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taining the cable and wires of the company, severing six or seven of its wires. The interruption of communication was noticed at once, and on that day and the next repairs were made involving an expense of $126.92. The court below found as facts from the evidence that the plaintiff and his joint contractor, by their servants and employés, did the acts complained of causing the injuries, and that these acts constituted negligence for which the plaintiff was liable, and he thereupon gave the judgment under review.

The rule is well settled, and is not disputed in this case, that this court will not review the decisions of the court below on questions of fact. South Brunswick v. Cranbury, 52 N. J. Law, 298, 19 Atl. 787. It can only look to see if there was legal evidence before the court below upon which its judgment might be based. It will not reverse, though the evidence might lead this court to a different conclusion. Brunswick v. Cranbury, ubi supra; Brown v. Ramsay, 29 N. J. Law, 117; Jeffrey v. Owen, 41 N. J. Law, 260; Mon. Park Ass'n v. Warren, 55 N. J. Law, 598, 27 Atl. 32; Jersey City v. Tallman, 60 N. J. Law 239, 37 Atl. 1026.

But it is contended for the plaintiff in certiorari that there is no evidence of such legal force and verity that it should be held sufficient to justify the judgment under the rule as cited. It is true that there is no direct proof as to how, when, or by whom the cutting of the cable was done; the evidence on these points is largely circumstantial in character. We have examined the evidence on both sides with great care, as we have also the discussions of it in the briefs of counsel. We deem it unnecessary to discuss the evidence in detail in the opinion. As a result of, our examination, we have reached the conclusion that there was sufficient evidence, under the rule herein stated, to support the findings of fact and the judgment based thereon of the court below.

The result is that the judgment below is affirmed, with costs.

(69 N. J. L. 233)

ATLANTIC CITY v. DEHN (two cases). (Supreme Court of New Jersey. Feb. 24, 1903.)

OMNIBUS DRIVER-COMMON CARRIER.

1. Proof that a person was the driver of a "licensed bus" in a city does not show him to have been a common carrier, and thus legally bound to carry passengers.

Albert Dehn was convicted of two violations of an ordinance of Atlantic City, and brings certiorari. Conviction set aside.

Argued November term, 1902, before GARRISON and GARRETSON, JJ.

U. G. Styron, for plaintiff in certiorari. Harry Wooton, for defendant in certiorari.

PER CURIAM. These two cases were argued together. In the first case, which was

No. 111 on the list, there was a conviction under an ordinance for refusing to carry passengers for legal fare. The testimony fails to show that the prosecutor was one of the class named in the ordinance, namely, that he was in the business of driving an omnibus for fare. He may have been in private employ.

In No. 112 there is a conviction for refusing to carry a passenger. The proof is that the plaintiff in error was the driver of a "licensed bus." There is nothing in the proofs to show that this compelled him to be a common carrier.

In each case the conviction is set aside.

(69 N. J. L. 127) KLAUS V. MAYOR, ETC., OF JERSEY CITY.

(Supreme Court of New Jersey. Feb. 24, 1903.)

CHANGE OF STREET GRADE-DAMAGES

LACHES.

1. When a city is about to change the grade of a street on which a building stands, the fact that the owner of the building secures such a modification of the proposed change as will result in less injury to him does not bar his right to damages for the change actually made. 2. Under the circumstances of this case the relator's right to relief is not barred by laches. (Syllabus by the Court.)

Application by the state, on relation of Henry Klaus, for writ of mandamus to the mayor and aldermen of the city of Jersey City. Writ to issue.

Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

Bedle, Edwards & Lawrence, for relator John W. Queen, for defendants.

DIXON, J. Under an agreement with the Erie Railroad Company Jersey City lowered the grade of Grove street at its intersection with Eleventh street, on the corner of which a building of the relator stood. The work was done in the summer of 1899, and re sulted, the relator claims, in damage to his property and the property of adjoining owners. He therefore asks for a mandamus to compel the city authorities to have a proper award made for the damages so caused. The city resists the application on the ground that the relator assented to the change, and also has been guilty of laches in pursuing his remedy.

What the relator assented to, as shown by the evidence, was a modification of the proposed change, which he thought would result in less damage to his property; but it does not appear that he assented to forego his right to compensation for whatever damage the modified change would cause.

