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the liability incurred by her negligence. Ver- It is true, a witness, an engineer, says the dict and judgment for plaintiff. The defen- girl remained upon the siding two or three dant took this writ.
minutes before she was struck; but in events of GORDON, J.
this kind, time is at best but a mere matter of The case turns mainly on the fourth point. guess-work. Be this as it may, it is no serious The place where the accident happened was reflection upon the discretion of a child of her not in the open country but in a small village. age, that she waited and watched until the locoAt a point one hundred and six feet from the motive had stopped, and until, so far as she public road crossing there was an old and well could see, the track was entirely clear, even used foot-path leading over the railroad, and though standing upon the siding. To an ordiwhile attempting to cross by this path the nary observer not aware that the flying switch plaintiff ' was injured.
movement was about to be executed, her posiThe court below thought that a person using tion was one of no danger. “Even had she seen this path to pass over the tracks could not be the train moving upon the main track how regarded as a trespasser. We can discover noth- could she know that it would not continue on ing wrong in this conclusion. If this was a com- that track ?" How could this child tell that by mon and well known foot-pathi, used by the pub- a single motion of a lever the cars would be upon lic for many years, it must have been well her within a space of time measured by some known to the employees and officers of this ten or fifteen seconds. This would be too much company, and if, without let or hindrance, the to ask of a grown person, much more of one of use of it was permitted to persons desiring to such tender years. cross and recross the roadway, we cannot see Judgment affirmed. how one thus using it could be treated as a trespasser. Certainly if a private person had so
INJURY FROM DEFECTIVE SIDEWALKpernitted his land to be used an action of
DAMAGES. trespass by him against one passing over it without previous notice of prohibition would COURT OF APPEALS OF KENTUCKY. meet with but little favor. But we cannot in this respect clothe corporations with powers su- CITY OF LEXINGTON 0. AUGER, JR. perior to those of natural persons. Indeed, if we regard Penr.. R. R. v. Lewis, 29 P. F. S. 33, as
June 10, 1882. authority, even a trespasser may have some For injuries caused by falling into a hole in a sidewalk in rights which a railroad company is bound to
the city of Lexington, of which hole, members of the
city council had notice, the plaintiff recovered a judg. respect, a fortiori, as to a person who is on the
ment against the city for the sum of $500. That judge roadway by permission. To hold otherwise ment is attirnied. would be but a poor comment upon our civili
The quantum of damages in such a case is with the jury, zation and upon the wisdon of this court.
and they had the right to consider the physical suffer
ing of the plaintiffin estimating the amount of recovery. As the negligence of the employees having A drunken inan has the right to presume that the streets charge of the cars by which the injury. was done
and sidewalks of a city are safe tu passers thereon. there can be no doubt. A more perfect trap for PRYOR, J. destruction could scarcely have been devised. It is not material to the decision of this case The train designed for the flying switch is cut that an inquiry should be made as to the suttifrom the engine some three quarters of a mile ciency of the first paragraph of the appellee's from and out of sight of the crossing; the loco- petition. The second paragraph contains every motive is run forward and stationed directly essential averment necessary to constitute a across the foot-path; the train comes down at a cause of action, and the appellant only traverses rapid rute, and when within one hundred and the question of negligence. That the bole was fifty-nine feet of the place where the child stood, dug or was in the street, of which the appellant by some sleight of hand unknown to persons not had notice, is a fact admitted by the pleadings, skilled in the management of railroads, and and the sole question was, that of negligence on without warning of any kind, it is suddenly the part of the city authorities. The issue being turned on to the switch. When, in addition, formed as to the question of negligence, there we understand that the hands on and about this is no reason for reversing this case, if the testitrain paid no attention whatever to the track mony authorized the finding, and this involves upon which it was running, and that the engin- the question made by counsel for the city, on the eer actually saw the child in the act of ap- motion for a peremptory instruction. proaching and did nothing to warn her, we can- No exceptions were taken to any of the innot understand how any one can have the face structions by the appellant and, therefore, it is to say that there was no negligence on the part not necessary to discuss them. And one of the of those having charge of the train, or, indeed, grounds for å new trial being that there was no that they were not guilty of very gross negli- evidence to support the verdict, permits the ques
tion made by the peremptory instruction. As to the plaintiff's contributory negligence, It appears from the evidence that Broadway we can find no evidence of it; certainly not of street is one of the principal streets in the city, that conclusive kind which would require the and that in or near the pavement of the sidewalk court to take the question from the jury.
