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BET TOWN AND SOMERVILLE RAILROAD COMPANY, by seems to us however that the case of Hitchcock v.
JOHN KEAN, President:" "$500.00. ELIZABETH Buchanan, supra, controls the case at bar. May 14,
Town, September, 1841. Six months after date, please 1888. Falk v. Moebs. Opiniou by Lamar, J.
pay to the order of the Elizabethtown and Somerville
Railroad Company, five hundred dollars, value re-
ceived, and charge as ordered. Your obed't serv't,
JOHN KEAN, President Elizabethtown and Somerville

R. R. Co.,"-wag held to be ambiguous on its face,

CISIONS. not clearly showing whether Johu Kean individually or the railroad company was the drawer, and proof CARRIER-OF PASSENGERS-EJECTION OF PASSENGER was admitted, iu the language of the court, “pot to -DAMAGES. -.Where a passenger is rightfully in a railaid in the construction of the instrument, but to prove road car, in the possession of a ticket entitling him to whose intrument it is.'' To the same effect see Chad ride on that trip and train, and is deporting himselt Bey v. McCreery, 27 III. 253; Vater v. Lewis, 36 Ind. | in a becoming and proper manner, and presents bis 288; Hood v. Hallenbeck, 7 Hur, 362. Bank v. Bank, ticket to the conductor when called upon therefor, but 5 Wheat. 326, is also claimed to be an authority in is informed by the conductor that his ticket will not favor of the position taken by the plaivtiffs in error. be honored, because the time to ride thereon has exThis was an action of assumpsit brought by the bank pired, and that he must either leave the train or pay of Columbia against the Mechanics' Bank of Alexan | bis fare, and not having any money, he does not pay dria on the following check: “No. 18. MECHANICS' | the fare demanded, and thereupon the conductor takes BANK OF ALEXANDRIA, June 25, 1817. Cashier of the hold of his ooat-collar and leads him out of the car to Bank of Columbia : Pay to the order of P. H. Minor, the platform of the station; and when off the car, a Esq., ten thousand dollars. $10,000. WM. Paytox, friend of his gives him money to pay the extra fare, Jr.” It was contended by the defendants that the | and the conductor accepts the fare, and then permits check on its face was the individual check of Paton, him to ride to his destination, held, that even if the and that evidence could not be received to show that conductor acted in good faith, and in the honest beit was in fact the check of the bank, and signed by lief that the passenger had no right to ride upou the Paton as cashier. On the other hand the plaintiffs ticket he presented, he is entitled to recover from the contended that the check upon its face did not pur- railroad company the amount of the extra fare paid port to be the private check of Paton, but the check of by him, with interest, and also actual compensation the bank, drawn by him as cashier, and that the pre for the injury and indignity to which he was subjected. sumption was that it was an official act. The court Held further, that if there was such a reckless inhowever decided that the check was ambiguous upon difference to the right of the passenger as to estabits face, that the marks indicating it to be the check of lish gross negligence, amounting to wantonness, on the bank predominated, and that the only ground the part of the conductor, in examining the ticket preupon which it could be contended that the check was sented by the passenger, and in ejecting him from the the private check of Paton was that it had not below car, he is entitled to recover exemplary damages. In his name the initials for cashier. It was accordingly actions for the recovery of damages for the wrongful beld that in such case testimony was admissible to ex- expulsion of a passenger from a train, the passenger plain the ambiguity and establish who was in fact the may recover for his time, inconvenience, the necegdrawer of the check. The reasoning of the court in this sary expenses to which he is subjected, and it created last case leads irresistibly to the conclusion, that had with violence, or in an insulting manner, for the injuthe check under consideration been signed by Patou | ries to his person and feelings. If the expulsion be with the word “cashier" appended, there would then malicious, or through negligence which is gross and have been no ambiguity in it, but it would have been wanton, then exemplary damages may be awarded. clearly and unequivocally the check of the bank. And “There is a special duty on the carrier to protect its in this view the case seems to be not necessarily an passengers, not only against the violence and insults authority in favor of the plaintiffs in error, but rather of strangers and co-passengers, but a fortiori against an authority against them and in favor of the defend the violence and insults of its own servants; and for ant in error. In 1 Dan. Neg. Iust., $ 415, it is said: “If a breach of that duty it ought to be compelled to make a note be payable to an individual, with the mere the amplest reparation. The law wisely and justly suffix of his official character, such suffix will be re- holds it to a strict and rigorous accountability. We garded as mere descriptio persona, and the individual would not relax iu tbe slightest degree this accountais the payee;" citing Chadsey v. McCreery, Vater v. bility. We know that upon it, in no small degree, deLewis, supra, and Buffum v. Chadwick, 8 Mass. 103. pend the safety and comfort of passengers." RailContinuing, he says: “In New York a differert doc-way Co. v. Weaver, 16 Kans. 456; Railway Co. v. trino prevails;" citing Babcock v. Beman, 11 N. Y. | Kessler, 18 id. 523. We fully concede that no one has 200. But in section 416 the rule laid down would seem a right to resort to force to compel the performance of to be in favor of the contention of the defendant in a contract made with him by another; and a passenerror; for it is there said: "Where a note is payable ger about to be wrongfully expelled from a railroad to a corporation by its corporate name, and is then in train need not require force to be exerted to secure dorsed by an authorized agent or officiai, with the his rights or increase his damages. For any breach of suffix of his ministerial position, it will be regarded contract or gross negligence on the part of the con. that he acts for his principal, who is disclosed on the ductor or the other employees of a railroad company paper as the payee, and who therefore is the only per redress must be sought in the courts rather than by son who can transfer the legal title;" citing Bank v. the strong arm of the person who thinks himself Pepoon, 11 Mass. 288, and Elwell v. Dodge, 33 Barb. about to be deprived of his rights. A passen336. Many more authorities are cited and might be ger should not be permitted to invite a wrong, dwelt upon almost ad infinitum. A discussion of all and then complain of it. Hall V. Railroad Co., of them would greatly protract this opinion, and 15 Fed. Rep. 57; Townsend v. Railroad Co., 56 would subserre no beneficial result. In all this vast | N. Y. 301; Bradshaw v. Railroad Co., 135 Mass. 409: conflict-we had almost said anarchy-of the authori. Railroad Co. v. Connell, 112 Ill. 296; (ar Co. v. Reed, tieg bearing on the question under consideration, it is 75 id. 125; 3 Wood Ry. Law, $ 364. Of course a party not easy to lay down any general rule on the subject upon a traiu may resist, when under the circumwhich would be in harmony with all of them. Itstauces resistance is necessary for the protection of

