$58. The plaintiff had been notified of a defect in the track. He started with his push-car on the track, loaded with tools necessary to work the repairs. The crew pushed the car while he stood on the front of it, on the look ahead. Several stops were made, at his direction, to listen for an approaching train. While passing through a cut, which to some extent obstructed his view of the track in front, the plaintiff saw ahead of him smoke ascending from the engine of an approaching train, distant about one-fourth of a mile. He immediately jumped from the car, ordered his crew to get it from the track for the unobstructed passage of the engine and cars of the train. While the train was passing it struck the push-car, and it was thrown so violently against the plaintiff that his leg was broken. He ran the push-carup into the cut, where he could not see nor hear an approaching train in time to remove the car from the track, without protecting himself by a flag-man in advance of his car to give the signal of danger. Held, that the plaintiff was guilty of such negligence as to bar his recovery. Callahan v. Louisville & Nashville R. Co.,* 11 Fed. R., 536.

§ 59. A day-laborer was employed with others in repairing the road of defendant company. A box-car was provided for him to ride in and he was forbidden to ride on the pilot of the engine. Nevertheless, he and one other did so ride and were hurt in a collision from which those in the box-car escaped without injury. Held, that he was guilty of contributory negligence and could not recover, even though the foreman knew he was riding on the pilot. Railroad Co. v. Jones,* 5 Otto, 439.

§ 60. Assuming that a mining company is negligent in not providing rules and signals to notify its employees of a blast about to explode, still an employee who knows what these rules and signals ought to be, and goes to work knowing that they are not given, takes the risk of injury for want of them, and cannot recover if he is hurt. Kelley v. Belcher S. M. Co.,* 3 Saw., 500.

§ 61. It is not contributory negligence on the part of a brakeman to rush in between two cars for the purpose of coupling the same without first examining the condition of the drawbars. He has a right to assume without inspection that the cars he is required to couple are in a proper state of repair for handling. King v. Ohio, etc., R. Co.,* 15 Cent. L. J., 367. § 62. in crossing railroad track.— The neglect of the engineer of a rallroad locomotive to sound its whistle or ring its bell on approaching a street-crossing does not relieve a party from the necessity of taking ordinary precautions for his safety. He is bound to use his senses, to listen and look before attempting to cross the railroad track, in order to avoid any possible accidents from an approaching train. If he omit to use them, and walk thoughtlessly upon the track, he is guilty of culpable negligence, and if he receive any injury, he so far contributes to it as to deprive him of any right to complain. If, using them, he sees the train coning and undertakes to cross the track instead of waiting for the train to pass, and is injured, he must suffer the consequences of his mistake. If one chooses in such a position to take risks he must bear the possible consequences of failure. Chicago, Rock Island, etc., R. Co. v. Houston, 10 Ch. Leg. N., 139; Railroad Co. v. Houston, 5 Otto, 697; 12 West, Jur., 206. § 63. The crossing where the injury complained of occurred was one with which plaintiff was familiar and which he had often passed. It had the usual sign, "Look out for the cars," and the highway and the railroad were nearly on a level. Twenty rods from it, in the d:rection whence came the train, was the nearest depot. Over six hundred feet of track in this direction were in full view of plaintiff if he had looked, but he did not, and was injured. Held, a nonsuit was proper. Schofield v. Chicago, etc., R. Co., 12 Rep'r, 547. See §§ 306, 307. § 64. Failure to look and listen at a railway crossing is negligence. Tucker v. Duncan,* 13 Rep'r, 101.

65. A., having crossed the track of defendant, met a friend on the adjacent track of another road, parallel to that of the defendant. With this friend he turned back to defendant's track and engaged in conversation while a long train, running at a slow rate of speed, was passing on the adjacent track. After the departure of the friend, A. was killed by the backing up of a switch-engine of defendant's, which he did not hear by reason of the noise of the passing train. Held, that A.'s conduct was not an act of negligence which the law would recognize as such, but that the matter was proper for the consideration of the jury. Kansas Pac. R'y Co. v. Twombly,* 3 Col. T'y, 125.

