the time of the accident for some of the ordinary LIABILITY OF A CORPORATION ISSUING A and legitimate objects, for the promotion of which CERTIFICATE OF SHARES. the city is required to keep it in repair, and that Citizens' National Bank of Pigna, which was de cided by the Supreme Court of the United States in March, to appear in 110 U. S. And it is to be feared that it hardly received sufficient consideration. Mrs. Moores, the plaintiff, agreed to lend $9,100 to a cashier of the defendant, a National bank, for his own use, upon the security of ninety-one shares of the bank which he said he owned. He sent her a certificate in the usual form, bearing the seal of the bank and signed by the president and by himself as cashier, and certifying "that Mrs. Carrie A Moores is entitled to ninety-one shares of one hundred dollars each of the capital stock of the Citizens' National Bank of Pigna, transferable only on the books of the bank, in person or by attorney, on the surrender of this certificate." Upon receiving this certificate she paid him the money. In fact no shares were transferred to her, and the certificate was one that the president had signed in blank and left with the cashier to be used if needed, and the cashier had fraudulently filled it up In the opinion of the court, which was delivered by Mr. Justice Gray, it is stated as beyond doubt that when a certificate is improperly issued, and the holder transfers the shares to another who gives value on the fect, the latter, although he does not acquire a title to faith of the certificate and without notice of any de the act he was doing at the time is not of that char-AN important question was involved in Moores v. acter. The following cases are cited as sustaining this position: Stinson v. Gardner, 42 Me. 248; Stickney v. Salem, 3 Allen, 374; Blodgett v. Boston, 8 id. 237; Norristown v. Moyer, 67 Penn. St. 359; Sykes v. Pawlett, 43 Vt. 446. The rule in the New England States, and in some others, undoubtedly is that the public corporation, which is charged with the duty of keeping the highway in repair, is liable to one who is injured by the failure to perform that duty only in case the injury is received while in the legitimate use of the highway. In those States however, the duty to keep the highway in repair is imposed on the corporation by statute, and the extent of that duty is expressly defined by statute. The liability of the corporation to one who suffers an injury by reason of its failure to perform the duty is also created and defined by statute. The Massachusetts cases cited are determined under statutes which impose upon the corporation the duty of keeping all highways within its limits in such state of repair that they may at all seasons of the year be safe and convenient for travellers passing along and upon them, and which make it liable to any person who suffers an injury through any defect or want of repair therein, and they hold that unless the person injured by the defect was a traveller on the highway, within the meaning of the statute, when he received the injury, the corporation is not liable to him therefor. They have put a very liberal construction on the word 'travelers' as used in the statute. It is held to include every one who has occasion to pass over the highway for any purpose of business, convenience or pleasure, and 'that the highway is to be kept safe and convenient for all persons having occasion to pass over it while engaged in any of the pursuits or duties of life.' Blodgett v. Boston, supra. Now, we feel that we are not called upon to determine in this case whether the rule in this State as to the liability of the corporation is any different from what it is in those States, by reason of the fact that it is not created or defined by statute a question discussed by counsel for it seems to us that the use which plaintiff was making of the street at the time of the injury was a legitimate and proper use. He was on the street in the ordinary course of his busiHe had the right to go to the hydrant for the purpose for which he went there, and in going there he had the right to pass along the street. It was convenient for him to stand upon the sidewalk while drawing the water. It was certainly not unlawful for him to stand there for that purpose. He was not a mere lounger on the street, obstructing the travel thereon, but his stopping there for the time, and for the purpose for which he stopped, was a mere incident to the general use which he was making of the street at the time." See Varney v. Manchester, 58 N. H. 430; S. C., 42 Am. Rep. 592, note, 601. ness. any shares, is entitled to recover from the corporation the damages he has incurred by acting on the representation contained in the certificate. The reason why Mrs. Moores was not entitled to recover is thus stated: "The certificate which he delivered to the plaintiff was not in his name, but in hers, stating that she was entitled to so much stock, and showed, upon its face, that no certificate could be lawfully issued without the surrender of a former certificate, and a transfer thereof upon the books