that judicial power was thus granted to the board under the provisions of the statutes above set forth was not incorrect, but contended that they were repealed by sections 19, 31, c. 829, pp. 197, 201, Pub. Laws, passed March 21, 1901, and sections 24, 27, c. 1229, p. 184, Pub. Laws, passed April 26, 1905.

We cannot assent to this contention. Section 19 of said chapter 829 did, indeed, impose the additional duty upon the board of convening upon "the day following any election for members of the General Assembly." By the provisions of section 6 of article 8 of the Constitution in force at the time of the passage of chapter 363 (1896) ballots for members of the General Assembly were to be counted in Providence by the mayor and aldermen, and so were expressly excepted from the jurisdiction of the board of canvassers and registration by the provisions of section 1 of said chapter 363. This constitutional provision was repealed by the adoption of the eleventh amendment to the Constitution on November 6, 1900, and it thereupon became necessary to make other provision for the counting thereof. But it will be observed that this statute does not purport to give finality in such a case, the language of section 5, c. 828, p. 185, Pub. Laws 1901, providing only that the board of canvassers and registration should "count and tabulate" the same, inasmuch as Const. art. 4, § 6, provides that "each house shall be the judge of the elections and qualifications of its members." Corbett v. Naylor, 25 R. I. 520, 57 Atl. 303. The repealing clause, section 31 of chapter 829, is limited to those provisions only of existing law which are inconsistent with it, and is further limited in its effect "so far as they apply to the conduct of elections held for any of the officers or for voting upon any proposition or question named in this act." Even if the words "conduct of elections" can be held to include the official counting of the ballots subsequent to the day of the election, we fail to find any provision herein contained which is inconsistent with the powers theretofore vested in the board in respect of the question now before the court. By the provisions of section 13, c. 1229, p. 178, Pub. Laws, passed April 26, 1905, it was provided that all ballots cast for senators and representatives in the General Assembly should be thereafter "counted and tabulated" by the state returning board, and should be no longer counted in Providence by the board of canvassers and registration, as provided by said chapter 828, Pub. Laws 1901. This obviously relieved this board, as well as the several town councils and boards of aldermen throughout the state, from the duty of convening upon the day following the day of an election for members of the Legislature as well as of the duty and jurisdiction to count the votes cast at such election, and section 24 of chapter 1229 amended the aforesaid section 19 of chapter 829 in that respect. We

see nothing in this section or in section 27 of chapter 1229 inconsistent with the powers theretofore vested in this board in respect of the question now before the court. An examination of the provisions of said chapter 363 discloses the creation of a tribunal meeting at a fixed time and specified place for the purpose of counting ballots cast at a municipal election; that the ballots cast must be examined and counted by the members of this tribunal in person, and not by assistants, and in open session; that adequate provision is made for the representatives of all candidates to be present and to be heard for or against the counting of any ballots; that witnesses may be compelled to attend and testify, and books, records, and all other legal evidence necessary to decide upon the validity of a ballot may be required under penalty of punishment for contempt of its process for noncompliance, that false swearing in any material matter relative to such a count is made perjury, "and said board shall determine all questions as to the validity of such ballots." These are the powers of a judicial tribunal or court, and are not powers which are merely ministerial in their nature.

It is not disputed that the respondents have been by the board duly determined and declared elected to the offices in question as shown by their several certificates of election presented to this court. Full and final jurisdiction to make this determination and declaration in respect of the contentions urged in this case having been vested in the board of convassers and registration as the tribunal established by law for that purpose, it there remains; and the petition must accordingly be dismissed.

On Motion for Reargument.

The motion of the petitioners for reargument presents constitutional questions which were not suggested to or considered by the court at the hearing of the respondents' motion to dismiss. These questions, in our opinion, are of sufficient importance to require careful discussion, and therefore a reargument of the motion to dismiss, upon the ground of the construction of the law which we adopted in our former opinion being unconstitutional, is granted.

(29 R. I. 143)

RILEY v. RHODE ISLAND CO. (Supreme Court of Rhode Island. April 10, 1908.)

1. CARRIERS-STREET CARS-DUTY OF CARRIER -REMOVAL OF SNOW AND ICE.

It would be unreasonable to require the immediate and continuous removal of all snow and ice from trains during passage, and a passenger cannot assume that the effects of a continuous storm of snow, sleet, or rain will be immediately and effectually removed from the exposed platform of a train between stations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1182.]

