NEGLIGENCE-Continued.

that it cannot be said, as a matter of law, that the failure of the parents to keep
the child away from the railroad track was per se culpable negligence contribu-
ting to the injury. Smith v. Atchison, etc., R. R. Co., 554.

22. Where a railroad track is constructed in a populous neighborhood near a
city, and children and others often go upon the track, and a portion of the track
has a steep grade down which cars will run with great force when the brakes
are loosened, and the persons operating the road loosen the brakes of a car loaded
with coal, and let it run down this steep grade, without any person being on the
car, or without any means of stopping it, and without first looking to see whether
the track was clear or whether any person was on the track or not, and a child
who was on the track was run over and injured, and there is a conflict in the
evidence as to whether the child could have been seen by the persons operating
the road before they loosened the brakes, held, that the courts cannot say, as a
matter of law, that the persons operating the road were not guilty of negligence;
but it is a question of fact which should be submitted to the jury. Id.

23. Where a railroad company owns a switch track constructed from the main
track to a coal shaft belonging to a mining company, and the railroad company
furnishes cars to this mining company to be loaded with coal, and when loaded
permits the mining company to loosen the brakes of the cars so that the cars
will run down the steep grade of the switch track to a point where the track is
level, and the mining company, after loading a certain car, negligently loosens
the brakes thereof and allows the car to run down the steep grade of the switch
track and over a child, and thereby injures it, held, that the railroad company is
responsible for the injury. Id.

24. A railroad company is bound to provide for a careful lookout in the direc-
tion in which a train is moving, in places where people, and especially where
children, are likely to be upon the track. Townley v. Chicago, etc., R. R. Co.,
562.

25. Although the statute (section 1811, Rev. St.) makes it unlawful for a per-
son, not connected with or employed upon a railroad, to walk along the track
thereof, "except when the same shall be laid along public roads or streets,"
yet, where the question is whether a person, injured while walking upon a rail-
road track, was guilty of a want of ordinary care, it is error to reject evidence
showing that many persons, men, women, and children, had, for years before
the accident in question, been in the habit of passing, daily and hourly, up and
down, in the same pathway on which the injured person was passing-since
such testimony would tend to show a license, or to repel the inference of a want
of ordinary care, and also to show a lack of such care on defendant's part as the
facts required. Id.

26. Ordinary care is such care as would ordinarily be exercised by persons of
the age and in the situation of the person sought to be charged with negligence;
and the fact that the person injured was a child of tender years is to be consid-
ered in determining the question of contributory negligence. Id.

27. Railroad companies are not liable for injuries inflicted by passing trains
upon persons walking upon the tracks of the company. Nor does it make any
difference that those persons are of tender years. Čompanies owe no greater
measure of duty to them than to adults. Moore v. Pennsylvania R. R. Co., 569.
28. In an action by parents against a railroad company to recover damages for
the death of their child, they proved that the deceased was killed by a fast ex-
press train while walking upon the track of the company, defendant's road.
The child was nearly ten years of age and was bright and intelligent. The
court, on application of the defendant company, granted a non-suit. Held, on
error, that this was not error. Id.

29. What constitutes negligence is generally a question of fact, and as such is
usually submitted to the jury; the courts being reluctant, where the facts are
complicated, and inferences are to be drawn, and the evidence is contradictory,
to withdraw such questions from their decision. Baltimore, etc., R. R. Co. v.
Stansbury, 574.

30. But it being the province of the court to determine the legal sufficiency
of evidence, it sometimes becomes their duty (where the main facts are uncon-

NEGLIGENCE-Continued.

troverted) to decide whether the facts offered in evidence are such as would
constitute such negligence in law as would debar the plaintiff's right to re-
cover. Id.

31. Where the uncontroverted evidence proved that the deceased (to recover
damages for whose death the defendant was sued) was improperly on the track
of the defendant, that he voluntarily exposed himself to the peril, with full
knowledge of the risk, and might, if he had used his eyes and ears, have seen
and heard the approaching train, long before it struck him; and the only mate-
rial conflict of evidence, was as to the giving of the signals upon the approach
of the cars, it was Held:

That the deceased, having directly contributed to his own death, the plaintiff
had no cause of action, and it was error to reject a prayer of the defendant to
that effect. Id.