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his life, or to prevent probable serious injury; nor with the number of the drawing, each drawing being can a party be lawfully ejected from a train while in numbered in a class and the drawings put in envelopes; motiou, so that his being put off would subject him that he saw others do the same thing; after all wbo to great peril. In this case Rice made no unreasona desired to bad purchased numbers, the defendant took ble resistance. He did not resort to force or violence. an envelope from the wall and took out a slip of paper Having a good ticket, and being entitled to ride, he with twelve numbers in each column, the numbers refused to pay fare or get off the train. The conduc- being below 78, and copied them on a blackboard, and tor had no difficulty in leading him off, and about all | also the class number; that a man came up and claimed that Rice did was merely to assert his lawful right to $5, which defendant paid him; that he saw this reride upon the train. Where a passenger with a clear peated several times. Held, that the evidence was right and a clean ticket is entitled to ride on that trip | sufficient to warrant the jury in finding the game to and train, and is wrongfully ejected without forcible | be a lottery. Mass. Sup. Jud. Ct., Feb. 28, 1889. Comresistance upon his part, the jury are, and ought to be, monwealth v. Sullivan. Opiniou by Holmes, J. allowed great latitude in assessing damages. They should award liberal damages in full compensation for


1 pump to C. & L., agreeing to properly place it iu a well. the injuries received. The quiet and peaceable be

He sent an agent for that purpose, and while engaged havior of a passenger is to his advantage rather than

with one of the purchasers in setting the pump, it acto his detriment. Kans. Sup. Ct., Feb. 11, 1888. Southern Kunsas R. Co. v. Rice. Opinion by Hor

cidentally fell into and destroyed the well. C. & L.

