Where goods in the possession of a railroad company as a warehouseman are destroyed by fire, the company can only exempt itself from liability by showing how the fire occurred and that it was without negligence on the company's part. Wardlaw et al. v. South Carolina R. R. Co., 11 Rich. L. 337.

In such case the company will not be held liable for a failure on the part of their servants who were on the spot at the time to save the goods, if the time was night, and the servants off duty. Aldrich v. Boston and Worcester R. R. Co., 100 Mass. 31.

Where the company had stored powder in the same warehouse with goods, and the latter were destroyed in consequence, this was held to constitute negligence on the part of the company for which it was held liable. White v. Colorado Central R. R. Co., 5 Dill. C. Ct. 428.

Where the plaintiff, in an action against a railroad company to recover damages for goods lost while in store, alleges that the same have been stolen, the burden of proof is upon him to show a lack of ordinary care on the part of the defendant in guarding the goods. Lamb v. Western R. R. Co., 7 Allen, 98. As to what is ordinary care, see Neal v. Wilmington and Weldon R. R. Co., 8 Jones L. 482. And in such case it is competent for the company defendant to show that it took as good care of the goods as other railroad companies in the vicinity. Cass v. Boston and Lowell R. R. Co., 14 Allen, 448.

Where a railroad company has received and stored all the goods and subsequently delivers to the consignee only a part of them, having in the mean time lost the rest, the burden of proof is on the company to show that the loss has not been occasioned by its negligence. Boies v. Hartford and New Haven R. R. Co., 37 Conn. 272.

A railroad company which has assumed the functions of a warehouseman is liable if it negligently deliver the goods to the wrong person, but only in case it does so negligently. Lichtenhein v. Boston and Prov. R. R. Co., 11 Cush. 70; Ala. and Tenn. R. R. Co. v. Kidd, 35 Ala., N. S. 209.

A railroad company acting as a warehouseman has a lien upon the goods stored by it until all the back charges thereon are paid. Alden and Co. v. Carver, 13 Iowa, 253.

MEYERS

v.

CHICAGO, ROCK ISLAND AND PACIFIC R. R. Co.

(Advance Case, Iowa. December 19, 1881.)

Municipal corporations, as cities, have power to pass ordinance regulating the speed of railroad trains within their limits. Such regulations are police regulations, and to be valid must be reasonable.

Where an ordinance of a municipal corporation limited the speed of railroad trains, within the limits of the city, to four miles per hour, and the road ran for some three miles after entering the city limits, before reaching the inhabited portion thereof, through farm lands, where the track was fenced and no streets laid out, held, that such ordinance as to the speed on that portion of the track was unreasonable and void.

APPEAL from Pottawattamie Circuit Court.

The plaintiff claims of the defendant $105 for the killing of a

cow. The cause was tried to the court on an agreed statement of facts. Judgment was rendered for the defendant. The plaintiff appeals.

Sapp & Lyman and Ament & Sims, for appellant. Wright & Baldwin, for appellee.

DAY, J.-Upon the trial it was agreed that the animal in controversy was killed by a train of the defendant running upon the track of its railroad at a point within the limits of the city of Council Bluffs; that the value of the animal killed was $101; that the train was running at a greater rate of speed than four miles an hour; and that an ordinance of the city of Council Bluffs, in force at the time the animal was killed, prohibited the running of trains at a greater rate of speed than four miles an hour. It was admitted by the plaintiff that the only negligence the defendant had been guilty of was, as they claim, the violation of the ordinance of Council Bluffs prohibiting trains from running at a greater rate of speed than four miles an hour.

A plat of the city of Council Bluffs is attached to the abstract, which, in connection with the agreed statement of the parties, shows that the defendant's line of railway enters the limits of said. city one and one-quarter miles from the laid-out portions of the city, and remains that distance for two and one-quarter miles, running just inside of the city limits; that the railway is fenced on both sides, except at public crossings, from the point where it enters the city limits up to Cassady's addition, which is the first platted addition; that the character of the land where the Chicago, Rock Island and Pacific R. R. runs through the city of Council Bluffs, up to Cassady's addition, is farm or agricultural lands; that there are no laid-out streets of the city of Council Bluffs crossing said track on said agricultural ground, the only crossing over the track being the public highways laid out by the county, and that the animal was killed upon one of these crossings, one and one-half miles from the laid-out portion of the city. It further appears that the railroad runs three miles within the limits of the city, through farm lands fenced on both sides, before it reaches the first laid-out addition of the city, and that the distance from the point where it first enters the city limits to the Union Pacific depot is more than five miles. The ordinance of the city in question is as follows: "Whoever as engineer, conductor, or other employee of any railroad company shall run any locomotive, with or without cars attached, or any hand-car, at a speed to exceed four miles an hour, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than five nor more than fifty dollars for each offence."