2. SAME-INJURIES TO PASSENGERS.

At the time plaintiff was injured a snowstorm had continued throughout the day, with some rain, and the temperature was below the freezing point. Before starting on the trip the conductor had removed the accumulated ice and snow from the street car steps; but during the trip a considerable mass of ice and snow was deposited on the step by incoming passengers, and plaintiff, in alighting from the car, slipped from the step and was injured. He testified that before stepping down he saw the ice and snow, and used due care in alighting. Held, that defendant was not negligent in permitting snow and ice to gather on the steps, as it would be unreasonable to require it to prevent the steps from becoming slippery by the ingress of passengers between stops.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 1182.]

3. SAME-NEGLIGENCE OF PERSON INJUREDCARE REQUIRED BY PASSENGER.

The prevalence of storm and freezing weather imposes upon a passenger an extra degree of care to prevent injury in alighting from

a car.

Exceptions from Superior Court, Providence County.

Action by James P. Riley against the Rhode Island Company. Verdict for defendant, and plaintiff excepts. Exceptions overruled, and cause remanded for judgment upon verdict.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

James A. Williams, for plaintiff. Henry W. Hayes and Alonzo R. Williams, for defendant.

DOUGLAS, C. J. On the 1st day of March, 1907, the plaintiff, in descending from a street car operated by the defendant, slipped from the step of the car and fell and was injured. A snowstorm had commenced the night before, and with intermissions of rain continued during that day. The average temperature until after the accident was below the freezing point. It appeared in evidence that before starting upon the trip on which the accident occurred the conductor had removed from the step such snow and ice as had accumulated there, but that, after starting from the terminus of the route, ice or snow had been deposited on the step by the feet of incoming passengers, and so remained in considerable mass when the plaintiff placed his foot upon it in alighting. He testifies that before stepping down he saw the snow and ice there, but used due care in descending. Upon these facts the superior court held that no negligence on the part of the defendant had been shown, and directed a verdict for the defendant. To this direction the plaintiff excepted, and the case is before us upon the bill of exceptions based thereon.

We think the verdict was rightly directed. The legal principles affecting the responsibility of a railroad company with respect to the removal of snow and ice from the platform and steps of its cars are well stated in Palmer v. Pennsylvania Co., 111 N. Y. 488, 493, 495, 18 N. E. 859, 861, 2 L. R. A. 252, where it is

said by Ruger, C. J.: "The immediate and continuous removal of all snow and ice from such trains, or the covering of them with sand or ashes in such manner that no slippery places shall be at any time exposed, would be quite impracticable and beyond the duty which a railroad owes to its passengers. The presence of snow or ice upon exposed places on moving cars is an accident of the hour, and no ordinary diligence could, during the prevalence of a storm, wholly remove its effects from the places exposed to its action, so as to prevent accidents to heedless and inattentive travelers.

A passenger on a railroad train

has no right to assume that the effects of a continuous storm of snow, sleet, rain, or hail will be immediately and effectually removed from the exposed platform of the car while making its passage between stations, or the termini of its route, and it would be an obligation beyond a reasonable expectation of performance to require a railroad corporation to do so. ** * It is safe to say that such corporations should not be held responsible for the dangers produced by the elements until they have assumed a dangerous form, and they have had a reasonable opportunity to remove their effects." This case is approved in Kelly v. Manhattan Ry. Co., 112 N. Y. 443, 20 N. E. 383, 3 L. R. A. 74. In Fearn v. West Jersey Ferry Co., 143 Pa. 122, 128, 22 Atl. 708, 709, 13 L. R. A. 366, the court say: "It is well known that rain or snow, falling upon the sidewalks of a town or city, the steps and platform of railway cars, and the decks of ferryboats, will render them slippery, and consequently more difficult to walk upon. But it is not practicable to absolutely prevent this condition while the rain or snow is falling, and the mere existence of it during the storm which causes it raises no presumption of negligence on the part of the municipality, the railway, or ferry company." To the same effect are Pittsburgh, etc., Ry. Co. v. Aldridge, 27 Ind. App. 498, 61 N. E. 741; Rusk v. Manhattan Ry. Co., 46 App. Div. 100, 61 N. Y. Supp. 384.

The cases cited by the plaintiff do not deny the rule that a railroad company is not responsible for the existence of ice or snow upon the steps of its cars until it has had sufficient time and opportunity consistently with its duty to transport its passengers to remove the accumulation; but they present circumstances where the opportunity to remove the ice or snow was neglected. Thus, in Foster v. Old Colony Street Railway, 182 Mass. 378, 380, 65 N. E. 795, the route was short, and there had been a stop of 15 minutes at the terminus, during which it appeared that no effort had been made to remove the snow, and also facilities were shown to have covered the snow or ice with sand, which there was evidence had been neglected. The court say: "The jury were warranted in finding that under the circumstances of this case the defendant could have prevented, and had undertaken to prevent, the open steps of this car

to the nature of the offense committed by them, whether the same be felony or misdemeanor. 5. CRIMINAL LAW-TRIAL-INSTRUCTIONS-REQUESTS.

