledge on the part of the superintending officers, two railway companies having their tracks adjacent and parallel, on some of which cars in large numbers are habitually left standing, permit the watchmen employed by the companies, respectively, to walk and stand upon the unoccupied tracks of each other, including the main lines, for the purpose of examining the standing cars with a view to take and report the initials and numbering inscribed thereon, a watchman while so employed, and deporting himself in the usual way, recognized as fit and proper by both companies, is not a trespasser upon the track of the company which did not employ him, any more than he is a trespasser upon the track of his own company. He is not a trespasser at all. And if, by the negligent and too rapid running of a train of the other company, he is suddenly stricken and injured, failing to protect himself in consequence of his attention being occupied with his duties, it is a question for a jury whether, under all the circumstances, he could have avoided the consequences of the company's negligence by the exercise of ordinary diligence. If he could not, he might recover; but if he could, he would have no cause of action. The court erred in granting a nonsuit. Watts v. Richmond & D. R. Co.,

(Ga., May 16, 1892,) 15 S. E. Rep. 365.

Where a railroad watchman stationed at the intersection of two roads is run over and killed, in an action for his death it is competent to show what was the rule of the company as to the duty of turning the switch at such intersection, and what was the customary mode of running trains at that point, for the purpose of showing whether or not the deceased was in the exercise of ordinary care. Chicago, M. & St. P. R. Co. v. O'Sullivan, (Ill., Oct. 31, 1892,) 32 N. E. Rep. 398.

A railroad company in moving its cars is bound to use reasonable care not to injure men unloading cars consigned to an elevator company, especially where it has notice of the particular work which the men have in hand. Spotts v. Wabash W. R. Co., (Mo., July 2, 1892,) 20 S. W. Rep.

190.

Injury to Trespasser-Negligence in Failing to Give Statutory Signal.— As failure to check and keep checking the train in approaching a public crossing is evidence of negligence for the consideration of the jury, although the person injured was not upon the crossing, but a few yards from it, in the direction of the approaching train, and using the track as a footway, it would not be appropriate in such a case to instruct the jury, without proper explanation and qualification, that "the requirements of blowing the whistle, ringing the bell, and checking the speed are not for the protection of persons using the track as a thoroughfare in its length, and not in crossing it." Georgia R. & B. Co. v. Daniel, (Ga., June 20, 1892,) 15 S. E. Rep. 538.

In Alabama it is held that where a trespasser on the track is injured and the engineer's negligence consists in failing to sound the whistle or ring the bell of his engine while moving through the village, as required by Code, § 1144, and he is guilty of no intent to injure deceased, it is error to refuse to charge that, "if the jury believe the evidence in this case, they will find a verdict for defendant."

LATIMER et al.

v.

RICHMOND & DANVILLE R. Co. et al.

(South Carolina Supreme Court, April 4, 1893.)

Action by Stockholder for Wrong Done to Corporate Property-When Maintainable. Where a stockholder brings an action for the redress or prevention of a wrong done or threatened to the corporate property, the complaint is insufficient if it contains no allegation imputing any fraud to the directors, nor that the directors have done or threatened to do anything, ultra vires; nor that the directors are acting in their own interest in a manner injurious to or destructive of the rights of the other shareholders, and no allegation of an earnest effort on the part of the plaintiff to obtain redress within the corporation itself. Such a complaint does not bring the case within any recognized exception to the general rule that individual stockholders cannot maintain an action for the redress of wrongs to the corporation.

APPEAL from York common pleas circuit court.

The complaint is as follows: "The plaintiffs herein, as stockholders of stock in the defendant company, the Chester & Lenoir Narrow Gauge Railroad Company, complaining on their own behalf and in behalf of all other stockholders who may come and contribute to the expenses of this action, the number of such being too great to join herein, complain. ing against the defendants, allege: (1) That they are stockholders of the defendant the Chester & Lenoir Narrow Gauge Railroad Company, a corporation chartered by the General Assembly of this state, and each and every of them held shares of stock of said railroad company. (2) That on the- day of 1883, the defendant the Chester & Lenoir Narrow Gauge Railroad Company entered into an indenture with the defendant the Charlotte, Columbia & Augusta Railroad Company, a corporation also chartered by the General Assembly of this state, whereby the first-named defendant company leased and demised to the latter-named company, for the period of ninety-nine years, all of its property, rights, and franchises, for and upon a certain rental, payable semiannually, and upon certain other considerations, stipulations, and covenants assumed by the said lessee, among which the said defendant lessee bound himself to keep and maintain all of the property so leased and transferred to it in good order and repair; and said lessee further bound itself to forfeit all the property, rights, and franchises so demised

