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ties might settle and discharge the cause of action before judgment without consulting the attorneys, provided there was no bad faith or collusion for the purpose of depriving the attorney of his costs. For the attorney, as such, had no lien upon the cause of action; there being nothing, until judgment was obtained, to which his lien on a portion of the recovery could attach. Benedict v. Harlow, 5 How. Pr. 347; Brown v. Comstock, 10 Barb. 67; Shank v. Shoemaker, 18 N. Y. 489; McDowell v. Second Ave. R. Co., 4 Bosw. 670.

without a careful examination of the amendment, decided that under section 66 the attorney must still give the opposite party notice of his lien in order to protect his claim. On the other hand, the City Court of Brooklyn, in Custer v. Greenpoint Ferry Co., 5 Civ. Pro. 146, decided that notice was not necessary. And all the other courts of the State before which the question has come the City Court of New York in Kehoe v. Miller, supra; the Court of Common Pleas in Tullis v. Bushnell, supra (reversing the Special Term decisions on this

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Under section 66, as it stood before the amend-point); the Superior Court of New York in Albert ment of 1879, the courts would set aside a settlement if collusive, or made in bad faith between plaintiff and defendant before judgment, when such settlement had for its purpose to deprive the attorney of his compensation. Rasquin v. Knickerbocker Stage Co., supra; Carpenter v. Sixth Ave. R. Co., supra; Coughlin v. N. Y. & H. R. R. Co., 71 N.Y. 443; Walsh v. Flatbush, etc., R. Co., 11 Hun, 190; Zogbaum v. Parker, 66 Barb. 341. But the burden of proving collusion or bad faith was on the attorney, and it was often difficult and sometimes impossible to obtain the proof.

The inadequacy of the protection afforded by the courts in the exercise of their sound discretion, particularly in cases of personal torts (which are not assignable, and so the doctrine of equitable assignment could not be applied), was so great that the Legislature in 1879, to remedy the evil, and to protect attorneys in their just rights, amended section 66, so as to put attorneys' liens upon an entirely new basis. Section 66 now reads as follows: "The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law. the commencement of an action or the service of an answer containing a couuterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision, or judgment in his client's favor, and the proceeds thereof in whosoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment.”

Palmer Co. v. Van Orden, supra; the General Term of the Supreme Court, Fourth Department, in Dimick v. Cooley, supra-had decided the same way as the City Court of Brooklyn. But in none of these cases did the question come up so squarely as in Custer v. Greenpoint Ferry Co., 5 Civ. Pro. 146. The City Court of Brooklyn, following its previous decision in Lewis v. Day, supra, held that notice of an attorney's lien for his compensation, under section 66 of the Code of Civil Procedure, since the amendment of 1879, need not be given to protect him against a settlement between the parties; that the defendant who chooses to settle with the plaintiff without notifying the attorney does so at his own risk, the statute having already given the party sufficient notice to put him on his guard.

By permission this case was carried to the highest court. It was submitted in February last, and the Court of Appeals has affirmed the decision of the court below.

Judicial construction and sanction is thus given by the court of last resort to a rule of law which changes radically the position of attorney and chiFroment as to agreed compensation. It prevents for the future unfair settlements between the parties; gives a protection to attorneys which was beyond the power of the courts until the Legislature came to their assistance. Before the enactment of section 66, as it now stands, the lien of an attorney was given effect by the aid of equity, with the doctrine of notice in full force. Now the attorney has a lien given him by a public statute, and the law in all cases gives the notice. The lien attaches to the cause of action, whatever it may be, as well as to the judgment. Its amount is whatever is agreed upon as compensation between the attorney and his client.

EUGENE D. HAWKINS.

A FEUDAL LAWSUIT.

