BONDS-Continued.

length therein, requires that the bond
be read in connection with the orig-
Ib.
inal contract.

The surety on the bond of a build-
ing contractor, the bond being given
with the written contract between
the contractor and the owner of the
building to furnish both labor and
material for the erection thereof, and
made part of it, must be supposed to
have executed the bond with full
knowledge of the terms of the con-
tract and it is no defense, upon de-
fault of the contractor for both labor
and material, that the application for
the bond called for carpenter work
only and specified the contract price
as $4,520, that the building expert
examined the specifications and es-
timated the cost of the labor to be
$4,700, and that it was upon such re-
port that the risk was accepted and
the bond given.
Ib.

A surety company having had its
expert make an estimate of the value
of the work which its principal had
undertaken to perform, and who
might as easily have made an esti-
mate of his entire obligation, and
who had the means of knowing his
full obligation and his liability to
default, and having made the build-
ing contract a part of the bond, can-
not exempt itself from the payment
of the penalty of the bond upon the
ground that the bond was obtained
by fraud in this, that the payee or
her agents knew that the contractor
accepted the contract at too low a
price under a mistake known to the
payee, and it appearing that the arch-
itect regarded the bid as too low,
which fact was suggested to the con-
tractor, although he still felt confi-
Ident he had made no mistake. Ib.

The court having charged, that,
if the plaintiff, directly or indirectly,
prevented the contractor from con-
tinuing the contract, no recovery
could be had upon his bond, and the
jury having found the fact for the
plaintiff, though the evidence was
quite strong the other way, the judg-
ment will not be reversed upon re-
view.
Ib.

A bid for school bonds, interest
and principal payable in New York,
offering par, "the accrued interest
to date" and premium, in response
to a circular letter stating that "no
bid for less than par and accrued
interest to date of delivery would be

CARRIERS-

The action of a conductor on a
street car in ejecting a passenger
while the same is in motion, cannot
be justified upon the ground that the
passenger refused to pay his fare,
and his conduct was objectionable,
and especially if the passenger was
in the act of getting out his money
to pay his fare when he was put off;
and the passenger, in such case,
would be entitled to recover if he
received greater injuries by being
put off while the car was in motion
than he would have received from
being ejected when it was at a
standstill. Cleveland City Ry. Co.
v. Roebuck.
262

Where a shipper delivers goods to
a railway company in cars loaded
and sealed by himself, and, for his
own convenience, upon shipping re-
ceipts prepared by himself, but con-
ditioned that the goods were re-
ceived "subject to conditions con-
tained in the company's regular bill
of lading," and has an opportunity to
see the bill of lading if he wishes, he
is bound by the valid conditions in
such regular bill of lading, whether
he knows them or not. Cincinnati,
H. & D. Ry. Co. v. Berdan & Co. 481

A condition in a bill of lading
limiting the railway company's com-
mon law liability, in respect to loss
by fire, to fires caused by its own
negligence, is not against public
policy nor invalid.
Ib.

In an action against a railroad
company for the value of goods re-
ceived upon condition limiting the
carrier's liability in case of loss by
fire to fires occasioned by its own
negligence, a special finding by the
jury that the fire did not result from
the negligence of the railway com-
pany entitles the defendant to a
judgment notwithstanding general
verdict in favor of plaintiff
Ib.

In an action against a common
carrier for loss of grain in transit,
the testimony of a witness who has
no independent knowledge of the
weight of grain shipped, except what
was contained in the certificates of
weight, is inadmissible to prove the
quantity of grain shipped. Emison
v. Railroad Co.
727

In such an action a certificate of
weight not shown to be an exact copy
of the book or original entries, or
that it was given in the regular
course of business, by one authorized
to do so, is inadmissible to prove the

delivery of the grain to and recep-
tion thereof by the carrier.
Ib.

Where one railway company re-
ceived grain at a certain place and
agreed to deliver it to a connecting
line, which it did, when by the terms
of the contract its responsibility was
to cease, and such connecting line
was to be responsible for loss on its
own line, in the absence of evidence
showing that the grain was lost by
the connecting road, no action lies
against either road for the loss of
the grain.
Ib.

