Lake Circuit Court.

And counsel stated that it did not make any difference whether it was one year or six years after the accident that it had been removed.

The court made some remarks in regard to this, which are in the record, in regard to the question of time, and referring to Ashtabula v. Bartram, 2 Circ. Dec. 372 (3 R. 640), that my colleague, Brother Frazier, has referred to in another case this morning, and in which I rendered the opinion in Ashtabula county, wherein it was held that evidence of that character, and the repair of dangerous things soon after, was admissible, referring to that as the proposition that perhaps the question of time was important, but after all he would admit it. So, with the understanding that counsel for the plaintiff claimed that they were going to show this fact by measurements, that it was removed and placed farther away from the track after the accident, and that, perhaps, was six years after the accident, the court admitted it.

Subsequently, from the same witness, it appeared that they immediately proceeded to ask him about the removal, and he states it and they ask him for measurements now, as it now stands, or as it stood at the time of the trial, May, 1893; the distance from the track as it now stands, the place where it was removed to, and he states the distance from the inside of the north rail would be fifty-nine inches.

So that they are now giving to the jury the distance, the precise distance from the track that the pipe stood as in the place it then occupied, to-wit, in May, 1893, because the witness said he had measured it that day.

Then he proceeded to show on cross-examination that perhaps it had been moved more than once. They asked him on cross-examination when it was that this pipe was removed, and he replied by question, "The last change?" They say "Yes." "Well," he says, "that occurred last fall." That would be the fall of 1892, which was five years and a half, or more, after the accident. Now, incidentally, thus it appears, from the statement of the witness or from his language, that he knew of more than one removal.

How many times it had been removed, that water plug, or pipe, during that five years and a half, did not appear, but it fairly appeared that it had been removed more than once, but the removal that the plaintiff was relying upon, and the measurements of where it then stood which he gave to the jury, was the last one, if there was more than one, and that was a removal in the fall of 1892; it was fifty-nine inches from the rail, as given by the measurements.

So they were relying upon the last removal, if there was more than one, and its distance from the track then as being greater than it was at the time the plaintiff was injured.

They undertook to subsequently show by Mr. Ward and other witnesses that he had measured the distance of the standpipe from the rail after the accident, while it still stood in its original place, and it was four feet two inches and a half from the rail. In other words, they had removed it to the distance of fifty-nine inches from the rail, where it had stood when the plaintiff was injured at forty-two and a half inches, making considerable of a difference in reference to the body of a man standing upon a step ladder on the side of a car.

Was this testimony competent as thus produced?

As we declared in Ashtabula v. Bartram, supra, where a defendant has changed the dangerous appliances or object immediately after

Railway Co. v. Godwin.

the accident, evidence of that change or repair by the defendant may be given in evidence for the purpose of tending to prove an admission on his part that he knew or thought it was dangerous as it originally stood.

That, in Ashtabula v. Bartram, was the question whether or not the street, which was on the side hill, was dangerous by reason of the absence of a barrier or fence. There had been a fence along there and a portion of it was gone. There was a water trough at the side of the road next to the hill. At this point the water had overrun; in some instances vehicles had been slid over and down the hill where the fence had been removed or had broken away; and in this instance the party's horse was frightened and shied off and went down over the hill by reason of the absence of this portion of the fence at this part. That was the claim of negligence; and they offered evidence to show that directly after the accident to the plaintiff, the village repaired the fence and built it up again.

This evidence, we held, was properly admitted for the purpose of showing an admission upon the part of the village that it was necessary to have a barrier there and that it was its duty to furnish it. But that was directly after the accident. With regard to the accident itself, it bore the relation of the cause and effect, and that of the principle, as we understand it, that authorizes this character of evidence to be given to tend to prove an admission by the act of the defendant that he knew of the dangerous condition of the thing or the place, and that it was dangerous by reason of the fact that immediately thereafter he had changed it.

The principle that allows this testimony to be given substantially is that of cause and effect; that the accident having come to the knowledge of the defendant, did produce this natural effect upon him when he knew that from that fact that it was a dangerous place, and he had to remedy it, that he immediately did remedy it; that it needed remedy, in other words. The cause informed him that the place needed remedy, the defect needed to be remedied; that there was a defect there which needed remedy.

And when, as I have said in Ashtabula v. Bartram, supra, we allowed it to be admitted, that class of evidence, because it was near or directly after the accident, so that the principle of cause and effect might be properly claimed to exist.

But here, five years and a half elapses between the time when the accident or the cause occurs and the effect. The accident occurred in March, 1887, and the change and removal from the track in the fall sometime of 1892, over five years and a half.