32. When the petition charges negligence as the plaintiff's ground of action,
and there is no question of unskilfulness on the part of the defendant raised
either by the petition or the plaintiff's evidence, the plaintiff is not entitled to
an instruction as to the effect of unskilfulness on the part of defendant. Bell
v. Hannibal, etc., R. R. Co., 580.

33. Where the facts are disputed, the question of negligence is eminently one
for the jury, under the instructions of the court; where they are clear and un-
disputed, it is undoubtedly the province of the court to declare the inference
from these facts. Id.

34. The requirement of section 806, Revised Statutes, that the bell shall be
rung or the whistle sounded at the approach of a railroad train to the crossing
of a public highway, is for the benefit of persons on the highway at or approach-
ing the crossing; failure to comply with the statute will furnish no ground of
complaint to a person injured on the track at a distance from the highway. Id.
35. The statute does not require that these warnings shall be continued until
the train has passed the crossing, but only until the engine has passed. Id.

36. An engineer in charge of a moving train has a right to assume that per-
sons past the age of childhood will heed the usual alarm signals. If after giving
such signals without effect, he uses such means as in his judgment are, in the
emergency, most advisable to prevent collision with a person standing on the
track, he is not chargeable with negligence, and the company cannot be held
liable for the consequences of a collision, although he failed to use other means
which were at hand, provided he is competent and experienced in his busi-
ness. Id.

37. The mere fact that a train was moving at a dangerous rate of speed, will
not make the company liable for injuries to a person run over by the engine, if
he was himself guilty of contributory negligence. Id.

38. It seems that a person riding on a freight train on which passengers are
allowed to be carried, is to be regarded as a passenger, although he may have
boarded the train without the knowledge or permission of the conductor and
paid no fare, if the conductor, after becoming aware of his presence, permits
him to remain. Sherman v. Hannibal, etc., R. R. Co., 589.

39. It is well settled that to make the master liable for the tortious act of his
servant, the act causing injury must have been in the line of the servant's duty
and within the scope of his employment. Upon this principle, where the con-
ductor had exclusive control of a railroad train and of all persons on it, but a
brakeman, nevertheless, without the knowledge of the conductor, assumed to
direct a boy on the train to perform a certain service, and in the attempt to
comply with the order the boy was injured; Held, that the railroad company
was not liable. Id.

40. The youth of a person injured on a railroad train may excuse him from
concurring negligence, but it cannot supply the place of negligence on the part
of the company, or extend the liability of the company for tortious acts of its
servants. Id.

41. If a passenger on a freight train is injured while simply riding on a freight
car by reason of an accident to the train, the company will be liable if the
rule prohibiting passengers from riding elsewhere than in the caboose is not

NEGLIGENCE-Continued.

conspicuously posted as required by law; but it is otherwise if the injury is
the result of an attempt on his part to perform an authorized service for the
company. Id.

42. A lad about ten years of age was forcibly put on board of a freight train
by its brakeman, and against his will was carried for a distance of five miles.
He returned home on foot, running most of the way, and was taken sick and
became permanently crippled in both legs. Held, that the action of the brake-
man was a trespass, and if the conductor of the train was present, and directed
or consented to the acts of the brakeman, they were joint trespassers, and if the
sickness resulted directly from their acts they were liable in an action of tres-
pass. Drake v. Kielly, 592.

43. The plaintiff was requested by a brakeman of the defendant company to
ascend a moving car of the defendant and set a brake, which he did, and while
so engaged he was injured by other servants carelessly running other cars
against the one he was upon. Held, That he could not recover of the defend-
ant the damages he had sustained. Everhart v. Terre Haute, etc., R. R. Co.,
599.

44. A mere volunteer cannot recover damages he may have sustained by the
carelessness of the servants of the person whom he has volunteered to aid. Id.
45. If a parent permits a young child, without sufficient discretion to get out of
the way of a running train, to go alone upon a railway track, this is prima
facie evidence of negligence, and he cannot recover against the company for the
death of the child from the running of the train, unless the trainmen, after dis-
covering the child, omitted to use reasonable precaution to avoid the collision.
St. Louis, etc., R. R. Co. v. Freeman, 608.