Since that amendment took effect (July 10, 1879) this protection is perfect and complete. The attorney no longer depends upon his rights as equitable assignee of the judgment. He now has a perfect and complete lien given him by statute, to the extent of the amount agreed upon. Lewis v. Day, 10 Weekly Dig. 49; More v. Bowen, 9 Rep. 588; Mc Cabe v. Fogg, supra; Albert Palmer Co. v. Van Orden, 64 How. Pr. 79; Tullis v. Bushnell, 65 id. 465; Kehoe v. Miller, 10 Abb. N. C. 393; Murray v. Jibson, 22 Hun, 386; Lansing v. Ensign, 62 How. Pr. HE bishop of Cahors, in Southern France, was a THE 363; Matter of Bailey, 66 id. 64; Dimick v. Cooley, day, a temporal count, having amongst his vassals the high and mighty ecclesiastical potentate in his 3 Civ. Pro. 141. neighboring baron of Cessac. On the day of the inThe wording of the section is so clear, and its stallation of each bishop, the baron for the time beterms are so specific, that it does not seem to needing had to perform a part of conspicuous humilation. judicial construction. But the General Term of the First Department in Jenkins v. Adams, 22 Hun, 600, from facts peculiar to that case, evidently

It was his duty, and the tenure upon which he held walls, and bareheaded, barefooted, and minus his man. his fief, to meet his episcopal master without the city tle to lead the bishop's mule to the cathedral. The

day's proceedings closed with a banquet at the palace where the baron waited at table, receiving as his due the buffet or sideboard used at the feast, and the mule.

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Mgr. de Popian however, who became bishop of Cahors in 1604, not content with the accustomed humiliation, increased the indignity and compelled his reluctant vassal to lay aside his sword and girdle. He also-and this was "real mean on his part-added injury to insult, and instead of the silver-gilt buffet usually decorating the episcopal feasts, and which was a substantial balm to the wounded feelings of his lordly vassal, tried to palm off on him a second-hand affair, picked up perhaps in some pawn-shop. This proved the proverbial "last straw." De Cessac straightway brought suit, and on May 10th in the same year got a judgment from the court of first instance sitting at Toulouse by which the bishop was condemned to deliver to him a buffet of the accustomed magnificence or in default to pay its value. This was subsequently fixed by experts at the sum of 3123 livres. For some reason not appearing in the records, the bishop backed down and accepted the judgment. Doubtless when singing the Magnificat in after days, the "deposuit potentes et exaltavit humiles," had a somewhat personal sound in his lordship's ears.

His successor however, Pierre de Habert, instituted in 1627, was in no mind to be amerced in 3,000 livres for the sake of an empty ceremony. He therefore dispensed with any formal entry into his see, and not having called upon De Cessac for any homage thought himself safe. But the baron was just as practical a mau as the bishop, and being poor, was quite willing to pat his pride in his pocket for a day, for the sake of a handsome addition to his revenues. He sued the bishop, offering his homage and demanding his recompense, and again was victorious, recovering a judgment for the value of the buffet ascertained as above, subject to the liability to perform his homage when called upon.

The Bishop now appealed, not only from the present judgment but also from the previous decision of 1604, and a great wrangle of lawyers arose. It would be wearisome to go through all the arguments as reported in the Arrets de Toulouse, but we cannot avoid noticing not only the skill and ingenuity displayed on both sides, but the wealth of classical learning by which so dry a subject was adorned and illuminated. Virgil, Pliny, Seneca, Plutarch, Juvenal, are only some of the authorities quoted. The origin of the custom of uncovering the head in token of reverence is, as the French say, "approfondi," and we are shown that the "cap of liberty" derives its significance from this very custom. The incident of the conspirators who after the death of Caesar ran into the forum with caps on their pikes is appositely cited in this connection. A great deal of curious information about homage, and many interesting historical points can also be found scattered through the yellow pages of the old book, but we must pass these over and content ourselves with recording the final result, which was in favor of the baron, the principle of the decision being that the duties of baron and vassal were reciprocally binding, and the lord could no more dispense with homage and its incidental recompeuse, than the vassal could refuse service.

A. B. M.

NEGLIGENCE-PROXIMATE CAUSE. SUPREME COURT OF IOWA, OCT. 24, 1884. KNAPP V. SIOUX CITY & P. R. Co.* K., a locomotive engineer, was running a train on defendant's road, when by reason of the defective condition of *S. C., 21 N. W. Rep. 198.

the rails, they spread, and a part of the train was thrown from the track, and K., to protect himself and the property under his charge, reversed the lever to stop the train and in so doing broke his arm. K. sued the company for damages, and the court directed a verdict for defendant. Held, that it could not be said as matter of law that the negligence of the railroad company was not the proximate cause of the injury, and that the case should have been submitted to the jury.

