NEGLIGENCE-Continued.

ployment as well as acts of negligence; and that the corporation is thus bound,
although the particular acts were not previously authorized nor subsequently
ratified by the corporation. It is therefore immaterial whether the conductor
or brakeman had been required or authorized to wash out cars of the company
for any purpose. For the purpose of carrying the passengers safely the appel-
lant was represented by its agent, and if they did anything inconsistent with
that safety, appellant is liable. The drenching of a passenger with water,
either negligently or wilfully, is a clear and direct breach of the duty to carry
safely. Id.

55. Plaintiff, a boy of seven years, had his foot crushed by a turn-table of de-
fendant, upon which he and other boys were playing. The defendant was not
using the table at the time, and had no one in charge of it. The plaintiff and
the other boys put the table in motion for their own amusement. Held, that the
rule which applies to adults in reference to contributory negligence cannot be
applied to infants of tender years. Evansich v. Gulf, etc., R. R. Co. 182.

56. It is not always contributory negligence per se for a traveller to attempt
to cross a railway track without waiting until a train, which has just passed, has
gone so far as not to obstruct his view of another train approaching on a parallel
track in an opposite direction. Philadelphia, etc., R. R. Co. v. Carr, 185.

57. A. was walking along the street of a city, which was crossed by the tracks
of a railroad. Seeing a train approaching on the track nearest to her she paused
to let it pass. As the last car passed her she looked both ways, and also list-
ened, but heard nothing to alarm her, and accordingly when the rear end of the
train, which had just gone by, was about a car length off attempted to cross the
track. On the way she tripped and fell upon the track immediately beyond
that on which the train, which had just passed, had been running, and after ly-
ing there prostrate about a quarter of a minute was run over and injured by a
train approaching from the opposite direction. The engine of the train by
which she was injured passed the rear car of the first train she had observed
about three hundred feet from the scene of the accident. A., having brought
suit against the railroad company to recover damages for the injury done her,
the defendant requested the court to charge that the plaintiff had been guilty of
contributory negligence in attempting to cross while the train, which had just
passed, prevented her seeing the incoming train by which she was injured. The
court declined so to charge, but left the question of the plaintiff's contributory
negligence to the jury: Held, that under the circumstances, this was not error.
Id.

58. The plaintiff was a travelling agent for an insurance company; his sister,
who was unwell and was temporarily residing in a distant State, had written to
him that she had had a severe attack of illness and desired to be carried to her
home; that he had written to her, stating his situation, that he was travelling,
and asking her to arrange with a friend to bring her as far as a certain city, and
that he would make arrangements for some one to accompany her from that
place to her home, if her friend could not come with her any farther; that he
expected an answer to his letter would reach B. in a week, which would decide
whether he would have to go after her, or whether her friend would take her
home; that, after writing this letter, he was absent from B. for about three
weeks, travelling on his insurance business, but expected to reach there on the
evening of a certain Saturday, for the purpose of getting his mail, procuring
funds and attending to his business at the office of the insurance company; and
that he missed a connection of trains, and, being desirous to reach B. in order
that he might receive the expected reply from his sister, took passage on a
freight train of the defendant on the following Sunday morning, and received
the injuries complained of. Held, that there was no evidence which would
justify the jury in finding that the plaintiff was travelling from necessity or
charity, within the meaning of the Gen. Sts. c. 84, § 2. Bercher v. Fitchburg
R. R. Co. 212.

59. Testimony showing how far a train of cars ran after striking a person, is
competent evidence in a suit against the railroad company to recover damages
for causing the death of the person struck, as tending to show the train was

NEGLIGENCE—Continued.

running at a greater speed than allowed by ordinance of the city in which the
accident occurred, and also that the train was not under proper control. Penn.
Coal Co. v. Conlan, 243.

60. In an action for injuries resulting from the alleged negligence of a rail-
road company in neglecting to maintain in a safe condition a highway crossing,
in not replacing a plank which had been removed, held, that it was proper to
allow plaintiff to prove that after the injury defendant repaired the crossing by
replacing the plank. Where a road is used openly and notoriously by the pub-
lic as a highway, and a railroad company recognizes it as such by permitting
the public to cross their track, and by assuming to maintain a public crossing at
that point, it is immaterial whether the road be a legal highway or not. Under
such circumstances, the company are bound to exercise the same precautions to
keep the crossing in repair as if the road were in fact a legal highway. The
fact that a person attempts to pass over a railroad crossing on a highway after
he has noticed that it is unsafe, by reason of being out of repair, does not neces-
sarily constitute negligence, nor is he necessarily bound absolutely to refrain
from pursuing his course. This would depend upon the circumstances of the
case. If, under the circumstances, he had reasonable cause, in the exercise of
ordinary care and discretion, for believing that he could pass over in safety, and
exercised due care in attempting to do so, he would not be guilty of negligence.
In this case, under the evidence, these were questions of fact for the jury.
Kelly v. Southern Minnesota R. R. Co. 264.