Can it be said that there is any relation between those two, that is, of the cause and effect? Was the change by the defendant so near in point of time to the accident that it could be said to have been caused or produced by the knowledge of the accident?

In this respect we think the matter was entirely defective, and that the court erred in the admission of this testimony. It was in violation of the principle which authorizes its admission, which I have already stated.

And although some of the cases, and there are cases in contradistinction in regard to this same case, hold that no testimony of that character, regardless of the time when it occurred, is admissible; but aside from this, no case can be found wherein such testimony was admitted except where it was within a reasonable time after the accident; and that reasonable time is for the court to declare, first, that the change

Lake Circuit Court.

was made within a reasonable time thereafter before the jury are entitled to consider it or have it as a fact.

Again, upon another proposition for the purpose of showing negli gence upon the part of the defendant in regard to this particular standpipe, they sought to show that it was much nearer the track than others along on the division where the plaintiff worked, from Collinwood to Erie, and they introduced a witness, Mr. Ward, to show by measurements what distance the water pipes or standpipes stood from the track at other points on this division.

And he stated that he had taken these measurements in May, 1891, four years and two months after the accident. That was the date and the measurements which were to be used as comparison and as showing where the o her standpipes were four years and two months prior to that time, to-wit, the time when the plaintiff was injured.

Now this evidence was important to both parties if it were proper evidence, because it showed quite a number of similar standpipes, placed for furnishing water to the engines of the road at other stations and points between Collinwood and Erie. One of them, the one at Girard, was nearer to the track than this one at which the plaintiff was injured, and others were farther away-some of them a few inches, and some a loot or more farther away.

So that the testimony bore upon the question of the knowledge of the defendant in regard to where was a line of reasonable safety, and where they had placed the standpipes in their various localities, and it also showed in favor of the defendant, that it had no plan laid out, because they were not of uniform distance. And it also showed in favor of the defendant that one of them, at least, was nearer to the track than the one at which the plaintiff was injured or the one at Painesville.

While it is proper to give that in evidence we think the question must be as to the method of doing it; the method sought by the plaintiff and permitted by the plaintiff below, was to show those facts by measurements, taken, as I say, in May, 1891, four years and two months after the accident, without any evidence whatever to show that the standpipes thus measured and given in evidence to the jury were in the same position in March, 1887.

No evidence which in any manner tended to show it, or that they had been, like this one, removed or changed, in any manner, did not appear. The court said it was proper to be given in evidence, as tending to show where they were in March, 1887.

The question is now, simply, was that evidence too remote? Measurements were made four years and two months afterwards. Was it too remote? Was it within such a period of time as the court might properly say that it excluded the idea that they may have been removed meanwhile?

In this respect it stands precisely on the basis of the other. We think it entirely too remote, and the court should have excluded the evidence instead of admitting it. It was a proper fact to have been proved, but it should have been proved in another way; if proved in that way some evidence should have been given to show that during those four years and two months these standpipes had been removed, they stood and were in precisely the place that they occupied at the time the plaintiff was injured, so as to have afforded a fair basis of comparison of the distance which this pipe stood from the track as compared with the others.

Railway Co. v. Godwin.

That this is an important consideration is apparent at a moment's thought. In the transaction of business of a great railway, continual changes are made, not only in its tracks but in its equipments and appliances and appurtenances.

Originally it is said they are built with very little money, economically built, and built without much regard to speed or stability, by reason of the fact that they are built with a small amount of money, and that afterwards, as the company grows rich, or grows in ability to expend money upon its structures, they are increased and changed and varied, and this seems to be continually going on.

In these companies, and it is illustrated in the case here at bar, for various causes these changes may occur. Here it is shown by Mr. Turner that the reason, substantially why this standpipe was removed, was not because it was found to be too near the track for safety, as shown by the injury to the plaintiff, but because they had removed the station house at the point, they had built a new station farther east, and so they moved the appliances, not only the one on the north side, the one at which he was injured, but the one on the south side, and while they moved the north side one a little farther away from the track, they brought the south side one a little nearer the track.

I refer to this simply to show that it is important in matters of this character to have the evidence near in point of time to the act complained of or the act in question, and the evidence must not be remote from it.

And that there should be some reasonable evidence, given in a case like this, that the standpipes had remained in the same position from 1887 to 1891, when Mr. Ward measured them, at other points along the line of this road.

For the reasons just given this case mast be reversed, and remanded to the court below.