APPEAL from Pottawattamie District Court.

The plaintiff is a locomotive engineer, and was in the employ of the defendant, and the petition states that while the plaintiff, as such engineer, was in charge of a locomotive drawing a train of cars over defendant's road, the "locomotive and train were thrown from the track," and the plaintiff's right arm broken; that the "accident was caused by the negligence and faulty * * *that the ties were construction of the track;

rotten, and insufficient to hold the sleepers and rails, or weight of a passing train; " and that the accident was not caused by the negligence of the plaintiff. The material allegations of the petition were denied. Trial by jury, and judgment for the defendant. The plaintiff appeals.

Sapp, Lyman & Pusey, for appellant.

Wright & Baldwin and Joy, Wright & Hudson, for appellee.

SEEVERS, J. 1. The material question presented in this record is whether the negligence of the defendant was the proximate cause of the injury received by the plaintiff. The evidence tended to show that the rails spread, and a portion of the train left the track. The locomotive remained at least partly on the track. The train consisted of the engine and several freight cars. When the plaintiff found the train was about to run off, or that a portion of it was off the track, he caught the lever, and in reversing it his arm was broken. His object in reversing the lever was to check as soon as possible the speed of the train. At the conclusion of the plaintiff's evidence the defendant filed a motion which is in these words: "Now comes the defendant and moves this court to instruct the jury to return a verdict for the defendant, and for grounds of said motion states (1) that the undisputed testimony discloses that the injury for which the plaintiff seeks to recover in this case was received by plaintiff while reversing his engine, and that the risk of accident in the operation of the engine is one incident to the employment, for which plaintiff has no right of action; (2) that plaintiff has not shown that the defective ties and track occasioned the injury complained of, but that the same occurred and was sustained while reversing the engine." The motion was sustained and the jury instructed accordingly.

It will be observed the petition states that the accident which caused the injury was caused by the locomotive and train being thrown from the track, and counsel for the appellee insist that the evidence shows that the engine did not leave the track, and that it affirmatively appears the injury was the result of the act of the plaintiff in reversing the lever, and therefore there is a material variance between the allegations of the petition and the proof. For this reason it is insisted the court rightly directed the jury to find for the defendant. It must be presumed that the court gave the direction asked on the grounds stated in the mo tion. It does not appear therefrom that the defendant claimed in the District Court there was a variance, and that for this reason the jury should be directed to find for the defendant. Such question cannot be raised for the first time in this court. Had the motion been based on such ground the right to amend would have

existed. It would be manifestly unjust to deprive the plaintiff of such right. This however would be the effect if we should affirm the judgment of the District Court.

2. The plaintiff was injured while he was reversing the lever. There is no evidence tending to show that this was rendered more difficult because the train, or a portion of it, was off the track. If the lever had not been reversed, it cannot be said the plaintiff would have been in any respect injured. It must however be assumed that when a train leaves the track, the lives of the employees are endangered. The lever is moved forward, as we understand, for the purpose of starting the train or increasing its speed, and is reversed when it is desired to stop the train as speedily as possible. This forward and backward movement of the lever, no doubt, frequently occurs in a day's run. The use therefore of the lever must be regarded as one of the incidents and hazards of the plaintiff's employment, and for an accident happening by such use, by which the engineer is injured, it will be conceded the defendant cannot ordinarily be held liable. The immediate cause of the injury received by the plaintiff was the reversal of the lever. The lever was reversed because the train left the track, and this was caused by the spreading of the rails caused by the defective condition of the track. There was therefore a combination of immediate causes remotely preceded by others. No event can occur, it is believed, which is entirely independent. "The links in the chain of causation are endless." The law has adopted a practical rule that the proximate cause of an injury only can be recognized. When it is ascertained, further inquiry is closed. The real difficulty lies in the application of the rule. An eminent judge has said: "The general rule of law, we understand, is that where two or more causes concur to produce an effect, and it cannot be determined which contributed most largely, or whether without the concurrence of both it would not have happened at all, and a particular party is responsible only for the consequences of one of these causes, a recovery cannot be had because it cannot be judicially determined that the damage would have been done without such concurrence, so that it cannot be attributed to that cause for which he is answerable." Shaw, C. J., in Marble v. City of Worcester, 4 Gray, 395. The same rule has been more briefly stated by Beck, J., in Dubuque Wood & Coal Ass'n v. City and County of Dubuque, 30 Iowa, 176. Conceding this to be a correct statement of the law, we have to inquire whether the District Court correctly applied it to the facts of this case, and we feel constrained to say that in our opinion it did not.