8 66. in getting on and off trains.- Plaintiff, a woman, was about to descend from the steps of a car platform on a railway train to the depot platform. Upon the latter were some pieces of ice, some of which she admitted to have seen before descending. As she alighted she placed her foot upon a piece of ice, slipped, fell and was injured, subsequently bringing an action to recover damages for injuries sustained. Contributory negligence was urged in defense. Held, that the question of contributory negligence is for the jury. And in deciding this question the jury should consider the degree of light, the time of day, the fact that she saw part of the ice, and her position when she first saw it. Seymour v. Chicago, etc., R. Co.,* 3 Biss., 43.

§ 67. As a train drew up at a station and while yet moving slowly, three passengers left it, reaching the station platform in safety. A fourth passenger was about to alight, when the car, upon the step of which he stood, received a sudden jerk forward, in consequence of which he was violently thrown upon the station platform and injured. At the time he was about to step from the car the train had apparently almost ceased to move. He subsequently filed a petition praying compensation for the injuries sustained. Held, that petitioner had been guilty of contributory negligence in attempting to alight from the train while moving and was therefore not entitled to recover. Secor v. Toledo, etc., R. Co.,* 10 Fed. R., 15. § 68. on part of infants - Proximate cause.— A boy, four years of age, playing with other boys about two blocks from his home, fell into a deep, unguarded excavation made in a public street by defendant and used by it as a tunnel, and received severe but not permanent injuries. Held, that defendant was liable, and that there was no contributory negligence imputable either to the child or its parents. Morgan v. Illinois, etc., Bridge Co.,* 6 Rep.,

707.

§ 69. A father is bound by law to maintain and protect his children. He is authorized to exercise the necessary restraint and control over the child to accomplish this responsible duty. But this duty is owing by the father to the child, and if he fails to discharge the duty, and a a child wanders off and is injured by the negligence of a third person, the negligence of the father will not excuse the negligence of the person whose negligence caused the injury complained of. Stout v. Railroad Co., 11 Am. Law Reg. (N. S.), 227. See § 318-20.

§ 70. Where a child, four years of age, having wandered from home, fell into an unguarded excavation in a public street and was injured, on petition for damages contributory negligence was set up in defense. Held, that a child of petitioner's tender years was incapable, in law, of contributory negligence, and that negligence was not imputable to his parents for permitting him to wander from home. Hagan's Petition,* 5 Dill., 96.

71. A father with his son, ten years old, took passage on a train that did not usually stop at Salem, but which, they were assured by the superintendent, who was on the train, would stop there on this occasion. It arrived there a little after dark, and father and son got on the steps of the car, and, both being somewhat incumbered with baggage, were preparing to jump off, against the warning of the superintendent not to get off until the train stopped. They did so, however, and the boy was injured. Held, that while the negligence of the father might not be imputable to a child of such tender years, yet where, as in this case, the father's negligence was the proximate cause of the injury, the child could not recover therefor. Ohio, etc., R. Co. v. Stratton,* 3 Cent. L. J., 415.

$ 72. doctrine of contributory negligence. If a boat passing through a bridge is injured by the carelessness of those in charge of her the owners cannot recover damages therefor. Columbus Ins. Co. v. Peoria Bridge Co., 6 McL., 70; Jolly v. Terre Haute D. B. Co., 6 McL., 238.

§ 73. A railroad employee, injured while making a coupling, cannot recover damages if guilty of contributory negligence. Graville v. Minneapolis, etc., R. Co.,* 3 McC., 352.

§ 74. Where the alleged negligence in no degree contributes to the happening of the accident; where the latter arises solely from the negligence of the defendant; when it is doubtful whether any degree of negligence on the part of the plaintiff would have materially diminished the consequences of defendant's fault, and the extent to which this might have been so diminished is incapable of ascertainment, such negligence cannot be set up to defeat the action or to mitigate the damages. Bowas v. Pioneer Tow Line, 2 Saw., 29.

§ 75. At common law any negligence of the plaintiff contributing to the accident or injury defeats a recovery; but not so in admiralty. Then, where both parties are at fault, the court apportions the damages between them according to justice and equity, having due regard to the degree of negligence imputable to each; so that in admiralty a party in fault may recover of another party whose negligence contributed to cause the injury a portion of the damages, while at common law a defendant must pay all the damages or none. McCord v. Steamboat Tiber,* 7 Ch. Leg. N., 363.