of the bank. * Having distinct notice that the surrender and transfer of a former certificate were prerequisites to the lawful issue of a new one, and having accepted a certificate that she owned stock, without taking any steps to assure herself that the legal prerequisites to the validity of her certificate, which were to be fulfilled by plied with, she does not, as against the bank, stand in the former owner and not by the bank, had been com the position of one who receives a certificate of stock from the proper officers without notice of any facts impairing its validity." The circumstance that the person with whom the plaintiff dealt was the cashier borrowing on his own account, is not alluded to as a ground of the decision, and the case is treated as if he had been any one else. The decision is placed simply upon the ground that the certificate showed on its face that no certificate could be lawfully issued without the surrender of a former certificate and a transfer the certificate showed nothing of the kind. It conon the books. Now it is submitted with deference that tained the very common clause, quoted above, stating that the shares specified in the certificate were transferable only on the books of the bank on the surrender of this certificate. It says nothing about a former cerfact that it could not have been lawfully issued withtificate or about previous transfers. And it is not the out the surrender of a former certificate. There might have been no former certificate, and the shares might have been transferred on the books of the bank many times from one owner to another without any certificate having been issued. Shares are often properly transferred in this way by those who have many dealings in them. It is only when a certificate has been issued that its surrender is required upon a transfer. It is plain therefore that the certificate did not give the notice supposed, and if such notice had been given, it would have been contrary to the fact. It is mentioned in the opinion that the plaintiff had no notice of any irregularity otherwise than from the certificate. The certificate would obviously have given to any one else that saw it the same notice that it gave to the plaintiff. The consequences are startling, for if the decision be sound, any one who purchased the shares from the plaintiff, and paid for them on the faith of the certificate, would have been affected with the same notice as the plaintiff, and so would have had no claim to damages against the bank. A corporation therefore will never be liable to any one who acts on the faith of a certificate improperly issued, if it contains the clause that the shares are transferable only on the books of the corporation on surrender of the certificate. If a purchaser taking such a certificate ascertains that the legal prerequisites were actually complied with and that a former certificate was surrendered, the former certificate would also give him notice of similar prerequisites to its validity, and he would have to continue his inquiry into the fulfillment of legal prerequisites ad infinitum. But was it in any way material that Mrs. Moores knew (as she must have known) that there must have been a valid transfer of the shares to her before a certificate that she was entitled to them could lawfully be issued? The certificate was a representation by the bank that every thing had been done that ought to have been done to make her owner of the shares. This is the only ground on which a corporation is ever liable to one who acts on the faith of a certificate. The step Mrs. Moores took to assure herself that the legal prerequisites were complied with was to get the certificate of the bank to that effect before she parted with her money. Saying that she knew it could not be lawfully issued unless the legal prerequisite, a transfer of the shares to her, had been complied with, is only equivalent to saying that she knew the representation ought not to have been made unless it was true. Yet it was because she knew this (who does not?), that she was held not entitled to recover. It should be added that if this legal prerequisite to the validity of the certificate had been complied with, she certainly would have had no cause of action. The decision of this case in the court below (15 Fed. Rep. 141) was put on a far more plausible ground, but one that can hardly be regarded as sufficient. It was there said that the cashier issued the certificate for his own benefit, and that this was enough to put the plaintiff on inquiry. An answer to that is that the certificate purported to be issued by the president as well as by the cashier. The president had signed it in blank and left it with the cashier to be used if needed. In the hands of the plaintiff who had no notice of this, it was as effectual against the bank as if the cashier had procured the president's signature after the certificate had been filled up. It is also to be regretted that Mr. Justice Gray should have suggested a doubt whether a corporation would be liable to the person to whom a certificate was issued, e. g. in case of a