brought an action against D., alleging that the acci. ton, C. J.

dent and injury resulted from the negligence of the CONTRACT AGREEMENT NOT TO CARRY ON THE PRO

agent; and to sustain the same offered to prove the FESSION OF A SURGEON- ASSISTANT.--A. and B. were declarations of the agent made two hours after the acpartners in the business of surgeons at N., and C. hay cident had ocourred to the effect that the accident was ing entered their employmeut as an assistant, exe- | the result of his own negligence. Held, that the deccuted bond which recited that he had been takenlarations were mere hearsay, and inadmissible. Kans. into their employment on the terms “that he should | Sup. Ct., Feb. 11, 1888. Dodge v. Childs. Opinion by not at any time set up on carry on the business or pro- | Johuston, J. fession of a surgeon" in N. or within ten miles thereof. The partnership between A. and B. having

MASTER AND SERVANT LIABILITY FOR NEGLIGENCE been dissolved, they continued to practice separately

OF SUPERVISING ARCHITECT.-When in the erection of in N., and C. entered into the service of B. as a sal

a building on the owner's premises it becomes necesaried assistant. Held, that A. was entitled to an in

sary or proper to undermine a rear wall ou the adjoinjunction restraining C. from acting as assistant to B.

ing lot, in order to secure a better foundation, the It is said, that assuming Mr. Palmer to be entitled to

work being done under the direction of a supervising sue, yet defendant had not committed any breach of | architect,

| architect, subject to the control of tbe owner, the lathis contract that he should not at any time set up or

ter is liable for personal injuries to a workman, caused carry on the business or profession of a surgeon, and

by the negligent performance of the work, notwithit is said that the defendant is not doing so where he

standing the discretion given to the architect in diis simply acting as assistant at a salary for another

recting the mode. Ala. Sup. Ct., Jau, 13, 1888. Camp. man who is carrying on the business for his own bene

| belly, Lunsford. Opinion by Clopton, J. fit. I do not think that the question whether the ap

ASSUMPTION OF RISKS - AMMONIA VAPOR.-pellant is carrying on the business or profession can Plaintiff was engaged in making certain repairs in dedepend on whether he is paid by a salaryor by a certain fendant's ice-machine house, and while doing so exshare of the profits. It is true that in Allen v. Taylor, posed himself to the current of ammonia vapor that 24 L. T. Rep. 219, where there was a contrast not to

escaped through one of the bolt-holes, of which he carry on the trade of a rag-dealer, it was held that

was aware. Held, that by continuing to work in tbe merely acting as a clerk or assistant to a person car room, with knowledge that it was full of ammonia, rying on that trade was not a breach of the covenant. be assumed all the risks arising from that cause. Butan agreement not to carry on a trade is a very dif | Penn. Sup. Ct., Feb. 20, 1888. Beittenmiller v. Bergner ferent thing from an agreement not to carry on a busi.

& Engel Brewing Co. Opinion per Curiam. ness or profession. “Carrying on a trade” implies to my mind that the person engaged in it is engaged in it

MUNICIPAL CORPORATIONS - TAX ON TELEPHONE qua trade, that is to say as a trade producing profit or | POLES - CONSTITUTIONALITY PERMISSION TO CONloss which is to be shared by him, and that is not the

STRUCT TELEPHONE LINES - CONTRACT.-(1) An ancase if he is merely a salaried assistant. I cannot come

nual charge of five dollars per pole upon the poles of to the conclusion that a man is less carrying on the

a telephone company already established, imposed by profession of a surgeon because he is doing so as assist

a municipal ordinance as a “consideration for the ant to someone else. " Profession" is different from privilege," is not a tax, either on property or as a li. trade, aud it is much more emphatic to my mind than

cense, and cannot be sustained as an exercise of the it "business " alone was here. When as here the

taxing power. The ordinance qualifies it as a price or words "carry on the business or profession of a bur

consideration for the privileges enjoyed. It is not gion" are merely used to denote what is done by a

even alleged that defendant has ever consented or man acting as a surgeon, a man, in my opinion, acts

contracted to pay such consideration. There is entire as surgeon and carries on the business of a surgeon

absence of any legal tie binding the defeudant as a none the less because he is not the principal or engaged

debtor for the amount claimed, and if the city were in the business as a partner, but is merely carrying it

suing simply for a money judgment, the petition on as assistant to somebody else. Eng. Ct. App., July

would set forth no cause of action. The real relief 13, 1887. Palmer v. Vallett. Opinion by Cotton, L. J.

