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"Electric light or power companies, see Elec III. CONTRIBUTORY NEGLIGENCE.
tricity, $$ 16, 19. Employers, see Master and Servant, $$ 85–296. Or person injured by operation of railroad, see
Of passengers, see Carriers, $8 347, 348. Employés, liability for injuries to third persons, see Master and Servant, $8 302, 305.
Railroads, $$ 327-335, 338, 382. Fellow servant, see Master and Servant, ss 177- of servants, see Master and Servant, si 227196.
247, 274, 281, 289, 296. Telegraph or telephone companies, see Tele (A) Persons Injured in General. graphs and Telephones, 88 15, 27-74.
$ 72. The rule that the confusion resulting Condition or use of particular species of prop- when one is called on to act suddenly in an erty, works, machinery, or other
emergency may relieve him from the charge of instrumentalities.
contributory negligence held not to apply unless See Railroads, 88 282, 307–351, 356-401, 411- negligence in placing him in a position of dan
446, 474-485; Street Railroads, 88 85-117; ger is shown.-Texas & P. Ry. Co. v. Myers
Telegraphs and Telephones, 88 15, 27-74. (Tex. Civ. App.) 49. Automobiles, see Highways, 88 172-184; Mu $ 83. When the last clear chance doctrine nicipal Corporations, 88 705, 706.
comes into play stated.-Gumm v. Kansas City Sewers, drains or water courses in cities, see Belt Ry. Co. (Mo. App.) 796.
Municipal Corporations, 88 835, 815. Tools, machinery, appliances, and places for (B) Children and Others Under Disability. work, see Master and Servant, $$ 101-125.
$ 85. A child's conduct, considered from the Use of highway by traveler, see Highways, 88 ståndpoint of the ordinary child, may be con
172-181. Use of street by traveler, see Municipal Cor- v. Missouri Pac. Ry. Co. (Mo. App.) 794.
tributorily negligent as a matter of law.-Henry porations, 88 705, 706. Waterworks and appliances, see Waters and $ 85. A boy, injured while aiding an employé Water Courses, 88 206, 209.
to turn a turntable, held guilty of contributory
negligence as a matter of law.-Henry y. Vis. Injuries to particular species of property. souri Pac. Ry. Co. (Mo. App.) 794. Animals in operation of railroads, see Railroads, $$ 411-446.
IV. ACTIONS. I. ACTS OR OMISSIONS CONSTITUT- Damages, inadequate and excessive, see Dan. ING NEGLIGENCE.
ages, $$ 130-132.
Damages, measure, see Damages, f 113. (A) Personal Conduct in General. f 1. If one does what the great body of oth-(A) Right of Action, Parties, Preliminary
Proceedings, and Pleadings. er prudent men do, under a like situation, he is not negligent.—Tallman v. Nelson (Mo. App.) | Aider by verdict, see Pleading, $ 433. 1181.
$ 111. A complaint for injuries resulting § 2. There can be no actionable negligence from an alleged negligent fire held not defectexcept where there is a failure to perform some ive for want of facts.-Norman y. Sheip (Mo. legal or contractual duty.-St. Louis Southwest | App.) 527. ern Ry. Co. of Texas v. Anderson (Tex. Civ.
$ 117. Contributory negligence is an affirma. App.) 628.
tive defense, and to be availing ordinarily it 8 2. Negligence can only be established by must be charged in the answer and establisbed evidence showing a failure to perform some by the evidence.-George v. St. Louis & S. F. duty imposed by law upon the party sought to R. Co. (Mo.) 196. be charged.-Hall v. Houston & T. C. R. Co. (Tex. Civ. App.) 916.
Acts and statements accompanying or connected (B) Dangerous Substances, Machinery, with transaction as constituting part of res and Other Instrumentalities.
geste, see Evidence, 88 121-128. Electricity, see Electricity, 88 16, 19.
Evidence of conditions preceding injury in $ 23. An elevator owner held not liable for
action for injuries to servant, see Master and injuries to a child caused by the negligence of
Servant, $ 270. the operator on the theory that the elevator § 121. In an action for injury to plaintiff was attractive to children.-Sweeden v. Atkin- while working in defendant car company's parts son Improvement Co. (Ark.) 439.
by a pile of pig iron falling upon him, the bur(C) Condition and Use of Land, Buildings, because of inherent defects therein which were
den was on plaintiff to show that the pile fell and Other Structures.
known to defendant or should have been known Sewers, drains, or water courses, see Municipal to it by exercising ordinary care.-Bowman T. Corporations, 88 835, 815.
American Car & Foundry Co. (Mo.) 1120. Tools, machinery, appliances, and places for work, see Master and Servant, $$ 101–125.