The city of Council Bluffs is incorporated under a special charter. The plaintiff claims for the city the authority to pass the ordinance

in question, under section 26 of its charter, which provides: "The city council is invested with authority to make ordinances to secure the inhabitants against violation of the law, . . . and in general to provide for the safety and prosperity and good order of the city, ... and the comfort and convenience of the inhabitants, and to impose penalties for the violation of its ordinances. . . ."

It is conceded by the defendant that under this session the city of Council Bluffs has the right to pass an ordinance regulating the speed of railway trains. It is claimed, however, that the regula tion is a police regulation, and, to be valid, must be reasonable and proper, and not simply convenient; that the ordinance in question is unreasonable, oppressive, and vexatious, and therefore void.

In 1 Dillon, Mun. Corp. § 319, it is said: "In this country the courts have often affirmed the general incidental power of municipal corporations to make ordinances, but have always declared that ordinances passed in virtue of the implied power must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the state." That courts may declare void an ordinance passed by a city in virtue of its implied powers is fully sustained by the following authorities: Hayes v. City of Appleton, 24 Wis. 542; Austin v. Murray, 16 Pick. 121; Dunham v. Trustees of Rochester, 5 Cow. 462; T., W. and W. Ry. Co. v. Jacksonville, 67 Ill. 37; Ex parte Frank, 52 Cal. 606; Kip v. Patterson, 2 Dutcher, 298; Com❜rs v. Gas Co., 12 Pa. St. 318; Waters v. Such, 3 Ark. 110; Mayor v. Winfield, 8 Humph. 707; Chasson v. Milwaukee, 30 Wis. 316; Clinton v. Phillips, 58 Ill. 102; Tugman v. Chicago, 78 Ill. 405. Whether a by-law or ordinance be reasonable is a question for the court. Com. v. Worcester, 3 Pick. 461; State v. Overton, 4 Zab. (N. J.) 435.

Under the ordinance in question in this case, it would take threequarters of an hour, after entering the corporate limits of Council Bluffs, to pass over three miles of railroad, through agricultural lands fenced on both sides, and reach the inhabited portion of the city; and it would take over one hour and a quarter to reach the terminus of the railroad at the Union Pacific depot. One of the objects of railroads is to secure quick transportation for freight and passengers. The ordinance in question not only places an unreasonable restriction upon the railways themselves, but it unreasonably and unnecessarily impedes the whole travelling public. No necessity has been shown, and none certainly exists, for limiting railways to a speed of four miles an hour for three miles before they enter the inhabited portion of a city, and while passing through agricultural lands fenced upon both sides. If all the cities situated along the line of the defendant's road, between Council Bluffs and Chicago, should enact and enforce a like ordinance, it is apparent that the time between the two cities would be greatly in

creased. The ordinance operates as a restraint upon commerce, and, in our opinion, ought not to be sustained. The court did not err in refusing to hold the defendant liable for a violation of it. Affirmed.

The great weight of authority is to the effect that the mere violation of a municipal ordinance by a railroad company in the running of its trains or the guarding of its track is not negligence per se on its part. The cases, however, by no means agree on this point. It is proposed in the following note to examine somewhat in detail the conclusions which have been reached. In New York the question first arose in Brown v. Buffalo and State Line R. R. Co., 22 N. Y. 191. In this case the defendants were running a train of cars in direct violation of a city ordinance which affixed a penalty of $150 for the act. The judge below charged that if plaintiff was free from fault or negligence contributing to the injury, and the jury found that the injury was occasioned by, or would not have occurred but for such violation of the ordinance, the defendant was liable. The court of appeals, however, held that this instruction was error, because the penalty affixed by the ordinance was the only consequence which the law imposed for its violation. Hence they said no right of action had accrued to the plaintiff solely for such violation and the ordinance should not have been even admitted in evidence. See in connection with this decision, Phila. and Reading R. R. Co. v. Boyer, and note 2 Am. and Eng. R. R. Cas. 172; Phila. and Reading R. R. Co. v. Ervin, 36 Leg. Int. (Phila.) 244.