Ordinarily trains remain on the track. If they do not, it must ordinarily be assumed it was caused by the negligence of some one, unless the accident appears to have been inevitable. In this case it must be assumed that the negligence of the defendant caused the train to leave the track. The plaintiff was called on in a sudden emergency to act. It cannot be expected that he would remain passive. He was justified in so acting as to best protect himself and preserve the property under his charge. If he had sprung from the engine to the ground and been injured, he undoubtedly could have recovered, provided he acted prudently in so doing. Buel v. N. Y. C. R. Co., 31 N. Y. 314; Coulter v. American Exp. Co., 5 Lans. 67. Instead of doing this he concluded to reverse the lever. whether this was the proper thing to do, and whether the plaintiff was negligent in so doing, it was for the jury to say. Conceding the plaintiff was not negligent, and that the injury was not received because of inevitable accident, then it must follow the negligence of the defendent caused the injury. True it is that reversing the lever is one of ordinary hazards of the

Now

plaintiff's employment; yet if the negligence of the defendant required such act to be done at that particular time, and the plaintiff was not guilty of negligence, but on the contrary acted prudently, with due regard for his own safety and the safety of others, then the defendant is liable, because the negligence of the defendant is the proximate cause of the injury.

We are unable to distinguish this from the Squib case, which was decided years ago, and has been frequently referred to. In that case a squib was thrown from place to place, until finally a person was injured by it. The first person who so threw the squib was held liable for the injury. Scott v. Shepherd, 2 W. Bl. 892. Each person subsequent to the first threw the squib to protect himself and his property from injury. So here the plaintiff reversed the lever to protect himself and the property under his charge from consequences which would probably follow the negligent act of the defendant. See also Palmer v. Andover, 2 Cush. 600; Allen v. Hancock, 16 Vt. 230; Woodward v. Aborn, 35 Me. 271. It may possibly be true, as suggested by counsel for the defendant, that if the plaintiff had been injured as he was while reversing the lever for the purpose of stopping the train to prevent it from running over cattle on the track, the defendant would not be liable, although the cattle got on the track because it was not fenced. It is sometimes exceedingly difficult to determine to which class a case belongs. But there is, and must of necessity be, a dividing line. It may apparently, in some cases, have the appearance of being arbitrary. This cannot be avoided. But we think the failure to fence would be more remote from the immediate cause of the accident than in the case at bar. Besides this to reverse the lever for such a cause might well be regarded as one of the ordinary hazards.

Reversed.

NEGOTIABLE INSTRUMENT-BANKER'S DRAFT -INSOLVENCY OF DRAWER,

MICHIGAN SUPREME COURT, NOV. 19, 1884.

GRAMMEL V. CARMER.*

A banker's draft, drawn and payable within this country, is not in legal effect a check, and where before presentation to the bank on which it is drawn, that has funds to meet its payment, the drawer fails and payment is refused on that account by the [drawee, and the funds paid over to the receiver of the drawer, the payee is not entitled to payment in full out of such funds, but must share with the other creditors.

APPEAL from Ingham.

Olds & Robson, for petitioner

Chas. F. Hammond and Cahill, Ostrander & Baird, for appellant.

COOLEY, C. J. The facts in this case are the following: On May 15, 1883. Eugene Angell was doing business as a private banker in Lansing, Michigan. His New York correspondent was the Chase National Bank. On the day named, Grammel, the petitioner in this case, purchased of Angell two small drafts on the Chase National Bank, amounting together to $174.50, and paid for them. They were ordinary bankers' drafts, payable at sight. Angell at this time was insolvent, though it was not publicly known, and two days thereafter he made a general assignment of his property for the benefit of all his creditors. Arthur N. Hart was named assignee. Two days subsequent to the assignment the drafts of petitioner were presented

*S. C., 21 N. W. Rep. 418.

