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is the case of a traveler going upon a way which had been constructed and was maintained by a railroad company, in part for its own benefit and profit, to be used by all, without distinction, who desired, for purposes of business, to pass to and from the company's wharf-boat, moored at an established landing upon a public navigable river. The deceased, when injured, was using the premises for some of the very purposes for which they had been appropriated, and to which they had been, in a sense, dedicated by the owner. They were so situated, with reference to the river, and were so occupied and controlled by the company as not only to invite their use by the public, but practically to compel those having business at the river landing to abandon such business, or, in its prosecution, to pass over the route through the shed-depot. It was, therefore, the plain duty of the company to take such precautions, from time to time, as ordinary care and prudence would suggest to be necessary for the safety of those who had occasion to use the premises for the purposes for which they had been appropriated by the company, and for which, with its knowledge and permission, it was cominonly used by the public.

We are all of opinion that the pleadings state facts sufficient to require an answer from the defendant. It is a case peculiarly for the consideration of a jury of practical men, who, under proper instructions, can best ascertain to what extent, if at all, under the circumstances actually existing, the railroad company was negligent in the discharge of any duty or obligation imposed by the law, and how far, if at all, the deceased was wanting in due care upon the occasion when he was injured.

To guard against misapprehension it is proper to remark also that we must not be understood as making the plaintiff's right of recovery dependent upon proof of every single fact averred in the pleadings, or which has been recited in this opinion. We have considered the case in the light of the facts as averred, and, by the demurrer, conceded to exist. Upon the trial, after issue joined, the court will have no difficulty, in view of what we have said, in determining whether the case as actually presented to the jury shows a breach of duty or legal obligation upon the part of the railroad company for which it may be liable in damages.

The judgment will be reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings in conformity with this opinion; and it is so ordered.

& 329. Duty to keep boilers, cars, etc., in safe condition.— A railway company is bound to use every test recognized as necessary by experts to determine whether its locomotive boilers are in a safe condition; but it is not liable for injuries occurring through defects not discoverable by such tests. Robinson v. New York Central, etc., R. Co., * 13 Rep'r, 357.

$ 330. A railway company running four-wheel cabooses that do not adjust themselves read.' ily to the curves on the road is liable to one injured thereby. Palmer v. Denver & R. G. R. Co., 12 Fed. R., 392.

$ 331. Wagon road and street crossings — Duty of company and travelers – Liability in case of collisions and accidents.- If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass the point of crossing, and to require due care on the part of those traveling on the other to avoid a collision. It cannot, however, be expected that the train will stop for a wagon; the latter must wait for the former to go by. But the train should give due warning, by bell or whistle, of its approach; and those in the wagon owe the duty of looking and listening for the train before crossing, and of observing especial care in case their sight or hearing be impaired or a view of the track be obstructed. Continental Imp. Co. v. Stead, 10 Ch. Leg. News, 121. See, also, Chicago, R. I. & P. R. Co. v. Hamilton, 10 Ch. Leg. News, 121. See Ss 301, 302.

$ 332. As plaintiff was approaching a crossing in a single wagon, over a road too narrow to turn around in, he did not at first hear or observe a locomotive slowly approaching and ring

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ing its bell. The horse became frightened, refused to stop for plaintiff, wlio, deeming his only chance of escape to be to go in front of the engine, struck the horse, which bounded forward carrying the wagon except the hind wheels clear of the engine. These were struck, plaintiff was thrown forward some fifteen feet and was severely injured. Held, that the company was not liable, the engine moving slowly, with bell ringing, and the trouble appearing to have been due to plaintiff's failure to see or hear the approaching engine and to the excitability of his horse. Tucker v. Duncan,* 9 Fed. R., 867. $ 333. It is the duty of the engineer of a switch-engine to ring the bell of the engine op

on approaching a crossing, especially if his engine is obscured from the view of people waiting at the crossing by another train or engine passing over the crossing at the same time. Whitoa t. Chicago & N. W. R. R. Co., * 2 Biss., 282.