§ 76. One who by negligence has brought an injury upon himself cannot recover damages for it. But where the defendant has been guilty of negligence, also, in the same connection, the result depends upon the facts. The question in such cases is (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or (2) whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. Balt. & P. R. Co. v. Jones,* 10 Ch. Leg. N., 121.

§ 77. A plaintiff who was injured while riding on the pilot of an engine when he might have ridden in a box-car behind the engine is guilty of such contributory negligence as precludes a recovery. Ibid.

§ 78. In actions for damages for injuries to plaintiff arising out of the negligence of a city, it must be proved to the satisfaction of the jury: 1st, that the city was guilty of negligence; and 2d, that the plaintiff by his want of care did not contribute to his own injury. Clark v. City of Chicago,* 4 Biss., 486.

$ 79. when for jury to determine.- Where a drover riding on a railroad locomotive was thrown from the same and injured in consequence of a misplaced switch, the engineers of the road having frequently allowed drovers to ride on their engines, it was for the jury to determine whether it was contributory negligence to ride on the engine, or whether the railroad company had by its conduct held out its employees to the plaintiff as authorized under the circumstances to consent to his being carried on the engine to look after his cattle. Waterbury v. New York Central, etc., R. Co.,* 16 Rep., 514.

§ 80. It is for the jury to decide whether a passenger standing up in a car just before reaching the end of a journey is negligent or not. Railroad Company v. Pollard, 22 Wall., 341. § 81. The jury may decide whether failure to ring the bell or blow the whistle of a locomotive at a crossing was negligence or not. Thomas v. Delaware, etc., R. Co.,* 12 Rep., 739.

§ 82. Although the court properly instructed the jury that the failure to ring the bell of a switch-engine on approaching a switch-engine was negligence, it was not improper for the court to leave for the jury itself to decide whether two ladies run down by the engine at the crossing were guilty of contributory negligence in not looking up and down for the approaching engine. Whiton v. Chicago & N. W. R. R. Co.,* 2 Biss., 282.

$83. Fires.- Where a vessel set fire to property on land by means of sparks proceeding from the smoke-stack, in determining the liability of the vessel for the property destroyed, held, that reasonable care is that which is required of those who have the management of steam-vessels in all cases. The specific acts which constitute reasonable care must depend upon the circumstances of the particular case, and is solely a question for the jury; and if such care and caution was exercised as a man of ordinary prudence would exercise, that is all the law requires; and if such care and prudence is exercised, and yet the fire is produced, the disaster is one which implies no liability upon the vessel-owners. King v. American Transportation Co.,* 1 Flip., 1.

§ 84. An elevator on the bank of the Mississippi river was set on fire by sparks issuing from the smoke-stack of a steamboat. At some distance from the elevator, and separated by a vacant space, were the plaintiff's lumber-yard and mill. Owing to the high wind, the fire was communicated from the elevator to the mill and lumber, and they were destroyed, for which plaintiff brought suit against the owners of the steamboat. Held, that it is a question for the jury to determine, under all the circumstances of the case, with the wind blowing, the inflammable character of the elevator, the combustible material of which it was composed, and, on the other hand, the distance between the elevator and the mill and lumber, and from all the evidence and circumstances before it, whether the burning of the mill and the lumber by the fire from the elevator was a consequence usually and naturally to be expected; whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator, and whether the burning of the elevator was the result of sparks from the steamboat. Kellogg v. Milwaukee & St. Paul R. Co.,* 5 Dill., 537. § 85. The defendant was owner of an elevator on the bank of the Mississippi river and also of a steamboat used in transferring cars and barges. The steamboat had no spark-arrester and the exhausted steam escaped through the smoke-stack. The plaintiff was owner of a mill and lumber-yard near the elevator; the space between them and the elevator was vacant. The elevator was unused, its spouts open, and no watchman around it. The steamboat in course of occupation moved alongside of the elevator; the wind was high, and the elevator took fire by reason of sparks from the steamboat, and from it fire was communicated to plaintiff's mill and lumber-yard and they were destroyed. Plaintiff brought action against defendant on the ground of negligence to recover the value of the mill and lumber. Held: (1) That no negligence could be laid against the owners of the boat because they permitted the steam to be emitted through the smoke-stack. (2) That because the defendants were not using the elevator at the time was no reason why they should be called upon to keep a watchman, nor was the fact that the spouts were left open negligence. (3) That, concerning the use of a spark-arrester, it is for the jury to consider, under all the circumstances, what has been found to be generally used by prudent and careful men in the management of vessels and steam-power, the general usage, the experiments made, and the opinions of those who have used the spark-arrester. And it is for the jury to say, under all the circumstances, whether there was any duty imposed upon the defendant to have a spark-extinguisher on its vessel at the time this fire occurred. (4) That while the owners of the boat had a right to use their vessel to get the barge away, to get up to the proper landing-place, yet they were bound to have a due regard to the risk, to the danger that they might possibly set fire to the elevator and burn it, and not only burn the elevator but other men's property. If they used due