8 121. In an action for negligence, plaintif Violation of statute as to rate of speed of motor held to establish a prima facie case, and cast ca
vehicles at highway crossings, see Highways, defendant the burden of showing that he ese $ 172.
cised due care.-Freeman v. Foreman dan
App.) 524. $ 30. The fact that a pile of pig iron near which plaintiff was working in defendant's
$ 121. In a case grounded on Degligence, the yards, for an independent contractor, was piled burden of proving negligence is on him who aseren or eight feet high, which was higher than leges it.-Freeman v. Foreman (Mo. App.) 321 usual, held not to show negligence.-Bowman § 121. A defendant, in a position to explain v. American Car & Foundry Co. (Mo.) 1120. an accident resulting in injury, will not be pre
sumed negligent in the absence of such explazt II. PROXIMATE CAUSE OF INJURY. tion, where the facts are equally consistent sit Injuries at railroad crossings, see Railroads, & the negligence of the person injured as that of 337.
the defendant, or both combined.-Teras & P. Injuries to passengers, see Carriers, $ 305. Coal Co. v. Kowsikowsiki (Tex.) 3. Injuries to servants, see Master and Servant, 8 247.
(C) Trial, Judgment, and Review. Of injuries at railroad crossing, see Railroads, § 136. Where there cannot be two opinions i $ 335.
the minds of reasonable men on the issue a
contributory negligence, the issue is for the III. PROCEEDINGS TO PROCURE court.-Larrance v. Missouri Pac. Ry. Co. (Mo.
NEW TRIAL. App.) 549.
Computation of time, see Time, $ 10. $ 136. Test stated for determination of Necessity and sufficiency of statement of whether a child's negligence should be submit grounds for purpose of review, see Appeal ted to the jury in an action for personal in and Error, $$ 301, 302. juries.-Citizens' Ry. Co. v. Robertson (Tex. Civ. App.) 343.
$ 159. It is the duty of the trial judge to
pass upon the weight of the evidence upon a $ 130. Negligence is always a question for motion for new trial.-Philes v. Missouri Pac. the jury, to be judged by the standard of ordi- Ry. Co. (Mo. App.) 553. nary care, unless the undisputed evidence establishes the issue, in which case the court must determine it.-Rice & Lyon y. Lewis (Tex. Civ.
Of infant, see Infants, $8 78–102.
NEXT OF KIN.
See Descent and Distribution.
NON COMPOS MENTIS.
See Insane Persons.
Involuntary nonsuit before trial, see Dismissal
and Nonsuit, $ 75. See Parties, $ 52.
Voluntary nonsuit, see Dismissal and Nonsuit,
NOTICE. Right to foreclose deed of trust by newspaper Judicial notice, see Evidence, $$ 11-35. notice, see Mortgages, $ 331.
Right to foreclose deed of trust by advertise
ment, see Mortgages, § 331. NEW TRIAL.
As affecting particular classes of persons. Granted by appellate court, see Appeal and See Adjoining Landowners, & 4; Attorney and Error, &$ 114, 1215.
Client, $ 104; Master and Servant, 8220; Granted by lower court after remand by ap
Vendor and Purchaser, $ 84. pellate court, see Appeal and Error, $ 1202. Insurance companies, see Insurance, 88 377– Necessity of motion for purpose of review, see
388, 559. Appeal and Error, $$ 281–302.
Purchasers of land, see Vendor and Purchaser, Necessity of order granting new trial on setting 8$ 229-233.
aside verdict or judgment, see Trial, $ 9. Opening or vacating judgment, see Judgment, | As affecting particular rights, duties, and liabili. 88 312, 357.
ties. In particular actions or proceedings.
Adverse possession agaiust co-tenant, see Ten
acy in Common, $ 15. Criminal prosecutions, see Criminal Law, $8 Liability of insurer as affected by notice of 923-958.
facts warranting avoidance or forfeiture of Highway proceedings, see Highways, 88 41, 58.
policy, see. Insurance, $8 377–388. Review of proceeding8.
Liability of insurer as affected by notice of loss, Record for purpose of review, see Appeal and Liability of master for injuries to servant as
see Insurance, § 559. Error, $ 528.
affected by notice of defects, see Master and Review of proceedings on motion as dependent on presentation of question in record, see Ap- of personal injuries affecting right of action
Servant, $ 220. peal and Error, $ 706. Review of proceedings on motion involving dis
for resulting death, see Death, 8 19. cretion of court, see Appeal and Error,
Rights and liabilities of bona fide purchasers of 977, 981,
real property, see Vendor and Purchaser, 88
229-233. II. GROUNDS.
