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not enough to say there was some evidence. A scintilla of evidence or mere surmise that there may have been negligence on the part of the defendant clearly would not justify the judge in leaving the case to the jury. There must be evidence on which they might reasonably and properly conclude there was negligence." To the like effect is the decision in Cadwell v. Arnhein, 152 N. Y. 182, 190, 46 N. E. 310. See, also, Rigg v. The Manchester, S. & L. Railway Company, 12 Jur. (N. S.) 525.

There was also error in that part of the charge which assumes, without proof, as we think, that the platform stopped at the edge of the graveled surface, where it meets the planking along the rail, and was not, as it seems, from the facts developed, to be only a part of one construction, which served as a platform for trains on both of the tracks. Such a designation by the court would lead the jury to assume, without evidence, that the company had fixed the danger line at that point 18 inches from the rail, and thus enlarged, to a degree, the company's liability for the safety of the passenger.

We also think that, so far as the question of faulty construction of the platform is concerned, a verdict should have been directed for the defendant.

The result is that the judgment below should be reversed, and a venire de novo issued.

(68 N. J. L. 647)

ANDERSON v. ERIE R. CO. (Court of Errors and Appeals of New Jersey. March 2, 1903.)

RAILROADS-INJURY ΤΟ BRAKEMAN-NEGLIGENCE.

1. The plaintiff, while acting as a brakeman in the employment of the defendant, fell from the roof of a freight car, and was injured. The cause of his fall was that the grab iron on the roof pulled out the screw which held it, as he threw his weight upon it in descending, the defects being the insufliciency of the screw and the deterioration of the wood. The car belonged to the Chicago & Erie Railway Company, and first appears in the evidence as arriving loaded at Port Jervis in a freight train which came from the west over the Delaware Division of the defendant's railroad. Afterwards it was hauled by the defendant to Weehawken, where the accident happened. Held: (1) It must be inferred against the plaintiff that the car was received by the defendant loaded for transportation by it as a common carrier. (2) The defects complained of were not such as, under the circumstances, the defendant was bound to guard against. (Syllabus by the Court.)

Error to Supreme Court.

Action by Milton Anderson against the Erie Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Warren Dixon, for plaintiff in error. bin & Corbin, for defendant in error.

195.

Cor

1. See Master and Servant, vol. 34, Cent. Dig. §

DIXON, J. The plaintiff, a brakeman in the employ of the defendant, fell, and was injured while descending from a box car in the defendant's yard at Weehawken. The cause of his fall was that the fastening of the grab iron on top of the car gave way as he threw his weight upon it. The evidence tended to show two defects in the fastening -one, the use of a screw running less than an inch into the wooden roof, instead of a larger screw, or a bolt running entirely through the roof, and held by a nut underneath; the other, deterioration of the wood through which the screw ran, indicated by the fibers adhering to the thread of the screw after it was wrenched away. It was proved that the car did not belong to the defendant, but was the property of the Chicago & Erie Railway Company, an Indiana corporation owning and operating a railroad from Hammond, Ind., to Marion, Ohio; that at 12:10 a. m. on June 2, 1901, the car arrived loaded at Port Jervis, coming in a train of 60 freight cars from the west over the Delaware Division on the defendant's road; that it was there inspected by the defendant's inspectors, found satisfactory, and made up by the defendant in another train, which left Port Jervis at 9:30 that evening, and reached the Weehawken yard at 10:55 the next morning. The accident happened about noon the same day. There is no direct testimony in the case as to where, or by whom, the car was loaded, but we think the only legitimate inference is that it came loaded into the possession of the defendant for transportation by it as a common carrier. The fact that it was the property of another owner rebuts any presumption which might arise from possession that it was used by the defendant in its own business, and this rebuttal is strengthened by the further fact that when it first appears in the defendant's possession it was fully loaded, and was afterwards handled by the defendant merely for transportation. The general principles of the law cast upon the plaintiff the burden of proving the duty of the defendant, and we think he sustained this burden only to the extent of such duty as rests upon a railroad company which receives a loaded car of another owner, to be hauled by the company to the place of destination. The nature of that duty has been the subject of considerable judicial comment. 20 Am. & Eng. Enc. Law (2d Ed.) 80. All authorities agree that it requires the exercise of reasonable care for the safety of employés, but they are not all agreed as to the nature of the care demanded. Sometimes it has been held that the duty was coextensive with the duty of the company respecting its own cars. O'Neil v. St. Louis, etc., Ry. Co. (C. C.) 9 Fed. 337, 3 McCrary, 423; Felton v. Bullard, 37 C. C. A. 1, 94 Fed. 781; Jones v. N. H. & H. R. R. Co., 20 R. I. 210, 37 Atl. 1033. In Massachusetts the rule is said to require only the employment of competent inspectors, who are to be deemed fellow servants of