diligence and due care then they were not responsible, although the sparks from the boat may have set fire to the elevator, and from that fire the mill and lumber were burned. Ibid. § 86. The plaintiff brought suit to recover damages for losses suffered by the burning of his shop and lumber. The plaintiff alleges that the fire was caused by sparks from the engine of the railroad train passing by the shop. The track was distant forty feet from the shop, and the fire was first seen about five minutes after the train had passed, in an upper story, in the corner of a room that had a window with a broken pane of glass. The window was closed, but it is alleged that sparks from the engine entered the aperture through the broken pane of glass. It was shown in the evidence that a light wind was blowing from the railroad toward the shop, and that the railroad had the best spark-arresting apparatus in use on its engine. The shop was attached to an engine-house full of combustible material, with a stove in it, and frequented by workmen who smoked pipes or cigars and carried matches. The fire caused by sparks from the engine was not proved by positive testimony, but was only claimed to be established by circumstances. Held, that the company was not negligent, and it not being shown that the fire could not have been caused in any other way, the evidence was inconclusive and the company not responsible. Musselwhite v. The Receivers,* 4 Hughes, 166. § 87. Miscellaneous. The direct or remote consequences of the act or conduct may determine whether the action shall be trespass or case, but cannot alter the principles of the law of negligence under which the liability is to be enforced. The Nitro-Glycerine Case, 15 Wall., 538.

§ 88. The boiler of a steamer exploded, causing the death of the second clerk of the boat. His widow sued for compensation. The court held that there had been negligence, on the part of those in charge of the boat, in not having a test of the boiler after a burnt sheet had been replaced by a new one; that the laws of the United States, in relation to the inspection of boilers for steam-craft (sec. 4418, R. S.), fairly construed, require such test the same as is required of a new boiler. Posey v. Scoville,* 10 Fed. R., 140.

§ 89. The theory that there are three degrees of negligence, slight, ordinary and gross, held of doubtful utility, and authorities examined in regard thereto. Steamer New World v. King, 16 How., 475 (§§ 14–17).

§ 90. Where the screw of a propeller becomes entangled with a cable laid across a river, and those in charge of the vessel, being persons of skill and judgment, act according to the best judgment they are able to form and in good faith in endeavoring to free the screw from the cable, the fact that the means they resort to are not well adapted to the purpose does not entail a liability upon the vessel on the ground of negligence. Stephens & Condit Trans. Co. v. Western Union Tel. Co.,* 8 Ben., 502.

$91. After the screw had become entangled in the cable, there appearing to be no other way open but to break the cable, it was, as was supposed, broken and the vessel considered to be clear. When about to start off the next morning the employees of the telegraph company appeared and offered to free the cable. This was refused, being unnecessary, as was supposed, and the vessel moved off. But the vessel was still fast, and the cable parted when the strain came upon it. Held, that the refusal of the offer did not cast upon the propeller the responsibility for what occurred. Ibid.

§ 92. Negligence of the captain and crew of a vessel, whereby it ran ashore and was lost, exonerates the insurance company from payment for the loss under its policy of insurance. Howland v. Marine Ins. Co., 2 Cr. C. C., 474.

