PLEADING AND PRACTICE-Continued.

city ordinance requiring the defendant to keep a flagman at said crossing, "then
the defendant could not fail or neglect to comply with its requirements without
being guilty of negligence," if such negligence be not connected with the al-
leged injury. Id.

18. While such a failure is negligence, per se, the instruction should have
treated upon the question as to whether such negligence was a proximate cause
of the injury. Id.

19. It was error to instruct, in such action, that the commission, by the de-
fendant and its agents, of the acts alleged in the complaint as constituting negli-
gence, ipso facto, rendered the defendant guilty of negligence. Id.

20. An exception to the ruling upon a motion for judgment upon answers to
special interrogatories, notwithstanding the general verdict, presents such ques-
tion to the Supreme Court without any bill of exceptions. Terre Haute, etc.,
R. R. Co. v. Clark, 84.

21. In declaration for a railway injury, an averment that defendant negli
gently 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, without giving the necessary statutory signals, viz.: ringing a bell or
sounding a whistle, was a sufficiently specific averment of defendant's negli-
gence when taken in connection with the averment of consequential injury, and
it entitled plaintiff to support it by evidence, under defendant's plea to the
general issue. The neglect of a railroad company to ring a bell as required by
statute when approaching a crossing will make it liable for any injury resulting
from such neglect. Chicago, etc., R. R. Co. v. Miller, 89.

22. Where the evidence on a question of negligence is doubtful and presents
qualifying circumstances, and the inferences to be drawn from the facts are un-
certain, it is the province of the jury to decide. Kansas Pacific R. R. Co. ✨.
Richardson, 96.

23. That where in a case the complaint contains no averment of lack of con-
tributory negligence on plaintiff's part, and the answer does not aver the existence
of such contributory negligence, the court is, notwithstanding, justified in ad-
mitting on the trial evidence on that point, and submitting it to the jury. Shaw
v. Jewett, 111.

24. In an action by a passenger against a railroad company to recover dam-
ages for injuries alleged to have been occasioned by the negligence of the
company, defendant, the plaintiff must in his complaint charge the company,
defendant, with negligence, and must also aver that he himself was without
fault or negligence, or state such facts as will clearly show that he was without
fault or negligence in the premises. Cincinnati, etc., R. R. Co. v. Peters, 126.
25. Where the plaintiff files a complaint setting forth facts as stated, and in
addition alleges that the conductor told him when they arrived at said station
and instructed him to follow and that he would light him off said train, and
that he did accordingly follow said conductor, and that said conductor held his
lantern and told him that the train had stopped and that he should step off, in
obedience to which directions he did step off as carefully as he could, and with-
out any fault or negligence on his part was thrown under the car and run over,
Held, that the complaint was sufficient. Id.

26. Where the plaintiff in such case files a complaint averring that none of
complainant's agents lighted him off the train, but that the same had so far
checked its speed that he could have safely alighted therefrom had it not as he
was alighting suddenly started up at a faster rate, whereby plaintiff was without
any fault or negligence on his part, thrown down and run over, Held, that the
complaint was sufficient. Id.

27. In suit by a passenger against a railroad company to recover damages for
an injury occasioned by a misplaced switch, proof of the fact the accident con-
stitutes a prima facie case for the plaintiff, and throws the burden of proof on
the company to show that by no human skill or forethought could the accident
have been prevented. N. Y., etc., R. R. Co. v. Daugherty, 139.

28. An expert may be called to give an opinion upon a hypothetical question,
if that question be framed on the facts of the case at issue Id.

PLEADING AND PRACTICE—Continued.

29. If the facts stated in the petition do not entitle plaintiff to relief, advan-
tage may be taken of the defect by motion in arrest of judgment. Smith v. Bur-
lington, etc., R. R. Co. 149.

30. The defendant offered in evidence a photograph of another street railway
car, and proposed to prove that it was an exact representation of the car upon
which the accident happened. On objection it was held that it might have been
competent to have offered in evidence a photograph of the car upon which the
accident happened, but not the photograph of another car, and then supplement
the proof by showing that the two cars were alike. People's, etc., R. R. Co. v.
Green, 168.