claiined by the city however is found in the injunc58 L. T. Rep. (N. S.) 64.

tion prayed for, based on tho theory that the provis

ion of the ordinance referred to is a regulation or couCRIMINAL LAW-LOTTERY-WHAT CONSTITUTES.-- | dition imposed upon the maintenance of the poles and On the trial of an indictment for setting up and pro- exercise of the privileges which the city had the right moting a lottery, a witness testified that ho gave the to impose, and without compliance with which the de. defendant tour numbers from a column of 78, and paid | Pendant could not lawfully continue to maintain and the defendant ten cents, receiving therefor a ticket exercise them. It is not seriously contended that the

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provision is a police regulation; and indeed such con that the jury could have so understood it. It appeared tention is silenced, not only by the nature, but by the by the evidence-and that without conflict-that the express terms of the provision itself, which qualify wife was confined to her bed at home; and we must the exaction as a “consideration for the privilege." | suppose that the jury considered the instruction in the No consideration whatever of public morals, health, light of that fact. The court was right. The strong or convenience is involved. It is not proposed to presumption is that a husband, in the purchase of abolish the use of poles or to alter their locatiou, con necessaries, either food or medicine, for his wife or struction or of use, in auy way, to subserve the public children, is acting upon the promptings of the duty comfort. The simple requirement is the payment of which he owes to them as a husband and father, a price, on payment of which the status quo continues; rather than as a mere medium or agent in a business while without such payment it piust cease. The case trausaction; and evidence to rebut this presumption presents no feature of an exercise of the, police power. should be quite clear and satisfactory, at least answer(2) A municipal ordinance granting to a particular ing the requirements of the very careful and considcompany authority to construct and maintain tele erate instruction of the court below upon this subphone liues on the streets, without any limitation as ject. Immediately connected with this subject is that to time, and for a consideration stipulated, when ac- arising upon the exception to the instruction which is cepted and acted on by the grantee by a compliance set forth in the seventh paragraph of this statement, with all its conditions and the construction of a valu which we shall next consider. The court instructed able and expensive plant, acquires thereby the the jury that the doctrine of imputed negligence does features of a coutract, which the city cannot there not prevail in Ohio, and that if the jury should find after abolish or alter in its essential terms without the that the deceased came to her death by the wrongful consent of the grantee. If the city can do this now, act, neglect or default of the defendant, by himself or she could have done it the very day after the defend his agent, then the plaintiff is not deprived of the aut had coinpleted its lines, when it had incurred all right of action by reason of the negligence of the husthe expense, and before it had reaped a particle of re band, unless he was her agent at the time. The court turn. If she can impose a charge of five dollars per below was asked to apply the familiar principle of pole, she can with equal power impose one of $1,000, | contributory negligence as a defense to the plaintiffs and for that matter she could arbitrarily revoke the action. To do this it became necessary, in case the grant at her pleasure. Either she is bound, according | jury should find the wife without fault, to insist that to the terms of her proposition accepted and acted the negligence of the husband contributed with that on by defendant, or she is not bound at all. Obviously, of the defendant to produce the injury complained of. upon the clearest considerations of law and justice, This defense necessarily involved the assumption the grant of authority to defendant, when accepted either that the husbaud was the ageut of the wife, or aud acted upou, became an irrevocable contract, and that by reason of their marital relations his negligence the city is powerless to set it aside or to interpolate new was to be imputed to her. The contention now is that or more onerous considerations therein. Such has the doctrine of imputed negligence still prevails in been the well-recegnized doctrine of the authorities Ohio, so far as relates to husbaud and wife. In Railsince the Dartmouth College case, 4 Wheat. 518. La. road Co. v. Suyder, 18 Ohio St. 399, it was held that Sup. Ct., Feb. 13, 1888. City of New Orleans v. Great the negligence of a parent or custodlan of a child can. South. Telephone & Tel. Co. Opinion by Fenner, J. not be imputed to the child to bar its right of action