of this street, not far from the depot of the Cin
cinnati Railway, where foot passengers were in we refer accordingly. It is satisfactory the constant habit of passing, a hole three feet that at last a decision rather more in point has deep and two feet wide was dug for the purpose been reported which we find in last Saturday's of putting down a gasoline post; that this hole Law Times Millen v. Brash & Co. (45 L. T. (N. was dug about the middle of November by the S.) 653). And not only may that
case be directions of the city council, and left open an collated with those
collated exposed without any guard around it or near it in our papers on
remoteness of consequenor anything to notify the passer-by of his dan- tial damage, but on several special points in the ger. This hole, together with others, was left law of carriers, to which we have previously adopen for several weeks, although some of the verted, it will be found of importance, as incouncil, according to the testimony of a member deed, Lopes, J., indicated. of the police, had been notified of the danger. The defendants were carriers from London to It is true there was ample room on the sidewalk Rome; and on November 13, 1879, the plaintiff's for the traveler and he would have to make a agent delivered to them a trunk to be sent by diversion from the main path in order to reach rail from London to Liverpool, and then shipthe danger, still he had the right to use any ped in one of Bibbey's steamers for Italy. It part of the street, for the purpose of travel, and happened that the defendants had in their posthere was no excuse for the negligence on the session a case of paper goods (Christmas cards) part of the city in leaving these holes uncovered consigned to Mr. Hamburger, of New York; and for such a length of time. It is attempted to be by the carelessness of the defendants' servants, shown that the appellee was under the influence the trunk belonging to the plaintiff' was taken of liquor at the time the accident occurred, and to the Victoria Docks, and shipped as and for if this was even true, and it is not sustained by Hamburger's case to New York. The defendthe testimony, he had the right, although drunk, ants did not become aware of this mistake till to presume that no such danger existed in one about the 15th of December, following, on which
wrote to helpless condition the greater the necessity for the trunk arrived in New York. On the lith vigilance on the part of the city fathers in order of March, 1880, the miscarried trunk arrived at to prevent such injuries. The hole dug for this the defendant's offices, and, at the plaintiff's repost had been filled with snow and there was quest was netained there till June, and then denothing to apprise the appellee of his danger, livered to the plaintiff. The plaintiff afterwards nor was there anything from which a man of brought an action for £210 damages for the loss ordinary prudence had the right to suppose that of the trunk and injury to its contents. The the danger existed. The quantum of damage miscarriage and loss for the time were admitted, was with the jury. The testimony was heard as also that some of its contents had been injuras to the character of the wound, and while the ed in New York, owing to the custom house offiactual expenses incurred, including the loss of cer unpacking the trunk, and negligently and time, might not have exceeded one hundred unskillfully repacking it.' It was further admitdollars, the physical suffering of the appellee had ed that certain silk dresses and a sealskin jackto be considered in estimating the amount of re- et which it contained were articles within the covery, and with the proof on this subject we are Carriers Act, that their value exceeded £10, and not prepared to say that the verdict was the that no declaration had been niade. The jury result of prejudice or passion. The judgment was discharged by consent, and all questions of below is therefore affirined.
law and fact were left to the decision of Lopes, The judgment appealed from and affirmed in J., who presided at the trial. the amount of this case was for $500.