those managing the train, and for whose neglect, therefore, the company is not responsible to its employés. Mackin v. Boston & Albany R. R. Co., 135 Mass. 201, 46 Am. Rep. 456; Bowers v. Conn. River R. R. Co., 162 Mass. 312, 38 N. E. 508. We think, however, that the weight of reason and authority is in favor of these propositions: First. That on receiving a car for transportation, the company is entitled to assume that the car had been properly constructed of suitable materials for all the purposes for which the owner intended it to be used. Ballou v. Chicago, etc., R. R. Co., 54 Wis. 259, 11 N. W. 559, 41 Am. Rep. 31; Gutridge v. Mo. Pac. Ry. Co., 94 Mo. 468, 7 S. W. 476, 4 Am. St. Rep. 392. Second. That on receiving the car the company is bound to make such examination as would be likely to discover conditions rendering a car so constructed unfit for safe transportation on the company's line. This examination has been called a "cursory examination," an examination not of a very minute character (Richardson v. Great Eastern Ry. Co., 1 C. P. Div. 342), an inspection for defects visible or discernible by ordinary examination (Eaton v. N. Y. Cent. & H. R. R. Co., 163 N. Y. 391, 57 N. E. 609, 79 Am. St. Rep. 600; Gottlieb v. N. Y., Lake Erie & W. R. R. Co., 100 N. Y. 466, 3 N. E. 344; Dooner v. Del. & Hud. Canal Co., 164 Pa. 17, 30 Atl. 269; Balt. & Pot. R. R. Co. v. Mackey, 157 U. S. 72, 15 Sup. Ct. 491, 39 L. Ed. 624). And, third, that, at convenient places during the journey the company is bound to make the same inspection and tests of such a car as it should make of its own car for the purpose of discovering defects likely to occur in the course of transportation. der these rules we are unable to discern any evidence of fault in the defendant contributing to the plaintiff's accident. The defect of which he complains respecting the screw used to fasten the grab iron was one in construction, which the defendant had a right to assume did not exist; and the same statement is probably true regarding the unsoundness of the wood. Neither of these defects was discoverable by ordinary inspection, or by anything short of a very minute examination, and neither of them could occur in the course of transportation.

Un

We therefore conclude that the motion to direct a verdict for the defendant should have been granted, and because of its refusal the judgment of the plaintiff must be reversed, and a venire de novo awarded.

(68 N. J. L. 612)

HENDRICKSON v. PHILADELPHIA & R. RY. CO.

(Court of Errors and Appeals of New Jersey. March 2, 1903.)

RAILROADS-INJURY TO STOCK-FENCESINSPECTION.

1. By section 32 of the general railroad act (Gen. St. p. 2646) an absolute liability is imposed on a corporation organized thereunder for

all damages to animals coming on its tracks by reason of a failure to erect such a fence as is thereby required. After such a fence has been erected, it will be liable for failure to maintain the fence, when the failure is attributable to a neglect of duty in that regard.

2. The duty to maintain such a fence involves the duty of reasonable inspection and observation to discover the need of reparation. The duty of inspection, its frequency, etc., must depend upon circumstances. Proof of a recent break, of which the company had no actual notice, and which such inspection as reasonable care would have required would not have disclosed, might fail to establish a case for a jury.

3. But where the company permits the land adjoining the fence to be used in the conduct of its business in a mode which imperils the fence, it is a question for a jury whether the duty of inspection does not require more frequent and particular observation, adapted to disclose any break happening from such use. (Syllabus by the Court.)

Error to Supreme Court.

Action by William C. Hendrickson against the Philadelphia & Reading Railway Company. Judgment for plaintiff. 52 Atl. 232. Defendant brings error. Affirmed.

James J. Bergen, for plaintiff in error. Dungan & Reger, for defendant in error.

MAGIE, Ch. This is an action to recover compensation for a mare belonging to the plaintiff, which was killed by a train of the defendant company, running on the railroad tracks leased by it of the Delaware & Boundbrook Railroad Company. The declaration charged the defendant with negligence in the performance of the duty of erecting and maintaining a fence along the plaintiff's field adjoining the railroad operated by the defendant, whereby the mare escaped from the field, and went on the railroad tracks, and was there killed. The plea was the general issue.