against others for injuries resulting from their wrongNEGLIGENCE-IMPUTED - HUSBAND AS AGENT OF | ful acts. Again it was said by this court in Railroad WIFE-EVIDENCE-SUBSEQUENT MARRIAGE.-(1) The Co. v. Manson, 30 Ohio St. 451 (first paragraph of the doctrine of imputed negligence does not prevail in syllabus): “The doctrine of imputed negligence does Ohio; and the contributory negligence of a husband not prevail in Ohio, and a child of tender years inin the purchase of a drug to be used by his wife is not jured by the fault of another is not deprived of a right to be imputed to her in an action by her or her admin- of action by reason of contributory negligence on the istrator against the dealer for injury or death result- part of a parent or guardian." In Transfer Co. v. ing from the use of such drug, unless she constituted Kelly, 36 Ohio St. 86, it was held that in an action by him her agent; and in simply making known to her a railroad passenger (without fault himself) for a perhusband her desire for the medicine, by reason of sonal injury, agaiust a defendant whose negligence diwhich he obtains it, the wife did not constitute him rectly and proximately concurred with the negliher agent in such seuse as that his contributory negli. I gence of the railroad company in producing the ingenice in making the purchase can be imputed to jury, the concurrent negligence of the company canher. As shown by the statement of the case, the only | not be imputed to the plaintiff, so as to charge him authority given to the husband by the wife for the with contributing to his own injury. In Railway Co. purchase of medicine is to be found in the expression v. Eadie, 43 Ohio St. 51, a minor, fully capable of takby her of a desire or need of some oil of sweet almonds. ing reasonable care of herself, was riding with her There is nothing in the record to justify the assump- father ih his wagon, when she was injured by a coltion that she had done or said any thing that can be lision between the wagou and street car, caused by construed as a direction to him concerning the pur the mutual negligence of her fatner and the street car chase for her of the medicina she required. It was driver, but without fault on her part. It was held clearly witbin the line of his simplest duty as a hus that her father's negligence was not to be imputed to band to procure for her the desired medicine. The her to bar her recovery against the street car comcriticism of counsel upon the instructions complained pany. It is maintained however that those cases are of is that in the definition of agency the wife must all distingnifhable from the case at bar. The contenhave been personally present with her husband at the tion is tbat “the common-law doctrine with reference store, and be there must have been under her direc to the marital relation still continues in force in Ohio; tion and control. The instruction was: “In order to that so far as their personal relations are concerned make him the agent of the wife in this transaction, the husbanu and wife are one in law; that the acts of she must have selected the medicine, directed that he / each are binding upon and imputable to the other." should purchase it, and he must have had nothing to The statute authorizes an action like the present one do in the matter except by her procurement and di- in any case where the defendant would have been liarection." We do not think that this instruction is ble if death bad pot ensued. Indeed this is one of the capable of the construction given it by counsel, nor tests of the right to recover. If the wife were alive

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and prosecuting her action for an injury resulting to l husband and children were thereby provided with her by reason of the wrongful act of the defendant, another wife and mother, but be restricts his claim to her recovery would be solely for her own use and ben the pecuniary services and value to them of the secefit, and the fruits of her judgment would be her sole | ond wife, who in such a degree as the jury, if perand separate property, free from any right of her hus mitted, might find, performed like services, or conband therein growing out of the marital relation. The tributed in like manner to the pecuniary benefit of the plaintiff does not prosecute this action as husband, I family as the deceased wife and mother. If the jury but as the administrator of his wife. It is prosecuted were permitted to consider this element of mitigation for the benefit of the children as well as the husband of damages, the plaintiff ought to be permitted to of the intestate. The rights of the beneficiaries, as show, as a sort of counter-set-off to it, the expenses well to a recovery af to the fruits of it, are to be tested | incurred by the husband on account of the marriage, by the statutes which the law would have ascribed to and whether the nuptials were cheap and simple or the wife and mother if she were alive and prosecut expensive or luxurious; for certainly to the extent ing her action for an injury to her health or person. of such outlay the means of supporting the family The law having severed the relation for the purposes were reduced. These considerations, and the comof such prosecution by her, what reason can be urged | parison which such a rule would invite between the for imputing to her the contributory negligence of one respective earning capacity of the first wife and mother who could have had no lawful pecuniary interest in a 0:1 the one hand, and the second wife and stepmother recovery by her for an injury she had sustained by the on the other, would tend to complicate the issues benegligence of a wrong-doer? The doctrine of con- | yond any thing contemplated by the statutes under tributory negligence, which is invoked by the plaintiff whose plain provisions the relief is sought. Ohio Sup. iu error, is founded upon considerations which had no Ct., Dec. 13, 1887. Davis v. Guarnieri. Opinion by application in logio or justice to the caso at bar. (2) | Owen, C. J. Upon the plaintiff's appointment as administrator, the