$ 334. Two ladies waited at a street crossing of a railroad for the passage of a freight train running through a town at an illegal rate of speed. After it passed they started across and were run down by a switch-engine coming from a direction opposite to the freight. Held,' that the only effect of the freight train being there under the circumstances named was to modify the conduct of those on the switch-engine and of the ladies, and that the fault of the freight train was too remote to be regarded as the cause of the death of the two ladies. Ibid.

$335. It is the duty of those having the management of a switch-engine and train to cause the bell of the engine to be rung a sufficient time before crossing a street in a city to give warning to any passengers on that street desirous of crossing, and to keep it ringing until the tender has crossed the street. It is also the duty of those having the management of the train to keep a proper lookout in the direction the train is moving. Especially is this duty imposed on such fersons where another train is approaching from an opposite direction. Ibid.

$ 336. A boy, seven or eight years of age, was struck by a freight train while upon the track of a railway laid through a public street, and died from injuries received thereby, The train was running at about seven or eight milea an hour, a rate of speed conceded to be reasonable for a train passing through a populous town. The engine was pushing the train from the rear, and steam and smoke from the engine shut out the view of those on the cars, prerenting them from seeing the track ahead. Held, that in determining the question whether defendant's negligence caused the boy's death, it was for the jury to decide whether the train was running at an improper speed under the circumstances, subject to instruction by the court that at no time should trains be run at such a rate of speed through public streets that they could not be easily stopped in case of an obstruction. When the engine is at the rear of the train, and in pushing the cars, a proper lookout should be kept upon the front of the train. And when the view over the track ahead is obstructed by smoke and steam, then it is incumbent upon those in management of the train to redouble their diligence and run the train with greater caution. Barley v. Chicago & A. R. R. Co., * 4 Biss., 430.

$ 337. Defective cattle-guards.— Where it is not the statutory duty of a railway company to build cattle-guards it is not liable for injuries to crops due to defective cattle-guards. Ward v. Paduch, etc., R. Co., 11 Rep., 256. See SS 321-25.

$ 338. Injuries sustained while crossing track at other than public crossing.- Plaintiff was injured while crossing the defendant's track at a place known to be dangerous, instead of at the crossing provided by the defendant. Heid, that as the plaintiff had nothing more than a mere license to cross where he did, the defendant owed him no duty and was not liable for negligence. Morgan v. Penn. R. Co., 27 Int. Rev. Rec., 211. See SS 239-42.

$ 339. while climbing over train which was standing across street.- Plaintiff found a train laying across the street on which he was going and attempted to go over it between the cars. It suddenly started and his foot was caught between the “bunl-noses” of the coupling apparatus of the two cars and severely injured. Held, that the company should have given some signal of starting its cars, and that it was competent for the jury to consider whether it had been customary for the company to block that street crossing, and for its employees to permit travelers on the street to cross over or under the train. Grant v. Baltimore, etc., R. Co.,* 2 MacArth., 277.

$ 340. Railway fire – Defense.— Plaintiff, a boom company, owned lands on which were valuable pine forests, cranberry marshes, etc. Defendant negligently allowed fires from its right of way to extend to these trees and marshes, resulting in the destruction of valuable property. Held, that the railway company was liable, and could not set up in defense that the title to the lands had been acquired for purposes foreign to the object of the creation of the plaintiff corporation. Farmers' Loan & Trust Co. v. Green Bay & Minn. R. Co., * 12 Fed. R., 773.

$ 341, Duty to fence against stock and children.- The plaintiff alleged that the defendant was guilty of negligence in having the fence out of repair that incloses its railway track where said track runs through plaintiff's farm. That the defendant was required by law to keep a fence at that point, and that by reason of the negligence of the defendant in this re

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gard the infant child of plaintiff went upon the railway track and was killed hy a passing engine. Upon demurrer it was held that section 1289 of the code of Iowa of 1873, which provides that if a railway company fails to fence its road against live stock running at large. it shall be liable to the owner of any such stock killed or injured by its trains by reason of the want of such fence, unless the same was occasioned by the wilful act of the owner or his agent, does not make it the duty of the company to fence its road, nor subject it to liability for injury to an infant child while on the track. Walkenhauer v. Chicago, Burlington & Quincy R. Co.,* 3 McC., 553.

