directed and agreed to such negligence, and approved it. Railway Co. v. Nolan, 53 Tex. 148, 149. The court below tried the case upon the correct principle, and did not commit the error assigned. Several other assignments of error make the same complaint as the above, insisting that the rights of the company were not recognized by the court or jury. They are not well taken, and need not be further noticed. As to the verdict, we are not prepared to say that it is so clearly unsupported by the evidence as to authorize an appellate court to set it aside. There was testimony tending to show that the injury was caused by the negligence of the company, as alleged. The jury have passed upon it, and their verdict has been. approved by the trial judge. We do not think it should be disturbed. As to the contributory negligence of the plaintiff, insisted on by appellant, we cannot say that the verdict was wrong. Her testimony showed that she was driving carefully, at an ordinary gait, and that the accident was not attributable to her or the horse she was driving, but to the condition of the track; that she turned to cross the railroad track under circumstances which justified her in doing so. The fact that she was driving a dogcart may have required of her more care than if she had been driving a fourwheeled buggy; but such mode of conveyance would not deprive her of a recovery if she was careful in the management of it, and was not otherwise guilty of negligence that contributed to the injury, if it was caused by the company's negligence. Our conclusion is that the judgment of the court below ought to be affirmed." In Cline v. Railroad Co., 43 La. Ann. 332, 9 Southern Rep. 124, it is said: "There can be no doubt that a city is under the obligation of keeping its streets, sidewalks, etc., in good order or repair, so, at least, as to prevent serious accident or injury to persons using the same or to their property; and that, where such happens by the heedlessness or fault of the corporation, having previous knowledge of the bad condition of the street, sidewalk, or particular dangerous spot, and without any contributive act, whether by commission or omission, of the party affected, the corporation can be held to repair the damage occasioned. It is also well settled in law and jurisprudence that although a municipal corporation, by virtue of the right with which it is vested of control over its streets, can legitimately grant to a railroad company the privilege to build its track and run its cars on the same, imposing upon it the burden of keeping them, from curb to curb, or rail to rail, in good order and condition, so as to prevent injury, as it is itself bound to do, the concession of the grant, and the imposition and acceptance of the burden, do not relieve the corporation from liability should the

company fail to comply with its obligations, and by its negligence and default inflict injury to one using due care and precaution, and not guilty of contributory neglect. It is also well recognized that a party injured has a double action against both the city and the railroad company, regardless of the contract between them, holding each as primarily responsible, and that when the city is mulcted it has the right to recover against the railroad company in the same action, if both are defendants, and the city has properly brought the railroad company by a call in warranty or a distinct suit. It is likewise firmly established that an injured party, in order to recover, must be shown not to have been guilty of any contributory negligence; that is, the careless commission or omission of acts which, if prudently done or not done, would have avoided the occurrence of the injury occasioned by the heedlessness of another, and which is considered as the proximate cause of the accident. The evidence in this case establishes the stubborn facts of the existence of the whole, of the loose rail and protruding spike on the side, the fall of the man, the fracture of his skull on the rail and spikes, and his consequent destruction and death. Certainly there are three parties to this accident who may be charged with negligence. As against the driver, it is claimed that the hole was visible, as it was four feet long, two feet deep, and four inches wide, and it was about three o'clock P. M. when the wheel of his wagon got into it; that he must have seen it, and should have seen it; that, if he did not see it, it was because he did not do his duty in looking forward; that, if he saw it, he should have avoided it by stopping in time and taking a different course; that, if he did not see it, it was his own fault; that he was guilty of contributory negligence; and that his representatives have no right to complain, and seek indemnity through him. As against the city, it is urged that it was bound to keep its streets in good order and condition; that, had it done so, the hole would never have existed, or would have been stopped in time, and the accident would not have happened; that its defense of penury is bad, and that its contract with the railroad company did not exonerate it from the obligation. As against the railroad company, it is pressed that it was bound to keep in like good order and condition the streets through which it ran its tracks and cars, whether under the contract or independent of any agreement to that end: that surely it was bound to keep its tracks, rails, and spikes designed to fasten the same down, so that no injury could be produced thereby to any traveler on the streets, although using the same with more or less usual inattention; and that, if the condition of the loose rail and protruding spikes be the proximate cause of the death, it is