Right to rescind sale, see Vendor and Purchas(F) Verdict or Findings Contrary to Law
er, $ 81. or Evidence.
To produce primary evidence as preliminary to
admission of secondary evidence, see Evi$ 76. The jury in a personal injury action dence, § 185. may exercise much latitude in fixing the amount of damages, and the court will interfere only of particular facts, acts, or proceedings not juwhen the discretion has been abused.-Texas &
dicial. G. Ry. Co. v. Hall (Tex. Civ. App.) 71. Adverse possession by co-tenant, see Tenancy
in Common, & 15. (H) Newly Discovered Evidence.
Alteration of municipal boundary, see Munici$ 104. Newly discovered evidence which is pal Corporations, 8 33. simply cumulative is not ground for a new trial. Dangers of employment as affecting assump-Powell v. Weber-Stair Co. (Ky.) 255.
tion of risk, see Master and Servant, $ 220.
Defects in title of vendor of land, .see Vendor
OBSTRUCTING JUSTICE. and Purchaser, 88 229-233. Election to rescind sale, see Vendor and Puro | Escape of prisoners, see Escape.
chaser, $ 84. Hearing before arbitrators, see Arbitration and Award, $ 32.
OBSTRUCTIONS. Intent to excavate on adjoining lands, see Ad- of access to property as ground for compensa
joining Landowners, $ 4. Local option election, see Intoxicating Liquors, of street, see Municipal Corporations, $ 671.
tion, see Eminent Domain, $ 106.
Constitutional guaranty of liberty to choose on Proceedings for making of municipal assess
cupation, see Constitutional Law, § 88. ments, see Municipal Corporations, $8 488, License tax on occupations in general, see Li489.
censes, $$ 6, 14.
Regulation by special or local law, see StatOf particular judicial proceedings.
utes, $ 81. To amend or correct judgment, see Judgment, Subjects and titles of acts relating to occupa§ 323.
tions and employments, see Statutes, i 114. NUISANCE. Liability of municipality, see Municipal Cor.
OFFENSES. porations, $ 736.
See Criminal Law.
OFFER. (C) Abatement and Injunction. 8.23. The remedy at law provided for the Of judgment as affecting award of costs, see violation of an ordinance prohibiting the erec
Costs, § 42. tion of ginhouses held adequate so that an injunction would not be granted.-Swaim v. Mor
OFFICE JUDGMENT. ris (Ark.) 432.
See Judgment, &$ 135–162.
OFFICERS. (A) Nature of Injury, and Liability There- Liability of municipal corporation for torts of for.
officers, see Municipal Corporations, is itong $ 39. "Nuisance per se" defined.--Swaim v.
747. Morris (Ark.) 432.
Mandamus to public officers in general, see $ 61. The erection of a cotton gin in an in- Official acts, constituting acceptance of dedica.
Mandamus, & 102. corporated town is not a nuisance per se..
tion, see Dedication, $ 35. Swaim v. Morris (Ark.) 432.
Presumptions as to official proceedings and acts, (B) Rights and Remedies of Private Per- Regulation and conduct of elections in general,
see Evidence, $ 83.
see Elections. $ 75. The erection of a lawful structure Right to carry wea pons, see Weapons, $ 11. will ordinarily not be enjoined on the ground Subjects and titles of acts relating to pabe that it will be put to a use constituting a nui officers, see Statutes, $ 125. sance.--Swaim v. Morris (Ark.) 432.
Particular classes of officers.
See Judges; Justices of the Peace; Registers Entry of judgment, see Judgment, $ 273.
of Deeds; Sheriffs and Constables.
Attorneys, see Attorney and Client.
Corporate officers in general, see Corporations
$ 355. See Affidavits.
County officers, see Counties, $ 80.
Health officers, see Health, s 7.
Municipal officers, see Municipal Corporations
$ 204. In judicial proceedings.
State officers, see States, $ 43. Necessity and sufficiency for purpose of review Trustees, see Trusts.
in civil actions, see Appeal and Error, $8 Trustees in bankruptcy, see Bankruptcy, 185-242.
152–299. Necessity and sufficiency for purpose of review
in criminal prosecutions, see Criminal LAW, 1. APPOINTMENT, QUALIFICATION, 88 1033-1045.
AND TENURE. To evidence at trial, see Criminal Law, $ 692; Of judges, see Judges, $ 16.
Trial, $ 76. To indictment or information, see Indictment Regulation and conduct of elections in genera: and Information, $$ 137-147, 196.
see Elections. To instructions, see Criminal Law, § 814; (C) Eligibility and Qualification.