On the question of laches, the case shows that on June 6, 1899, the board of street and water commissioners referred the matter to the commissioners of assessments to ascertain the damages and benefits resulting

from the change of grade, and that the present proceeding was instituted in May, 1902. Evidently, during a part of the interval, the relator was justified in expecting that the commissioners of assessments would proceed to perform the duty thus devolved upon them, and it does not appear that during the residue of the interval, or indeed at any time, anything occurred which would change the situation to the detriment either of the city or of property owners. Under these circumstances we think the delay should not bar relief.

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1. Plaintiff, engaged in work on the public street which necessitated his kneeling on defendant's track to hand boards down into a trench, was injured by defendant's car, which came upon him, without warning, contrary to the usual custom, which was for those in charge of the car to ring a gong when approaching the point where plaintiff was work. Plaintiff looked before kneeling, and there was no car in sight. He did not look again, and the car came around the curve, 250 feet distant, about a minute later, and struck him. Held, assuming that the company was under no duty to give a warning of the approach of the car, whether it was negligent in failing to do so, having once assumed such duty, was a question for the jury.

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4. There is no presumption that the prosecution of a work by a corporation in the public streets is unauthorized and its employés trespassers.

5. In an action against a street railway for personal injuries, one of plaintiff's witnesses having testified on cross-examination that he had once been injured by one of defendant's cars, a question, "Did you present any claim to the company?" was properly excluded.

6. A question asked the motorman, "Do you know whether [plaintiff] saw you?" was properly excluded.

7. A written statement, signed by one of plaintiff's witnesses. offered for the purpose of impeaching his testimony, no foundation having been laid, was properly excluded.

Error to court of common pleas, Hudson county.

Action by John F. Daum against North Jersey Street Railway Company. From a

judgment for plaintiff, defendant brings error. Affirmed.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Vredenburgh, Wall & Van Winkle, for plaintiff in error. Simpson & Lillis, for defendant in error.

GUMMERE, C. J. This action was brought to recover for personal injury received by the plaintiff under the following circumstances: He was an employé of the Hudson County Gas Company, which at the time when he received his injury was engaged in laying a gas main through Summit avenue, in the city of Jersey City. For purpose of laying the main the company had opened a trench in the street, about four feet wide, between the westerly curb line and the tracks of the defendant company, the east line of the trench being about three feet distant from the nearest rail of the car track. The duty of the plaintiff was to carry pieces of lumber from a point where it was piled to the trench, and there deliver it to other em. ployés, who were at work in the trench, and who used the lumber for the purpose of blocking up the gas main in order to keep it level. It was while engaged in doing this work that he received the injury on account of which the suit was brought. The evidence produced by the plaintiff shows that for the purpose of delivering these pieces of timber, or braces, to his fellow workmen, he went upon that part of the street between the trench and the car track, and knelt down there with his back to the tracks, and with one of his feet upon or over the nearest rail, and that, while engaged in handing the braces to the men in the trench, one of the cars of the defendant company came by and ran over his foot. It further appeared that the plaintiff, when he knelt down, looked in the direction from which the car approached, and that at that time there was no car in sight; that he did not look again before the accident happened; that the accident occurred about a minute after he knelt down; that the car came into Summit avenue at "Five Points," which was about 250 feet distant from the point where the plaintiff was kneeling; that no warning was given of the approach of the car, either by the ringing of a gong or otherwise; and that it was the custom of those of the defendant company's employés who were operating these cars to ring a gong when approaching the point where the gas company's servants were at work.

At the close of the plaintiff's case there was a motion to nonsuit, upon the ground that no negligence was shown on the part of the defendant company or its employés, and upon the further ground that it affirmatively appeared that the plaintiff contributed by his own negligence to the injury which he received. This motion was refused by the

trial judge, and the first assignment of error is directed to this refusal.

Assuming, but not admitting, that it cannot be said, as a matter of law, that it is the duty of a street railway company to give notice to persons working in a public highway, in dangerous proximity to its tracks, of the approach of its cars, it is at least a question for the jury, and not the court, whether, when the company assumes such a duty, its failure to perform it in a given instance is not negligence. And that was the situation in the case before us. As has already been stated, it was the custom of the defendant's employés, who were operating its cars, to ring a gong when approaching the place where the servants of the gas company were at work. It is further contended, on the point that no negligence was shown on the part of the defendant or its employés, that, so far as the proofs showed, the gas company was prosecuting its work in the public street without right, and that consequently the plaintiff was a trespasser on the track of the defendant. But if absence of proof on the subject justifies the conclusion that the gas company was without authority to do the work in which it was engaged, it must also be concluded that the presence of the defendant's tracks in the street was unauthorized, for there is an entire absence of proof on that subject also. Consequently, notwithstanding the unwarranted action of the gas company (if it was such), the plaintiff was not a trespasser so far as the defendant company was concerned.