forged transfer, in the same way as it would be to another who purchased the shares from him on the faith of the certificate. He says: "According to the decision of Lord Northington in Ashby v. Blackwell, 2 Eden, 299, Ambler, 503, it would be seen that the corporation would be liable. Acto the decisious of Sir Joseph Jekyll in Hildyard v. South Sea Co., 2 P. Wms. 78, and of the Court of Appeal in Simm v. Anglo-American Tel. Co., 5 Q. B. D. 188, it would seem that it would not, because the holder of the new certificate takes it, not on the faith of that or any other certificate of the corporation, but on the faith of the forged power of attorney." In neither of the two last cases is there the slightest intimation that the corporation would not be liable to the person to whom the certificate was issued, where he paid money on the faith of it, but on the contrary, there is in the last case the most positive assertion that the corporation would be liable. It was held that a purchaser of shares who had taken a forged transfer and paid for them and then brought the transfer to the company and had it registered, had no cause of action against the company, for he had acted on the faith of the forged transfer, and not on any representation of the company. The company however after registering the transfer, issued a certificate at his request to Simm and Ingelow, who then advanced him money on the security of the shares, but the advance was repaid before the forgery was discovered. Brett, L. J., said: "Pausing here, I may say that I think it clear upon the authority of In re Bahia & San Francisco R. Co., L. R., 3 Q. B. 584, that the certificate issued by the company, being acted upon by Simm and Ingelow, did raise an estoppel between them." Cotton, L. J., said: "Simm and Ingelow were purchasers for value; and no doubt while their interest remained they had a right of action against the company, who were estopped as against them from saying that their transferrors * * were not stockholders." That case was carefully considered, and an attentive perusal of it will clear away much of the confusion that has been created with regard to the subject. J. L. THORNDIKE. * RECEIVERS OF CORPORATIONS-RIGHT TO SUE STOCKHOLDERS FOR UNPAID SUB IN SCRIPTIONS. [N the case of Farnsworth v. Wood, 91 N. Y. 313, Judge Rapallo decides, with the concurrence of the full bench, that the liability of a stockholder of a manufacturing corporation is a several individual liability directly to such of the creditors of the corporation as have complied with the requisite conditions precedent, and that there is no statutory provision by which such liability can be vested in a receiver of the corporation, and hence a receiver cannot collect unpaid subscriptions to stock under section 10, chapter 40, Laws of 1848. It is argued that the receiver, appointed under section 36, 2 Revised Statutes, 467, received only "the stock property, things in action and effects of the corporation," and that the liability of delinquent stockholders being directly to the creditors, and not, in so many words, to the receiver, the latter could not, under section 10, supra, have any right of action. This decision is the occasion of a dilemma, since it is disputed that such a receiver can enjoin any creditor from bringing a separate action. Rankine v. Elliot, 16 N. Y. 377; Calkins v. Atkinson, 2 Lans. 15; Phonix W. Co. v. Badger, 67 N. Y. 299. In this last case Judge Rapallo says: "The right to collect the unpaid subscriptions was transferred to the receiver," citing 2 Rev. Stat. 463; § 36, L. 1852, p. 67; L. 1860, p. 699; 2 Rev. Stat. 409, §§ 67, 69; Rankine v. Elliot, supra; Tracy v. First Nat. Bank of Selma, 37 N. Y. 523. But it seems these cases, as far as they affect the point, are now overruled. Inasmuch as section 10, chapter 40, Laws of 1848, is essentially the same as section 10, chapter 140, Laws of 1850, the Railroad Act, the point that a receiver cannot collect subscriptions applies to railway companies, for there seems to be no material difference between the two acts. Section 7 of the Railway Act merely points out that the directors may require the subscribers to pay the amount subscribed in such manner and in such installments as they (the directors) may deem proper, but such section gives no authority to collect payment of unpaid subscriptions. The corresponding section 6 of the Manufacturing Corporation Act, prescribes merely a similar penalty of forfeiture of stock in case of non-payment. A receiver appointed under section 36 has his powers enlarged by the Laws of 1860, page 699, chapter 403, so as to cover sections 67, 68 and 69 (2 Rev. Stat. p. 469), and thus has all the powers of a trustee of an insolvent debtor. Under section 69 the receiver, in case "there be any sum remaining due upon any share of stock subscribed in such corporation, * * * shall immediately proceed and recover the same, unless the person so indebted shall be wholly insolvent; and for that purpose may commence and prosecute an action for the recovery of such sum without the consent of any creditors of the corporation." or