31. The plaintiff was allowed to testify that it was the usual custom of de-
ceased during his married life to be at home after business hours, and that they
had lived a happy married life. That for eight years prior to his death she had
been an invalid and unable to leave the house, and that during that time he had
been very kind and attentive, and that she was dependent upon him. The
daughter of deceased was allowed to testify that he was kind as a father; that
the social and domestic relations as to the family, on his part, were happy, and
that he was kind and loving to plaintiff. The plaintiff was permitted to testify
that after deceased had been taken to his home she discovered pieces of flesh.
Held, the first and second points above stated are fully covered by Section 377,
Code of Civil Procedure: Such damages may be given as under all the circum-
stances of the case may be just," and by the decision in Beeson v. Green Moun-
tain Gold and Silver Mining Co., 57 Cal. 20. Plaintiff sued as heir-at-law and as
administratrix; in both respects the testimony of plaintiff's relations with de-
ceased was admissible; in the latter respect testimony as to the relations of the
father and daughter was admissible. Cook v. Clay, etc., R. R. Co. 175.

32. The testimony showed that deceased was fifty-nine years old, the surviv-
ing family consisting of his widow and daughter, twenty-three years of age; that
he was a game and poultry dealer, and made a good, comfortable living for
himself and family. The verdict was for $8000. The plaintiff was an invalid,
having been for years dependent upon her husband. Held, the amount given
by the jury could not be said to be more than, "under all the circumstances of
the case," is just. Id.

33. The record showed that after the jury had retired and had been deliberat-
ing on their verdict for about nine hours, the court, without the knowledge or
consent of the appellant, caused the jury to be informed through the bailiff hav-
ing them in charge, that if they did not agree on a verdict the court would keep
them there until Saturday night, a period of four days, to which action of the
court the appellant at the proper time excepted. This action of the court can-
not be justified. It constituted, as it must have been intended that it should, a
kind of coercion on the jury, which was inconsistent with their proper indepen-
dence. Terre Haute, etc., R. R. Co. v. Jackson, 178.

34. The St. Massachusetts of 1877, c. 232, enacting that the provisions of the
Gen. Sts. c. 84, § 2, "prohibiting travelling on the Lord's day, shall not consti-
tute a defence to an action against a common carrier of passengers for any tort
or injury suffered by a person so travelling," does not apply to an action brought
after it went into effect for an injury received before its enactment. Bercher v.
Fitchburg R. R. Co., 212.

35. If a motion is not filed within the time prescribed by statute it is, for that
reason, properly overruled; and the same result must follow when the filing is
not within the time fixed by stipulation of the parties. Beems v. Chicago, etc.,
R. R. Co. 222.

36. Evidence of the number of decedent's family and of his accumulation of
property was admitted and considered by the jury as to the standard of value of
life of decedent, which was error for which the judgment must be reversed. Id.
37. There is no prejudice resulting to defendant from the want of agreement
between the petition and instruction in the number of the names used to indi-
cate the persons charged with negligence. Id.

38. Where in an action against a railroad company the jury returned a verdict
against the company, and also made certain special findings of fact, and the

PLEADING AND PRACTICE-Continued.
company made a motion for judgment upon those findings, the verdict to the
contrary notwithstanding, which motion was overruled by the court, and there-
after the company made a motion to set aside the verdict and judgment and for
a new trial, which motion was sustained, held, that as no judgment had been
rendered against the company and no final order made against it, no petition in
error would lie to review the action of the district court in refusing a judgment
upon the special findings in favor of the company. Atchison, etc., R. R. Co. v.
Brown, 228.

39. A verdict of $10,000 for the death of single man held to be excessive.
Atchison, etc., R. R. Co. v. Brown, 228.

40. In a suit against a railroad company to recover damages for striking a
person by a train of cars through negligence, a witness had been speaking of the
train that struck the deceased. He was then asked: "State to the jury, in your
opinion, how fast the train was going," which was claimed to be objectionable,
as not being limited in time or to the particular train: Held, that the objection
was not tenable. Penna. Coal Co. v. Conlan, 243.