61. When the injuries complained of are the result of inevitable accident, no
compensation can be allowed. Tucker v. Duncan, 268.

62. It is the duty of one desiring to cross a railroad to use his powers of hear-
ing and of vision to ascertain whether or not there is likely to be an approach-
ing train, and if so, to stop until the danger is past. If there is no obstruction
to either the sound or vision, then the passer need not stop, but must use both
these faculties; if there is such obstruction, then it is his duty to stop and both
look and listen; and if he neglects to use these precautions and a collision takes
place, compensation cannot be given, unless it was caused by the gross negli-
gence or wrongful conduct of the employees conducting the railroad operations.
Id.

63. Where a party voluntarily goes upon a railroad track where there is an
unobstructed view, and fails, without excuse, to look or listen for danger, he is,
as a matter of law, guilty of negligence, and not entitled to recover for damages
he may sustain by reason thereof from a passing train. But where the view is
obstructed, so it is difficult to know of the approach of the train, or there are
complicating circumstances calculated to deceive or throw him off his guard,
the question is one for the jury. Laverenz v. Chicago, etc., R. R. Co. 274.

64. Question as to whether deceased plaintiff's intestate was guilty of con-
tributory negligence, held, to have been properly submitted to the jury. Id.
65. The following instruction sustained: The jury are instructed that it is
as much the duty of a railroad engineer to exercise prudence and caution in
running his train, so as to avoid injury to persons crossing a track, as it is the
duty of such persons to avoid contact with the train. Therefore, if they be-
lieve from the evidence that the engineer who was driving the express train on
the morning of June 12, 1877, had an opportunity to see Bunting's team on the
main track, and could have stopped his train with safety to the same, and to the
passengers and railroad employees on same, in his then situation, and could
prudently have avoided collision with the team, his failure so to stop amounts
to negligence, and renders the defendant liable for damages, and such liability
attaches even though the plaintiffs contributed to the injury by their own care-
lessness or negligence." Bunting v. C. P. R. R. Co. 282.

66. The occurrence of a fire does not alone justify an inference of negligence,
and in the absence of an explanation as to its origin, or evidence that it was in
defendant's power to explain, or that by the exercise of reasonable care the fire
would not have occurred, no presumption is raised to justify a submission to
the jury whether the fire was caused by defendant's negligence. Whitworth v.
Erie R. R. Co. 349.

NEGLIGENCE-Continued.

67. The fact that the defendant is the lessee of the road does not relieve it
from the consequences of its own negligence, and it was bound to see that the
road and equipment, whether owned or leased, was safe and sufficient between
the points named on the passenger's ticket. Phila., etc., R. R. Co. v. Ander-
son, 407.

68. A., a passenger upon a railroad train, was unable, in consequence of the
crowded condition of the cars, to obtain a seat. Although there was standing
room inside he placed himself on or near the edge of the outside platform, and
rode there for some distance, with his back against the end car window, hold-
ing on by a little iron rail affixed to the car. While in this position a jolt oc-
curred, by which he was thrown upon the track and injured. Suit having been
brought by him against the company to recover damages for the injury done
him, held, that the court should have peremptorily instructed the jury that
the plaintiff had been guilty of such contributory negligence as to defeat his
right of recovery. Camden, etc., R. R. Co. v. Hoosey, 454.

69. Semble, that, as a general rule and under ordinary circumstances, it is the
duty of a railroad company to provide every passenger with a seat, and that if a
passenger exercising reasonable care and prudence is injured in consequence of
the company's neglect of duty in this regard, the latter must respond in dam-
ages. Id.

70. The plaintiff sued as the administratrix of her late husband, who, whilst
crossing the defendants' railway at a level crossing, was, through the negligence
of the defendants, run over by an engine and sustained personal injuries which
prevented him from following his occupation and earning wages, and caused
him to incur expenses for medical attendance and nursing, whereby his personal
estate was diminished in value: held, that the plaintiff could not sue in respect
of damage to the intestate's estate arising, as above mentioned, from the tortious
injury to the intestate's person, and that the action was therefore not maintain-
able. Pulling v. Great Eastern Ry. Co. 488.