In a prosecution for breaking and entering a car and stealing goods therefrom, defendant requested the charge that there was no evidence to warrant a finding that defendant broke and entered the car, and that defendant could only be convicted, if at all, upon the lower charge of larceny. The court stated: "I have already so instructed you. The question of breaking and entering the car is not for your consideration." Held, that there was no ground for exception.

6. SAME.

In a prosecution for breaking and entering a car, the modification of requested instructions held to furnish no ground of exception. 7. SAME-CORROBORATION OF ACCOMPLICE.

The modification by the court of a request to charge as to the weight and effect of testimony of defendant's accomplice and the necessity of corroboration held to furnish no ground of exception.

Exceptions from Superior Court, Providence County.

Louis Shapiro was convicted of larceny, and brings 'exceptions. Exceptions overruled.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

William J. Brown, for plaintiff. William B. Greenough, Atty. Gen., and Harry P. Cross, Asst. Atty. Gen., for the State.

DUBOIS, J. In the superior court the defendant was convicted of larceny under an Indictment charging that he on the 15th day of November, 1906, at Woonsocket, "a certain railroad freight car of the New York, New Haven & Hartford Railroad Company, a corporation duly chartered and organized under the laws of the state of Rhode Island, there situate, unlawfully and feloniously did break and enter with intent then and therein to commit larceny and one thousand six hundred and forty pounds of cotton, each pound of the value of ten and one-eighth cents, all of the aggregate value of one hundred and sixty-four dollars and twenty-five cents, of the goods, chattels, and property of the said corporation then and there in said freight car being found, then and there feloniously did steal, take, and carry away." The indictment was brought under Gen. Laws 1896, c. 279, § 10, amended by Pub. Laws, p. 191, c. 454, § 1 (passed May 14, 1897), as follows: "Section 10 of chapter 279 of the General Laws of 1896 entitled 'Of offenses against private property,' is hereby amended by adding thereto the following words: 'And every person who shall at any time break and enter any railroad car or break any lock or seal thereon with intent to commit larceny or other crime shall be imprisoned not exceeding two years.'”

The case is now before this court upon the defendant's bill of exceptions, which is founded upon certain exceptions taken by the defendant in the superior court, as follows:

"First. To certain rulings of said justice at the trial of said action admitting certain evidence, as shown on page 46 of the transcript of testimony, etc., filed herewith. Second. To certain rulings of said justice at said trial refusing to admit certain evidence, as shown on pages 36, 90, and 106 of said transcript. Third. To the refusal of said justice at said trial to direct a verdict for the defendant, to which ruling the defendant duly excepted, as shown on page 193 of said transcript. Fourth. To the refusal of said justice at said trial to charge the jury in accordance with the requests duly presented by said defendant, as shown on page 193 of said transcript. Fifth. To that part of the charge of said justice at said trial to which the defendant specifically excepted, as shown on page 193 of said transcript. Sixth. To the decision of said court denying the defendant's motion for a new trial, which said action was based upon the following grounds: "(1) That said verdict was contrary to the evidence and the weight thereof. (2) That said verdict was contrary to law."

The first and second grounds of exception are not relied upon, and need not be considered.

The third exception is based upon the refusal of the superior court to direct the jury to acquit the defendant for the following reasons: "(1) That there is no evidence of any breaking and entering of the freight car by the defendant as set forth in the indictment. (2) That the indictment charges said defendant of the statutory crime of breaking and entering a freight car and the committing of larceny therein, while the proof utterly fails to show any breaking within the meaning of the term in the criminal law, and there is therefore a fatal variance between the statutory crime alleged and the proof. (3) That the only evidence tending to show that the defendant entered the car in question and took from it cotton bales as alleged in the indictment is that of La Voie, who admits that he was present and did enter the car and assist Shapiro in taking out the bales of cotton in question, which testimony is denied by Shapiro. Such undisputed testimony of an accomplice denied by the other alleged party to the transaction could not in any event be held to support beyond a reasonable doubt a finding that Shapiro actually participated in the taking of the cotton in question from the car, and would show, at the utmost, merely that the defendant was only an accessory before the fact, and could not be held under this indictment charging him as a principal in the transaction, under Gen. Laws 1896, c. 284, § 2, as amended by section 1178 of the court and practice act. This constitutes a fatal variance."