to the Chase National Bank for payment, and payment refused upon the ground that the assignee had notified the bank to pay no drafts. The bank had moneys belonging to Angell, at the date of the drafts, more than sufficient for their payment, and continued to have until the time of presentation. Hart, the assignee, failed to give bond as such, and under the statute the respondent, Carmer, was appointed receiver, to execute the trust in his stead. The Chase National Bank then paid over to the receiver the balance which was due to Angell when he assigned. On this state of facts the petitioner claimed to be entitled to payment of his drafts in full from the amount paid over to the receiver by the Chase National Bank, and he petitioned the Circuit Court for an order directing such payment to be made. The receiver contested his right, insisting that he must receive proportionate payment with other creditors; but the Circuit Court made the order prayed for. The receiver appeals.

It is contended on the part of petitioner that a banker's sight-draft is in legal effect a check, and that if there are in the hands of the drawee funds for its payment the payee is absolutely entitled to payment from such funds, and cannot be deprived of this right by any action of the drawer, or of the assignee or receiver of the drawer who would stand in his shoes. It is further contended that the holder of the draft may bring suit against the drawee for the amount if the latter refuses to make payment, and that in effect he has a lien upon the fund, and may follow it into the receiver's hands if it is paid over to him. And several cases are cited in support of these positions. The doctrine that a banker's draft, drawn and payable within the country, is in legal effect a check, is held by a divided court in Roberts v. Corbin, 26 Iowa, 315, in which case it was also held that the holder of a bank check drawn against funds sufficient for its payment may maintain suit for the amount against the bank if payment is refused.

The case of Munn v. Burch, 25 Ill. 35, is relied upon as authority. An examination of the facts in that case will show very clearly that the question supposed to have been decided by it did not arise at all, for the check which was in question had actually been received by the bank on which it was drawn, and actually charged up to him on his pass-book. The court went beyond the case, and expressed an unnecessary opinion, which in Chicago, etc., Co. v. Stanford, 28 Ill. 168, and Union Bank v. Oceana Bank, 80 id. 212, has been followed as authorities. See also Fogarties v. State Bank, 12 Rich. 518; Lester v. Given, 8 Bush, 357. But the great weight of judicial authority is unquestionably to the contrary of this.

In Bank of Republic v. Millard, 10 Wall. 152, 156, Davis, J., speaking for the court, says. "It is no longer an open question in this court since the decision in the cases of the Marine Bank v. Fulton Bank, 2 Wall. 252, and of Thompson v. Riggs, 5 id. 663, that the relation of banker and customer in their pecuniary dealings is that of debtor and creditor." He adds that on principle there can be no foundation for an action on the part of the holder of a check against the bank, unless there is privity of contract between him and the bank. "How can there be such a privity when the bank owes no duty and is under no obligation to the holder? The holder takes a check on the credit of the drawer in the belief that he has funds to meet it; but in no sense can the bank be said to be connected with the transaction." See also First Nat. Bank v. Whitman, 94 U. S. 343. Many cases might be cited to the same effect if it were needful, but we think the case of Perley v. County of Muskegon, 32 Mich. 132, recognizes the same principle.

This case however is not the case of a check, but of bills of exchange. The bills were drawn by banker

upon banker, it is true, and against deposits made to meet them; and it might be difficult to say why any distinction should be taken between checks and such drafts as to the rules which should govern the rights of the parties. We have no occasion in this case to consider whether a distinction exists, because we think it clear that if it could be held, as some courts do hold, that the payee of a check drawn against actual deposits may sue the banker who refuses to pay it, it would be impossible to so hold in the case of a draft without disre. garding long-settled rules. The cases of Williams v. Everett, 14 East, 582, 597; Yates v. Bell, 3 Barn. & Ald. 643; Hopkinson v. Forster, L. R., 19 Eq. 74; and Citizens' Bank v. First Nat. Bank, L. R., 6 H. L. 352; S. C., 7 Moak, 56, are sufficient to show that the law in England is that the drawee of a bill of exchange is liable on it only after he has become acceptor. The same rule is recognized in Mandeville v. Welch, 5 Wheat. 277, 283, and Bank of Republic v. Millard, already cited.

