MASTER AND SERVANT-Continued.

that deceased had another duty to perform, as taking the numbers of the cars,
in a memorandum book, constituted no variance, as what the deceased was do-
ing at the time was no part of the tort complained of, or of the means adopted
in effecting it. Id.

16. In such case the gist of the action is the defendant's negligence, as alleged,
and the motives of the deceased in being upon the track, or why he was there,
are wholly immaterial, it being sufficient that he was lawfully there.
Any alle-
gation showing why the deceased, as switchman, was upon the track, except
that he was rightfully there, is surplusage. Id.

17. H., who was in the employ of a railway company as a "capstan-man,'
without giving the usual warning, propelled a series of trucks along a line of
rails in a goods station, and injured the plaintiff, who was engaged in similar
work at the other end of the line about 100 yards off. The capstan was set in
motion by hydraulic power communicated to it by H. from a stationary engine
at a distance. Held, that there was evidence to warrant the jury in finding that
H. was a person who had the charge or control of "a train upon a railway
under s. 1, sub-s. 5, of the Employers' Liability Act, 1880 (43 & 44 Vict. c. 42).
Cox v. Great Western Ry. Co. 485.

18. An employer who introduces, without notice to his employé, new and
unusual machinery, whether belonging to himself or another, involving an un-
expected or unanticipated danger, through the introduction of which the em-
ployé, while using the care and diligence incident to his employment, meets
with an accident, is liable in damages. O'Neil v. St. Louis, etc., R. R. Co. 614.
19. If a master or another servant, standing towards the servant injured in the
relation of superior, orders the latter into a situation of danger, and he obeys
and is thereby injured, the law will not charge him with contributory negli
gence, unless the danger was so glaring that no prudent man would have
entered into it. Miller v. Union Pacific R. R. Co. 614.

20. Injury to employé by defective car. Palmer v. Denver, etc., R. R. Co.
615.

21. Who are fellow-servants? Duty of master as to machinery in workshop.
Totten v. Penna. R. R. Co. 616.

22. Rules governing in suits by employés stated. Granville v. Minneapolis,
etc., R. R. Co. 612, 613.

See NEGLIGENCE, PLEADING AND PRACTICE, 37–44.

MECHANICS' LIEN.

1. A statutory right of action against a corporation for labor done and
materials furnished follows the assignment of the claim; otherwise it would be
determined by the claimant's death, and perhaps by his insolvency. Contract-
ors and sub-contractors are not "laborers" within the meaning of the statute
giving a right of action for labor debts. Under an act giving a right of action
for labor debts, a laborer may sue for work done by his team, where no right
arises from its service to any other person. Chicago, etc., R. R. Co. v. Sturgis,
619.

2. Mechanics' liens as against railroads considered.
v. Memphis, etc., R. R. Co. 600.

MERCHANDISE AS BAGGAGE, 311.

St. Louis, etc., R. R. Co.

See CARRIER, 10.

MINES AND MINERALS, 555.

See EMINENT DOMAIN, 10.

MINOR.

See CHILDREN.

MOB, DELAY OF FREIGHT BY, 391.

See CARRIER, 43, 44.

MORTGAGE.

In a suit on bonds secured in part by a second mortgage, the trustees of the
second mortgage are necessary parties. Where a State statute provides for the
functions of trustees, mortgages executed under the laws of the State need not
expressly provide therefore. Mercantile T. Co. v. Portland, etc., R. R. Co.
614.

NEGLIGENCE.

1. Where a railway company has constructed a trestle-work or bridge over a
street and creek, at a place where the street has not been graded or improved,
and there are no railings to the trestle-work or bridge, and no foot planks upon
it, and the only way of crossing is by stepping from tie to tie, and the railway
company is constantly using the track, and a party climbs up and attempts to
cross without the consent of the company, and is injured by being run over with
a hand-car; held, the court commits no error in ruling out the evidence con-
cerning the custom of foot passengers crossing such trestle-work or bridge, after
two persons had testified to it without objection. Mason v. Missouri Pacific
R. R. Co. 1.

2. A railway company has exclusive right to occupy, use and enjoy its railway
tracks, trestle-work and bridges, and any person walking upon a track or bridge,
without the consent of the company, is a trespasser; and in case of an injury
happening to such person while so trespassing upon it, from the movement or
operation of the cars of the company over it, he is without remedy unless it be
proved by affirmative evidence that the injuries resulted from negligence so
gross as to amount to wantonness. Id.