But we do not consider that want of proof on the subject justifies the conclusion that the gas company and its employés were not lawfully prosecuting the work in which they were engaged. In the absence of proof, there is no presumption either in favor of or against such a conclusion. There being no evidence that the plaintiff was a trespasser upon the track of the defendant company, it was not entitled to have its responsibility to him limited to injuries which were willfully inflicted.

We conclude, therefore, that it could not have been said, as a matter of law, at the close of the plaintiff's case, that there was no evidence upon which the, negligence of the defendant company could have been predicated.

Nor do we think, as the case then stood, that the trial judge would have been justified in taking it from the jury upon the ground that contributory negligence on the part of the plaintiff had been conclusively shown. Although he was bound to use reasonable care for his own safety, this did not require him to look continuously for the approach of a car. To have done this would have made it impossible for him to perform his work. He knew that he was in a place where he was safe, except when a car was passing. He knew, too, that it was the custom, when a car was approaching, for the motorman to

ring his gong as a warning, and he had a right to expect that this warning would be given to him. Having looked, when he knelt down near the track, for the purpose of ascertaining whether a car was approaching, it was a question for the jury to determine whether it was negligent in him, under the existing circumstances, not to make another observation during the minute which elapsed before the accident occurred. Harmer v. Reed Apartment, etc., Co. (N. J. Err. & App.) 53 Atl. 402.

The second assignment of error is directed at the action of the trial court in overruling a question asked of one of the plaintiff's witnesses upon cross-examination. The witness, having stated that he himself had on one occasion been injured by one of the defendant company's trolley cars, was asked, "Did you present any claim to the company?" and, on objection being made, the question was overruled. It seems manifest that this question was immaterial. The contention is that it called for an answer which would have shown bias on the part of the witness, thereby affecting his credibility. But the mere fact that he did or did not present a claim to the company could not have had any such effect. If the witness had presented a claim, and his claim had been refused recognition, this fact might have tended to show bias; but the question asked did not call for the disclosure of any such fact. It was properly overruled.

The defendant produced as a witness the motorman who was operating the car which ran over the plaintiff. He testified that, as the car approached the point where the accident happened, the plaintiff was facing him, and appeared to him to see the car. He was then asked by the defendant's counsel this question: "As you came along, do you know whether this man Daum [the plaintiff] saw you?" This question was overruled on the ground that the witness could not know whether the plaintiff saw him, and this ruling is the ground of the third assignment of error. The trial judge properly excluded this question. The witness had already testified that the plaintiff appeared to him to see the car, and this was the limit to which he could truthfully go in his testimony. He could not know, absolutely, whether the plaintiff did or did not see the car.

The fourth assignment of error, and the last which is argued on behalf of the defendant company, is directed at the ruling of the trial judge in excluding a written statement, signed by one of the plaintiff's witnesses, with his mark. The statement was offered for the purpose of impeaching the witness, the facts set forth therein being said to be contradictory of evidence given by him on the witness stand. But in order to make it competent, for the purpose for which it was offered, it was necessary for the plaintiff in error to have first inquired of the witness whether he had not made a statement, set

ting forth the facts which were contained in | tained great damage, etc.; whereby, and by it, and this was not done. Neither was it shown that the witness had any knowledge of what the statement contained when he signed it. It was not written by him, he was unable to read, and it does not appear that it was read over to him. The statement was properly excluded.

force of the statute in such case made and provided, an action hath accrued to the plaintiff, who is the father of the said William H. Callaghan, to demand and have of and from the defendant the several sums above demanded, etc.

The assignments of error relied upon by plaintiff in error being without substance, the judgment under review should be affirmed.

(69 N. J. L. 100) CALLAGHAN v. LAKE HOPATCONG ICE CO.

(Supreme Court of New Jersey. Feb. 24, 1903.)