Under section 36 he is vested with "the stock, property, things in action, and effects of the corporation." Under section 67 he is vested "with all the estate, real and personal," of the corporation. Under section 7, 3 Revised Statutes, Bank's 6th edition, page 37, the Solvent Debtor's Act, he is authorized "to recover all the estate, debts and things in action belonging or due to such debtor (corporation). Therefore it is necessary to prove that the unpaid stock subscription of the delinquent stockholder is part of the personal estate of the corporation, or is a "thing in action" "effect" of the corporation, and this under the decis ion of Farnsworth v. Wood, supra, cannot be proved, inasmuch as these rights to collect unpaid subscriptions belong to the creditors, and to the creditors only, and are not property of the corporation. That this is a somewhat novel view is shown by the great number of decisions in the Court of Appeals holding that unpaid subscriptions are part of the assets of the corporation. In so late a case as B. & J. R. Co. v. Gifford, 87 N. Y. 302, "all concurred" that "they," i. e., unpaid subscriptions of defendant Gifford, "continued part of its assets for the benefit of its stockholders and creditors, and no reason can be perceived for holding that the defendant should not pay the balance of his subscription" to the railroad company, which sued as plaintiff. It would seem that under Farnsworth v. Wood Gifford could not be held liable, inasmuch as the creditors did not bring suit, but the company. Any pointed, as prescribed in section 2429 of the Code of Civil Procedure." That is to say sections 66-89 are repealed, and then they are revived and made applicable to section 2429. The compilers of Bliss's Code, under this section, say "sections 66 to 89, inclusive, are excepted from repeal and made applicable to receivers under section 2429." This would appear to be an error. These sections are repealed, and are only made applicable by a process of revivorship, known only to the legislative mind, to section 2429. This last section refers only to a special proceeding for the voluntary dissolution of a copartnership (§§ 2419-2431), and does not apply to a receiver appointed after judgment and execution under section 36, supra. Hence since September 1, 1880, it would seem that sections 66 to 89 were all repealed except as applicable to receivers under section 2429 of the code. This would decidedly curtail the powers of a section 36 receiver, while of course it would leave a voluntary dissolution receiver where he was before. J. S. W. APPROACHES TO PLACE OF BUSINESS MUST BE KEPT REASONABLY SAFE. INDIANA SUPREME COURT, MAY, 1883. NAVE V. FLACK.* A trader is bound to maintain in a reasonably safe condition the approaches to his premises which are intended for the use of his customers, and a breach of this duty, resulting in injury to a customer who is himself free from fault proximately contributing thereto, gives a right of action. The defendant was a dealer in grain, having a warehouse for the storage thereof, with a drive-way thereto and therein by which his customers might reach a place for discharging grain into such warehouse, which way was a passage so dark that defects could not be seen, and which was negligently kept by the defendant in a dangerous condition; the plaintiff ignorant thereof, and having sold to the defendant a load of grain, attempted to obey the defendant's direction to pass the same with his team along the way, and was, without his fault and wholly by reason of the dangerous condition of the way, crushed and injured. Held, that he was entitled to recover. Mere knowledge that a way is dangerous will not prevent a recovery for injury resulting from an attempt to use it, unless the danger be so great that a person of ordinary prudence would not voluntarily encounter it. Contributory negligence bars the plaintiff's right of recovery only where it is a proximate, and not a remote, cause of the injury. stockholder can now, under the acts of 1848 and 1850, A escape scot free from paying subscriptions to a solvent company. We sincerely hope that "all" will concur" in [overruling Farnsworth v. Wood, as soon as an opportunity is offered. It is unsound since it decides that outside of the statute there is no commonlaw liability of the subscriber to the corporation on his contract. Given a corporation empowered to contract for subscriptions, there can be shown no statute depriving it of a right to enforce its contracts in law or equity. See 87 N. Y. 300. And this is what is done in Farnsworth v. Wood, unless we are very much mistaken. The Code of Civil Procedure, as far as it affected receiverships of corporations, leaves rather an awkward question to be settled as to suits brought by receivers after August, 1880. Laws of 1880, chapter 245, page 368, would seem to read as follows: "The following acts and parts of acts heretofore passed by the Legislature of the State are hereby repealed, namely: * * Sections 66 to 89 (pp. 754-5, Banks, 6th ed. vol. 3), which are hereby made applicable to a receiver ap CTION