$ 342. Stock killed on track while trespassing.- The plaintiff brought suit to recover damages for the loss of a horse alleged to have been killed on defendant's railroad. "The evidence showed that the horse of the plaintiff was found maimed and killed on the side of the railroad track. The tracks of the horse appeared on the track of the railroad, indicating that she had run before the train about one hundred yards before she was overtaken by it. The evening before she had been put into a pasture inclosed from the railroad by a fence in which there was a draw-bar opening upon the railroad. The owner had put up these bars, the night before, and in the morning it was found they had been let down. The inference from the evidence was that some one had let down the bars in the night; that the horse had come out of the pasture upon the track; and that being on the track, and after running before the train some distance, the horse was caught by the train and fatally injured. As there was no negligence on the part of the company it was held that the horse was on the track in the character of a trespasser, and the defendants were not liable for the accident. Campbell v. Receivers, * 4 Hughes, 170.

$ 343. Liability for injuries to child playing on turn-table.- A railway company is. liable for an injury to a child of tender years that went to play on its turn-table, and the railway company cannot set up in defense the negligence of the father of the child in allowing it to go upon the turn-table. Stout v. Railroad Co.,* 11 Am. Law Reg. (N, S.), 227. See SS 318-20.

§ 344. It is the duty of a railway company having a turn-table or other machinery in public places, likely to be frequented by children, to fasten it, or in some way render it so inoperative that children cannot do themselves harm in playing with it. Ibid.

$ 345. Not liable for injury to person negligently walking on track – Children on track.- While a railway company is bound to use the highest degree of caution and care as to its passengers, as to trespassers on its track it is only bound to use such care as an ordinarily prudent, careful person would use under the same circumstances, Where a child two years of age was on a railway track, and when seen by the engineer he blew for brakes and tried to stop the train, but could not stop it in time, and the child was run over and killed, held, that the administrator of the child could not recover. The engineer was not negligent in having for a moment taken his eyes from the track to look at the furnace door inside the cab, nor were the receivers negligent in not having the train equipped with the Westinghouse or some other continuous power brake, such brakes being then comparatively new inventions, and the receivers having under consideration a plan for their adoption. Ex parte Snell, In re Atlantic, M. & O. R. R. Case,* 4 Hughes, 157.

$ 340, No man has a right to go upon a railroad track and walk along in a state of abstraction, careless of what might happen to him, and then turn around and say to the railroad company, however negligent they may have been, “You are responsible for my safety." Finlayson v. Railroad Co.,* 1 Dill., 579. · § 347. The defendant's road runs parallel to the county road, upon the same general level and about thirty feet from it. The plaintiff's husband had been a laborer upon the public canal in the vicinity. He had left the wagon with his wife to do some business. The wagon passed along, and when he had finished his business he started to overtake the wagon, and went upon the railroad track instead of on the public road. After he had walked some hundred yards or so, a passenger train of defendant's came along at the usual rate of speed, and, approaching him from behind, struck and killed him. The wind was blowing in the face of plaintiff's husband at the time of the accident. The evidence was conflicting as to the distance from the deceased at which the bell was rung. The whistle was sounded and the brakes applied. The injury did not happen at a public crossing, and the defendant's road ran in a straight line for some distance before and behind the deceased. In an action to recover, held, that the company was not liable, and that the engineer had a right to suppose that the deceased was a man of sound mind and good hearing and that he would take reasonable care to protect himself in case of danger. Held, also, that a railroad train must give due notice of its approach when any one is perceived walking on the track ahead of it. Ibid.

$ 348. Not liable for injuries caused by its contractors.— A railway company is not liable to a person injured on a train operated and owned by its contractors. Union Pac. R. Co. v. Hause,* 1 Wyom. T'y, 27.