RAILROADS-MORTGAGES-FORECLOSURE SALES.

[Mahoning Circuit Court, April, 1886.]

Laubie, Frazier and Woodbury, JJ.

JOHN KING V. ATLANTIC & Great WESTERN R. R. Co. ET AL.

1. AFTER ACQUIRED PROPERTY-SPECIFIC DESCRIPTION EXCLUDING.

A railroad mortgage conveying "all of the following, present and in the future to be acquired property and estate of said company" does not convey present and after-acquired property generally where such description is followed by specific reference to the property conveyed.

2. RULE APPLIED.

A railroad mortgage conveying "all of the following, present and in the future to be acquired property and estate of said company, that is to say," their roadway between certain points, and then "including the right of way and lands occupied together with superstructures and tracks thereon, or to be thereon, and all iron rails, ties used thereon, procured or to be procured therefor, and all bridges, viaducts, culverts, fences, depot grounds and buildings thereon, and all the appurtenances belonging thereto, engines, tenders, cars, tools, machinery, materials, contracts, subscriptions of stock, and all other personal property, rights thereto and interests therein, whether choses in action or in possession, and all franchises, rights and privileges of the said Atlantic and Great Western Railway Company," does not include depot grounds of another railroad subsequently leased and eventually consolidated with the company giving the mortgage.

Mahoning Circuit Court.

3. CONVEYANCE COVERING AFTER ACQUIRED TITLE ONLY.

A railway mortgage conveying "all the right, title and interest which the said company now has or may hereafter acquire in and to its aforesaid railroad," specifies nothing and does not convey after acquired property, but only after acquired title to the railroad.

4. REORGANIZATION-EFFECT-INCOME MORTGAGE.

A reorganization of a railroad company is the surrender of the charter of the old company and the issuance of a charter to the reorganized company, and the old company ceases to exist save as to the winding up of its affairs, and has no longer any corporate existence out of which it may earn an income. Hence, where a railroad company was included in a reorganized company, a purchase by the latter cannot be said to have been purchased with the tolls, revenues or income of the defunct road, or as such subject to the conditions of an income mortgage executed prior to the acquirement of the property. 5. WHETHER INCOME MORTGAge will FolloW AFTER ACQUIRED PROPERTY. Whether mortgage will follow and include a lot purchased with the tolls and income of a railroad company subsequent to the execution of an income mortgage, where all the property covered by the mortgage is entirely insufficient to pay off and discharge the indebtedness specified in it, quære?

6. PRIORITY OF LIEN UNDER SEC. 3398, REV. STAT.

Under Sec. 3398, Rev. Stat., prescribing the priority of liens against railroad companies reorganized under Sec. 3393, Rev. Stat. et seq.. whatever mortgage or deed of trust may be made by the reorganized company is made subject to the rights of parties who recover damages for injuries thereafter suffered or sustained by the misconduct of its agents; and for such damages a party shall have a lien upon the road superior to any mortgage or deed of trust. 7. LIENHOLDER NOT AFFECTED BY FOREclosure.

Where a lien grew out of injuries sustained by reason of misconduct of the agents and servants of a reorganized railroad company, and being superior under Sec. 3393, Rev. Stat., to that of a reorganization mortgage, the lienholder is not affected by foreclosure of such mortgage, unless he is made a party thereto.

8. RAILROADS MUST BE SOLD IN ENTIRETY-CONTRA Depot Grounds. The state and the public have such an interest in the existence and operation of railroads as to require them to be sold in entirety, upon judicial sales, and not in sections, Therefore, when a party acquires a lien upon a particular part of a continuous line of road he cannot subtract that particular part and sell it, so that the road will be divided by a strip out of it, but where the property subject to lien is independent, as where a lot was purchased abutting a leased railroad, upon which to build a depot, and it could be sold without interfering with the operation of the road continuously throughout its whole length, and it not being part of the leased property, it does not come within the rule stated and accordingly may be sold separately.

APPEAL.

LAUBIE, J.

The case of John King against the Atlantic & Great Western Railroad Company and others, is a case that is brought into this court by appeal and was tried before the court at the former term and held by the court under advisement.

The action upon the part of King is brought for the purpose of determining the priority of liens upon and to sell lot No. 369 in this city (Youngstown) upon which there is a passenger station house connected with the Cleveland and Mahoning Railroad, alleging that he had obtained a lien upon this lot by virtue of a judgment recovered in the common pleas court in this county against the Atlantic & Great Western Railroad Company, at the October term, 1874, and that certain executions thereafter were levied under that judgment upon this property.