46. The fact that a child under the age of discretion is upon a railroad track,
where trains are frequently passing, without a proper attendant, is only prima
facie evidence of negligence in a parent, and is subject to explanation; and it is
for the jury to determine from the evidence, whether the explanation is sufficient
to repel the presumption of negligence. Id.

47. For parents living near a railroad where trains are frequently passing, to
leave a child at their house, too young for discretion, and without an attendant
of sufficient discretion, and without any precaution to prevent its escape from
the house, is gross negligence; and if the child gets upon the track and is killed,
the company is not responsible to the parent, unless the trainmen, after discover-
ing the child, omit the use of reasonable precaution to avoid the injury. Id.

48. A parent may recover of a railroad company damages for the loss of
future services of a child negligently killed by its train. Id.

49. Where injuries received by a child from a running train would not prove
fatal but for the want of reasonable care of the parent after the injury, he can-
not aggravate his damages against the company beyond damages for the wound-
ing, etc. Id.

50. The measure of damages to a parent for killing his child is the pecuniary
value of his services during minority, and the cost ard expense incurred by the
parent on account of the injury, less the reasonable and necessary expense of
raising it; the value to be such as is ordinary with children in like condition and
station in life, without regard to the relationship between them or to the parent's
feelings or the child's sufferings. Id.

51. In charging as to the contributory negligence of the father of plaintiff's
intestate, the court stated that the railroad being on a street, all persons had
prima facie a right to be on the street for all lawful purposes, and that this fact
ought to impose on the driver and conductor of a street car extraordinary vigi-
lance in looking out for dangers and guarding against accidents and injuries to
persons and things. Held, that the latter portion may be regarded as a mere
passing remark made when the judge was not charging in reference to defend-
ant's negligence. Etherington v. Prospect Park, etc., R. R. Co., 617.

52. The court charged that if the driver was paying attention to his horses
and had control of them and the car, and was looking out and attending to his
business, and did not see the child in time to stop the car before running over
her, he was not guilty of negligence, and defendant not liable. Held, that this

NEGLIGENCE-Continued.

gave the jury a plain rule applicable to the facts of the case, and if defendant
wished a fuller charge it should have requested it. Id.

53. A person has a right to cross a railroad track anywhere within the bounds
of the highway. A child, nine years old, while attempting to cross the track,
caught his foot between the rails, and was injured by a train which was back-
ing. He was not seen by the employees on the train in time to stop before
reaching him. Heid, that it was negligence on the part of railroad company in
failing to keep a proper lookout. Louisville, etc., R. R. Co. v. Head, 619.,
See MASTER AND SERVANT; PLEADING AND PRACTICE, 16, 26, 29-32; RE-
CEIVER, 3.

See NEGLIGENCE, 2-5, 7-9, 12-14, 20-23, 26-31, 41, 43, 52.
PAROL EVIDENCE, MODIFYING WRITTEN CONTRACT, 371.

1. The trial by a court of equity, according to its own course and practice, of
issues of fact growing out of the administration of trust property in its posses-
sion, does not impair the constitutional right of trial by jury. Barton v. Bar-
bour, 1.

2. It is not necessary to set forth in the petition the minute details of a con-
tract on which suit is brought, to authorize its introduction in evidence. It is
sufficient if it sets forth the contract according to its true and legal import and
effect, as a whole. Wooters . International, etc., R. R. Co., 100.

3. When suit is brought on a contract, which on its face refers to a contin-
gency, on the happening of which the defendant should be discharged from
liability, it does not devolve on the plaintiff to anticipate the defence, by aver-
ring that the contingency had not happened; but if the defendant relies on it as
a defence, he must allege and prove that it did happen. Id.

4. Declarations, representations and expressions of opinion, which precede,
but do not enter into or form a part of the contract as finally consummated,
furnish no ground for the recovery of damages to a party deceived or misled by
them; for it is his own folly to rely on them when they are not embodied in and
made a part of the contract. Id.