The first and second reasons are without merit. Gen. Laws 1896, c. 279, § 16, as amended by Court and Practice Act 1905, § 1175, provides, among other things: "If

the value of the property or money stolen, received, or embezzled does not exceed five hundred dollars, any person so convicted shall be punished by imprisonment for not more than one year or by fine of not more than five hundred dollars, or by both." The offense of which the jury found the defendant guilty was therefore of a lower nature than that charged in the indictment, and the verdict was in accordance with the provisions of Gen. Laws 1896, c. 285, § 24, as amended by Court and Practice Act 1905, § 1185, which reads as follows: "Whenever any person is tried upon a complaint or indictment and the court or jury, as the case may be, shall not be satisfied that he is guilty of the whole offense but shall be satisfied that he is guilty of so much thereof as shall substantially amount to an offense of a lower nature, or that the defendant did not complete the offense charged, but that he was guilty only of an attempt to commit the same, the court or jury may find him guilty of such lower offense or guilty of an attempt to commit the same, as the case may be, and the court shall proceed to sentence such convict for the offense of which he shall be so found guilty, notwithstanding that such court had not otherwise jurisdiction of such offense." This statute is an extension of the common-law rule referred to by Ames, C. J., in State v. Colter, 6 R. I. 195 (1859), as follows: "It is a rule in criminal pleading, as well as of pleading in cases of tort, that it is sufficient if part only of the allegation stated in the indictment be proved, provided that what is proved affords a ground for maintaining the indictment, supposing it to have been correctly stated as proved." * Indeed, in burglary, that the same count charges a breaking and entering with intent to steal, and an actual theft in the dwelling house, has never been deemed objectionable; but was advised by Lord Hale to insure a conviction of theft, if the proof justified it, when it might not justify a conviction of burglary. 1 Hale, P. C., 559, § 5. This mode of charging merely widens the allegations of the count, as to admit, what is so common, a conviction of a lesser offense, included in the charge of the graver one, if the proof should fall short of the latter."

The third reason is based upon an erroneous statement of the evidence. In addition to the testimony of La Voie as to the fact, there was evidence of the confession of the defendant that he entered the car and rendered assistance in the removal of the cotton therefrom. Furthermore, the testimony of the defendant himself and that of Jacob Blum, a witness for him, is to the effect that the defendant was present at the car, though not in it, aiding and assisting in the larceny. His claim that he was an accessory before the fact is inconsistent with such testimony. Anciently there were three kinds of accessories: First, before the fact; second, at the fact; and, third, after the fact. The second kind

were afterwards called "principals in the second degree," and still later "principals." 1 Russ. Crimes (6th Am. Ed.) 26. Manifestly it is a contradiction in terms to call an accessory at the fact an accessory before the fact. As stated by Putnam, J., in Commonwealth v. Knapp, 9 Pick. (Mass.) 496, 514, 20 Am. Dec. 491. "It is an established rule that a statute is not to be construed so as to repeal the common law, unless the intent to alter it is clearly expressed." The rule is the same in civil cases. Langlois v. Dunn Worsted Mills, 25 R. I. 645, 649, 57 Atl. 910.

Gen. Laws 1896, c. 284, § 2, as amended by Court and Practice Act 1905, § 1178, reads as follows: "Every person who shall aid, assist, abet, counsel, hire, command, or procure another to commit any crime or offense, shall be proceeded against as principal or as an accessory before the fact, according to the nature of the offense committed, and upon conviction shall suffer the like punishment as the principal offender is subject to by this title." The defendant claims that this statute repeals the common law, and argues as follows: "It is confidently submitted that the statute here in question was intended to, and did, change the common law, in this: that it abolished the distinction between principals in the second degree and accessories before the fact, and makes all persons who aid, assist, or abet in the commission of a crime, whether present or absent, as well as those who being absent counsel or procure the commission of a crime, accessories before the fact, and makes accessories before the fact, as defined by said statute, upon conviction, liable to the same punishment as a principal offender. The question then arises as to the exact meaning of the phrase, 'shall be proceeded against as principal or as an accessory before the fact, according to the nature of the offense committed.' Bearing in mind that, both at the common law and under all the statutes, in felonies there are two grades of offenders recognized-i. e., principals and accessories before the factwhile in misdemeanors all are principals, and that this statute relates to offenses of every nature, it would seem to be obvious that the intent of the statute was to make it necessary in crimes of the grade of a felony to proceed against the accessory before the fact, as defined therein, as an accessory, while, if the offense charged was a misdemeanor, in which all who participate are principals, he should be proceeded against as a principal." Court and Practice Act 1905, § 1178, is almost identical with section 120, p. 398, of "An act concerning Crimes and Punishments," contained in the Digest of Laws of 1844; the only difference being that said section 1178 concludes with the word "title," instead of "act," as in said section 120. The last-mentioned section was interpreted by Ames, C. J., in State v. Sprague, 4 R. I. 257 (1856). The indictment în that case charged the defendants with being principal and accessories, respectively, to misdemeanor, and concerning the second count,

a