This case was followed by Jetter v. New York and Harlem R. R. Co., 2 Keyes, 154, where the circumstances were substantially the same, except that the ordinance in question prescribed no penalty for its violation. The court, however, seized upon this point as a ground of distinction and affirmed a ruling admitting the ordinance in evidence and a charge to the effect that the violation of such ordinance constituted evidence from which the jury might infer negligence. Further than this the court did not actually go. It criticised, however, Brown v. Buffalo and State Line R. R. Co., 22 N. Y. 191, very sharply, and intimated that its opinion was that the violation of the ordinance constituted negligence per se for which the company should be

held liable.

So far did this case go that an inferior court in Basegel v. N. Y. Central R. R. Co., 14 Arb. Pb. 29, under circumstances precisely similar to those of Brown's case, felt itself warranted in submitting the violation of an ordinance to which a penalty was annexed to the jury, with instructions that it constituted evidence of negligence. To the same effect is McGrath v. New York Central and Hudson River R. R. Co., 63 N. Y. 522, where the court said: "The object of the ordinance was the security and protection of the travellers upon the streets. The defendant must be held to have known of its existence, and all persons within the city were bound to take notice of it as if it had been a law regularly enacted by the legislature. It either in terms applied to defendant, although it was using a road owned by another company, or the defendant may have been guilty of some negligence in running its train upon the road when the owners thereof neglected the duty imposed upon it to keep a flagman at the crossing. . . . A violation or disregard of the ordinance, while not conclusive evidence of negligence, is some evidence upon the question to be submitted to the jury with all the evidence."

The last case upon the point is that of Massoth v. Delaware and Hudson Canal Co., 64 N. Y. 524, in which the court reviewed all the cases above cited. The point decided was only that a violation of a municipal ordinance constitutes evidence of negligence, and that it is not error for a trial judge to state to the jury that in his opinion under the facts of the case such violation

amounts to negligence. The court, however, intimated that it was still an open question in New York whether such violation did not amount to negligence per se.

In most of the other States it has been held that such violation only constitutes evidence of negligence to go to a jury. Such is the law in Massachusetts: Lane v. Atlantic Works, 111 Mass. 136. In Missouri. Liddy . St. Louis R. R. Co., 40 Mo. 506. In Maryland: Baltimore City Pass. Ry. Co. v. McDonnell, 43 Md. 534. And such was the doctrine of the earlier cases in Indiana: Madison and Indianapolis R. R. Co. v. Mathias, 50 Ind. 65.

It should be observed, however, that these Missouri, Maryland and Indiana cases merely consist of affirmances of rulings to the above effect. It does not therefore follow that the courts of these States may not in the future extend their doctrine beyond what has been already enunciated.

The later cases in Indiana take up the position that the violation of a municipal ordinance constitutes negligence per se. Pennsylvania Co. v. Hensil, 70 Ind. 569.

And to the same effect are the cases in Iowa: Correll v. B., C. R. and N. R. R. Co., 38 Iowa, 120. And in Indiana: St. Louis, Vandalia and Terre Haute R. R. Co. v. Dunn, 78 Ill. 197. Upon this point the court in the case last above named said:

"The fact that the train struck him as it did raises an irresistible presumption that if the train was running faster than six miles an hour, this was the immediate cause of his death. If it was running 18 or 20 miles an hour, as a witness testified, . . . there can be no doubt that the unauthorized rate of speed was the cause of his death. If the speed was greater than the ordinance allowed than the employees, considering the circumstances, were guilty of recklessness that is wholly unjustified." Cf. note to Phila, and Reading R. R. Co. v. Boyer, 2 Am. and Eng. R. R. Cas. 172.

FREEMAN

v.

MINNEAPOLIS AND ST. LOUIS RY. Co.

(Advance Case, Minnesota. December 2, 1881.)

A railroad corporation cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the State by leasing its road without the consent of the State. So, where a railroad corporation, without such consent, leased its road to another railroad corporation, which entered upon and controlled and managed the road, held, that the former corporation is liable for injuries to persons caused by negligent defects in its track at a highway crossing.

Section 1, c. 71, Sp. Laws 1871, does not consent to the defendant leasing its road unless to a railroad company of this State. Sections 69, 106, c. 34, Gen. St. 1878, does not consent to any lease by any railroad company of this State of its road to any Iowa railroad company unless the latter has complied with the provisions of section 106.

APPEAL from order of district court, county of Freeborn.

Lovely & Morgan, for respondent. J. & S. K. Tracy and John Whytock, for appellant.