The bill of exceptions discloses that counsel of defendant admitted at the trial that the Delaware & Boundbrook Railroad Company was organized under the "Act to authorize the formation of railroad corporations and regulate the same," approved April 2, 1873 (2 Gen. St. p. 2638). By section 32 of that act a liability is imposed on corporations organized thereunder in language which, so far as is important in this case, is as follows: "That every corporation formed under this act shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law. ** Until such fences

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In the first place, a positive | height and strength had been erected on the

*

be discovered. duty is imposed on the railroad corporations organized under the act not only to erect, but also to maintain, fences along their tracks, of a specified height and strength. In the next place, the liability of a corporation which does not perform the duty of erection is an absolute one, and is for all damages done to animals on its road by it; the liability being impliedly restricted to injuries to animals which come upon the track by reason of the failure to erect the required fences. The language which follows, viz., "and after such fences shall be duly made and maintained, the corporation shall not be liable for any such damages unless negligently or willfully done," may be construed to limit the company's liability for damages when it has not only erected, but has properly maintained, fences of the required height and strength, to those done willfully or negligently. But this construction leaves the enactment without any provision imposing a liability on the company for failing to maintain fences, except by an implication from the express imposition of that duty. Moreover, it has always been a question whether a railroad company owes any duty with respect to animals which have strayed upon its tracks, except to refrain from willfully injuring them. Case v. C. R. R., 59 N. J. Law, 471, 37 Atl. 65, 59 Am. St. Rep. 617. It can scarcely be conceived that it was the legislative purpose to deal with the company's negligence in respect to the running of its trains and other acts of that sort, and impose liability therefor, and not include its negligence in maintaining the fences as required, and impose a like liability therefor. In my judgment, it is more reasonable to construe the section as regulating, by implication, the liability of the company in case of failure to maintain the fences as required, and imposing such liability only when it has been negligent in the performance of its duty in that regard. Such a construction is possible, and it seems to have been that given this enactment by Chief Justice Beasley in Van Duzer Lehigh & Hudson River R. R., 58 N. J. Law, 8, 32 Atl. 376. The issue was tried in the circuit upon this construction of the section, and no contention was then made, and none has been made here, that challenges its correctness. But, as the language of the act is peculiar, it has been deemed best to state our views in respect to its construction.

V.

Nor has there been any contention but that the defendant company (which was shown to be the lessee of the Delaware & Boundbrook Railroad Company for a term of 999 years) is liable for the obligations and duties imposed on its lessor by this legislation. At the trial it was not contended that there had been any breach of the statutory duty in respect to the erection of the fence in question. It was apparently conceded that a post and rail fence of the required

line where the land of the plaintiff and the track used by the defendant joined. The sole contention was that there had been a break in the fence, which it was the duty of the defendant to repair, and that it had failed in the performance of that duty. The duty to make reparation of such a fence will arise upon notice to the company that the reparation is necessary. There is also involved and included a duty of such inspection and observation as prudence requires to ascertain when such reparation is necessary. When the break is very recent, and the railroad has no actual notice thereof, and such inspection and observation as prudence required would not have disclosed it, the question of negligence may, at times, be a question of law, to be disposed of by a compulsory nonsuit. But when the proofs show that the break was not recent, or, although recent, that it would have been discovered by such inspection and observation as were required under the circumstances, it must be a question for a jury whether the company's duty in that respect has been performed.

The assignment of error in this case is confined to the ruling of the trial judge in refusing a compulsory nonsuit at the trial, and it is here contended that the plaintiff's case disclosed no evidence of negligence proper to be submitted to a jury. The circumstances upon which the trial judge was required to act were these: The fence in question had been erected parallel to, and 29 feet distant from, the north rail of a spur or siding maintained and used by the defendant. Upon this siding the company was accustomed to place freight cars, with freight of various sorts, consigned to persons in that neighborhood. The siding was parallel with the main tracks of the railroad, and so near the north track that consignees could not approach and take their freight from the cars on that side. It was, therefore, the custom for the consignees to approach the cars on the north side, in the space of 29 feet between the north rail and the fence, which space was diminished, when the siding was occupied by freight cars, by the ordinary overhang of the cars, which was about 2 feet and 3 inches. From the evidence the jury could infer that from the configuration of the ground and various obstacles thereon the farm wagons employed in carting such freight from the cars could not drive through without turning, but were compelled to turn in the space thus left. It appeared that such farm wagons measure a little over 23 feet from the rear end to the end of the pole. It could, therefore, be fairly inferred that in turning such a wagon within the space left, there was obvious danger that it might impinge upon and break down the fence. There was proof that marks appeared on some of the rails at the break in the fence which might have been made by the wheel of a wagon striking them. The evidence of plain