damages, in case the plaintiff was entitled to a
verdict, being agreed upon, including the sum LOSS OF GOODS BY CARRIERS. of £10 for the re-purchase by the plaintiff of
certain other articles of clothing in Rome at In the case of Eyre v. Midland Great Western enchanced prices, to replace those contained in (of Ir.) R. Co., recently decided by Harrison, J., the trunk. on appeal, it appeared that a railway passenger The defense rested on the Carriers Act. It in consequence of the non-arrival of his luggage, was, in the first place, contended on behalf of Hrad been obliged to purchase various personal the plaintiff, that the act did not apply, because necessaries in substitution for those which were the loss was temporary and not permanent. detained; but in the award of damages nothing Lopes, J., however, observed that there was was included for this consequential loss. This nothing in the act or in the authorities to justirather surprised us at the tiine, but on inquiry fy the placing of so narrow a construction on we ascertained that no claim in respect of those the word "loss," and in his opinion, it was iminaarticles had been pressed for. We made some terial whether the loss was temporary or absoresearches for authorities on the subject, but Jute, and, not being delivered within a reasonacould find none directly in point-the nearest, ' ble time, the trunk and its contents were lost to which, however, are distinguishable, being the owner within the meaning of the act. He British Columbia Saw Mill Co. 'v. Nettleship cited no decision on the subject, but the reader (L. R. 3 C. P. 499; 37 L. J. C. P. 235) and Wal- will do well to refer to Hearn v. London, etc R. ton v. Fothergill, (9 C. & P. 394) and to those | Co., (10 Ex. 793; 24 L. J. Ex. 180) holding that
“ loss" within the act means total loss, and does That was a case where a passenger, delayed in not apply to protect the company from liability his journey by the want of punctuality in the for consequential lors by reason of delay in de- arrival of the defendants' train, sought to relivery; while in Wallace v. Dublin, etc. R. Co., cover the costs of a special train which he had (8 Ir. L. T. Rep. 163) a plea excusing delay in engaged. Mellish, L. J., said: “Now one mode delivery upon the ground of a temporary loss of of determining what, under the circumstances, the gooils, while in charge of the defendants, was reasonable, is to consider whether the exwas held a good answer to an action for not dependiture was one which any person in the po livering within a reasonable time. In the next sition of the plaintiff would have been likely to place, the plaintiff contended that the act did incur, if he had inissed the train through not apply, because the defendants were not car- his
fault, and not through the riers of the trunk by land, the trunk having fault of A railway company. I think been accepted to be carried partly by land, and the plaintiff would have gone to the same partly by sea. But Lopes, J., rightly held that expense and bought the same articles for the the contract was divisible, and that the trunk use of his wifė if there had been no railroad was lost, within the meaning of the act, directly company to look to, and if the trunk had been it was on the road to the Victoria Docks instead lost by his own fault. There was nothing exof to Liverpool. As an authority for this posi- travagant or unreasonable in his so doing. I tion he referred to Le Conteur v. London, etc. R. do not think these damages too remote.” This Co.; (L. R. I. Q. B. 54) to which we may add conclusion seems to us to be fortified by the cas references to Pianciani v. L. & N. W. R. Co.; (18 es of Walton v. Fothergill and British Columbia C. B. 225) Baxendale v. Great Eastern R. Co.; (L. Saw Mill Co. v. Nettleship, to which we referred R. 4 Q. B. 244) Moore v. Midland R. Co.; (8. Ir. at the outset; the former case seeming to hold L. T. Rep. 165) Duolan v. Midland R. Co.; (L. that, if the plaintiff
, in order to perform a conR. 2. H. L. 792) and London, etc. R. Co. v. James. tract, was forced to buy other goods at an in(L. R. S. Ch. App. 241.) Again, it was contend.creased price, in consequence of the non-arrival ed by the plaintiff that the defendants were not of those which the defendant had contracted to entitled to the protection of the act, because they carry, this would be such a natural result of the were wrong doers—wrong doers in that they defendants' neglect as to entitle him to recover sent the trunk on the wrong road and not on his loss; while in the latter case the court conthe journey contracted for. But Morritt o. sidered the plaintiffs entitled to recover the sum North Eastern R. Co., (1 Q. B. D. 302) affords an necessarily expended in replacing the lost box answer to that objection ; Blackburn, J., saying: of machinery there in question. Nor can we "Unless it is proved the misdelivery was inten- any longer deem it doubtful that in Eyre o. tional, the case is within the act;" and Mellish, Midland Great Western R. Co., (15 Ir. L. T. 291) L. J. saying: "If goods by negligence of the “
the plaintiff would have been entitled to recarrier are carried beyond the point of destina- cover for the loss incurred by having to replace tion and injured, this is within the Carriers the personal necessaries contained in his trunk. Act."