INJURY TO SON-ACTION BY FATHER. 1. Where a son, who stands in the relation of a servant to his father, is disabled by the tortious act of another, the father may maintain an action per quod servitium amisit against the tort feasor, and therein recover the damages sustained by him during the son's lifetime, notwithstanding that in consequence of the same tortious act the son dies at a later time. (Syllabus by the Court.)

Action by Philip G. Callaghan against the Lake Hopatcong Ice Company. Demurrer to declaration. Overruled.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

B. W. Endicott, for plaintiff. Colie & Duffield, for defendant.

PITNEY, J. This is an action of tort, and in the declaration the plaintiff is described as "Philip G. Callaghan, the father of William H. Callaghan, a minor, deceased." There is no averment that the plaintiff has letters of administration upon the estate of his son. The declaration sets forth that the defendant employed the said William H. Callaghan to work in and about a certain icehouse and the structures connected therewith, for hire, paid by the defendant to the said William H. Callaghan, and that by reason of the negligence of the defendant in and about the construction and operation of the machinery and appliances of said icehouse the said William H. Callaghan received certain personal injuries, from which he afterwards died; that at the time of his death he was a minor, under the age of 21 years, and that the plaintiff is the father of the said William H. Callaghan, and by reason of the premises was forced to expend, and did necessarily expend, certain moneys for medical attendance upon the son between the time of his injury and the time of his death, and certain other moneys in and about the burial of the son; and that as the father of the said William H. Callaghan the plaintiff has been deprived of his services from the date of his Injury until the time when he would have attained the age of 21 years, and has sus

To this declaration a general demurrer has been interposed, on the ground that no action can be maintained for the recovery of damages by reason of the tortious killing of a human being, excepting only the action that is permitted by statute to be brought by the administrator for the benefit of the widow and next of kin. Gen. St. p. 1188, §§ 10-12. It is entirely settled that, except for the statute, no civil action lies for the damage caused by the death of a human being. Grosso v. Delaware, etc., R. Co., 50 N. J. Law, 317, 13 Atl. 233; Myers v. Holborn, 58 N. J. Law, 193, 33 Atl. 389, 30 L. R. A. 345, 55 Am. St. Rep. 606; Fitzhenry v. Consolidated Traction Co., 63 N. J. Law, 142, 42 Atl. 416. But in the present declaration there is no claim for compensation by It reason of the death of the plaintiff's son. appears that death did not result instantly from the injury sustained, as in the Grosso Case; but, on the contrary, that the plaintiff's son lived for some time after he was hurt. The claim is (a) for the cost of medical attendance during his life; (b) for the burial expenses; and (c) for the loss of the services of the son from the date of the injury until the time when he would have attained the age of 21 years.

For the burial expenses it is plain there can be no recovery. They could not be recovered even by the personal representative. Consolidated Traction Co. v. Hone, 60 N. J. Law, 444, 38 Atl. 759.

As to the loss of services, we are of opinion that a father may recover these, if a son who stands to him in the relation of a servant is disabled by reason of the tortious act of another, notwithstanding that in consequence of the same act the son dies at a later time. The damages, however, must, of course, be confined to the period of the son's life, and will not extend to his expected majority, if death sooner occurred. The action for damages, per quod servitium amisit, pertains to the relation of master and servant, and not to the mere relation of parent and child. Coon v. Moffet, 3 N. J. Law, 583, 4 Am. Dec. 392; Van Horn v. Freeman, 6 N. J. Law, 322: Sutton v. Huffman, 32 N. J. Law, 58; Ogborn v. Francis, 44 N. J. Law, 441, 43 Am. Rep. 394. In an action tried before Lord Ellenborough in 1808, where a part of the damages claimed by a husband was for the loss of consortium of his wife, who was injured through defendant's negligence, and died from her injuries about one month later, the learned judge instructed the jury to limit these damages to the period that intervened between the time of the accident and the time of the wife's death. Baker v.

Bolton, 1 Campb. N. P. 493. In 20 Am. & Eng. Encyc. Law (2d Ed.) tit. "Master & Servant," p. 184, the rule is thus expressed: "In case the servant dies shortly after the infliction of the injury, the right of the master to recover is limited to the loss of services sustained between the time of the accident and the death of the servant."