Trial, $ 278.
Of judges, see Judges, $ 16.
(D) De Facto omicers. To record on appeal or writ of see Appeal and Error, $ 643.
88 39, 40. "De facto office" defined To venue, see Venue, $ 17.
quillard Wagon Works v. Melton (KY) 191 OBLIGATION OF CONTRACTS.
(F) Term of omce, Vacancies, and Hold
ing Over. Laurs impairing, see Constitutional Law, $8 | Vacancy in state board of elections, see Ex125, 126.
tions, $ 51.
(G) Resignation, Suspension, or Removal.
Re-entry and recovery of possession by landFees of county officers in general, see Coun
lord, see Landlord and Tenant, 88 278, 292. ties, $ 80. Rights and liabilities of county clerk as to ex
OWNERSHIP. cessive fees, see Counties, $ 80.
Of property as affecting performance of con, IV. LIABILITIES ON OFFICIAL
tract of sale, see Vendor and Purchaser, 8 134, BONDS.
PAIS. Bonds of marshals, see Sheriffs and Constables, $ 157.
Estoppel in pais, see Estoppel, 88 62-98. OPEN ACCOUNTS.
PARAPHERNAL PROPERTY. See Account, Action on.
See Husband and Wife, & 266. OPENING. ;
PARDON. Account of guardian, see Guardian and Ward, $ 100.
Right to question constitutionality of statute Judgment, see Judgment, $$ 135-162, 342, 357. relating to parole, see Constitutional Law, s Settlement of claim by administrator, see Ex 43. ecutors and Administrators, § 87.
§ 2. Rev. St. 1899, $ 2818 (Ann. St. 1906,
p. 1623), providing for the parole of prisoners, OPERA HOUSES.
not unconstitutional.-State v. Collins
(Mo.) 465. See Theaters and Shows.
PARENT AND CHILD.
See Guardian and Ward; Infants.
Declarations or family records and reputation
as to pedigree, birth, or relationship, see Evi
dence, $ 291. OPINION EVIDENCE.
Denial of right to trial by jury, in action relatSee Criminal Law, $ 448; Evidence, &$ 471- | Implied contract to pay for services rendered
ing to custody of child, see Jury, $ 31. 533.
between pa rent and child, see Work and LaORAL AGREEMENTS.
bor, $ 7.
Rights of surviving children as to homestead, See Frauds, Statute of.
see Homestead, $8 141, 149.
§ 2. In an action by a parent to recover cusORDER OF PROOF.
tody of her minor child, whether under the facts
and circumstances in evidence the child's welfare At trial, see Criminal Law, $ 687.
demanded that the custody be awarded to the
plaintiff or defendant was for the jury.-Cobb v. ORDERS.
Works (Tex. Civ. App.) 349.
and Administrators, $ 20. For sale of life estate, see Life Estates, $ 27. Review of appealable orders, see Appeal and
PAROLE. Error; Criminal Law, $8 1007-1103.
See Pardon, $ 2.
Right to question constitutionality of statute, ORDINANCES.
see Constitutional Law, $ 43. Municipal ordinances, see Municipal Corporations, 88 111, 122, 591-626.
In civil actions, see Evidence, 88 386-461. ORES. See lines and Minerals.
Of statute, effect, see Statutes, $ 64.
As witnesses, cross-examination of, see WitORGANIZATION.
nesses, § 277. 04.corporations in general, see Corporations, $ Character, ground of jurisdiction, see Removal
of Causes, $ 32.
Death ground for abatement, see Abatement and ORPHANS' COURTS.
Revival, $ 64.
Domicile or residence as determining venue, See Courts, $ 202.
see Venue, $ 22.
Interpleading, see Interpleader.
best bid to be accepted.-Sledge v. Willoughby Political parties, see Elections, $ 120.
(Ky.) 705. Rights and liabilities as to costs, see Costs.
§ 85. In a suit to recover a one-half interest In actions by or against particular classes of
in land and for partition, where defendant had person8.
been adjudged entitled to a one-half interest in See Carriers, 8 76; Partnership, 88 199–219.
a prior suit, he was entitled, on the rendering Trustee in bankruptcy, see Bankruptcy, $ 299. terest in the land, with a decree of partition to
of a judgment giving plaintiffs a one-half inIn particular actions or proceeding8.
be compensated for improvements made pendFor loss of goods shipped, see Carriers, $ 76.
ing the suit.-Whitmire v. Powell (Ter.) 889. For unpaid municipal taxes, see Municipal Cor $ 100. Under Rev. St. 1899, § 4407 (Ann. porations, $ 978.