41. At to matters which do not so far partake of the nature of a science as to
require a course of previous habit or study in order to an attainment of a knowl-
edge of them, the opinions of witnesses, though experts, are not admissible. Id.
42. The question of negligence is not one of law, but of fact, and must be
proved like any other. Hence an instruction is properly refused which tells the
jury, as a matter of law, that certain facts per se constitute negligence. By this
it is not meant that the definition of negligence is one of fact, to be determined
by the jury. Id.

43. An instruction is properly refused which singles out an isolated fact, say-
ing that it alone does not constitute wilful or wanton negligence, especially
when the question does not hinge on such fact alone, and the instruction does
not assume to be predicated upon the evidence. Id.

44. An instruction telling the jury, as a matter of law, that an ordinary
switchman's lantern, giving forth a white light, is a sufficient compliance with
a city ordinance requiring "a brilliant and conspicuous light on the forward
end of each locomotive," etc., is properly refused, as taking from the jury an
important fact which it is their province to find from the evidence. Id.

45. To impeach a witness it must be shown that he wilfully and knowingly
testified falsely to a material fact, and even then the jury are not compelled to
disbelieve him as to other matters. They may do so, but should be left to ex-
ercise their judgment in that regard. Id.

46. Railroad employees are as worthy of belief as other agents. All agents
and employees are presumed to be friendly to their employer, and on that ac-
count are usually subjected to a rigid cross-examination; but when this is done,
their evidence must be weighed as other testimony, and its value estimated in
connection with all the facts proven. Tucker v. Duncan, 268.

47. Certain special findings were requested by defendant, to which the jury
returned answers that they 'did not know" or "could not tell." Held, that as
the answers, had they been in favor of the defendant, would not have been in-
consistent with the general verdict rendered, the indecisive answers were no
ground for reversal. Laverenz v. Chicago, etc., R. R. Co. 274.

48. Where witnesses swear that they heard the ringing of the engine bell, and
others swear that they were in a position to hear it if it had rung, and that they
did not hear it, there is sufficient conflict in the evidence to be left to the jury.
Bunting v. C. P. R. R. Co. 282.

49. 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 run-
ning 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 believe
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 pas-
sengers and railroad employees on same, in his then situation, and could prud-
ently have avoided collision with the team, his failure so to stop amounts to

PLEADING AND PRACTICE-Continued.

negligence, and renders the defendant liable for damages, and such liability at-
taches even though the plaintiffs contributed to the injury by their own care-
lessness or negligence." Id.

50. In the statutory proceeding by garnishment, in justice's court, jurisdiction
must appear affirmatively from the record, and where that fails to show the affi-
davit required by the statute as the foundation of the proceeding, neither a docket
entry that an affidavit was made and filed (not showing its contents), nor an ap-
pearance and submission to the court by the garnishee, can give validity to the
judgment. Wells v. Amer. Ex. Co. 298.

51. Although the cause of action in the complaint, as last amended, is inde-
pendent of the transactions between the parties and others in respect to the ship-
ping and consignment of furniture, and the collection, upon the bill therefor,
by defendant's agent, of the moneys consigned to W. & C., those facts were
properly admitted in evidence to show W.'s exclusive ownership of the moneys
so consigned. Id.

52. A petition under said act against a corporation for demanding and receiv-
ing excessive fare in the sale of a passenger ticket to a person desirous of travel-
ling on its road between the points named on the ticket, is not bad, on demurrer,
for want of an averment that the purchaser of the ticket was, in fact, transported
on the ticket for which excessive fare was exacted.

53. A petition under said act is not bad for want of an averment that the ex-
cessive fare was paid by the plaintiff in the due course of business, although
judgment was not rendered thereon until after said act was repealed by the
Act of March 30, 1875 (72 Ohio L. 143), saving only pending actions and causes
of action under the repealed statute, where the excessive fare was paid in the
due course of business and not for the purpose of obtaining the penalty.

54. In such an action the plaintiff is a competent witness to testify as to the
value of the goods, though he may not know the market value of such goods at
the place of delivery. Perhaps the best way to arrive at the value of such goods
would be to show the price in the market of new goods of the same character,
and then show, as nearly as possible, the extent of depreciation from use.
such course is not open to a plaintiff when the defendant retains possession of
the goods. In the matter of values, as in other matters, the law will give relief
according to the injury, on the best testimony that can be obtained. Marsh v.
Union Pacific R. R. Co. 359.