3. The deceased was a full-grown man, but was deaf and dumb, and that at
the time of the accident he was walking on the track of the company in the
same direction as the train that killed him. The evidence was conflicting as to
whether any whistle or bell was sounded by the train, so as to warn the deceased
of his danger, and if so, when it was sounded. The court instructed the jury that
if those in charge of the train saw the plaintiff's intestate in time by the use of the
means in their power to have saved his life by checking the train or by blowing
the whistle and ringing the bell, and the defendant's employés wilfully failed
to use such means to avoid the killing, they must find for the plaintiff. Held,
that this instruction was erroneous. The jury should have been told that the
defendant's employés, being ignorant of the physical infirmity of deceased, had
a right to believe that he would do what a man possessed of his ordinary facul-
ties would have done, viz., stepped off the track in time to avoid danger, when
he heard the approaching train, and that hence they were not in fault for failing
to stop the train. Louisville, etc., R. R. Co. v. Cooper, 5.

4. Semble, that if knowledge of the physical infirmities of the deceased had
been brought home to said employés they would have been held to a stricter
measure of duty, and that a failure on their part to discharge that duty would
have constituted either absolute intentional killing or wilful neglect, for which
the company would have been held liable. Id.

5. A railroad company is entitled to the possession of its roadway. The
travelling public has no right to the use of it, except at crossings and other
places of public passage. But if persons travelling on a railroad track are seen
in time to avoid danger, by warning them off by proper signals, it is the duty of
the officers of the train to resort to such means to prevent injury even of tres-
passers on the road. Teunen broock v. Southern Pacific R. R. Co. 8.

6. No duty is imposed to sound a whistle in the lawful use of the roadway,
except in approaching crossings on a road, or other places of public passage, or
in coming to stations, or into towns or cities. Accordingly, held, defendant was
not responsible for injuries occasioned while it, without fault, was running its
train at the customary speed and without sounding a whistle, at a portion of the
road not approaching a crossing or place of public passage, but upon a trestle
bridge crossing a ravine about a mile from a station. Held, further, plaintiff
was guilty of contributory negligence. Id.

7. If one who enters upon the track of a railway when no train is in sight
should, from providential cause, become insensible while there, and in that con-

NEGLIGENCE—Continued.

dition be run over and injured by a train while lying in open view, the company
would be liable in damages on account of that negligence on the part of its
agents in not discovering the helpless man, which was the proximate cause of
the injury. H. and T. C. R. R. Co. v. Symkins, 11.

8. The doctrine that a railway company owes no duty to one unlawfully on
its track, and is not liable in damages for injury to such an one unless wantonly
inflicted, discussed and disapproved.

9. A reasonable look-out, varying according to the danger and all the sur-
rounding circumstances, is a duty always devolving on those in charge of a rail-
way train in motion. Id.

10. Railway companies are bound to exercise their dangerous business with
due care to avoid injury to others, and when they fail to do so, they are liable
in damages for injury resulting even to a trespasser who has not been guilty of
contributory negligence. Id.

11. One who, while helpless from drunkenness, is run over and injured by a
passing railway train, is guilty of contributory negligence, which constitutes a
bar to his action for damages, unless his injuries were wantonly or wilfully in-
flicted. Id.

12. If the proximate cause of injury to one run over and maimed by a railway
train is the negligence of the engineer in charge, and the party injured is pre-
vented by a providential dispensation from the use of his faculties at the time of
the injury, the fact that prior to the time of the injury, when no train was in
view, and before being providentially disabled, the injured party placed himself
wrongfully on the track of the road, would not constitute such contributory
negligence as would prevent a recovery. Id.

13. The defendant requested the court to charge that the plaintiff, being about
to drive a team, with two mules and a horse on the lead, across a railroad track,
with a loaded wagon, where trains were running propelled by steam, having
placed his son, seven years of age, on the lead horse, over which he (the father)
had no control, was guilty of negligence in placing his son in such a dangerous
position, and cannot recover for the loss of the life of his son or his horse killed
by the passing train; which the court answered: "This point assumes a fact,
the existence or non-existence of which is a question for your determination, to
wit: That the plaintiff placed his son on a horse over which he had no con-
trol. This is for you, and we cannot assume it. If it were true it would be
strong evidence of negligence. It is for you to find, under all the evidence in
the case, whether there was negligence either on the part of the plaintiff or of
his son, who was killed, which contributed to the production of the accident.
If there was such contributing negligence, the plaintiff cannot recover." Held,
that the assumption in the point forbade its affirmance, and that it could have
been well refused without any qualifying remarks. Held, further, that there
was error in the remark that if the assumed facts were true it would be strong
evidence of negligence, for on the verity of the facts as assumed, without refer-
ence to other proofs, the plaintiff was guilty of negligence, and as it was not
certain that this error did the defendant no harm, the judgment must be reversed.
Pennsylvania R. R. Co. v. Bock, 20.