NEGOTIABLE INSTRUMENT-NEGOTIABILITY-PLACE right of action at once vested in him, and there can be no doubt that if the trial had occurred at any time

OF PAYMENT-CERTAINTY.-A promissory note, pay

ablo "at Matthews, Ala.," which is a station on the prior to his second marriage, the full measure of recovery contemplated by the statute should have been

railroad, where there are several dwelling-houses and accorded to him. Did the measure of that recovery

store.hvuses, is not payable "at a certain place of paybecome impaired or larrowed by a measure which oc

ment therein designated," as the words are used in curred subsequent to the commencement of this ac

the statute, declaring what instruments are governed tion? Althorf v. Wolfe, 22 N. Y. 355, was an action

by the commercial law. Merely naming a city, town, brought uuder a statute similar to our own, for wrong

or village baving many, or even several, places of busifully causing the death of an intestate. The defend

ness, is not a compliance with the statute, either in ant offered to prove in mitigation of damages that the

letter or spirit. The intention was that a certain life of the deceased was insured, and that the insur

place should be designated-a place at which debtor ance money was paid to his wife upon his death. It

and creditor could meet, the one to pay and the other was held that the evidence was not admissible. It

to receive payment. That is the sense of the proviscould be conteuded with some plausibility that the

ion, and that must be its interpretation. To hold othloss was mitigated by the receipt of this money by the

erwise would be to open a door, the breadth aud diwidow. Let it be supposed that in the case at bar in

mensions of which we cannot foresee. Ala. Sup. Ct., surance money due upon the death of the wife had

Jan. 13, 1888. Haden v. Lehman. Opinion by Stone, been paid to the husband, and from this suin he had

C. J. procured the services of a woman to perform like pe

RAILROADS--CONCURRENT NEGLIGENCE-PRESUMPcuniary services, and contribute by her labor (far be TIONS--BURDEN OF PROOF.- A passenger upon a horseyond the wages paid her) to the accumulation of prop car was injured by reason of a collision of a car with erty in the same manner as the deceased wife. Could a steam engino at a railroad crossing. In this action it be said, with the same plausibility as it is now maint against both the horse-car company and the steam-car tained, that these facts tended to mitigate the damages company, charging concurrent negligence, held, that sought to be recovered by reason of the loss of that the burden was upon the horse-car company to show pecuniary benefit which was derived to her husband proper care, aud upon the plaintiff to show negligence and children from her services? It should be kept in upon the part of the steam-car company. Mr. Cooley on mind that the statutes, as construed by the courts, Torts, referring to a Pennsylvania case (Laing v. Colhave thoroughly divested this subject of every element | der, 8 Penn. St. 479; Sullivan V. Philadelphia. 30 id. of sentiment, and of every theory of solace for be

heory of solace for be- 1 234), says: Prima facie where a passenger, being carreavement. ag was well illustrated by the charge of | ried on a train is injured without fault of his own. the trial court. The only logs to be repaired is pecu- | there is a legal presumption of negligence casting upon wiary loss, and the only theory of redress is that sup