5. A corporation of one State by carrying on business in another State, e. g.,
by leasing the property and franchises of a corporation of that other State, does
not thereby become a citizen of that other State. Baltimore, etc., R. R. Co. v.
Koontz, 105.

6. Therefore a Maryland railroad company which leases and operates the
property of a Virginia railroad company does not thereby become a citizen
of Virginia, or lose its right to a removal of the cause when sued in a Virginia
State court. Id.

7. In a removal cause the jurisdiction of the Federal court attaches as soon as
it becomes the duty of the State court to proceed no further; and the entry of
the record in the Federal court is necessary simply to enable that court to pro-
ceed with the cause, but not for the transfer of jurisdiction. Id.

PLEADING AND PRACTICE—Continued

8. If the party petitioning for a removal is kept in the State court against his
will and forced into a trial, he may remain in the State court, carry his case up
regularly until he obtains a reversal of the judgment and an order for the allow-
ance of the removal, and then enter his case in the Federal court, notwithstand-
ing the fact that, pending these proceedings, the first term of the Federal court
after the filing of the petition for removal had elapsed, and the party petitioning
for removal had not filed his copy of the record at that term. Íd.

9. In an action to recover the value of certain railroad iron bought for defend-
ant and used in an extension of the company's track, without protest or dissent
from the board of directors. Held, the directors using the material purchased
were bound to inquire, and presumed to know, whether it was paid for or not,
and it was not essential to an adoption of the act of the officer that the directors
should know the terms of his contract. A witness having been examined on
the cross-examination as to new matter, not growing out of the testimony he
had given, it was proper to endeavor to refresh his memory and correct his
recollection by producing and showing to him his own letters relating to the
subject-matter of the inquiry. Letters from the general office of the company,
and written by its secretary, in reference to the iron were admissible as part of
the res gesta. Scott v. Middletown, etc., R. R. Co., 114.

10. Statutes of limitations are to be construed strictly and will not be extended
by implication. Dist. of Columbia v. Washington, etc., R. R. Co., 161.

11. To arrive at the correct meaning of a statute the court will examine its
language throughout and will import words from all portions of it to qualify the
meaning of the whole. Id.

12. As respects public rights municipal corporations are not within ordinary
limitation statutes. Id.

13. Under the second section of the Revised Statutes relating to the District
of Columbia, the liability of the District to be sued and impleaded to the full
extent of other municipalities is plainly implied in the general language which
creates it "a body corporate for municipal purposes," and, in the absence of any
provision to the contrary, whatever liabilities may properly attach to municipali-
ties in general, are equally devolved upon the District government. Hence,
whenever the Maryland act of 1715, ch. 23, which is the statute of limitations
in force in this District, may be interposed to a claim of an ordinary munici-
pality, it may be availed of against the District of Columbia. Id.

14. Charges or assessments made against property-owners for street improve-
ments, by a municipality having power so to do, are in the nature of taxes and
in the absence of some additional provision declaring limitation a bar, such a
plea is no defence. Id.

15. Where, on the failure of the companies to pave, etc., as required by their
charters, the work is done by the District, assumpsit for the recovery of the
sum expended is a more appropriate form of action than debt; and the declara-
tion should charge that the sums paid were what the work was reasonably
worth, the recovery being limited to such reasonable expenses incurred by the
city as shall be ascertained by a jury. Extravagant amounts recklessly ex-
pended in the work, without reference to its value, should not be allowed. Id.
16. An action based upon a written contract itself can only be brought against
the party named in the instrument; hence, an action of assumpsit cannot be
maintained against a railroad company, based upon a written contract, signed
by, and in the name of, the trustees of the mortgage bondholders of such road.
Chaffee v. Rutland R. R. Co., 212.

17. There could not be a novation of parties in this case, because the trustees
had bound themselves,—not binding the company,-and one of them was also
president of the defendant company; and, acting in this double capacity, he
could not contract with himself; could not discharge himself and put the com-
pany in his place. Id.

18. A Court of Chancery could charge upon the trust property the legitimate
expenses incurred in managing it; but not even this upon the bondholders per-
sonally. Id.

19. Distinction between the powers of an agent and trustee. Id.