In Gibson v. Cooke, 20 Pick. 15, it appeared that a party had drawn a bill which was dishonored for want of funds. Afterward the drawer remitted funds expressly to meet that and another small bill which had previously been drawn. The drawee paid the small bill, but refused to pay the other. It was held that the payee could not maintain an action against the drawee for the amount, there being no privity of contract between them. If any case could be conceived whose facts would support such an action, this must be such a case, for here the funds were remitted for the express purpose of paying the bill sued upon. To the same effect are Bullard v. Randall, 1 Gray, 605; Hopkins v. Beebe, 26 Penn. St. 85; Jermyn v. Moffitt, 75 id. 399; Gibson v. Finley, 4 Md. Ch. 76; Poydras v. Delamare, 13 La. 98; Harris v. Clark, 3 N. Y. 118; Cowperthwaite v. Sheffield, id. 243; Winter v. Drury, 5 id. 525; Noe v. Christie, 51 id. 273; Duncan v. Berlin, 60 id. 151; Tyler v. Gould, 48 id. 682; Risley v. Phoenix Bank, 83 id. 318; Bank of Commerce v. Russell, 2 Dill. 215; Bank of Commerce v. Bogy, 44 Mo. 13; Weinstock v. Bellwood, 12 Bush, 139; Caldwell v. Merchants' Bank, U. C., 26 C. P. 294.

The reason for these decisions is found in the funda mental rules governing this class of paper. The drawer by drawing and delivering the paper to the payee, agrees that if duly presented it shall be accepted and paid by the drawee, and that in default thereof he will, if duly notified of the dishonor, pay it himself. The drawee enters into no contract relations with the payee in respect to it until it is presented to him, nor then unless he does so by acceptance. If he accepts he undertakes to pay according to the terms of the bill or of the acceptance; but up to the time of that act the payee looks exclusively to the drawer for his protection. If the drawee refuses to accept when he has funds for the purpose, he becomes liable to the drawer for the wrong done to his credit. Marzetti v. Williams, 1 Barn. & Adol. 415; Rollin v. Steward, 11 C. B. 595. But the payee can maintain no such action, for the plain reason that until acceptance the drawee owes to the payee no legal duty whatever. An action at law must be grounded on some failure in the performance of legal duty.

It is said a draft should be considered an assignment of so much money in the payee's hands. If this were so then drafts would operate as assignments in the order in which they were given, and should be paid in that order. But to so hold would be to introduce a new and vicious rule into the law of commercial paper. The well-understood rule-and we may add the convenient rule-now is that the drawee, when a draft is presented, should pay it if he has funds, and is not concerned with the question whether drafts of prior issue do not remain unpaid. But if a

draft operates as an assignment, then either he would pay at his peril, or the payee receiving payment would be liable over to the holder of a prior unpaid draft for money received to his use. This rule would greatly and injuriously affect the value of this class of paper for commercial purposes. Something has been said in the case about this being an equitable proceeding, as if that should make a difference in the rules that should be applied to it. But in no proper sense is this an equitable proceeding at all. The receiver is appointed by an order made on the chancery side of the court, but this merely puts him in the place of the assignee who failed to give bond, and in order that creditors may enforce through him their legal rights. When Angell failed, this petitioner had certain legal rights in respect to this paper, and these rights qualified the rights of all other creditors. The failure of Angell, and the appointment of this assignee could not increase this petitioner's rights at the expense of other creditors. It leaves them as they were, to be enforced by such remedies as shall be appropriate. The statute which prescribes this particular remedy has no purpose to modify rights in any manner. But if this were strictly an equitable proceeding, it would make no difference. Courts of equity have no different rules in respect to the rights and obligations of parties to negotiable paper to those which are recognized in courts of law, but they recognize and enforce the same rules, and there would be gross injustice in their doing otherwise. Some of the cases above cited in support of these views were cases in equity.

The order of the Circuit Court is erroneous, and should be set aside.

Campbell and Champlin, JJ., concurred.

[See Dickinson v. Coates, 79 Mo. 251; S. C., 49 Am. Rep. 228.]

NEGLIGENCE- CROSSING RAILROAD TRACK-
CONTRIBUTORY NEGLIGENCE.