tiff further disclosed that the fence in question was intact and unbroken on the morning of a certain day. Later, on the same morning, and again in the afternoon of the same day, it was observed to have been broken down. This observation was made by several persons engaged in taking freight from the cars that were then standing on the siding. One of the posts had been split in two, and one part lay on the ground in the field. The other part remained standing, but the rails, or some of them, had been released, and the ends of them, or some of them, had fallen to the ground in the field, so as to leave a break through which it was practicable for animals to pass. In the evening of that day the horses of plaintiff were turned out to pasture, and had the range of several fields, one of which was the field adjoining the railroad track. It was a fair inference from the circumstances that the mare in question had escaped through the break in the fence, and had been run down by an engine passing upon one of the tracks used by the defendant, where her body was found the next morning.

Upon these circumstances there was, in my judgment, a plain question for the jury, and it would have been erroneous to have withdrawn it from them. It is true that the break in the fence was recent, and there was no evidence of actual notice of it given to any agent of defendant. It was so recent that, if it had occurred elsewhere, and under ordinary circumstances, a question would have arisen whether the company could have been charged with knowledge of it, or with neglect because it did not discover it. But, in view of the use of the land adjoining the fence permitted by the defendant company to be made by its licensees in the conduct of the company's business, and the obvious risk of injury to the fence by such use, it was a question whether reasonable prudence did not require the company to inspect and observe the fence during, or at least directly after, such use. That question was not for the court, but was a question for the jury. It was for the jury to say whether or not, when the company, by the mode it used the land adjoining the fence, or permitted it to be used, put the fence in peril, it was not bound to take such precaution as would disclose a break thus made which required reparation.

After the nonsuit had been refused, defendant proved that it employed a track walker to pass over the railroad along this locality twice a day, and that it was part of his duty to observe the fences along the line. The man thus employed testified that he passed this locality twice on the day in question, and observed no break in the fence. But it appeared by his examination that he passed down upon one track and returned on the other track, and that the break might 54 A.-53

have been obscured from his observation by the freight cars on the siding, and would not have been seen by him unless he had left the track, which he did not do. This evidence did not cure the previous defect, because, assuming its truth, it was obviously a question for the jury whether his inspection was such as it was the duty of the company to make under the circumstances that appeared.

The trial judge committed no error in refusing to nonsuit the plaintiff, and the Supreme Court rightly affirmed the judgment of the circuit. The judgment of the Supreme Court must, therefore, be affirmed.

(68 N. J. L. 732)

BAKELY et al. v. NOWREY. (Court of Errors and Appeals of New Jersey. March 2, 1903.)

APPEAL AND
TATION OF QUESTIONS AT TRIAL-COURT OF
ERRORS AND APPEALS-REVIEW.

ERROR-CERTIORARI-PRESEN

1. Questions which have not been mooted in the Supreme Court on a writ of certiorari to review the removal of police officers of a city will not be considered by the Court of Errors and Appeals on writ of error to the Supreme Court to review its judgment.

Error to Supreme Court.

Certiorari by the state, on the prosecution of Samuel Bakely and another, against Joseph E. Nowrey, to review an order of the mayor of Camden removing prosecutors from the police force of said city. From an order of the Supreme Court (52 Atl. 289) vacating such order, respondent brings error. Affirmed.

Howard Carrow, for plaintiff in error. E. G. C. Bleakly, for defendants in error.

PER CURIAM. The defendants in error sued out a writ of certiorari to review the legality of the action of the mayor of the city of Camden in discharging each of them from the police force of that city. Two questions were submitted to, and decided by, the Supreme Court: First, whether the prosecutors were, at the time of their discharge, members of the police department; and, second, if they were, then whether their discharge was legal. Both of these questions were resolved in favor of the defendants in error, and their discharge was set aside. We concur in the conclusion reached by the Supreme Court, and in the reasons upon which these conclusions were rested, as set out in its opinion.