With respect to the expenses alleged in this declaration to have been necessarily incurred for medical attendance upon the injured son, we see no reason why they may not be recovered, if the relationship of master and servant existed, notwithstanding the doubt intimated on this point in Hall v. Hollander, 4 Barn. & Cres. 660. In actions for seduction of a daughter and servant, the lying-in expenses are commonly allowed to be recovered. 2 Chitt. Plead. 643, and note.

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The declaration before us shows that the party injured was the plaintiff's minor child, and that by reason of the hurts sustained through defendant's negligence the plaintiff has been deprived, during some period, of the son's services. The right of the father to the son's services is to be presumed from the minority of the latter, unless emancipa- | tion appears. Van Horn v. Freeman, 6 N. J. Law, 322; Noice v. Brown, 39 N. J. Law, 569. Although the declaration shows that at the very time of the occurrence in question the son was in the employ of the defendant, for hire paid by the defendant to the son in that behalf, it does not follow that the son had been emancipated. The employment under the defendant may have been for a limited time and purpose.

The note arose under the following circumstances: The firm of Moreland Bros. was indebted to the plaintiffs for paints and materials delivered to them between July 12 and October 18, 1901, and made this note to pay the bill. Johanna Moreland indorsed the note before its delivery under the following circumstances: The note was made and signed by Moreland Bros., and tendered to the plaintiffs, who refused to accept it without "additional security." One of the Moreland Bros. thereupon took the note to his mother, the defendant Johanna Moreland, and told her to sign it, with which command she complied, and the note was then again tendered to the plaintiffs, who further asked for and obtained a certificate signed by Johanna Moreland that the note in question was a genuine business note, given for value received, and that there is no defense to the same either in law or equity. The note was irregularly indorsed by a married woman before its acceptance by the payee. In Building Society v. Leeds, 50 N. J. Law, 399, 18 Atl. 82, 5 L. R. A. 353, it was held that the signing of a nonnegotiable note by a third party while such note is in the hands of the maker of it, does not, when pass ed to the payee, import per se any contract on which a suit will lie, and that the production of such a note without proof other than itself will not sustain an action against such indorser. Chaddock v. Vanness, 35 N. J. Law, 517, 10 Am. Rep. 256, holds that the signature of a third person on the back of a negotiable note before it was put in circulation by the maker neither expressed nor implied by its own intrinsic signification any contract whatever on the part of such indorser. Parol evidence was held to be admissible to show what the agreement between the parties

was.

The plaintiff is entitled to judgment on the demurrer.

(69 N. J. L. 216)

ELLIOTT et al. v. MORELAND. (Supreme Court of New Jersey. Feb. 24, 1903.)

NOTE-INDORSEMENT-SURETYSHIP-CROSS

EXAMINATION.

1. The signature of a third party on the back of a promissory note, before it was put in circulation by the maker, neither expressed nor implied any contract, but a contract might be

shown by evidence.

2. The evidence in this case is not sufficient to show a contract of suretyship.

3. When a party produces in evidence his books of original entry, the defendant is entitled to cross-examine him as a party as to the entries therein without any subpoena duces tecum for that purpose.

(Syllabus by the Court.)

Certiorari to district court.

Action by Avery M. Elliott and others against Johanna Moreland. Judgment for plaintiffs, and defendant brings certiorari. Reversed.

Argued November term, 1902, before GARRISON and GARRETSON, JJ.

GARRETSON, J. The plaintiffs brought suit to recover the amount due on a promissory note made by Moreland Bros. to the order of Elliott Bros. & Co., the plaintiffs, and indorsed by Johanna Moreland, one of the defendants. The suit is against John Moreland and Leonard Moreland, partners as Moreland Bros., and Johanna Moreland, who is a married woman. John and Leonard Moreland having been adjudicated involuntary bankrupts, the action was dismissed as to them, and judgment rendered against Johanna Moreland for the amount of the note. This judgment she seeks to have reversed.

George P. Rust, for prosecutor. Addison P. Rosenkrans, for respondents.

The plaintiffs in this case claim that Johanna Moreland signed the note as surety, and to prove the contract of suretyship rely upon two circumstances: First, the making of the certificate above mentioned; second, that some of the items of the bill which the note was given to pay went into the construction of a house belonging to her, and that by accepting the note the payees postponed payment for these items for so long a time that they lost their right to file a lien claim for them upon her building. As to both of these circumstances there is not a word of testimony to show

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