for negligence. The opinion states the facts. ELLIOTT, J. The appellee's complaint alleges that the appellants were dealers in grain; that for the purpose of carrying on their business they had constructed scales for weighing wagons loaded with grain, a warehouse for receiving and storing grain, and had prepared approaches to their scales and warehouse; that they invited persons to sell them grain, and held out this invitation to the public generally; that the appellants carelessly and negligently permitted to be constructed and used an insecure drive-way, and failed to light the same, although it was the only way in which the scales and warehouse could be reached with wagons and teams, and afforded the only mode of access for persons delivering grain to the appellants; that on the 23d day of September, 1878, appellee brought to the appellants a wagon loaded with corn, drawn by two horses; that the grain was bought by them, and that by the direction of the appellants the appellee drove his team and wagon upon and along *90 Ind. 205. the drive-way for the purpose of unloading the corn; that being ignorant of the dangerous condition of the drive-way, and being directed to go on by the appellants' agent, he drove along the way; that it was dark, narrow, and with but little space between the floor and ceiling; that after passing partly along the driveway there was an elevation in the floor, bringing nearer together the floor ceiling; that the change in the level of the way was not visible or easily discoverable, for the reason that the way was dark; that in passing over said way, and without fault on his part, but wholly through the negligence of appellants, appellee was caught between the timbers of the ceiling of the warehouse and drive-way and seriously injured. We have no doubt of the sufficiency of this complaint. A man who invites others to deal with him, and provides a place where persons may deliver articles bought by him, is bound to use reasonable care to make and keep the approach to such place in a reasonably safe condition for use for the purposes for which it was intended. 1 Thomp. Neg. 307. A dealer owes a duty to make reasonably safe all the approaches to his premises which are intended for use by his customers, and a breach of this duty will supply one who is injured, without his negligence contributing, with a cause of action. This duty is however owing only to those who go upon the premises by express or implied invitation, and does not extend to mere intruders. Lary v. Cleveland, etc., R. Co.,78 Ind. 323; S. C., 41 Am. Rep. 572; Everhart v. Terre Haute, etc., R. Co., 78 Ind. 292; S. C., 41 Am. Rep. 567. A man is not guilty of contributory negligence who acts upon the direction of the servants of the owner of the premises, and proceeds along a way which is maintained as an approach to the premises, unless he knows or has reason to believe that the way is unsafe. It is averred in the complaint before us that the plaintiff had no knowledge of the unsafe condition of the driveway, and that he proceeded upon it under the direction of appellants' servant, and as under these circumstances he was warranted in acting upon the directions given him, he was not guilty of negligence. Lake Erie, etc., R. Co. v. Fix, 88 Ind. 381, and authorities cited; Wharton Neg., § 352. In cases where there is nothing to warn of danger, and nothing to indicate that a duty has not been dis charged, a person to whom the duty is owing has a right to act upon the presumption that it has been performed. Of course, persons must always make use of their natural faculties, and not go carelessly or heedlessly into danger; but while this is true, it is also true that they are not bound to do more than exercise ordinary care, and ordinary care does not require that one should anticipate a violation of duty and provide against its consequences. In this instance, the duty of the appellants was to maintain the approach provided by them for the use of their customers in a reasonably safe condition for use for the purposes for which customers were given, either expressly or impliedly, to understand it was intended, and as there were no appearances of danger and no indications of neglect of duty, the appellee was justified in presuming that the duty had not been neglected, and that the drive-way might be safely used. It is not only common carriers and persons engaged in business of a kindred nature that are bound to provide safe means of ingress and egress to the places to which they invite, either by express words or fair implication, persons to come and deal with them, but this duty extends to persons engaged in general mercantile business, as merchants, grain dealers, and the like. There has been some discussion as to whether this duty is owing to mere guests, but there seems to be no difference of opinion upon the proposition that this duty is owing to all who are invited to come to the premises on business. It would be a reproach to the law, if it permitted a business man to invite others to come to his premises for his own benefit and yet permit him to maintain