- Irish Law Timcs. But, lastly, remained the question whether the plaintiff was entitled to recover the £10 for repurchase of other articles in Rome at enhanced prices, irrespective of the Carriers Act-the plaintiff contending that the act did not apply
IOWA. to that part of his claim. “I think the plaintiff is right,” said Lopes, J., “for this is not a
(Supreme Court of Iowa.) loss by the carrier of the trunk, nor an injury to its contents, but damages sustained by the own
CRAIG 0. FOWLER. July 13, 1882. er in consequence of the non-delivery within Writ-Officer-Fund.-A writ in the hands of good time; it is something consequential to its an officer does not authorize him to seize proploss. I do not think this £10 is within the proerty belonging to another than the defendant tection of the Carriers Act. But the defendants numed in the writ. In such case he is a tressay if it is not within the protection of the Car
passer, and such owner has a valid claim against riers Act, this portion of the claim is too remote. him and a right of action for the value of the Much depends on whether it was a reasonable goods seized. and necessary act of the plaintiff to buy these The burden of proof of fraud is on the party articles in Rome. This is a question of fact alleging it, and fraud, or knowledge or participawhich I have to decide, and I think it was both tion in fraudulent designs or practices, is usually the reasonable ånd necessary consequence of de proved by facts and circumstances, and the exfendants' failure to deliver, that plaintiff should clusion of such evidence, when it tends to es
, purchase what he did in Rome--a necessity tablish fraud, is erroneous. arising from the non-delivery of a trunk which An instruction to the affect that if a wife held the defendants might fairly assume contained an honest claim against her husband she could wearing apparel. The observations of Mellish; not use it for the purpose of hindering or delayL. J., in the case of Le Blanch v. London, etc. Ring other creditors, implies that though she Co., (1 C. P. D. 286) are not inapplicable here. holds an honest claim, she could not, under pre
Digest of Decisions.
tence thereof, cover her husband's property so as Eastern parties bought cotton in Arkansas, which to defeat or delay his creditors, and is substan- he left at the defendant's railroad de pot, taking tially correct.
receipts for the same, but gave no orders for its Any fraud of the husband in encumbering or shipment, and the railroad company, without disposing of his property cannot affect the wife's any authority from such agent, shipped the same rights, unless she knew of and assented to the to 'Waterville, Maine where the Maine Central fraud and aided in the particular fraudulent Railroad Company delivered the same to a person transaction.
for whom it was not bought. On learning the
facts the defendant railroad gave a bill of lading RICHARDSON Bros. v. PETERSON. JULY 11, 1882. agreeing to transport the cotton to the person for
Landlord's Lien on Chatlles.-The landlord's whom it was bought in Connecticut, at the conlien given by statute is a charge upon the tenant signee's cost and expense, which was not done, to secure the rent due under the lease, and it the person receiving the cotton refusing to give cannot be defeated by the sale or removal | it up, claiming it was bought for him. The agent thereof.