and leased, and all additions thereto, if it failed to keep and perform any of the covenants and stipulations in said indenture contained. And immediately upon the execution of the said indenture the defendant lessee was let into possession of said railroad and property, and proceeded to use and operate the same, a copy of which said lease is here with shown as Exhibit A of this complaint. (3) That thereafter, to wit, on the day of, 1886, the defendant the Charlotte, Columbia & Augusta Railroad Company entered into an agreement by way of indenture of lease with the defendant the Richmond & Danville Railroad Company, whereby the said Charlotte, Columbia & Augusta Railroad Company, for and upon certain considerations and covenants contained in said indenture, leased, demised, and transferred to the said Richmond & Danville Railroad Company all of its corporate property and franchises for a period of ninety-nine years from that date; and also attempted to transfer to its lessee the property rights and franchises of the defendant the Chester & Lenoir Narrow Gauge Railroad Company, held by it under the lease hereinbefore set forth. But plaintiffs allege that there was no authority conferred by statute or by agreement with the said Chester & Lenoir Narrow Gauge Railroad Company for the transfer of its property and franchises to the said Richmond & Danville Railroad Company, a corporation chartered by the state of Virginia; and plaintiffs are advised that the lease is without legal effect, and the defendant the Richmond & Danville Railroad Company is a trespasser upon the property of the said Chester & Lenoir Narrow Gauge Railroad Company; and the said Richmond & Danville Railroad Company bound itself in proper covenants to keep in good order, repair, and replacement the property and buildings of the Chester & Lenoir Narrow Gauge Railroad Company so transferred; and soon thereafter the said Richmond & Danville Railroad Company entered into possession and assumed control of all the property and rights embraced in said lease, a copy of which is hereto appended, Exhibit B of this complaint. (4) That included in the property of the Chester & Lenoir Narrow Gauge Company, and transferred to the defendant the Richmond & Danville Railroad Company, by the two leases herein set forth, there was located on the line of the Chester & Lenoir Narrow Gauge Railroad Company, at Yorkville, a lot of land comprising four acres, donated to the said railroad company for depot purposes, and upon which was situated a valuable building, constructed of brick, stone, and iron, and used from the time said road was built for the purposes of a depot, warehouse, passenger station, and

for the transaction of the business of the said lessor company, of the value of $6000. That on or about the 9th day of December, 1890, through the negligence of the said Richmond & Danville Railroad Company, said building was partly destroyed by fire. That said defendant railroad companies, the lessee and sublessee, have neglected and refused to keep and perform either of their respective covenants to keep in good order, repair, and replacement the said depot building, but, on the contrary, the defendant the Richmond & Danville Railroad Company, through its agents and servants, are tearing down the standing walls and removing the brick, stone, and other material contained in said building, and transferring the same on cars to some point on some other line of railroad, and appropriating the said material to its separate use, thereby committing great waste and injury to the reversion in said leased property, which reversion may occur by forfeiture at any time before the expiration of said lease, and in the event of which reversion plaintiffs would be without remedy for the great injury done and being done. (5) And the said defendant the Richmond & Danville Railroad Company, without authority of law or the consent of the parties, has threatened to abandon the use of the locality upon which said building stood as a station for receiving and delivering freight and passengers, and for the care, custody, and convenience of the same, greatly to the inconvenience of the plaintiffs and the public, and contrary to law and the stipulations in the said several covenants herein set forth. (6) That the Chester & Lenoir Narrow Gauge Railroad Company and the Charlotte, Columbia & Augusta Railroad Company, through their directors, have failed and neglected to interfere to prevent the commission of said injurious acts to the stockholders of the Chester & Lenoir Narrow Gauge Railroad Company, although said directors have been requested so to do, or to join in this action as plaintiff, or to enter the same. Wherefore plaintiffs pray judgment, (1) that the defendants the Richmond & Danville Railroad Company and the Charlotte, Columbia & Augusta Railroad Company, their officers, agents, servants, and lessees, be perpetually restrained and enjoined from further taking down, removing, or appropriating the depot building, structure, and material herein described; (2) that said defendants be required and commanded to restore said building and structure in the same condition it existed at the time of said lease; (3) that said defendants be likewise enjoined and restrained from discontinuing the use of said building and its locality as a freight and passenger station; (4) that the leases herein set forth be declared forfeited by reason of the failure and refusal

of the lessees to keep and perform their respective covenants therein contained; (5) and for their costs.'

J. S. Cothran, for appellants.

Hart & Hart and Finley & Brice, for respondents.

Case stated.

MCIVER, C.J.-The plaintiffs, as stockholders of the Chester & Lenoir Narrow Gauge Railroad Company, bring this action for the purpose of enjoining the Richmond & Danville Railroad Company and the Charlotte, Columbia & Augusta Railroad Company from doing certain acts alleged to be injurious to and destructive of the corporate property of the company of which they are stockholders. The defendants demurred upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and, upon their demurrer being overruled, they have appealed upon the several grounds set out in the record.

We propose to consider whether the complaint is fatally defective in the several particulars mentioned in the grounds of appeal, which may be stated substantially, as follows: (1) That there is no allegation that the directors or managing board of the corporation in which plaintiffs claim to be stockholders "have been guilty of some act of oppression, illegality, ultra vires, or fraud." (2) That there is no allegation that the said board of directors, upon demand, have refused to apply for the relief demanded by plaintiffs. (3) That there are no facts stated in the complaint "showing an earnest effort on the part of the plaintiffs to obtain within the corporation itself the relief desired." It is necessary, therefore, to consider whether any of these allegations are wanting in the complaint, and if so, whether they are necessary to give the plaintiffs a good cause of action. For this purpose the complaint in extenso, without the exhibits, should be embraced in the report of the case, as it is too long for insertion here. We may say, however, that according to the allegations contained in the complaint, some time in the year 1883 the Charlotte, Columbia & Augusta Railroad Company leased the Chester & Lenoir Railroad, and immediately tcok possession thereof, and proceeded to use and operate the same; that thereafter, to wit, some time in the year 1886, the Charlotte, Columbia & Augusta Railroad Company undertook to sublet the Chester & Lenoir road to the Richmond & Danville Railroad Company, which soon thereafter took possession of said road, and assumed control thereof; that there was no authority conferred by statute or by agreement for such subletting of the Chester & Lenoir road; that in the property thus taken under its control was the station-house of the Chester & Lenoir Company at Yorkville; that on or about the 9th of December, 1890,