from a defect in a highway. This is not because the liability of a city or town for a defect in a way is imposed by statute, or because a city or town stands in any different position from an individual, or other corporation, but only because the act of travelling, which is the act prohibited, necessarily contributes to cause the injury. The act of travelling in violation of law on the Lord's day, with no evidence of any other negligence, has been held to be necessarily contributory to the injury sustained by the plaintiff. Stanton v. Metropolitan R. R., 14 Allen, 485; Smith v. Boston & Maine R. R., 150 Mass. 490; Lyons v. Desotelle, 124 Mass. 387; Bucher v. Fitchburg R. R., 131 Mass. 156; s.c., 6 Am. & Eng. R. R.

Cas. 213.

In McGrath v. Merwin, 112 Mass. 467, which was an action brought to recover for injuries sustained by the plaintiff, while engaged in clearing out a wheel-pit unlawfully on the Lord's day, from the negligence of the defendant in carelessly starting the wheel, it was held that the illegal act of the plaintiff was inseparably connected with the cause of action, and contributed to his injury, and that he could not recover.

In all cases of travelling or laboring on the Lord's day, in violation of law, all the acts of travelling or laboring being illegal, if any act of so travelling or laboring by a plaintiff contributes to his injury, it is held, under our decisions, that his illegal act must necessarily be a contributory cause of his injury, and prevent his re

covery.

The plaintiff contends that, by the provisions of the St. of 1877, c. 232, his illegal travelling (the defendant being a common carrier of passengers) constitutes no defence to his action. We have not found it necessary to determine whether the words "a person so travelling," in the St. of 1877, mean a person travelling in any way, or whether they are confined to a person travelling as a passenger with a common carrier of passengers, as in our view it was rather as a laborer than as a traveller that the plaintiff was injured.

We cannot doubt that the acts of the plaintiff in laboring necessarily contributed to his injury. The place he was occupying on the car, and the attitude he assumed at the time in collecting fares, especially exposed him to the injury he received, and contributed to it. The case of McGrath v. Merwin, ubi supra, is decisive of this case.

A majority of the court are of opinion that, under the undisputed facts in the case, the jury should have been instructed that the plaintiff's illegal acts contributed to his injury, and that he was not entitled to recover. Smith v. Boston & Maine R. R., ubi

Sunday Laws.-Ordinarily in an action against a common carrier for personal injuries, it is no defence that the accident occured on Sunday either

while the plaintiff is travelling or employed upon his ordinary occupation. Philadelphia R. R. v. Towboat Co., 23 How. 217; Carroll v. Staten Island Co., 58 N. Y. 126; McArthur v. Green Bay Co., 34 Wisc. 139; Sawyer v. Oakman, 7 Blatch. C. Ct. 290; Mohney v. Cook, 26 Pa. St. 342; Schmid v. Humphrey, 48 Iowa, 652

In Massachusetts the law is to a contrary effect. Stanton v. Metropolitan R. R. 14 Allen 485; Feital v. Railroad Co., 109 Mass. 398; Smith v. Boston R. R. Co., 120 Mass. 490; Lyons v. Desotelle, 124 Mass. 387; Buchner v. Fitchburg R. Co., 6 Am. & Eng. R. R. Cas. 212.

As to the applicability of Sunday laws to work on railroads in general, see Yonoski v. State, 5 Am. & Eng R. R. Cas., 40; Phila. W. & B. R. Co. v. Lehman, 6 Am. & Eng. R. R. Cas. 194; Commonwealth v Louisville, etc., R. Co., 6 Am. & Eng. R. R. Cas. 216; Augusta R. R. v. Renz, 55 Ga. 126; State v. Balt. & Ohio R. R. Co., 15 West Va. 362; Gulf C. & S. F. R. Co., v. Levy, 12 Am. 7 Eng. R. R. Cas. 96.

BURLINGTON, CEDAR RAPIDS AND NORTHERN RY. Co.

V.

DOWELL, Administrator.

(Advance Case, Iowa. December 15, 1883.)