71. An infant, to avoid the imputation of negligence, is bound only to exer-
cise that degree of care which can reasonably be expected of one of its age.
Byrne v. N. Y., etc., R. R. Co. 617.

72. Upon the death of the plaintiff, in an action by a husband for a wrongful
injury to the person of his wife, the right to damages for loss of the wife's ser-
vices and the expenses necessarily incurred by reason of the injury, survive to
his personal representatives, as they are a pecuniary loss diminishing his estate;
but the right of action for the loss of the society of his wife, and the comforts
of that society, dies with him. Cregin v. Brooklyn, etc., R. R. Co. 619.

73. One may sue the company contracting to carry him, if he is injured while
so conveyed, through the negligence of employees of another company which
furnishes motive power. Keep v. Indianapolis, etc., R. R. Co. 615.

74. An instruction which does not consider defendant's negligence, if any, is
erroneous. Atchison, etc., R. R. Co. v. Combs, 615.

75. Leaving the train while in motion. Secor v. Toledo, etc., R. R. Co. 616.
76. A father, if living, must sue for death of minor. St. Louis, etc., R. R.
Co. v. Yocum, 617.

77. Duty of one using a dangerous crossing. Tucker v. Duncan, 617.

78. Where the railroad does not halt its train at a station a sufficient length of
time to enable a passenger, by the use of reasonable diligence, to get off before
it is started again, and it is so started while the passenger is in the act of alight-
ing, whereby he is thrown down and injured, the company is liable. Strauss
v. Kansas City, etc., R. R. Co. 384.

79. Where insufficient time is allowed a passenger for safe and convenient
egress from the cars, and before he attempts to alight the train is started, and
he then jumps from the train while its motion is so slight as to be almost im-
perceptible, and is injured, it is for the jury to determine, from the age and
physical condition of the passenger, whether he is guilty of contributory negli-
gence. Id.

80. If the train is stopped a sufficient length of time for the passenger to con-
veniently alight, and without any fault of defendant's servants he fails to do so,

NEGLIGENCE—Continued.

and the conductor, not knowing and having no reason to suspect that the pas
senger was in the act of alighting, caused the train to start while he was so
alighting, then the company is not liable for the resulting injury. Id.

81. Where the conductor, after allowing a sufficient length of time for passen-
gers to alight, starts the train before the passenger is in the act of getting off,
and is therefore guilty of no negligence, and after the train is in motion the
passenger who has been dilatory jumps from the train and is injured, he can-
not recover. Id.

82. A railroad is liable for injuries to a passenger when occasioned by the
negligence of a corporation which furnishes it with motive power. Keep .
Indianapolis, etc., R. R. Co. 589.

83. Railroads must use every test recognized by experts, as regards their mo-
tive power. Robinson v. N. Y., etc., R. R. Co. 592.

84. One who passed out of a railway car and got upon the platform thereof,
and attempted to step or jump from the car while it was in motion, cannot
recover for injuries suffered in consequence thereof, even though he had reached
his place of destination, and the train, which had previously stopped to permit
passengers to alight, had not so stopped for a reasonable length of time. Jew-
ell v. Chicago, etc., R. R. Co. 379.

85. Complaint for injuries causing death must show pecuniary loss. Regan
v. Chicago, etc., R. R. Čo. 622.

See ANIMALS, 4, 5, 12; CARRIER, 76, 83; MASTER AND SERVANT; PLEADING
AND PRACTICE, 8-19, 21, 25, 26, 30, 39-44, 46; SIGNALS.

NITRO-GLYCERINE.

Not negligence as regards employees for railroad to carry, 161.
See MASTER AND SERVANT, 6, 7.

PASSENGERS.

PARENT AND CHILD.

See CARRIERS; NEGLIGENCE.

See CHILDREN.

PHOTOGRAPH, ADMISSION OF, AS EVIDENCE, 168.

See PLEADING AND PRACTICE, 30.

PERSONAL PROPERTY.

The true owner may enforce his right, as against consignor, consignee, or
carrier, 298.

PLEADING AND PRACTICE.

See CARRIER, 7, 8.