MAINE SUPREME JUDICIAL COURT.
STATE V. MAINE CENTRAL RAILROAD Co.*
One in the full possession of his faculties, who undertakes to
cross a railroad track at the very moment a train of cars
is passing, or when a train is so near that he is not only
liable to be, but is in fact, struck by it, is prima facie
guilty of negligence; and in the absence of a satisfactory
excuse, his negligence must be regarded as established.
Nexceptions and motion to set aside the verdict. In-
dictment against the Maine Central Railroad Com-
pany for negligently causing the death of Adoniram
Judson Pickard at a railroad crossing in Carmel, on
the 26th day of December, 1882, prosecuted for the
benefit of his widow and children. The opinion states
the material facts.

J. Hutchings and F. H. Appleton, for State.
Wilson & Woodward, for defendant.

WALTON, J. This is an indictment against the Maine Central Railroad Company for negligently causing the death of a person. It appears that on December 26, 1882, at about half past six o'clock in the evening, Dr. Pickard of Carmel, in an attempt to cross the railroad with a horse and sleigh, was struck by a passing train and instantly killed. A trial has been had and a verdict of guilty returned against the railroad. The question is whether the evidence justified this verdict. We

think it did not.

It is settled law in this State, that in prosecutions of this kind, whether in form civil or criminal, the burden is upon the party prosecuting to show that the

*S. C., 76 Me. 357.

309

person injured or killed did not by his own want of ordinary care contribute to produce the accident. Gleason v. Bremen, 50 Me. 222; State v. Grand Trunk Ry., 58 id. 176.

In the case first cited it was held that the law is clear jury, as an affirmative fact to be established by him, and unquestioned that the plaintiff must satisfy the as a necessary part of his case, that at the time of the accident he was in the exercise of due care. And in

the second case cited it was held, after a full and careful examination of the question, that in the trial of indictments against railroads to recover the forfeiture created by our statute for negligently causing the death of a person, "the same rules of evidence and the same principles of law should be applied, as in like cases when redress is sought by a civil action for damages.'

We must therefore regard it as settled law in this State, that in this class of cases, whether in form civil or criminal, the burden of proof is upon the party prosecuting to show due care on the part of the person injured or killed, at the time of the accident; or in other words, that his want of due care did not contribute to produce the injury complained of.

In this case there is not only a total want of such evidence, but the proof, as far as it goes, tends strongly to establish the contrary. No one witnessed the accident except the engineer and fireman on the train. The engineer's account of the transaction is, that as he approached the crossing, and when the engine was not over fifteen feet from it, the horse came right up into the head-light, and the pilot of the engine took right under the sleigh, and threw the deceased right up on to the head-board; then he stopped the train as soon as he could, and went forward and found the man dead upon the front of the engine. The fireman says he saw nothing till they went on to the crossing; that he then got a glimpse of a horse and saw a man come up on to the pilot. These are the only accounts we get of the transaction. How it happened that the deceased drove on to this crossing directly in front of an approaching train is left to conjecture alone.

It is claimed that no bell was rung or whistle sounded; and that in consequence of this failure the deceased was not apprised of the approach of the train. The evidence seems to us to preponderate most overwhelmingly in favor of the fact that the bell was rung and the whistle sounded. But suppose they were not, still it seems to us impossible to believe that the deceased undertook to cross the track in ignorance of the approach of the train. He was a man of mature years, and in the full possession of his faculties. His sight and hearing were good. He lived in the immediate neighborhood of this crossing, and must have been acquainted with the time and speed of the trains. The evening was still, and the ground frozen, and the rumbling of the train could be heard at a great distance. The head-light was on, and the cars all lighted, and the deceased's view of an approaching train for a considerable portion of the way as he drove from his house to the crossing unobstructed. If under these circumstances the deceased undertook to cross the track in ignorance of the approach of the train, the inference is irresistible that he did not exercise that degree of vigilance which the law requires. He could not have used his eyes nor his ears as the law required him to use them. The fact must not be overlooked that the train was very near, as otherwise he would not have been struck by it. One in the full possession of bis faculties, who undertakes to cross a railroad track at the very moment a train of cars is passing, or when a train is so near that he is not only liable to be, but is in fact, struck by it, is prima facie guilty of negligence; and in the absence of a satisfactory ex

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