The brakeman of a railroad train who was riding on the engine with the conductor was ordered by the latter to look back and see if the train was broken. He stepped to the side of the engine, fell out and was killed. No one saw him fall or knew how the accident happened. There were high banks of snow on either side of the track, in the condition in which they had been left by the snow-plough. The evidence was contradictory as to how near these banks were to the engine. At the place where the accident occurred there was no indication that decedent had been struck by the bank but only that he had fallen against it. In an action by the administrator of the deceased against the company to recover damages for his death,

Held, that there was no evidence of negligence on the part of the railroad company to sustain a verdict for the plaintiff.

A railroad company is not chargeable with negligence to its employees in letting a snow bank stand on either side of the track in the manner in which it has been left by the snow-plough.

In an action by the administrator of a decedent to recover damages for causing his death, a payment to the widow of the decedent (not his administratrix) cannot be pleaded in satisfaction.

ACTION to recover damages to the estate of which plaintiff is the administrator, resulting from the death of the intestate caused by personal injuries received by him through the alleged negligence of defendant while he was in its employment, as a brakeman.. There was a judgment upon a verdict for plaintiff; defendant appeals.

J. & S. K. Tracy for appellant.
Traer & Voris for appellee.

BECK, J.-The plaintiff's intestate while in the discharge of his duty as a brakeman upon a train running upon defendant's road. fell from the engine, where he, with the conductor, was at the time, and was run over and killed by the train. He was directed by the conductor to look back to discover whether the train was separated, and in obedience to this command, went to the side of the engine. He was last seen in life then. No one observed his fall, and the cause of it is not shown by the evidence. At the time the train was passing through a snow bank about ten feet high. The track had been cleaned off, and the snow deposited by the snow-plough on the bank four or five days before the accident. The snow bank at the bottom was far enough away to permit the cars to pass; and it receded at an angle of about forty-five degrees, according to the testimony of some witnesses. Others testified that the bank at some points approached to within fifteen inches of the car. The intestate assisted to clear off the track and had knowledge of character of the snow bank and the distance it was from the car.

Plaintiff insists that the intestate in looking back as directed by the conductor, was struck by the snow bank, which caused his fall, and that defendant was negligent in permitting the bank to remain too near the track. But there is no positive evidence supporting the fact upon which this theory is based, and the jury so find in response to a question propounded to them. The appearance of the snow at the place where the intestate fell, did not indicate that he was struck by the bank. It did show that he fell against the bank.

The court directed the jury in effect that if from the evidence they could not find whether the accident was the result of defendant's negligence or want of ordinary care by the intestate, and "the matter is thus left to conjecture," their verdict should be for defendant. And that if they found the snow bank was so near the cars that the intestate could not have obeyed the order to look back without being struck, while exercising ordinary care and in ignorance of the fact that there was a snow bank at the place, they should find for plaintiff.

The defendant's counsel asked instructions to the effect that the defendant was not to be regarded as negligent on account of the proximity of the snow bank to the track, and the deceased assumed in entering the employment the risk of the dangers resulting therefrom. These instructions were refused. We are of the opinion that defendant ought not to be charged with negligence on account of the proximity of the snow bank to the track. The accumulation of snow upon the railroad track must be removed in order to make the operation of the trains possible. This was done in this instance by a snow-plough, a common instrument used for the purpose of removing snow from the track. The defendant was not negligent in using it. These conditions and incidents connected with snow

are known to the employees of railroads and was well known to the intestate for he assisted in clearing the track. The bank where the accident occurred was in the condition in which it was left by the snow-plough. The dangers from the snow bank were such as are inseparable from the operation of the road when snow prevails, and is removed from the track and the risk of them was assumed by the intestate. Railroad employees assume the risk of all dangers necessarily attendant upon the operation of the roads. The dangers from snow and its removal from the track in the usual manner always attend the operation of railroads when snows prevail, and are contemplated by railroad employés when they accept employment in the operation of trains in winter, and the railroad companies are not liable for accidents resulting therefrom. These doctrines should have been expressed in an instruction to the jury.