But

55. When there is reason to believe the amount returned by the jury is larger
than the reasonable value of the property, plaintiff may be required to elect be-
tween an abatement of part thereof, or submit to a new trial. Electing to abate,
new trial will not be ordered. Id.

56. The bringing suit upon the debt when due and recovery of judgment, does
not estop the seller from suing the carrier for wrongful delivery. Blooming-
dale v. Memphis, etc., R. R. Co. 371.

57. The plaintiff was improperly arrested for using a ticket which he had pur-
chased of the company. Upon trial the court ruled that the plaintiff was en-
titled to recover damages for indignities which he had suffered at the hands of
the police, for his mental suffering, and for sickness produced by a cold caught
while confined. Held, that these results were too remote to come within the
rule of damages applicable to an action of contract, and that the plaintiff's remedy
for these wrongs is by an action of tort. Murdock v. Boston, etc., R. R. Co. 406.
58. Where questions should not have been allowed, but the answers thereto
are unexceptionable, this court will not reverse therefor. Phila., etc., R. R. Co.
v. Anderson, 407.

59. An assignment of error embracing in general terms all the charges and in-
structions given by the court, is too general, and will not be considered. Hous-
ton, etc., R. R. Co. v. Shafer, 421.

60. In a suit against a railway company for injury, which the plaintiff alleged
he had received while a passenger, from the negligent and wrongful manage-
ment of its train, his expressions indicating pain uttered after the alleged injury
are admissible in evidence as part of the res gesta. Whether his suffering was
real or feigned was a question for the jury. Id.

PLEADING AND PRACTICE-Continued.

61. See statement of case for facts held sufficient to sustain a verdict for fifteen
hundred dollars damages against a railway company, for producing a more ag-
gravated condition of hernia than had before existed, caused by its cars run-
ning off the track, whereby plaintiff was shocked, and thus damaged. Id.

62. 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 torti-
ous injury to the intestate's person, and that the action was therefore not main-
tainable. Pulling v. Great Eastern Ry. Co. 488.

63. In an action brought, under 9 & 10 Vict. c. 93, for the benefit of the father
of the deceased, evidence was given that the father, who was fifty-nine years of
age, was nearly blind and injured in his leg and hands, and was not so able to
work as he had been, but worked when he could; that the son used to contribute
to his support; that five or six years previously, the father being out of work
for six months, the son had assisted him pecuniarily out of his earnings, but
had not done so since. Held, that there was evidence for the jury of pecuniary
injury to the father from the son's death. Hetherington v. North Eastern Ry.
Co. 490.

64. The Federal courts have jurisdiction in cases arising under the laws of the
United States, or where a State is party. Railroad Co. v. Mississippi, 622.
65. Service in the State of foreign corporations. Mohr v. Ins. Cos. 620.
66. Where, after the commencement of an action, a third party becomes in-
terested in the litigation by assuming the liabilities of the defendant in respect
to the claim plaintiff is seeking to enforce, it is proper to allow a supplemental
complaint bringing in such third party as a co-defendant. Prouty v. L. S., etc.,
R. R. Co. 621.

67. After a city had in its discretion constructed a track for the purposes
named, a court cannot exercise a supervisory power over the location. Rice,
etc., Co. v. Worcester, 624.

See ANIMALS, ATTACHMENT, CARRIER, 4, 80, 81; JURY, NEGLIGENCE, 3, 13–
16, 22, 26, 27, 32, 36-42, 45, 48, 50, 51, 53, 57, 74, 76, 78.

Have no jurisdiction as to costs. Foster v. Great Western Ry. Co. 595.
RECEIVER, 582.

A railroad company, whose property is temporarily in the nands of a receiver,
will not be held liable for injuries caused by the negligent management of a
locomotive by a person in the service of the receiver.

REDUCED RATE OF FARE, 318.

RES GESTE.

See ANIMALS, 7.

See CARRIER, 16.

See PLEADING AND PRACTICE, 19.