CEMETERIES-

Section 3573, Rev. Stat. a general
law, changing the distance from a
dwelling house at which the location
of a cemetery was fixed from 200
yards to 100 yards after the plain-
tiff had acquired her property and
made improvements thereon, cannot
be construed as an infringement upon
her vested, rights, especially where
such modification might reasonably
have been anticipated as to land ad-
joining the cemetery which was al-
ready established in a rapidly grow-
ing town. Morlock v. Horstman.
778

A restriction as to the location of
cemeteries which was considered
reasonable when it was adopted may
be removed or modified when neces-
sity or circumstances demand it, as
the wisdom of the legislature may
determine. And it is not unreason-
able to require such modification to
be anticipated as to land adjoining
cemeteries established and in use, by
persons locating near a cemetery in
a rapidly growing town; and that
the denomination using the ceme-
tery would naturally incline to add
adjoining land when more burial
space became necessary.
Ib.

Under the foregoing rules, one
who purchases property adjoining
and several years after the location
and establishment of a cemetery of
a religious society and builds a
house 1602 feet from the nearest
lot therein and makes other improve-
ments is not entitled to an injunction
to restrain such society from using
for cemetery purposes, land pur-
chased by them adjoining the ceme-
tery, where the part to be so used is
more than 100 yards from plaintiff's
dwelling as provided by Sec. 3573,
Rev. Stat., although the addition
thereto adjoins her land and its
boundary line is less than 100 yards
from her house.

Ib.

A charge in an action for personal
injuries, that if plaintiff "knew or
could have known" of the defects in
the machinery and the dangers to be
encountered in the work, he was
guilty of negligence in performing
it, imposes too great a burden upon
such plaintiff, in that it makes him
responsible for what he might have
known by the exercise of extreme,
instead of reasonable, care. Gen-
10
sen v. Oil Co.

In order to make a charge that if
plaintiff "knew or could have
known" of the danger to be incurred
prejudicial or applicable to defects
and consequent dangers not admit-
ted or appearing to have been within
plaintiff's knowledge, it must appear
that such defects were the proxi-
mate cause of the accident. A mere
causal connection, unless there is
also a natural and unbroken sequ-
ence, and absence of intervening
causes, is not sufficient.

Ib.

But where it clearly appears, from
the evidence or from plaintiff's ad-
mission in such action, that plain-
tiff knew of the defects in the ma-
chinery and the dangers to be ap-
prehended in the work, a charge that
if plaintiff "knew or could have
known" thereof, he could not re-
cover, though objectionable, cannot
be regarded as prejudicial or rever-
sible error.
Ib.

A charge which correctly submits
the case to the jury is not erroneous
by repetitions unless they are clearly
unnecessary and made for the pur-
pose of emphasis or to influence the
decision. If the parties desire more
specific instructions upon questions
complained of, requests should be
presented, and in the absence of such
requests the objections are not avail-
able on error. Pittsburg, Cin., Chic.
& St. Louis Ry. Co. v. Moreland.
612
The charge of the judge to the
jury should not be in the abstract,
but in concrete, applicable to the
particular case on trial. Usually
the judge should say to the jury, that
the facts as claimed by the plaintiff,
if found to be true, do or do not con-
stitute negligence on the part of the
defendant. In like manner the
judge should say to the jury, that
the facts claimed by the defendant,
if found to be true, do or do not con-
stitute contributory negligence; and
as every case turns upon a few con-
trolling facts, the attention of the
jury should be called to these con-

trolling facts with instructions to
return their verdict as they shall
find these facts to be.
Io.

It is error for the trial judge to
submit a proposition to the jury
which is not presented by the evi-
dence. Lake Shore & M. S. Ry. Co.
▼. Bixler.

653

A general statement in a charge
that "according to the rules of the
company the train is controlled by
the engineer and brakeman, who are
fellow servants" would be mislead-
ing and erroneous in a case where
it appears that the train generally is
under the control of the conductor.
though for the purpose of manage-
ment, so far as speed is concerned
when running or shutting down, it
is almost exclusively under the con-
trol of the engineer and brakeman.

Ib.

A charge, in an action by a brake-
man for injuries resulting from be-
ing obliged to jump from a freight
train to avoid a wreck caused by
running into a place where rails had
been removed, that "if they negli-
gently suffered the train to go at a
high rate of speed on this descend-
ing grade the plaintiff cannot re-
would have
cover,"
been
unwar-
ranted where there was no evidence
to show that the train was running
at an unwarranted rate of speed in
view of the fact that the persons in
charge thereof knew nothing of the
danger ahead of them.
Ib.

In defining legal principles, courts
should be careful to give their true
definition and signification. Loose
expressions should not be employed.
Ib.