We are of the opinion that the verdict is without the support of evidence. There is no evidence tending to prove that defendant was negligent. In leaving the snow bank stand so near the track it is not chargeable with negligence, and it is not attempted to establish negligence upon any other ground. And there is no evidence that the intestate was struck by the snow bank causing him to fall. The only evidence upon this point of the case tended to prove that he was not struck by the bank.

Defendant pleaded satisfaction of the damages claimed in this case by payment to the widow of intestate. She is not and was not the administrator, and could not release the claim of the estate of the intestate based upon his death through negligence of defendant. She could release the claim for damages she individually sustained, and the satisfaction pleaded by defendant could extend no farther.

For the errors pointed out the judgment of the District Court is reversed.

Ice and Snow.-A company is not bound to keep the ground near its tracks free from ice and snow and the danger incident to such a condition of the ground is an ordinary risk of a brakeman's empoyment. Piquegno v. Chicago & G. T. R. Co., 12 Am. & Eng. R. R. Cas. 210.

Settlement of Claim for Damages.-Where the railroad company settles with the decedent during his lifetime for the injury he has sustained, this will preclude an action by his administrator to recover damages for his death. Bead v. Great Eastern R. Co., L. R. 3 Q. B. 555; Dibble v. New York, etc., R. R. Co., 25 Barb. (N. Y.) 183.

See generally, Stout v. Indianapolis, etc., R. R. Co., 41 Ind. 149; Barnett v. Lucas, L. R. 6 C. P. 247; McGovern v. New York, etc., R. R. Co., 67 N. Y. 417; Hansford's Admx. v. Payne, 11 Bush, 380; Conner's Administratrix v. Paul, 12 Bush, 140. Cf. Corcoran v. Boston & Albany R. R. Co., 12 Am. & Eng. R. R. Cas. 226.

MARTIN

v.

NORTH STAR IRON WORKS.

(Advance Case, Minnesota. January 14, 1884.)

Defendant negligently piled a quantity of smoke-stacks and other material near the track of the Minneapolis Eastern Ry. Co. A train of cars coming along, one of the cars caught one of the stacks, pushed it against a tower in which the plaintiff was stationed in his employment of signaling trains, and he was injured. Held, that whether so piling the smoke-stacks, etc., was an act of negligence as to plaintiff, was, under the circumstances, a question for the jury; that, so far as defendant is concerned, negligence in law is not to be attributed to either the railroad company or to the plaintiff merely because knowing of the danger to passing trains from the fire of smoke-stacks, etc., the former continued to run its trains, and the latter continued in his employment of signaling trains.

APPEAL from an order of the district court, Hennepin county. Merrick & Merrick, for respondent.

F. Hooker and F. B. Hart, for appellant.

GILFILLAN, C. J.-The defendant caused to be piled a large number of smoke-stacks, boilers, and other material along-side of and very near the track used by the Minneapolis Eastern Ry. Co., on or

River street, in the city of Minneapolis. The plaintiff was employed in signaling railroad trains, and for that purpose was stationed in a tower standing on posts beside the track, and about 100 feet distant from the pile of smoke-stacks, boilers, etc. A train of cars coming along, one of them, by reason of the proximity to the track of said pile of smoke-stacks, etc., caught and became attached to and pushed along the surface of the ground one of the smoke-stacks against the stairway leading up into the tower, careening the tower in such manner as apparently to endanger the life of plaintiff, then employed in it, signaling trains, and he, to escape, leaped from the tower to the ground, and thereby was injured. To recover for such injury this action is brought. The trial below resulted in a verdict for the plaintiff. The jury found, of course, that it was negligence in defendant to pile the smokestacks, boilers, etc., in the manner in which they were piled, so near the track, and we do not understand that any exception is taken here to that finding. The questions made here are: Was there negligence as to the plaintiff? If so, was it the proximate cause of the injury? Was there contributory negligence on the part of plaintiff? The first of these was, under the circumstances, certainly a question for the jury. If piling the material near the track was a negligent act, it was negligence not only as to the rail