Whether certiorari is the proper remedy by which to review the action of the mayor in discharging a police officer, and, if so, whether it is proper practice to permit both of these illegal discharges to be reviewed by one and the same writ, we do not decide. Those questions, not having been mooted in the Supreme Court, should not be considered here on review.

(68 N. J. L. 651)

ATLANTIC CITY v. THORNHILL. (Court of Errors and Appeals of New Jersey. March 2, 1903.)

INTOXICATING LIQUOR-ILLEGAL SALE. 1. The evidence set forth in the record of conviction in this cause is legally incapable of sustaining the conclusion that the plaintiff in error sold beer or offered it for sale.

Magie, Ch., Gummere, C. J., and Van Syckel, Hendrickson, and Pitney, JJ., dissenting. (Syllabus by the Court.)

Error to Supreme Court.

Mary C. Thornhill was convicted of selling beer, and brings error. Reversed.

George A. Bourgeois, for plaintiff in error. Godfrey & Godfrey, for defendant in error.

DIXON, J. Before the recorder of Atlantic City the plaintiff in error was summarily convicted of selling and offering to sell and deliver brewed liquors in quantities of one quart or more without a license, in violation of a city ordinance, and was fined $150. On certiorari the conviction was affirmed in the Supreme Court. The ordinance imposes a penalty on only those persons who sell or offer for sale, and the primary question suggested on examining the case is whether the evidence set out in the record of conviction affords legal support for the conclusion reached in the trial court. The indisputable facts are that the plaintiff in error is one of the proprietors of a house in Atlantic City called the "Waldorf"; that on the evening of August 27, 1900, two detectives engaged a room in the house, and at 9:55 o'clock rang the bell for the bell boy; that on his appearance they ordered two bottles of beer, and the bell boy forthwith informed the plaintiff of the order; that, after some hesitation and discussion with him, she loaned the bell boy 30 cents, with which he went to a neighboring store, and bought the beer, and that when he delivered it at the room the detectives paid him for it, and he returned to the plaintiff what he had borrowed; and shortly afterwards they rang again for the bell boy, and ordered of him two more bottles, which he likewise bought at a neighboring store, using his own money in the purchase; that on delivering the beer to the detectives they handed him a $5 bill out of which to take payment; that on his application to the plaintiff she refused to change it, and the bell boy returned it to them, but the next morning, when paying the room rent, they paid also for the beer, and the price was at once turned over to the bell boy. Before the recorder the plaintiff testified that she never sold a bottle of beer in her life; never had any to sell.

The only legitimate conclusion from the facts above stated is that the seller of the beer was the proprietor of the neighboring store, that the detectives were the buyers directly from him, and that the bell boy was their agent in procuring the purchase. There

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(Court of Errors and Appeals of New Jersey. March 2. 1903.)

LIBEL-PLEADING-COMPENSATORY DAMAGES.

1. When the plaintiff alleges in his declaration for libel that he is injured in his good name, fame, and credit among his neighbors by the alleged libelous publication, and hence is damaged, he is entitled to recover compensatory damages, notwithstanding the provision of the act entitled "An act relating to libel," approved June 13, 1898 (P. L. p. 476).

2. Under such a declaration he can recover his actual damages. "Actual damages_specially alleged," as used in the statute of June 13, 1898, mean such as would be compensatory damages at common law. Stuart v. News Publishing Co., 51 Atl. 709, 67 N. J. Law, 317, followed.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John C. Marsh against Walter E. Edge. Judgment for plaintiff, and defendant brings error. Affirmed.

Harry Wooten, for plaintiff in error. Thompson & Cole, for defendant in error.

FORT, J. This was an action for libel, tried at the Atlantic circuit, resulting in a verdict in favor of the plaintiff for $125. There are no assignments of error founded on admissions of evidence, and reference need be made only to the first assignment of error in determining the question here raised. This assignment is, "Because the trial court refused to nonsuit the plaintiff, because the plaintiff had not proved malice in fact, and had not demanded in writing a retraction from the defendant, Walter E. Edge, of the matters alleged to be libelous, as required under the act entitled 'An act relating to libel,' approved June 13, 1898 (P. L. p. 476)." The contention of the defendant is that under the act referred to there can be no recovery in an action for libel, except there be proof of express malice, unless the plaintiff has made demand in writing for a retraction of the libelous article as published in the newspaper, and which is alleged as the basis of the action. To give the statute the construction contended for would be to defeat the right of the plaintiff to recover

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