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$ 349. Injary by train in charge of servants of another company.- Defendants, the New Jersey Central Railroad Company, ran a train over the Lehigh Valley Railroad in charge of the agents and servants of that company. This train had run upon defendant's tracks about two hundred yards. The Lehigh Valley conductor then backed it upon a side track preparatory to leaving it with the rest of the servants of the Lehigh Company. In backing it down he moved it too far and too fast, so that it collided with some coal cars standing on the side track, and plaintiff was injured. Feld, that the Lehigh Valley Company was alone responsible for the injury, its servants having exclusive charge of the train and track. Clymer r. Railroad Co., * 5 Blatch., 317.

$ 350. Miscellaneous.— A railway company is liable for negligent injury to a person caused by the carelessness of its engineer, though the train was at the time of the accident running upon the track of another company in charge of a conductor who was the employee of the company that owned the track. Mills v. Railroad Co.,* 1 MacArth., 290.

8351. A railway company received a quantity of gunpowder and stored it in a warehouse with other goods, including plaintiff's. A fire broke out which was not subdued owing to the unwillingness of the firemen to expose themselves to the danger of the explosion, and plaintiff's goods were destroyed. Held, that the railway company were liable, the storage of the gunpowder within the city being a nuisance generally, and negligence as to the owners of goods stored with it. White v. Colorado Cent. R. Co., 5 Dill., 432.

$ 352. A petition was filed asking compensation for an injury which the petitioner sustained in consequence of a fall while attempting to get off a train on a railway then operated by a receiver. Held, that controversy as to the position of the receiver, or his liability as such, was unnecessary, as not affecting the rights of the petitioner, in relation to whom he stands in the place of the company. Secor v. Toledo, etc., R. Co.,* 10 Fed. R., 15.

$ 353. A railway company, building a bridge across a river, useil certain pontoons, whioh were sunk by the ice. Held, that it was entitled to a reasouable time in which to remove them, and failing to do so would be liable for any injury which might result from their obstructing navigation on the river. Mo. Riv. Pack. Co. v. Hannibal, etc., R. Co., 1 McC., 281.

8 354. Declarations of deceased as to whether she heard the engine bell are admissible. Whiton v. Chicago & N. W. R. R. Co., 2 Biss., 282.

V. MASTER AND SERVANT.

SUMMARY - Liability of employee; fellow-servants; risks of employment, $ 355. — Fellow-seru

ants, SS 356–59.- Defective machinery, $ 359.— Negligence of stevedore, § 360.- Knowledge of defects in machinery, § 361.— New and unusual machinery, $ 362.—“Foreign car," $363.- Risks assumed by bridge builder, 364.— Rights of engineer who reports a defect in his engine, & 365.— Duty to furnish safe machinery; risks of employment, $ 366.— Liubility for acts of servant, SS 367, 368.

$ 355. A corporation is chargeable with the negligence of its servants. But one servant assumes the risk of injury by a competent and careful co-servant. An employee also assumes the ordinary risks of his employment. But the master must provide reasonably safe machinery and conduct the business carefully. Kielley v. Belcher S. M. Co., SS 369-373.

$ 356. Those only are fellow-servants who serve in such capacity and in such relation to the master and to each other that the means of the servants to protect themselves are equal to or greater than those of the master to afford them protection. Ibid.

$ 357. A master is not liable for injuries happening to a servant caused by the negligence of a fellow-servant. And where the conductor of a railroad train by a violent pull on the bell-rope breaks the glass in the engine cab, by reason of which the engineer is badly frozen, the company is not liable. Dillon v. Union Pacific R. Co., SS 378-381.

$ 358. Where the superintendent of a machine-shop directed a boy of sixteen to adjust a belt upon rapidly revolving pulleys and shafts, held, that this was outside the scope of the boy's employment and of the risks which be assumed, and that the company employing the superintendent was liable. Railroad Co. v. Fort, S 374.

$ 359. Where a railway management furnishes cars equipped with an old and dangerous coupling apparatus it is liable to an employee injured thereby, although another employee also contributed to the injury. McMahon v. Henning, S 375.