14. Defendant moved in arrest of judgment on the ground that there had been
a misjoinder of rights of parties. The declaration discovered no inconsistency
in the rights sued upon, nor any misjoinder of the claimants thereunder. Held,
that there was nothing on the face of the record to arrest the judgment, and if
there was actual misjoinder, it should have been taken advantage of on the
trial. Id.

15. A common-law and statutory claim for damages may be joined in the same
action when they admit of the same pleas and are followed by the same judg-
ment. Id.

16. A father brought an action against a railway company for the death of
his minor son by the alleged negligence of the company. In the same suit he
also joined a claim for damages for a horse killed at the same time. At the
trial it was agreed that the case should be tried as if the mother of the boy were
a party, and that she should be concluded by the verdict. The verdict was for

NEGLIGENCE-Continued.

the plaintiff. A motion was made in arrest of judgment. Held, that there was
nothing on the record which could be taken advantage of by this motion. Id.
17. The plaintiff, a deaf man, being about to cross a railroad track, in a
buggy, saw the smoke of what he took to be a moving train east of him. He
crossed, drove eastward a distance of 250 feet along a road which ran parallel
with the railroad and within a few feet of it, turned and drove back the same way
he had come, attempting to recross the track at the same place. He never looked
to the east to ascertain the direction in which the train was moving, but assumed
that it was moving away from him. The view to the east was unobstructed for
more than half a mile. When in the act of recrossing the track, he was looking
back over his shoulder to the southward. In this position he was struck and
injured by the train coming from the east. Held, that the accident was the re-
sult of his own negligence, and the railroad company was, therefore, not liable.
Held, also, that his deafness was no excuse. It should rather have added a
spur to his vigilance, and prompted him to employ his other faculties so as to
compensate, as far as possible, for the lacking one. Held, also, that although
plaintiff was in full view of those operating the train for a long distance, yet
they were not chargeable with negligence owing to the fact that the road forked
just at the crossing, and they could not anticipate that plaintiff intended to take
that branch which crossed the track. Held, also, that under the circumstances it
was immaterial whether the proper signals for the crossing were given or not.
Purl v. St. Louis, etc., R. R. Co. 27.

18. Under peculiar circumstances going to excuse the plaintiff from taking
the usually necessary precautions to avoid danger, an instruction in a suit to re-
cover for a personal injury from a passing train at the intersection of the
track with a street crossing, that if the plaintiff knew of the existence of the
track at the place of the injury, and that trains frequently passed along the same,
and could have looked for and seen, or have listened and heard, the approach-
ing train before going upon the track, and did not thus look and listen for the
train, and that by reason of such neglect he failed to avoid the injury, may be
properly refused, although ordinarily such an instruction should be given.
Pennsylvania Co. v. Rudel, 30.

19. Plaintiff's intestate was riding with one B., when upon approaching de-
fendant's track the horse became unmanageable and dashed upon the track in
front of an approaching train, and both B. and intestate were killed. The
track near the crossing runs through a deep cut and the evidence was conflict-
ing as to whether the bell was rung or whistle blown. It appeared that intestate
jumped from the wagon just as he was struck by the locomotive. Held, that it
was for the jury to determine from the evidence whether defendant was negli
gent in remaining in the wagon, and it was therefore error to non-suit, that if
defendant heard the noise of the locomotive or was in any way apprised of its
approach in time to have enabled him to avoid the danger by the exercise of
reasonable prudence, and he chose to trust in the ability of the driver to manage
the horse and avoid collision, defendant is not liable, notwithstanding the omis
sion to ring the bell or blow the whistle; but if deceased did not hear the train
or know of its approach, the mere fact that the horse on seeing the engine started
forward, and getting beyond control drew the wagon on the track, would not
exempt defendant from liability. Cosgrove v. N. Y., etc., R. R. Co. 35.

