The facts in that case are identical with those in the case at bar. In that case the plaintiffs obtained title to the goods from the ostensible partner, the defendant, upon a note of the silent partner upon a firm debt. In the case at bar the defendant received title through the ostensible partner; the plaintiff through a secret partner upon a firm debt.

108 In Lord v. Baldwin, 6 Pick. 348, the same principle is laid down as governing this class of cases. At this time, 1828, Parker, C. J., in delivering the opinion of the court took occasion to remark that "the question presented in this case is entirely new," and that "the silence of the books themselves seems evidence of the unsoundness of the doctrine now sought to be applied," which was identical with that asserted by the plaintiff in the case at bar. In applying the ordinary principles of law relating to copartnership matters to the facts in the case here cited, involving a silent partner, the court on page 350 use this language: "It is only the application of this principle to cases as they arise which can afford any room for argument or doubt, and in order to determine such question, the reason of the rule must be sought for, and the particular case must be brought without reason, as well as within the terms of the law. The basis upon which the rule rests is, that those funds shall be liable upon which the credit is given. Those who sell goods or make contracts with a company or firm are supposed to trust to the ability or property of the firm. Those who trust the individual member rely upon his sufficiency alone."

"But the case before us is that of a dormant partnership, which is necessarily, from its very character, unknown at the time the liability is incurred." In this case the dormant partner was brought to light by ex post facto investigation and the creditors who discovered him claimed a preference upon the firm property. But the court says that the reason for the rule by which they claim a preference does not exist, and that "even if he [the dormant partner] owned the whole of the stock, as between him and the known man of business, still it is in law the property of the latter, for he is allowed to claim. and use it as his alone, and thus lead persons to trust him upon the faith of the goods in his possession."

In Cammack v. Johnson, 2 N. J. Eq. 163, both the above cases are ably reviewed, and the reasons and principles therein declared fully approved and adopted. With respect to Lord v. Baldwin, 6 Pick. 348, the chancellor says, "the true principle is, in my opinion, laid down in that case." Then referring to

107

the reasons in his own language, he says: "In an open firm the credit is given to the firm and to the goods they are possessed of; and a partnership creditor shall be first paid out of them; but if the partner be unknown the credit is given to the visible partner only, and the goods in his possession are supposed to be his own, and in such case the discovery of such latent partner cannot give any preference to a partnership creditor. As between the partners themselves, I see no reason to make any distinction in their rights, whether they are dormant or not; but as to the public, it is not only highly proper, but necessary to prevent injustice toward creditors, that this difference should be observed." The case of French v. Greenleaf, 6 Me. 166, he says "is still stronger." He finally concludes by saying: "Upon a careful examination of the cases on this subject, as well as from the reason and propriety, I am clearly of the opinion that the execution creditor has his remedy complete against all the effects of the visible partner, and all the effects which belong to him and his dormant partner as partners, and that it makes no difference whether the debt was contracted by the debtor on partnership account or on his individual account."

These decisions, conceding the plaintiff's own contention as to the facts, are decisive of the case against him. The property sought to be conveyed by Sam Grant was admitted to be in the possession of M. M., the only visible partner, and there is no suggestion that any of the creditors, whom the defendant, as trustee in bankruptcy, represents, had any knowledge of the dormant partner or gave any credit to him. This property then was first subject to the liabilities of M. M. Grant, whether by attachment or in bankruptcy.

The above decisions declare the rule to be that, in a dormant partnership, the funds of the visible partner and those purporting to be his, although actually belonging to the partnership, are, with respect to the rights of innocent third parties, to be regarded as his sole property. In fairness to M. M. Grant, it should be stated that he emphatically denied any partnership whatever with Sam Grant, secret or otherwise.

In accordance with the stipulation in the report the entry must be, judgment for the defendant.

Dormant Partnerships are discussed in the monographic note to Brooke v. Washington, 56 Am. Dec. 147-151; and the subsequent cases of Pitkin v. Benfer, 50 Kan. 108, 34 Am. St. Rep. 110; Richardson v. Farmer, 36 Mo. 35, 88 Am. Dec. 129; Bromley v. Elliot, 38 N. H. 287, 75 Am. Dec. 182.

BUTLER v. ROCKLAND, THOMASTON AND CAMDEN STREET RAILWAY COMPANY.

[99 Me. 149, 58 Atl. 775.]

EVIDENCE-Burden of Proof in Actions for Personal Injuries. In an action against a street railway company to recover for personal injuries due to the collision of its car with a wagon on which the plaintiff was driving, the burden is on him to show that his injuries were caused by the negligent act of the defendant or its servants, and that no want of due care on his part contributed to the injury, or, if he himself was guilty of contributory negligence, that some distinct and later negligence of the defendant was the proximate cause of the injury. (p. 271.)

JURY TRIAL-Verdict, When may not be Set Aside.-A court is not required, or even permitted, to set aside a verdict merely because the jury came to a conclusion different from that to which the court would have come. The jurors have the right for themselves to determine the credibility of the witnesses, how far their stories are true, and, from the truth of the statements thus made, to make all legitimate inferences, and, unless their conclusions are palpably wrong, their verdict cannot be disturbed. (p. 271.)

A STREET RAILWAY COMPANY has the Right to Operate Its Railway in the Location Where it was Placed, either singly or in trains, having due regard to the safety, not only of travelers upon the street, but of those who may have occasion to cross the track in driving out from the yards of houses situated along the railway. (p. 271.)

STREET RAILWAYS.-The Speed at Which a Car or Train of Cars may Properly be Run, or kind of control over it, and the degree of watchfulness imposed upon those in charge, must depend, to some extent, upon surrounding conditions, such as the nearness of the track to the side of the street and to the houses, or the likelihood of persons driving out of yards, and whether the driveways are so situated that persons driving out of them can see or learn of the approach of cars, in season, with due care, to avoid collision. (p. 271.)