liable in damages. It cannot be reasonably supposed that the driver knew of the condition of the hole, saw it, and intentionally ran the fore right wheel of his wagon into it. The size and appearance of the hole were not such as necessarily and unavoidably must have provoked attention. The hole was such as any one driving on the track may not have noticed. The deceased had a right to drive on the track. The right of way or franchise, conceded by the city to the railroad company, did not deprive the deceased, or any one else running vehicles on the street, from the right of using any part of the street or the track itself. There was no trespass. But even if the driver had seen the hole, and had not avoided it, nothing shows that he knew of its dangerous character. Could he be really charged with negligence, it would not be with that sort of negligence technically known as 'contributory,' which is the commission or omission by the party of an act amounting to a want of ordinary care as concurring or co-operating with the negligence of another, and which is the proximate cause or occasion of the injury complained of. To constitute contributory negligence, there must be a want of ordinary care, and a proximate connection between that and the injury. Beach, Contrib. Neg. 7. No doubt the city was in default. The hole had been in the condition known for more than two weeks. Accidents had occurred but which had produced no grave injury worth being judicially complained of. The city must be considered as having had notice of the condition of the hole and it is no excuse for it to plead penury or shift the responsibility on the railroad company so as to avoid liability. The city should have notified the company, but primarily it was bound to put the hole in a condition not to be dangerous. It should be blamed for not having done so. Nevertheless the heedlessness of the city in the premises, however censurable, does not fasten upon it the responsibility in damages sought to be saddled upon it. The falling of the right fore wheel of the wagon into the hole caused a shock. That shock dashed the driver from the vehicle and he was flung with some violence. The evidence shows that several other travelers on the street and on the track had met with similar accidents and had been thrown from their carts on the pavement but none were killed or dangerously hurt. The unfortunate fellows were more or less bruised and that was all, although much in itself to some extent. In the present instance, the driver would have sustained no further injury had it not been that a condition of things existed at the time which did not exist previously, when the other accidents occurred. The city is not sued now for the suffering which the driver sustained in consequence of bruises inflicted by the fall. It is sued for damage

suffered in consequence of the death of the driver, and the fact is that the city is not guilty of any negligence which was the proximate or direct cause of that catastrophe. The responsibility must rest on other shoulders. The defenses announced of the railroad company have no bottom to stand upon. Conceding all the facts averred, which would seem to tend to show a condition of things amounting somewhat to vis major or uncontrollable circumstances, the railroad company cannot be heard to say that they were of such character as to prevent it from stopping the hole, and preventing it from being dangerous, from nailing down securely the loose rail, and fastening steadily the protruding spikes. The plaintiff could sue independent of any contract between the city and the company. Though true it be that the hole was somewhat dangerous, and was the cause of the shock which occasioned the fall, the certainty is that but for the loose rail and protruding spikes the traveler would not have met with an untimely and sudden death. He would have fallen, would have received some bruises, for indemnifying which he would not probably have sued either the city or the company, but he would not have been killed. The cause, causa causans, of the death was the violent coming in contact of the skull of the deceased with the loose rail and the protruding spikes, in consequence of which the skull was fractured or perforated, with almost instantaneous death as the result. If, under the facts and the law, this railroad company cannot be held responsible but must be excused, what is the case in which a company can be held liable for omissions of duty which are the direct cause of irreparable calamity? In the consideration of this case, and the law and jurisprudence applicable to it, we have consulted with advantage a new work, just issued on Roads and Streets,' by Elliott, which is quite commendable. It is very difficult to compute the damages to which the plaintiff, in her own right and as tutrix, is entitled for the loss sustained by the death of the husband and father. When she opened his estate, she produced the certificate of the coroner to prove the death, and she established from it that he was sixty-two years of age. It is claimed that, according to the life insurance time tables, he would probably have lived twelve years more, and it is insisted that his earnings during that time would have amounted to a considerable sum, and that this amount, at least, should be recovered in this action. It may be, and it may not be, that the party would have lived that time. He might have died the next day, the next month, the next year, by disease, or some accident, or some unforeseen cause. His earnings were small.. The evidence in that respect is entirely unsatisfactory and unreasonable. The

fact is that he was a wagon driver, doing jobs. But he had to provide for a stable and shed for his horse and wagon, for feed for the animal. He had to supply his own wants. If he earned $1.50 or $2 a day, he could have saved very little to provide for his wife and daughter who, it is to be presumed, owing to their age and condition in life, must have been able to support themselves to some extent."

It seems clear, upon both reason and authority, that it was the duty of appellee to see that the street or road in question was so nearly upon a level with the rails of its road as to reasonably prevent injury to the person or property of any person traveling or rightfully being upon said street or road, and, if it did fail so to do, it is liable in damages for such failure, without regard to whether any other person or corporation was liable to respond in damages for such injury. It results from the foregoing that instructions Nos. 1, 2, and 3, given by the trial court, are erroneous. tion 1, asked by plaintiff, is substantially correct.

Instruc

For the reasons indicated, the judgment is reversed, and cause remanded, with directions to award the appellant a new trial, and for proceedings consistent with this opinion.

STAFFORD v. MAINE CENTRAL RAILROAD
COMPANY.

Supreme Judicial Court, Maine, May, 1900.

MASTER AND SERVANT — INSTRUCTIONS - FIREMAN INJURED BY EXPLOSION OF APPLIANCE ON LOCOMOTIVE. - I. In an action for negligence, where the jury returned a verdict for the plaintiff, it appeared that the issues between the parties were all questions of fact for the jury, and no doubtful questions of law were involved. The well-settled principles of law applicable to the respective rights and duties of the parties, as master and servant, were carefully given by the presiding justice, and in such manner as to fully protect the rights of the defendants (1).

2. While the court might possibly have drawn inferences and conclusions from the facts different than a jury, held, that the questions were such that reasonable and fair-minded men might differ about them, and that accordingly the verdict should not be set aside.

(Official.)

1. For other actions relating to Railroad Employees Injured by Defective Appliances, from 1897 to date, see vols.

1-8, Am. Neg. REP., and the current numbers of that series of Reports.