1. Where the defendant's counsel on the 16th day of the month withdrew from
the case, and on the same day other counsel were retained, who moved for a con-
tinuance to enable them to prepare for trial, which was refused, and the trial
did not take place until the 23d of the same month, it was held, there was no
abuse of discretion in denying the motion, calling for a reversal. Pennsylvania
Co. v. Rudel.

2. A question to jurors asking them to state briefly their idea of the duties
of a juror, with a view of ascertaining whether they were men of sound judg
ment and well informed, is not proper for that or any other purpose. Id.

3. A mere technical error in the admission of evidence of an unimportant
character is no ground for reversal. Id.

4. Evidence of what a flagman of a railroad company said and did at the time
and just before a person about to take passage on a train was struck by another
train passing on another track at a rapid speed, is pertinent in an action to
recover for the injury, under an allegation that the company failed to keep a
flagman at the spot to signal and warn of the approach of impending danger.
Such allegation means more than that there was no flagman employed there. Id.
5. Where the court gives an instruction of its own in place of others refused.

PLEADING AND PRACTICE—Continued.

which fairly states the law of the case, the party asking those refused will have
no cause of complaint. Id.

6. Under peculiar circumstances going to excuse the plaintiff from taking the
usually necessary precautions to avoid danger, an instruction in a suit to recover
for a personal injury from a passing train at the intersection of the track with a
street crossing, that if the plaintiff knew of the existence of the track at the
place of the injury, and that trains frequently passed along the same, and could
have looked for and seen, or have listened and heard, the approaching train
before going upon the track, and did not thus look and listen for the train, and
that by reason of such neglect he failed to avoid the injury, may be properly
refused, although ordinarily such an instruction should be given. Id.

7. A party is injured in a railroad accident, his injury brings on insanity, and
about eight months after this accident he commits suicide in a fit of insanity.
Under a State statute, giving to the personal representative of the deceased a
right of action for death caused by negligence or default, the accident is too re-
mote a cause of the death to be actionable. Scheffer v. Washington City R. R.
Co. 38.

8. A complaint against a railroad company, alleging that its servants and
agents managed and operated its locomotive and cars in such a recklessly and
culpably negligent manner as to wilfully and wrongfully cause a team of horses
to take fright and run away, and that, because of such fright, and while un-
manageable and running away, they ran against the plaintiff's horse and caused
its death, contains facts sufficient to constitute a cause of action. Billman v.
Indianapolis, etc., R. R. Co. 41.

9. In such case, the fact, that between the wrongful act of the company and
the injury complained of was an intervening cause, is not sufficient to defeat a
recovery. An intervening agency does not always shield the wrong-doer from
responsibility, where the injury flows from his wrongful act. Id.

10. The maxim, causa proxima, et non remota, spectatur, is not applicable to
the case made in the complaint. Id.

11. Proximate or immediate and direct damages are the ordinary, natural,
and usual results of an injury, and, being probable, may therefore be expected.
Id.

12. In such case, the injury sued for was the usual and proximate result of
the wrongful act of the company, showing, not passive negligence, but wanton
and wilful wrong. Id.

13. In an action to recover damages for alleged negligence, plaintiff is entitled
to have the issue of negligence submitted to the jury when it depends upon con-
flicting evidence, or on inferences to be drawn from circumstances in regard to
which there is room for a difference of opinion among intelligent men. Payne
v. Troy, etc., R. R. Co. 54.

14. In judging of negligence all the circumstances are to be taken into the ac-
count, and among others the age and sex of the person injured, so far as these
are important. Michigan, etc., R. R. Co. v. Hassenmeyer, 60.

15. But it cannot be laid down as a rule of law that a less degree of care is
required in a woman than in a man; and an instruction to that effect is erro-
neous. The rule of reasonable care and prudence knows nothing of sex.

Id.

16. The complaint alleged the negligent construction, by the defendant, of a
number of parallel railroad tracks across a public street at a point where the
plaintiff was attempting to cross when injured; also the negligent condition of
the sidewalk crossing such tracks; also the failure of the defendant to keep a
watchman at such crossing, as required by an ordinance of the common council
of the city within which were such street and crossing; also the failure of such
employees to sound the whistle and ring the bell of the engine when approach-
ing the crossing. The failure to sound the whistle having been proved by the
plaintiff, the defendant offered in evidence another ordinance of such council,
prohibiting the sounding of whistles and ringing of bells on engines while pass-
ing through the city. Held, that the exclusion of such evidence was erroneous.
Pennsylvania Co. v. Hensil, 79.

17. It was erroneous to instruct the jury, in such case, that, if there was a