A court in his charge to the jury
must confine his instructions upon
the law to the case before him and
his charge must be based upon the
evidence in the case. Armstrong v.
Siddall.
627

Unless exception was taken and is
noted upon the record, the circuit
court cannot say that the giving of a
particular special request was erron-
eous. Cleveland & E. Ry. v. Hunter.
769

Instructing the jury that a street
railway company is not responsible
for injuries caused by the fright of
a horse arising from the ordinary
use of its car, where there was no
evidence tending to show that there
was anything in the appearance of
the car which would tend to frighten
a horse of ordinary gentleness, and

the instruction could have no appli-
cation to the issues made by the
pleadings. would have been im-
proper.
Ib.

An instruction that "there is no
evidence tending to show that de-
fendant was guilty of negligence in
any of the respects charged in plain-
tiff's petition in running its car at
the time and place and under the
circumstances of this case prior to
the time that the motorman discov-
ered or by the use of ordinary care
might have discovered the fright of
the horse," where the negligence
was subsequent thereto, is within
the rule stated in the preceding par-
agraph.
Ib.

In an action against a railway
company for personal injuries sus-
tained by a brakeman in passing
under a bridge, where there is no
allegation as to the duty of defend-
ant to give notice that the bridge
was too low or that the cars were too
high to permit a brakeman to pass
the bridge in safety, a charge that
it was the duty of the company to
give such notice is improper. it be-
ing a violation of the express rule
that recovery can only be had for
the negligence alleged. Lake Shore
559
& M. S. Ry. Co. v. Beckwith.

The fact that fifty trains a day
with their usual complement of men
passed a standpipe for several years
without injury will not relieve a
railroad company from the charge of
negigence, if, in fact, the standpipe
was constructed so near the track
as not to afford reasonable safety to
employes in the performance of
their duties; and it would be mis-
leading to charge the jury that such
use and freedom from injury would
constitute a reasonable test that the
company might continue to use it
without imputation of negligence.
Lake Shore & M. S. Ry. Co. v. God-
win.
537

An instruction to the jury. in an
action for injuries alleged to have
been caused by the proximity of a
standpipe to the railroad track, that
the railroad company "had the right
to commit the construction and foca-
tion of its standpipes to its engineer
or superintendent of construction;
and this fact is not abridged by the
fact that it might have been safer to
its employes if the staudpipe had
been placed farther from the track;
nor by the
fact that the jury may
differ with such engineer or super-
intendent as to the proper location

CHARGE TO JURY-Continued.

of such pipes," might have been mis-
leading.
Ib.

Instructions to the jury, in an ac-
tion for personal injuries, respecting
the duty and liability of the railroad
company as t foreign cars, where
no claim of negligence in that re-
spect was made, would be in the
nature of abstract propositions not
demanded by the issues and though
correct as abstract propositions, were
properly refused.
Ib.

A charge, in such case, that "if
the jury should find from the evi-
dence that brakemen were accus-
tomed between stations to descend
the ladder of a car to examine
whether boxes were heated, at places
where no obstructions were in sight
or to be expected, that fact would
not justify the plaintiff in so expos-
ing himself while passing stations,
when he knew he was passing sta-
tions," assumes a fact, that a per-
son would be in danger on the cars
of the company in the discharge of
his duties, and was properly refused.
Ib.

Where the charge of the court is
not excepted to either generally or
especially, at the time it is given, by
either side, unless the charge is of
such a character that a party was
deprived of a fair trial, the case can-
not be reversed on account of tech-
nical errors that may exist in it.
Packard v. Traction Co.
822

See also HOMICIDE; NEGLIGENCE.

CHATTEL MORTGAGES-

Where, in an action to foreclose a
chattel mortgage executed to secure
the balance of the purchase price of
a piano, payable in installments, it
appears that the entire contract is
expressed in the mortgage; that
neither in the mortgage nor in the
averments of the cross-petition, al-
leging the retaking of the piano
without tendering any part of the
sum paid and praying for judgment
for fifty per cent. of the amount paid
thereon, it appears that the sale was
conditional or that the title to the
piano was to remain in the vendor
until the purchase price, or any part
thereof, was paid, such transaction
cannot be considered a conditional
sale within Sec. 4155-2, Rev. Stat.,
so as to bring it within the provi-
sions of Sec. 4155-3, Rev. Stat., re-
quiring the refunding of at least fifty