the carrier the onus of disproving it.” “This is the plied by the statute, which does not seem to admit of rule where the injury is caused by a defect in the road, ang theory of set-off or compensation with which the cars or machinery, or by a want of diligence or care in wrong-doer is in no manner connected. It has been those employed, or by any other thing which the comsaid that “the fact of insurance does not diminish the pany can or ought to control, as a part of its duty to amount of pecuniary damage suffered by the defend carry the passengers safely, but this rule of evideuce is ant's fault, though it provides a method of compensa- not conclusive." Cooley Torts, 663. The injury in tion for it. Besides the party effecting the insurance this case was the want of diligence in the driver, and paid the full value of it, and there is no equity in the

the law will presume neglect from the mere fact of claim of the negligent person to the benetit of a con the injury, and the burden is on the defendant, who tract for which he never gave any consideration.". may show that the injury originated from causes the Shear. & R. Neg., $ 609. This general view is sup

driver could not prevent. The passenger commits ported by Railway Co. v. Wightman, 29 Grat. 431; himself to the custody and control of the carrier, and Harding v. Town of Townshend, 43 Vt. 556; Railroad if the car breaks, or the cars, while controlled by the Co. v. Thompson, 56 III. 138. It is due to counsel for

driver, should strike an obstruction, as a wall or an plaintiff in error to say that he does not maintain that embankment, the presumption of negligence arises, the fact of remarriage and the services of the second | and must be overcome by the carrier on the complaint wife of the plaintiff sball have been submitted to the l of the passenger injured by the accident. The accijury in mitigation of damages for the reason that the dent may have been caused by the other defendant,

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but if so, it devolved upou the company in charge of otherwise not. Twombly v. Monroe, 136 Mass. 464;
the passenger to show it. And further, says Mr. Simmons v. Mitchell, 6 App. Cas. 156; Bank v. Ilenty,
Cooley, “suppose a railway train, throwu from a track 1 7 id. 741, 744, 771, 772, 790, 793. We are of opinion that
from some cause not apparent, and the passengers all the words, fairly construed, do not bear that mean-
injured, would it be reasonable to put an injured per-ing, and that in order to reach such a construction, it
son to the necessity of discoveriug aud pointing out is necessary to include something which the defend.
the cause and taking the fault to the company before he ants did not say, and which their words do not imply.
could recover, or may he who has intrusted his person No doubt a casa might be imagined, where from their
aud his life to the control of the company, etc., rely | peculiar circumstances, as for example, from the na-
on the injury itself as eutitling him to redress, and ture of the article offered for sale, or from the long-
leave to the defense the task of presenting exculpatory continued habit of selling goods of a different charac-
evidence?'' A felon may have placed obstructions on | ter or quality from that represented, it would be a
the track or caused the accident in a manner that no natural inference from a charge otherwise like that
vigilance conld guard against, and if so, it may be which is the subject of this action, that the party was
easily shown by the company. This rule, placing the practicing fraud or imposition, or was guilty of trick-
burden on the company, is in accord with the doc ery or meanness. In the present case such an infer-
trine that a coinmon carrier of passengers must exer ence does not naturally arise, and the object of the
cise the highest degree of care and diligence to pre. defendant's advertisement, judging from its lan-
vent injury-such care as a reasonable and cautious guage, appears to have been rather to uphold and
man would use under the circumstances is the dili maintain the character of their goods thau to attack
gence reqpired. This rule, says Hilliard, applies to the plaintiff's character. The court might properly
the vehicle, the horses, the harness, the skill, caution withdraw the case from the jury. See Boynton v.
and sobriety of the driver. 2 Hilliard Torts, 587. This Remington, 3 Allen, 397; Evans v. Harlow, 5 Q. B.
court in the case of L. & N. R. Co. v. Ritter, decided | Div. 624; Solomon y. Lawson, & id. 823. Mass. Sup.
at the March term, 1887, recognized the same doctrine Jud. Ct., Marcb 1, 1888. Boynton y. Shaw Stocking Co.
both as to the presumption of negligence and the care Opinion by C. Allen, J.
required of the carrier. This case is attempted to be

WILL-BEQUEST — “ORNAMENTS" - JEWELRY. -A distinguished from that of Railroad v. Ritter's Admr.,

will contained the following provisions: “To my niece and that class of cases, and cases where the accident,