drew a draft on his principal, to which he atIf a statute creating a lien provides for no pro- tached the bill of lading properly, assigned, tection in favor of persons having no notice which was paid by the principal, and the latter thereof, property subject thereto cannot be trans- brought suit against the defendant railroad for ferred free of the lien on the ground that the the value of the cotton, and recovered. It was purchaser has no notice of its existence.
contended that the consignee should have sued Horses kept by a tenant for use on a farm and the Maine Central Railroad and not the defennot for sale, according to the tenant's ordinary ant; held, that while he might have waived the business, are subject to the landlord 's lien. defendant's contract and have sued the other
company for a conversion or the person receivELLIS 0. ELLIS. JULY 11, 1882.
ing the cotton, he was under no obligation to do Where a wife had no knowledge that her hus- so, and that the recovery against the defendant band, living apart from her had married again, was warranted. or was cohabiting with another woman, until
4. Estoppel- To assert facts that would defeat after his death, and there is no evidence tending transfer of property by un assignment of a bill of ladto show that she did not at all times regard the ing.—While it inay be that property in the admarriage as an existing fact, no presumption can
verse possession of another is not transferable 80 be indulged that he had procured a divorce. A
as to pass the title, yet where a railroad company subsequent marriage will not raise the presump
gives a bill of lading reciting that the property tion of a divorce from a prior marriage.
is then lying in a depot at a certain place and
agrees to forward the same to the consignee, and ILLINOIS.
others advance money on the faith of such bill of
lading, which is assigned by the shipper, the (Supreme Court.)
railroad company will be estopped as against
such persons from showing that at the time of The St. Louis & IRON MOUNTAIN RAILROAD COM- giving such bill of lading, and its indorsement
PANY 0. RUSSEL M. LARNED. JUNE 21, 1882. the goods were in the adverse possession of an. 1. Carrier-Liability beyond its own line of con
other person, so as to defeat an action brought
by the consignee so advancing money on the veyance.—While it is true that a railroad carrier
bill of lading. may restrict its liability to its own line, there is no doubt that it may extend its liability beyond
PENNSYLVANIA. its own line. 2. So, where a railroad company in its own
(Supreme Court.) wrong shipped a lot of cotton from its depot in Arkansas to Waterville, in the State of Maine, be
Perry's APPEAL. April 3, 1882. yond the terminus of its road, and on the applica- Partnership-Dissolution, Authority of Liquidation of the agent purchasing the cotton, gave him ting Partner.—Where a liquidating partner is a bill of lading containing a printed stipulation, given, by the articles of dissolution, authority restricting its liability, to its own line of road, to settle claims due to the firm, by allowing a naming the number of bales and containing this deduction or otherwise, and the late firm has entry written
in a blank : “to be forwarded from be
beer in the habit of selling on credit, the liquiWaterville, Maine, (where the cotton is now ly- dating partner may dispose of the firm's assets ing), at consignee's expense. All charges for
upon credit; and will not, so long as he acts in transportation to that point, and necessary good faith, be held liable for a loss arising to the charges to be paid by him," and the oral evi
firm from an injudicious allowance of credit. dence showed it was to be transported to Putnam, Connecticut, it was held that the company was SUMMIT GROVE CAMP-MEETING ASSOCIATION V. liable to the assignee of the bill of lading, the
SCHOOL DISTRICT OF NEW FREEDOM. May 29, consignee, for the value of the cotton, on account 1882. of its non-delivery at Putnam.
1. . Taxatron-Exemption-- Actual Place of Reli3. Which of two carriers liable. -An agent for 1 gious Worship. - Buildings upon a camp-meeting
CIRCUIT COURT OF THE UNITED
ground, other than the one actually used for religious meetings, such as a boarding house,
store, and dwellings, though only used in campmeeting time and by the attendants thereat, are not exempt from taxation.
2. Ibid.-Ibid.- Exempt and Unerempt Portions of Same Property. Even if the building appropriated to religious services is exempt, yet where There is no evidence given by which the tax can be apportioned, the entire tax assessed should be sustained.