St. 1906, p. 2421), construed in view of section On bills or notes, see Bills and Notes, $ 460. 3197, held, that a partition sale could not be To enforce mechanic's lien, see Mechanics' made on October 12th, where the court bad adLiens, & 264.
journed from the 9th to the 13th.-Da vidson . Judgment and relief as to parties, and partics M. Davidson Real Estate & Investment Co. affected by judgments or proceedings thereon.
(Mo.) 1143. Parties to judgment on trial of issues, see Judg. to a purported corporation not in existence hold
103. Sale of land in partition proceedings ment, $ 233. Persons concluded by judgment in general, see
invalid.-Davidson v. I.. M. Davidson Real Es Judgment, 88 673–707.
tate & Investment Co. (Mo.) 1143. Review as to parties, and parties to proceedings proceedings required payment by the purchas
$ 104. Where the order of sale in partition in appellate courts.
er in cash of at least one-half of the price, a Appeal from justice court, see Justices of the sale made without any payment was void.Peace, & 152.
Davidson v. I. M. Davidson Real Estate & InReview of questions as dependent on prejudicial vestment Co. (Mo.) 1143. nature of error, see Appeal and Error, 8 1036.
§ 109. A purchaser at partition sale was To conveyances, contracts, or other trunsactions. properly held an innocent purchaser for ralje See Contracts, $ 184,
without notice, as against the assertion that i
deed in the chain of title was a mortgage I. PLAINTIFFS.
Brown v. Spradlin (Ky.) 150. (B) Joinder.
PARTNERSHIP. 8 2012. Under common-law procedure, where several owners of a joint interest refused
I. THE RELATION. to join as plaintiff, the other owners were permitted to use his name as a coplaintiff.--Ing.
(C) Evidence. ham Lumber Co. v. Ingersoll & Co. (Ark.) 139. § 53. Evidence held sufficient to sustain e
finding that two of the defendants were partII. DEFENDANTS.
ners inter se.-Citizens' Bank of Laredo v. Loz. (B) Joinder.
der (Mo. App.) 1180. § 35. Under Kirby's Dig. $ 6007, where a
$ 53. A partnership inter se may be prored partner refused to join in an action 'to recover by circumstances.-Citizens' Bank of Laredo T. a claim of the firm, he may be made a party
Lowder (Mo. App.) 1180. defendant.--Ingham Lumber Co. v. Ingersoll & Co. (Ark.) 139.
III. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES OF PARTNERS. III. NEW PARTIES AND CHANGE OF
(C) Actions Between Partners. PARTIES.
$ 120. Where the petition charged that de Effect on admissibility of depositions, see Dep- fendants were partners as to plaintiff, it rss ositions, § 96.
sufficient to justify proof of facts entit: In actions to enforce mechanic's lien, see Me- plaintiff to charge them as partners.-Citizens chanics' Liens, § 264,
Bank of Laredo v. Lowder (Mo. App.) 1180. Interpleading, see Interpleader. Intervention in attachment proceedings by IV. RIGHTS AND LIABILITIES AS claimant of property, see Attachment, 88 291,
TO THIRD PERSONS. 296.
(D) Actions by or Against Firms or Part$ 52. A request that a certain person be made a party held to have been made too late. Finality of judgment for purpose of revier. -Bank of Waldron v. Euper (Ark.) 1022. see Appeal and Error, $ 79.
Making defendant, partner refusing to join us PARTITION.
plaintiff, see Parties, $ 35. Creation of co-tenancies, and rights and liabil
$ 199. In a suit for breach of a coping: ities of co-tenants in general, see Tenancy in made with a partnership, all the partner bal Common.
an interest in the subject-matter of the suit De Division of community property on divorce, see are necessary parties.-Ingham Lumber Co. T. Divorce, $$ 182, 252.
Ingersoll & Co. (Ark.) 139.
$ 206. Where partners are suing on a part II. ACTIONS FOR PARTITION. nership claim, one of them may not dismiss (B) Proceedings and Relief.
action against the objection of the other. Op
the prosecution of the suit would result is Authority of guardian as to sale of property riously to him and if it might do so, the elit" of ward, see Guardian and Ward, $38.
partner may continue the action in the dar Conclusiveness of adjudication, see Judgment, of both upon indemnifying him against boost § 747.
indemnity is demanded.-Ingham Lumber Cat $ 77. Facts shown held to justify a finding Ingersoll & Co. (Ark.) 139. that land could not be divided without materially $ 206. Where a suit was instituted is to impairing its value, as well as a direction that firm name for the breach of a contract and a it be sold in parcels and then as a whole, the of the partners thereafter sought to dismiss :