STREET RAILWAYS have the Right to Assume that Persons Driving Out of Yards Toward or upon the Track will themselves be in the exercise of ordinary care. (p. 271.)

STREET RAILWAYS.-It is the Duty of a Street Railway to Persons upon or Approaching Its Tracks, in view of apparent dangers, and of those which may reasonably be expected, so to regulate the speed of its cars, so to have them under control, and so to be on the lookout for teams about to cross the track that such persons, if themselves in the exercise of due care, shall not be put in jeopardy. (p. 272.)

A STREET RAILWAY Corporation may Properly Assume that a Traveler, if Far Enough Away to Cross Safely, will continue his movements and cross in front of the car, or, if not far enough away, and if warned of the approach of a car, that he will stop and let it pass first. The person in charge of a car must exercise due care and judgment, and the movements of the car must be regulated with reference to the apparent situation. (p. 272.)

STREET RAILWAYS.—If It be Apparent that a Collision is Likely to Occur, it is the duty of the servant in control of the car to be ready to use, and to use if necessary, all practicable means to prevent it. Anything less is want of due care. (p. 273.)

NEGLIGENCE, CONTRIBUTORY, When must be Inferred.If a person seated in a wagon where he could not see a train of cars without looking out, drives in front of a coming train, without so looking, and who, if he looked, must have seen the train when less than two hundred feet away, drives at a walk along the track, and is struck by a train and injured, he must be adjudged guilty of contributory negligence. (p. 273.)

STREET RAILWAYS.—The Duty of a Traveler Approaching a Street Railway Crossing is to exercise care to avoid a collision. The care must be that of an ordinarily prudent man in view of all the existing conditions. (p. 274.)

NEGLIGENCE, CONTRIBUTORY, When does not Prevent a Recovery. Where a plaintiff suing to recover for personal injuries is shown to have been himself guilty of contributory negligence, he may, nevertheless, recover, if he can show that after his contributory negligence, the defendant, in view of the entire situation, was culpably negligent, and such culpable negligence was the latest in the succession of causes resulting in the plaintiff's injury. (p. 276.)

CONTRIBUTORY NEGLIGENCE Continuing Up to the Time of the Accident precludes the plaintiff's recovery, although the defendant was culpably negligent after discovering such contributory negligence of the plaintiff. Such negligence of the defendant is not subsequent to, and independent of, but is contemporaneous with, the plaintiff's contributory negligence, and where contributory negligence is an operative cause to the last moment and contributes to the injury as a proximate cause, it precludes recovery, although the plaintiff's negligence contributes up to the same moment. (pp. 276, 277.)

NEGLIGENCE.-The Doctrine of Contributory and Subsequent Negligence is not applicable when the negligence of the plaintiff and that of the defendant are practically simultaneous. (p. 277.)

J. E. Moore and D. N. Mortland, for the plaintiff.

Arthur S. Littlefield and Arville D. Baker, for the defendant.

150 SAVAGE, J. Case for damages for personal injuries sustained in a collision between the defendant's cars and the team in which the plaintiff was riding. The plaintiff obtained a verdict which the defendant, on motion, seeks to have set aside.

It appears that the line of the defendant's railway in Rockport, at the point where the collision occurred, lies on the easterly side of the highway, and the outer rail toward the sidewalk is nineteen feet from the southwesterly corner of a house known in the case as the Shepard house. By the driveway leading easterly from the street by the southerly side of the Shepard house to the yard the 151 distance from the rail to a

point opposite the corner of the house is twenty feet. Standing at the corner of the Shepard house and looking northerly toward Camden the first object or obstruction to vision is a trolley pole about eighty-four feet from the center of the driveway, and the ordinary distance easterly from the rail. One hundred and thirty-one feet farther on in the same direction is another trolley pole, and on each side of the pole a tree a foot and a half in diameter. The trees were each about ten feet from the pole, were in line with it, and trees and pole were about parallel with the railway track. These trees and pole partly obscure a view of the track. One hundred feet farther on, or three hundred and fifteen feet from the center of the driveway, is a third trolley pole. Between the second and third poles, but easterly, and upon the easterly side of the road, is a house called the Burgess house. There are three slight curves in the railway track, and beyond the Burgess house, near the third pole spoken of, the house obstructs the view and the track passes from the sight of an observer who may be at the corner of the Shepard house. So much for the physical situation about which there seems to be no controversy.

On October 2 1902, the plaintiff, who was a clerk in the grocery store, was driving a covered delivery wagon. The cover extended so far forward as the front edge of the seat, and rose perpendicularly, and so over to the other side. The effect was that the plaintiff, if sitting on the seat, could not look out at & right angle without leaning forward. He started from Rockport village, which is southerly from the Shepard house, and drove to that house where he called. He testified that on his way he met one of the defendant's passenger cars proceeding from Camden toward Rockport. These cars run half hourly. He drove into the yard on the southerly side of the Shepard house, made a delivery of goods, returned to the wagon, took his seat, turned and drove out westerly toward the street. The plaintiff testified that as he came out of the yard, he looked southerly in the direction of Rockport, having in mind the car which naturally would cross the one he had met, at Eells crossing, farther to the south, and would be coming toward the Shepard house; also that when he reached the corner of the Shepard 152 house he pulled up the reins a little and leaned forward a little and looked northerly on the track toward Camden, that he did not see any cars, nor hear any, nor hear any bell or gong, that he then settled back upon the seat and drove on to the track, and that his horse was walking all the time.