(District of Oregon.)
A. H, TANNER V. THE DUNDEE LAND INVESTMENT
COMPANY AND WILLIAM REID. JULY 5, 1882.
Interest on Note. When a note is made payable at a future day “with" interest at a prescribed rate per annum, such interest does not becomo due or payable until the principal sum does, unless there is a special pro. vision in tho noto or contract to that effect.
Specific Performancc.-A contract to convey real property will be specifically enforced as prayed for by the plaintift where its terms are admitted by the defendant, and the only objectiun made to such performance is based upon a construction of the contract, as to the part to be performed by the plaintiff, which in the judginent of the court is unsupported by the language of the contract or the circumstances of the case.
W, S. CHAPMAX v. E. P. FERRY AND EUGENE WHITE.
JULY 10, 1882. Discovery.-A demurrer will lie to an allegation in a bill, the answer to which may subject the defendant to anything in the nature of thë ponalty or forfeiture-as an allegation concerning the number of copies sold and on hand of a pirated map.
Penalties anl Forfeitures.-Tho penalties and forfeitures given by Section 4965 of the Revised Statutes (17 Stat. 214), for an infringement of a copyright, cannot be enforced in a suit in equity; and a prayer in a bill, that the plate and unsold copios of a pirated map be de livered up to an officer of tho Court for cancellation and destruction is demurrable, as asking the enforcemeut of such forfeiture.
Damages.—Damages as well as profits may now be recovered in a suit in equity for an infringement of a patent, but not a copyright.
STATE v. Roten. February, 1882. Criminal Law-Carrying Concealed WeaponsU pon trial of an indictment under the Act of 1879, c. 127, for carrying a weapon concealed, it was shown that defendant had two pistols buck. led around him without scabbards and naked on a belt, on the outside of his clothing. Held, that defendant was not guilty, the presumption of concealment raised by the statute being rebutted. Held, also, if the privilege of carrying arms in this manner should be abused, the party would be liable to indictment at common law.
John CONNEL KING v. A. Y. HAMILTON. JUNE 21, 1882
Promissory Note.--A note of 500 pounds sterling is payable in a certain sum of “money," and, therefore, iegotiable and prima facie made upon a sufficient con. sideration.
Pound Sterling.-By section 2 of the Act of March 3, 1873 (11 Stat. 603 ; Sec. 3565, R. S.), it is provided that, “in the construction of contracts payable in sovereigns or pounds sterling," each pound shall be valued at $4.86.6%. Held, that in an acīion upon a note payable in pounds sterling, it is not necessary to aver or prove the value of such pound in money of the United States, but that t'ne Court will give judgment for the value of the contents of the note in money of the United States, according to the ratio prescribed by the statute.
TERRITORY OF UTAH.
SARAH SKEWES v. BALLARD 8. Dunn, JULY 7, 1882.
Practice-Substitution-Party in Interest.-Where an acSUBLETT V. CARY. March, 1882.
tion has been commenced in the Justice Court in the
name of the husband, and judgment given for him, it is 1. Atlachment- Motion to abate Onus. — On error for the District Court to substitute the wife as motiou to abate an attachinent for having been plaintiff upon the petition and affidavit of the husband issued without cause, the onus is on the plaintiff that she is the true owner of the original demand, and to show sufficient cause.
to her; the action was not begun by the real party in
interest. 2. lbid
ibid - Existence of Grounds for AttachmentMere Belief.-It is the existence of the probable
Id.--Evidence-. Husband and Wife.- Assuming that
the husband was the owner of the potes sued on, and fact sworn to by the affiant in the affidavit to therefore had an assignable interest in the judgment, he obtain an attachment, and not his mere belief would have no right to substitute his wife as plaintiff that the fact exists, which justifies the remedy
in order that she might testify in support of the claim of attachment.
which she could not have done bad her husband remained plaintiff,