done that could be done to prevent the collision, and that it was unavoidable. On this state of facts the court, of its own motion, instructed the jury, in substance, that if defendant's servants, in operating the train, failed to use the care and prudence that careful and prudent men would use under such circumstances, by reason of which the animal was killed, they would find for plaintiff; that negligence need not be proved by positive and direct evidence, but that it would be sufficient if the jury were satisfied of its existence from all the facts and circumstances of the case. While the above declarations of law were unexceptionable, in view of the very slight evidence tending to show negligence, which was barely sufficient to justify the court in letting the case go to the jury, and the further fact that the action was not a statutory action, error was committed by the court in refusing to instruct the jury at defendant's request that negligence on the part of defendant's servants could not be inferred from the mere fact that the train struck and killed plaintiff's ox, and for this error the judgment will be reversed and the cause remanded, in which all concur.

VAN HORN

v.

BURLINGTON, C. R. AND N. Ry. Co.

(Advance Case, Iowa. June 14, 1882.)

In an action for damages brought against a railroad company for negli gently killing the stock of the plaintiff by its train being run at too great speed, the testimony of witnesses as to the sound heard by them while in the vicinity of the moving train is admissible on the question of the speed of such train. The weight of such evidence is for the jury to determine.

Where plaintiff, without excuse or justification, allowed her horses to be exposed to accidents from passing railroad trains, a town ordinance prohibiting stock to run at large should have been admitted in evidence.

APPEAL from Benton district court.

Action to recover the value of certain horses alleged to have been killed by reason of the negligence of the defendant in running one of its trains. The accident occurred in the city of Vinton, between 1 and 2 o'clock at night. The plaintiff had turned the horses loose. They strayed upon the defendant's track and lay down at a point where the track crossed one of the streets of the city. The negligence complained of is that the defendant was running its train at an improper rate of speed. The defendant denied all negligence upon its part, and averred that the injury was caused through the negligence of the plaintiff. There was a trial to a jury, and a verdict and judgment were rendered for the plaintiff. The defendant appeals.

J. & S. K. Tracy, for appellant. Traer & Voris, for appellee.

ADAMS, J.-1. Two persons were allowed to testify, against the objection of the defendant, that they judged from the sound of the train that at the time of the accident it was running very rapidly, and more than six miles an hour, which it appears was the highest speed allowed by ordinance of the city. The defendant insists that the speed of a moving train cannot be determined by the sound with sufficient accuracy to justify the admission of evidence in regard to it, where the witness has no knowledge of it except as derived from the sound. Small differences in the speed of moving trains cannot probably be determined by the sound, but we think that the difference between the speed of a slowly-moving and of a rapidly-moving train could be distinguished quite easily from the sound by a person in the immediate vicinity. The evidence, we think, was not inadmissible. Such evidence, we think, could not, under all circumstances, be deemed wholly unreliable. What weight the evidence in question was entitled to, under the circumstances shown, it was for the jury to determine.

2. The defendant offered in evidence an ordinance of the city of Vinton prohibiting horses from running at large. The plaintiff objected to the ordinance, and the objection was sustained. The defendant's position is that where a person owning horses in a city allows them to run at large by night, and lie down and sleep on a railroad track, and the horses are injured by a passing train, his conduct would be a circumstance tending to show that he is guilty of contributory negligence, unless he has a legal right to let them run at large, and that the ordinance was admissible as showing that such right did not exist. The rule contended for appears to have been held in Halloran v. Railroad Co., 2 E. D. Smith, 257; and Bowman v. Railroad Co., 37 Barb. 37; and our attention has been called to no case which holds the contrary. It was held, it is true, in Keeler v. Railroad Co., 42 Iowa, 420, that the plaintiff was not precluded from recovering because the cattle which were injured at a public crossing were being allowed to run at large. But the case turned upon the fact that the plaintiff had the legal right to allow his stock to run at large. Where such right exists the owner must be held to take the risk only of such injuries as do not result from the defendant's negligence. In the case at bar the ordinance offered would have shown that such right did not exist. We have a case, then, where the plaintiff, without excuse or justification, allowed her horses to lie at night where they were obviously exposed to such accident as happened. We think that the ordinance should have been admitted.

It is not claimed, and could not, we think, be properly claimed, that the provision of section 1289 of the code, respecting the re straint of domestic animals, has any application to this case. It would doubtless be applicable if the injury had occurred where the defendant had a right to fence; but it did not. Reversed.

BRAKKEN

v.

MINNEAPOLIS AND ST. LOUIS R. Co.

(Advance Case, Minnesota. December 31, 1881.)

In order to the establishment of a public street or highway through a common-law dedication it is not necessary that any formal act of acceptance by the public authorities be shown.

Acceptance may be shown by user by the public, and by an actual assumption of care and control over the street by the public authorities, as by grading or working upon it.

The owner of lots abutting on a public street has such a special interest in the street different from that of the general public as to entitle him to maintain a private suit for damages against a party who wrongfully obstructs the street in front of or near his property, but not upon his soil so as practically to cut off all public access to it.

The measure of damages in such case is not the diminution in value of the abutting property by the wrongful obstruction, the injury not being to the freehold nor permanent in its nature, but should be confined to compensation for the injury occasioned by the unlawful obstruction up to the time of the commencement of the suit. Where a view of the premises is allowed to the jury, such view is not for the purpose of furnishing evidence upon which a verdict is found, but to enable the jury better to understand and apply the evidence given in court. It was, therefore, error to instruct the jury that they might use their own examination and judgment, as well as the judgment of the witnesses, in estimating the damages; following Chute v. State, 19 Minn. 281.