the way by which the customer must come aud go in an unsafe condition. Shearman & Redf. Neg., § 499a; Sweeny v. Old Colony, etc., R. Co., 10 Allen, 368; 1 Thompson Neg. 283; Wharton Neg., §§ 824a, 826; Bennett v. Railroad Co., 102 U. S. 577. In the twelfth instruction given by the court, the jury were fully instructed that they were to determine as questions of fact whether the place where the injury occurred was or was not dangerous, and whether appellants had or had not notice of the dangerous condition of the place, and that the fact that others had passed it in safety did not tend to disprove the fact, should the evidence show it to be the fact, that the place was actually dangerous. We approve this instruction. If the place was actually dangerous, then the fact that others had used it and escaped unhurt would not relieve the appellants from liability. The ruling question was whether the place was in truth dangerous, and if it was shown to be so, then the fact that others had used it in safety would not change its character, nor deprive the appellee of his right to redress. A place proved to be unsafe may have been used without harm, but because this has been done does not alter its actual condition. Men may and do use unsafe places without receiving injury, but this does not show that a place proved to be really dangerous is not so. The third instruction asked by the appellants is as follows: "If the jury find from the evidence that the place where the plaintiff received the injury he complains of had been used by the defendants for many years as a drive-way to receive wagon loads of corn containing as large and larger quantities of corn than the load on which the plaintiff was hurt, and that several hundreds of thousands of bushels of corn had been hauled into the defendants' warehouse through said driveway and nobody was injured, and that no complaint had ever been made to defendants, or either of them, nor had they, or either of them, ever heard said driveway called of not sufficient height by anybody, nor had notice thereof, and plaintiff was hurt in said drive-way in the manner he complains of in his complaint, by accident, then the plaintiff cannot recover." The court did right in refusing this instruction. If the place was in reality dangerous, and the appellants were negligent, they are liable although the dangerous place may have been much used. The instruction makes the case turn upon the safe use by others, not upon the actual condition, and in this is erro neous. It is contended that the word "accident" qualifies the instruction and makes it correctly express the law. We do not think so. A pure accident, where there is an absence of negligence, will not supply a cause of action, but where the accident is attributable to the negligence of the defendant, it is otherwise. Shearman & Redf. Neg., § 5. The poverty of language compels the use of words in different meanings, and this is notably true of the word "accident." Strictly speaking, an accident is an occurrence to which human fault does not contribute; but this is a restricted meaning, for accidents are recognized as occurrences arising from the carelessness of men. Browne Jud. Interp. 4. The use of the word "accident" does not save the instructions before us. The fourteenth instruction given by the court is as follows: 66 Mere contribution to the injury does not necessarily preclude the right to recover for it. It was not contributory negligence for the plaintiff to drive upon the drive-way, unless he then had actual knowledge of its alleged dangerous or defective condition, or might have had such knowledge by the use of due care and prudence, and by the exercise of his senses and faculties. He had a right, if he was without fault contributing to the injury, to act upon the presumption that the defendants had done their duty and provided a safe and secure drive-way." The chief point of assault is the first sentence of this instruction. This is singled out and its fault asserted to be unanswerably proved. But an instruction is not to be disposed of by dissection; if good as a whole it will stand. Few rules are better settled than that an instruction is to be taken as an entirety. White v. Beem, 80 Ind. 239; Branstetter v. Dorrough, 81 id. 527; Eggleston v. Castle, 42 id. 531; Mitchell v. Allison, 29 id. 43; Shaw v. Saum, 9id. 517. If however the sentence objected to so strenuously stood alone, we could not reverse. A contribution to an injury does not preclude a recovery unless it was a wrongful or negligent contribution. Shearm. & Redf. Neg., § 28; Louisville, etc., R. Co. v. Richardson, 66 Ind. 43 48; S. C., 32 Am. Rep. 94. Even a negligent contribution does not necessarily bar a recovery. Unless it proximately contributes, mere negligence does not bar a plaintiff's action. Wharton says: "Hence we may state as a general principle, that in order to defeat recovery of damages arising from the defendant's negligence, the plaintiff's negligence must have been the proximate and not the remote cause of the injury." Whart. Neg., § 303. Another author states the rule somewhat