& 360. Where by negligence a hatchway grating was so insecurely placed that a man fell through and lost his life on a ship, while it was being loaded by a stevedore by contract at so much per ton, held, that neither the ship nor its owner was responsible, the negligence being that of the stevedore and his men. Dwyer v. National Steamship Co., SS 376, 377. VOL XXVIII — 13

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§ 361. The plaintiff filed a petition alleging that he was employed as engineer by the defendant, and that by reason of the want of a signal-bell in the cab of his engine he received the injuries complained of. The evidence showed that the defect in the engine had been known to the engineer for some time, yet he voluntarily continued the use of the engine. On demurrer to the petition, held, that the plaintiff had assumed the risk of the defective engine, and the defendant was not liable for the injury. Dillon v. Union Pacific R. Co., SS 378-381.

8 362. While an employee assumes certain risks of his employment, his employer is yet liable if without notice to the employee he introduces new and unusual machinery, involving an unexpected or unanticipated danger. O'Neill v. St. Louis, I. M. & S. R. Co., SS 382-384.

$363. A plaintiff is not bound to aver that the injury for which he sues was occasioned by the introduction into the train of a “ foreign car." Ibid.

& 364. A person in engaging with a railway receiver to work for wages as a bridge builder takes upon himself all the ordinary risks incident to that employment, including the risk of the falling of the bridge at the critical time of adjusting it to its bearings after taking out the false work, during the putting in of the upper braces of the end bent. He also assumes risk of all accidents incident to such work arising from the temporary oversight or mismanagement of his co-workman, the experienced and skilful foreman who labors with him and superintends the job, and in the absence of negligence such person cannot recover for an injury by the bridge falling. Yager v. The Receivers, SS 385-387.

S 365. An engineer who knows a defect in his engine and reports it to the master-mechanic with a complaint, and is promised that it shall be repaired, is not guilty of contributory negligence if he uses the engine a reasonable time thereafter while waiting for the master-mechanic to have it repaired. Hough v. Railway Co., SS 338–393.

S 366. The general rule is that a person who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the patural and ordinary risks and perils incident to the performance of such services, and in legal contemplation the compensation is adjusted accordingly. This includes the risks and perils arising from the negligence of co-servants. But a master must provide reasonably adequate and safe machinery to use, and competent co-servants. He will be liable if he does not do this. He is also liable for the negligence of his representatives, who are his vice-principals rather than co-servants of the employee injured. But the master does not guaranty the absolute safety of machinery, or insure the absolute carefulness of his employees. He is only bound to a reasonable duty in these regards. Ibid.

S 367. Action against servant of a stage line for negligently permitting plaintiff's slave to take passage, thereby escaping. The clerks in the stage office were instructed by their employers to allow all colored persons bearing certificates of freedom to travel by their line. The slave presented a false certificate, the name and description therein being of another per

The stage-office keeper is charged with negligence in not more carefully examining the certificate. Heid, that the stage-office keeper had been guilty of negligence, but that his employers, not he, were liable. Mandeville v. Cookendorfer, $ 394.

$ 368. A passenger on a steamboat going to a place to which the fare was fifty cents offered the clerk a dollar bill for a ticket. The clerk could not make the change even in postage stamps, which plaintiff was willing to take, but suggested that the passenger take two tickets. This the passenger refused, saying that he did not care to buy tickets “in advance," and went away. Subsequently, when the man came around to collect tickets of passengers, plaintiff refused to pay, saying he had once offered to do so and that the clerk had refused it, whereupon the clerk assulted him. Held, that the assault was actionable against the owners of the boat. Pendleton v. Kinsley, SS 395-398.

[NOTES.- See SS 399-469.]

son.

KIELLEY v. BELCHER SILVER MINING COMPANY.

(Circuit Court for Nevada: 3 Sawyer, 437-445. 1875.)

STATEMENT OF Facts. — Action for damages for injuries sustained by plaintiff, an employee of defendant, while engaged in their service, from the negligence of his fellow-servant, a blast being exploded in a mine without proper notice, by means of which plaintiff was greatly injured. There was a demurrer to the complaint.

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