II. ACTIONS FOR CAUSING DEATH.

SUMMARY At common law, § 93.— In admiralty, §§ 94-96.- Suit by administrator, § 97.In Louisiana, § 98.--- Action not maintainable by insurance company, § 99.- Suit by father for death of minor son, § 100.- New York administrator suing in New Jersey, § 101.- Death instantaneous, § 102.— In Nevada; pleading, § 103.- Executor of suicide, $104.

§ 93. No right of action existed at common law for the death of a human being. In the United States this principle is not so well settled as in England, yet the weight of authority is to the same effect. The Chas. Morgan, §§ 105–107.

§ 94. The admiralty courts of the United States will take jurisdiction of an action by a wife for death of her husband.

Ibid.

95. Though no action is maintainable at common law for the death of a person it is not so in the civil law; and since this law furnishes the basis of the admiralty law of this country such an action may be maintained in the United States court in admiralty. More than this,

the statutory right of action for death may be enforced in admiralty. Holmes v. Oregon & Cal. R. Co., §§ 108-127.

§ 96. Where a tort is committed upon navigable waters of the United States it is a marine tort, cognizable in the United States district court in admiralty. Ibid.

§ 97. An Oregon administrator may sue in a United States court of admiralty sitting in that state for the death of his intestate. Ibid.

§ 98. In Louisiana only widow and children of deceased can recover for his death. Insurance Co. v. Brame, §§ 128-130.

§ 99. An action is not maintainable by an insurance company for the amount of its policy on the life of a person which the company was obliged to pay, owing to the death of the assured by defendant's act. Ibid.

§ 100. Where a father sued for the loss of services of his minor son, and for special damages which were occasioned by his death through the negligence of the defendant, held, that the common-law rule that an action for death dies with the person did not apply. Sullivan v. Union Pacific R. Co., §§ 131-139.

§ 101. An administrator of New York cannot go into a New Jersey court and there recover, under a New Jersey statute, for the killing in that state of his intestate. Mackay v. Central R. Co., § 140.

§ 102. The fact that death was instantaneous, giving no time for the action therefor to accrue to the deceased, does not prevent the survival of the action to the next of kin under the Nevada death act. Roach v. Consolidated Imp. M. Co., §§ 141-143.

§ 103. Under the Nevada act giving damages for death it is not necessary that the complaint should state as ground of recovery the pecuniary injury done kindred by the death. Ibid.

§ 104. The executor of a suicide cannot recover of a railway company damages for having negligently inflicted upon him an injury which produced mental disorder and illness eventually leading him to take his own life. Scheffer v. Railroad Company, § 144. [NOTES.-See §§ 145-167.]

THE CHAS. MORGAN.

(District Court for Ohio: 2 Flippin, 274-278. 1878.)

STATEMENT OF FACTS.— Libel in rem by a widow to recover damages for the killing of her husband. Plea to the jurisdiction on the ground that no action will lie at common law in such a case.

§ 105. No right of action existed at common law for the death of a human being.

Opinion by SWING, J.

From an examination of the English authorities it is very clear that no right of action existed at common law for the death of a human being. This doctrine is first announced in the case of Higgins v. Butcher, Yelv., 89, which was an action brought by the husband for the death of his wife. Then came the celebrated case of Baker v. Bolton, 1 Camp., 493, which was also an action brought by the husband to recover damages for the death of his wife. These are all the cases we have been able to find prior to the passage of Lord Campbell's act in 1846. But that this was the recognized doctrine is shown by the preamble of the act, which recites that "whereas no action at law is now maintainable against a person who, by his wrongful act, neglect or default, may have caused the death of another person," etc., and the act then proceeds by its provisions to such right of action. This is further shown by the case of Glaholm v. Barker, Law Rep., 1 Ch. App., 226, in which Lord Justice Turner said: "Lord Campbell's act first introduced into the law of this country a remedy in case of injuries attended with the loss of life. The law up to the time of the passing of this act stood thus: that in case of death resulting from an injury, the remedy for the injury died with the person." The same doctrine is maintained in Osham v. Gillett, 8 Exch., 88, and in Bac. Abr., "Master and Servant," O; Blake v. Midland R'y Co., 18 Q. B., 93. In fact we have