stronger, saying of the plaintiff in an action like this, that "his negligence must not only concur in the transaction, but must co-operate in causing the injury or in exposing him or his property to it." Again it is said: "The plaintiff's fault must also proximately contribute to his injury, in order to constitute any ground of defense." Shearm. & Redf. Neg., §§ 32, 33. Judge Cooley says: "The negligence that will defeat a recovery must be such as proximately contributed to the injury." Cooley Torts, 679. In an instruction asked by the appellants and given by the court, the jury were plainly directed that if the appellee was guilty of contributory negligence, there could be no recovery. The definition of contributory negligence, stated by appellants in the instruction given at their request is, we may remark in passing, directly opposed to the position now taken by them. In other instructions, the subject is clearly and correctly presented to the jury, and it is quite plain that appellants have no just cause of complaint upon this point. The mere fact that one who has a right to use a way knows that there is a dangerous place in it, will not, of itself, preclude a recovery for injuries received in attempting to use the way in a proper manner. Knowledge is always an important matter for consideration, but it does not always establish contributory negligence. If one undertakes to pass a known danger so great as that no person of ordinary prudence would voluntarily encounter it, then he is guilty of contributory negligence, for no one possessing knowledge of danger has a right to go upon a way which ordinarily prudent men would avoid. If however the danger is known, but it is not of such a character as that a prudent man would not decline to encounter it, then the attempt to pass it is not, in and of itself, such negligence as will defeat an action. Where there is a known danger of the character just indicated, one who attempts to pass it must show that he used a degree of care proportioned to the danger which he knew was before him. If he fails to show a degree of care com mensurate with the magnitude of the danger, he cannot recover for injuries received in attempting to pass it. These propositious are fully sustained by our later cases, and elsewhere the adjudged cases sustain them with scarcely a breath of dissent. Toledo, etc., R. Co. v. Brannagan, 75 Ind. 490; City of Huntington v. Breen, 77 id. 29; Murphy v. City of Indianapolis, 83 id. 76. Applying the law as declared in the cases cited to the evidence in this case, it clearly appears that the verdict is well supported by the evidence, and is not in any respect contrary to law. Judgment affirmed. PHOTOGRAPHS ENTITLED TO COPYRIGHT. SUPREME COURT OF THE UNITED STATES, MARCH 17, 1884. BURROW-GILES LITHOGRAPHIC Co. v. SARONY. One who produces a photograph as the result of his mental conception, giving it visible form by posing the subject, selecting and arranging costume, draperies and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, etc., and from such disposition produces a picture, is an "author" within the meaning of the copyright laws. Such photograph, the product of the intellectual invention of its author, is of a class of inventions, the exclusive right to use, publish and sell which is secured to him by section 4952 of the Revised Statutes. MILLER, J. This is a writ of error to the Circuit Court for the Southern District of New York. Plaintiff is a lithographer and defendant a photographer, with large business in those lines in the city of New York. The suit was commenced by an action at law, in which Sarony was plaintiff and the Lithographic Company was defendant, the plaintiff charging the defendant with violating his copyright in regard to a photograph, the title of which is "Oscar Wilde No. 18." A jury being waived, the court made a finding of facts on which a judgment in favor of the plaintiff was rendered for the sum of $600 for the plates and 85,000 copies sold and exposed for sale, and $10 for copies found in his possession, as penalties under section 4965 of the Revised Statutes. Among the finding of facts made by the court the following presents the principal question raised by the assignment of errors in the case: "3. That the plaintiff, about the month of January, 1882, under an agreement with Oscar Wilde, became and was the author, inventor, designer and proprietor of the photograph in suit, the title of which is "Oscar Wilde No. 18," being the number used to designate this particular photograph and of the negative thereof; that the same is a useful, new, harmonious, characteristic and graceful picture, and that said plaintiff made the same at his place of business in said city of New York, and within the United States, entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition arrangement or representation, made entirely by the plaintiff, he produced the picture in suit, Exhibit A, April 14, 1882, and that the terms author,'' inventor,' and 'designer,' as used in the art of photography, and in the complaint, mean the person who so produced the photograph." |