Louise E. Matthews * * * I give * * * my the result of the neglect, might have been caused by

finger-rings, * * * and so many of my books, picthe act of a stranger. We see no reason for the dis

tures and ornaments (not otherwise bequeathed spetiuction. The negligence complained of is that of the

cifically, as she shall choose to take." Held, that the company's driver, and that another coutributed to the

word “ornaments" as used in the will was intended result can make no difference. If the steam railroad

to include articles of jewelry, such as breastpins, company had not been sued, it would have been a case

bracelets, ear-rings, brooches, lockets, chains, etc., and directly against the other defendant for the negligence

also many articles not classified under the bead of of its driver. When the direct cause of the injury results from the act of another over whom the carrier

jowelry. We have no doubt that the word “orna

ments" in its general signification, and freed from bas no control, the burden is on the plaintiff, as where

any modification that might come from association in the injury is caused by an obstruction placed on the

particular instances with other language, includes track of the road by a trespasser, and the alleged neg

" jewelry "worn by women for the purpose of adding ligence is the failure of the company to remove the

grace or beauty to their persons, or for the purpose of obstruction within a reasonable time, thereby causing

complying with the usages of society. Such is its the injury. We decllue to follow the case of Curtis v. Rochester, etc., R. Co., 18 N. Y. 534. Ky. Ct. App.,

meaning both in classic English and in common lan

guage. In Webster's Dictionary an illustration is Jan. 19, 1888. Central Passenger R. Co. v. Kuhn.

given from Sir Thomas Browne, as follows: “Some Opinion by Pryor, J.

think it is most ornamental to wear their bracelets on SLANDER AND LIBEL-WHAT ACTIONABLE-PUBLI their wrists; others about their ankles." And the CATIONS DISPARAGING ONE'S GOODS. - The plaintiff Jenkins of the present day in his descriptions of the purchased of the defeudant's agent goods, aud adver costumes of ladies at evening parties writes, “ornatised them for sale in a local paper as follows: “Shawments, diamonds." But it is contended that the word knit hose, navy blue, size 8 to 11, first quality goods, “ ornament" as used in the will, immediately follows at 12 cents per pair." Immediately thereafter the the words "books” and “pictures," it must theredefendant caused to be inserted in another paper, fore be restricted to things resembling (that is ejusdem published in the same town, an advertisement as fol- / generis with) books and pictures. There is certainly lows: "Caution: An opinion of Shaw knit hose should force in this suggestion, but the words, “not othernot be formed from the navy blue stockings adver wise specifically bequeathed," which immediately foltised as first quality by Messrs. B. & Co. (the plaintiff) low “ornaments," must also be considered. And at 12%, cents, since we sold that firm, at less than 10 when we look at the few things which have been othceuts a pair, some lots which were damaged in the dye erwise specifically bequeathed, we find that nearly house. (Signed) SHAW STOCKING Co." Held, that every one of them could in any sense be called an orthe language of the defendant's advertisement, giving | nament, is an article of jewelry. The words, “as she to it its natural signification, was not libellous. An shall choose to take,” also indicate the liberality of action will not lio for mere disparagement of the construction in favor of the legates should be inplaintiff's goods without averment and proof of special dulged in. The discovery of the real intention of the damage. Dooling v. Pubiishing Co., 144 Mass. 258. | testatrix in this case is no doubt a difficult matter, but But the plaintiff contends that the words used by the as the word “ornaments" in its general and ordinary defendants contain an imputation upon his character, sense includes the property in contest, and as the other and that they imply that he was deceiving the public language of the will, taken all together, does not by advertising goods as of first quality which he knew clearly indicate that the word was used in a special or were damaged. The question therefore is this: Taking | limited sense, we conclude that the view taken of the the words in their natural sense, and without a forced question by the learned judge of the court below is or strained construction, do they contain this imputa- | more satisfactory than the opposite view taken by the tion? If the words may fairly bear that meaning, appellaut. Cal. Sup. Ct., Feb. 25, 1888. In re Taylor's then the case should have beeu submitted to the jury, | Estate. Opinion by McFarland, J.

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