20. Upon the trial of an action against a railroad company for negligent col-
lision with and injury to plaintiff's wagon and horses at the crossing of a public
highway, it appeared by the testimony of plaintiff's witnesses that plaintiff drove
his team at a brisk trot upon the crossing without having stopped to listen for
trains; that he had looked, but at a place where a thicket well known to him
prevented a view of the track; that if he had looked at any other point he would
have seen the locomotive which did the injury. Held, that he was guilty of
contributory negligence, which debarred him of recovery.
He directly con-
tributes to his own injury, who, paying no attention to his own safety, trusts to
the obligations imposed upon the company to warn him of an
train. Turner v. The Hannibal and St. Joseph R. R. Co., Appellant.
souri Reports, 603.

approaching
74 Mis-

NEGLIGENCE-Continued.

21. The liability of horses to take fright at unusual noises or objects is a
thing to be apprehended and guarded against; and the wrong-doer who does an
act likely to cause horses to take fright, must be deemed to be responsible for
injuries caused by horses running away under the influence of the fright. Bill-
man v. Indianapolis, etc., R. R. Čo. 41.

22. Negligently and wantonly sounding a steam whistle, so that horses law-
fully near are caused to run off and inflict an injury, renders a railroad com-
pany liable to the one injured by the intervening agency. Facts showing a
necessity, or a reasonable excuse, for the use of the whistle, render a different
rule applicable. Id.

23. The horse which plaintiff was driving caught his foot in the space be-
tween the rail and the plank on the crossing and fell down on the track. Plain-
tiff alighted and endeavored for about two minutes to extricate the foot, when a
train came along and broke the horse's leg. In a suit for damages the court
non-suited the plaintiff, invoking the rule that he should have “stopped, looked
and listened" before approaching the crossing. Held, that the rule was not
applicable to the case, that the true question was whether the company was
guilty of negligence in allowing the track at the crossing to be in an insecure
condition, and that this question should have been submitted to the jury.
Baughman v. Shenango, etc., R. R. Co. 51.

24. While plaintiff was driving his mare across the track of defendant's road
at the intersection of two streets her foot caught between the planking and one
of the rails and she was injured. Upon the trial of an action to recover dam-
ages, plaintiff's evidence was to the effect that there was over three and one
fourth inches between the plank and the rail, while two and one quarter inches
was all that was required for the passage of the flanges of the car wheels, and
because of this the horse's hoof got into the open space and the toe calk caught
under the rail; that the plank was from one fourth to three eighths of an inch
higher than the top of the rail; and that the crossing was constructed differently
from others upon defendant's road and upon other railroads. Plaintiff was non-
suited on the ground that there was no evidence of negligence on the part of de-
fendant. Held, error; that the question of negligence was one of fact for the
injury. Payne v. Troy, etc., R. R. Co. 54.

25. Decedent was seen about to cross a railway track in a village, at a time
when a train was approaching from one direction, and one backing towards her
from the other direction. She was soon after found dead outside the street
limits on railroad grounds, having been run over by the backing train. Held,
that her being found where she was, outside the street limits, did not of itself
make out against her a case of contributory negligence. Michigan, etc., R. R.
Co. v. Hassenmeyer, 60.

26. From the evidence at the trial, it appeared that there was no one who saw
the infliction of the injuries from which the deceased died, but as far as could
be ascertained, there seemed to be no rational explanation of her injuries, other
than contact with some portion of a passing train of the defendant, and it was
not controverted by the defendant that the injuries were so caused. The only
evidence on the subject of a "look-out" was that of the engineer and fireman
of the train, which was uncontradicted and unimpeached. They proved that
they were both engaged at the time in keeping a most careful and vigilant look-
out, and neither of them saw the deceased on or near the railway. Held, 1. That
it could not be inferred from this fact that their testimony was not true, and
might be disregarded by the jury, unless it had been shown, which was not
done, that the deceased was on the track in front of the train, and was struck
by the locomotive. 2. That if she came in contact with some other part of the
train, either in attempting to cross, or getting too near the track after the
locomotive had passed, she would not be seen by the engineer or fireman; and
their failure to see her under such circumstances, would be no ground for
imputing negligence to them, as they were under no obligations to look back.
Northern, etc., R. R. Co. v. Burns, 66.

27. The proof was that the crossing was not dangerous, and it was not usual
to give signals by ringing the bell or sounding the whistle at that place. There