APPEAL from an order of district court, county of Freeborn. John Whytock, for appellant. J. H. Parker, for respondent.

CLARK, J.-This suit was brought for consequential damages, alleged to have been sustained by the plaintiff from the construction of the defendant's railroad across a street upon which the plaintiff's residence was situated. The plaintiff's lot fronted four rods on the street and extended back seven rods. The street did not extend westward beyond the plaintiff's property, but communicated on the east with the streets of the village of Albert Lea, and there was no means of access to his residence, except from the east over this street, without passing over private property.

The defendant in the construction of its railroad made an excavation seven and a half feet deep, and 35 feet wide at the top, diagonally across the street, at a distance of 35 feet at the nearest point from the line of the plaintiff's lot, and not intruding upon his soil. The approaches to the railroad were not graded, and the excavation cut off all convenient access to the plaintiff's lot, and rendered it practically inaccessible except over private property. The plaintiff claimed that at the time of the construction of the railroad this street was, and now is, a public street, having been 7 A. & E. R. Cas.-38

dedicated to the public and accepted as such. The defendant insisted that it was private property, and that neither the public nor the plaintiff had any easement in it and that if it was a public street the plaintiff had not shown any special injury to himself from its obstruction different from that sustained by the general public.

As there must be a new trial for errors hereinafter mentioned, we deem it sufficient to say upon these questions that no formal act of the corporate authorities, by way of accepting a street dedicated by the owner of the soil, is necessary to its establishment as such. A common-law dedication of a street or highway may be shown by the acts of the owner of the land indicating an intention to dedicate, and acceptance may be shown by user by the public, and by an actual assumption of care and control by the public authorities, as by grading or working upon it. We are of opinion that the evidence was sufficient to justify the jury in finding that the street in question was a public street. City of Mankato v. Warren, 20 Minn. 144; Kennedy v. Le Van, 23 Minn. 513.

With reference to the other point it is well settled that the owner of lots abutting on a public street, whether he owns the soil to the centre of the street or not, has a special interest in the street different from that of the general public. It may not be very important to the general public whether they shall be able to get to the private property of an individual, but it is important to the individual whether he should be able to get to and from his residence or business, and whether the public have the means of getting there for social or business purposes. If there be an obstruction in the street in front of or near his abutting property, so as to prevent access to it, the damage which he sustains is different, not merely in degree, but in kind, from that experienced in common with other citizens, and he may maintain a private action for the special injury to him, notwithstanding there is also a remedy in behalf of the public.

In most of the cases which have arisen the obstruction in the street was immediately in front of the lot of the party complaining of it, but the reason of the rule, and therefore the rule itself, extends to the case of any obstruction which cuts off all means of public access to the plaintiff's lot. Wilder v. De Cou, 26 Minn. 10; S. C. 1 N. W. Rep. 48; Lackland v. North Missouri R. Co., 31 Mo. 181; Hawley v. Mayor of Baltimore, 33 Md. 270; Park v. C. & S. W. R. Co., 43 Iowa, 636; Bissell v. New York Cent. R. Co., 23 N. Y. 61.

The second branch of the case relates to questions of damages. At the request of the plaintiff's counsel the jury were allowed to view the premises. The court instructed the jury: "You, gentlemen of the jury, have examined the premises for the purpose of coming to an opinion. You are to use your own examination and judgment, as well as the judgment of the witnesses, in estimating

the damages. Some of you are perhaps as well qualified to determine that as some of the witnesses who have been called here." The defendant excepted to this instruction.

In Chute v. State, 19 Minn. 281, it is said: "The view is not allowed for the purpose of furnishing evidence upon which a verdict is found, but for the purpose of enabling the jury better to understand and apply the evidence which is given in court." The instruction made the independent judgment of each juror, derived from the view, an element in arriving at the amount of the damages, without its being introduced into the case for the benefit of the others, or for the information of the parties litigant, and was clearly obnoxious to the objections pointed out in the case last cited.

The plaintiff offered evidence of the diminution in value of the plaintiff's lot caused by the construction of the defendant's railroad across the street in the position and manner above described, which testimony was received under the defendant's objection that it did not contemplate the proper measure of damages. The objection was well taken. The evidence must have been received upon the theory that the injury to the plaintiff's property was in its nature permanent. This leads us to inquire what the real injury is of which the plaintiff has a right to complain. The action is not for damages for a permanent injury to the plaintiff's freehold, but for consequential damages for a wrong which may be remedied. Although the manner of the defendant's incorporation does not appear in the record, it is safe to assume, for the purposes of a new trial, what is well known, that it was created by special charter, and further that such charter contained the usual provisions authorizing the company to construct its railroad across public streets and highways in a proper manner, so as to leave them in a proper condition for public travel.

The grant of a franchise to construct and operate a railroad from point to point would probably include the right to cross highways and streets between such points in such proper manner without any special provisions on the subject. The fact of the construction of the railroad across the street is not, therefore, the ground of the injury. The plaintiff has no right to complain of that. It is the improper manner of construction, or the improper condition in which the street was left, that gives rise to the plaintiff's right to damages. It is not to be presumed that the street will be suffered to remain for all time in such improper condition. If, therefore, damages shall be allowed to the plaintiff, on the theory that the present improper state of things is to last, and at any future day the crossing should be put in a proper condition by the company, acting upon their own volition or in pursuance of the requirement of the public authorities, the ground of the plaintiff's injury will be removed, while he will have received full damages for its continuance.