INTERSTATE COMMERCE-Continued.
to Omaha, but may charge an increased rate in view of fact that shorter line competes for traffic. Lincoln Board of Trade v. Bur- lington, etc., R. Co. (I. S. C. C.). 583. Connecting lines. Controlling interest in. One company owning con- trolling interest in connecting lines cannot make rates from points upon that line which operate as an unjust discrimination in favor of points upon its own lines or upon other lines controlled in similar manner. Brady v. Pennsylvania R. Co. (I. S. C. C.). 603. Connecting lines. If companies form through lines operated for con- tinuous carriage, they cannot escape responsibility for unreasonable charges by claiming that haul is divisible according to length of each line. Brady v. Pennsylvania R. Co. (I. S. C. C.). 603. Constitutional law. Regulations of interstate commerce act are in nature of police laws, and fact that it affects existing contracts does not bring it within prohibition against laws which impair the obli- gation of contracts. Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (I. S. C. C.). 630.
Discrimination. Jurisdiction of commission. Where peaches were shipped from point in New Jersey and addressed to persons in New York but delivered in Jersey City, held, that no point affecting in- terstate commerce was presented of which commission could take cognizance. New Fruit Exchange v. Central R. Co. (I. S. C. C.). 592. Exchange of traffic. Facilities. Fact that railroad has already a num- ber of yards in which it exchanges traffic does not entitle it to re- fuse facilities to new carrier although such carrier connects at point where there is no yard. Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (I. S. C. C.). 630.
Exchange of traffic. Public convenience. One railroad cannot refuse to exchange traffic with another on ground that road of latter is not required to supply the public, and that public were sufficiently furnished with means of transportation before such road was built. Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (I. S. C. C.). 630.
Freight rates. Distance. Competitive lines. 590 n.
Freight rates. Newly settled country. In view of circumstances, the sparsely settled country, the expense of keeping road open and the conditions of the traffic generally, the rates between St. Peter, Minn., and Pierre, Dak., held, not excessive and the rule that the rate per ton per mile must decrease for the greater distance while total aggregate charges increases is inapplicable. Business Men's Assoc. v. Chicago & N. W. R. Co. I. S. C. C.). 711.
Local rates. Competing lines. Under circumstances, held, that the rule, that while the aggregate charge is constantly increasing, the rate per mile per ton should be constantly decreasing did not apply owing to competition which caused adoption of same rates between St. Paul and Lake Superior, on the defendant's road, as those adopted by the St. Paul & Duluth R. Business Men's Assoc. v. Chicago, St. P., M. & O. R, Co. (I. S. C. C.). 724.
Parties to proceedings to adjust tariff. Manufacturer complaining that goods shipped by him over a railroad to points on other lines are improperly classified need not make connecting lines parties to the proceedings. Hurlburt v, Lake Shore, etc., R. Co. (I. S. C. C.). 596,
Car-load lots of oil in barrels. Rates charged for oil when
INTERSTATE COMMERCE—Continued.
shipped in barrels in car-load lots, held, to operate unjustly in favor of shippers of oil in bulk in tank cars. Carriers must make rate by weight which should be by the 100 lbs. instead of by the barrel. Scofield v. Lake Shore, etc., R. Co. (I. S. C. C.). 685.
Tank cars. Haulage. Carrier may arrange with shipper that the lat- ter shall furnish cars at terms agreed upon, but carrier is charged with duty of seeing that neither directly nor indirectly is a higher rate given to such shipper than to others who are dependent on carrier for cars. Scofield v. Lake Shore, etc., R. Co. (Î. S. C. C,). 685.
Tank cars. Power of Commission.
Interstate commerce commission has no power of directing carrier to supply itself with an equipment of cars, and cannot order company to furnish tank cars to shippers. Scofield v. Lake Shore, etc., R. Co. (I. S. C. C.). 685. Traffic agreement. Competing bridges. One road cannot lawfully re- fuse to receive traffic brought across a bridge which is a rival with another bridge with which such railroad and another have con- tracted to transport their traffic across the river, although the traffic brought across the new bridge is in violation of a contract made between the two railroad companies. Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (I. S. C. C.). 630.
Trans-continental lines. Competition, As the Canadian Pacific no longer competes with lines in the United States in transportation from the Pacific to Missouri River points, there is no jurisdiction for higher rates from or to points nearer Pacific, than from or to points on Missouri River. Martin v. Southern Pac. R. Co. (I. S. C. C.). 612.
Undue preference. Municipal subscription. Fact that municipal subscriptions and land have been given to railroad cannot be taken into consideration in determining whether a city is discriminated against. Lincoln Board of Trade v. Burlington, etc., R. Co. (I. S. C. C.). 583.
Expulsion from train. Cause of action arising for expulsion of pas- senger arises at the place where the passenger is expelled. Max- well v. Atchison, etc., R. Co. (C. C.). Federal courts. Personal injuries. Circuit court will not entertain action of tort for recovery of damages for personal injuries when it is obvious that amount of recovery would be less than $2000. Max- well v. Atchison, etc., R. Co. (C. Č.). 574.
Federal question. The fact that a State court decided in an action for damages sustained by vessels in navigating a river that a bridge had not been built as required by Congress, rendered the railroad company liable irrespective of the question of improper construc- tion, does not present a federal question. Hannibal & St. Jo. R. Co. v. Missouri R. Packet Co. (U. S.). 157.
Liability of lessor. Railroad has no power to lease its road without statutory authority, and plea by lessor that it had leased the road is not sufficient. International & G. N. R. Co. v. Underwood. (Tex.). 570.
Passenger. Negligence. Action to recover damages sustained by be- ing thrown from street-car falls within limitation of three years ap- plicable to actions for personal injuries resulting from negligence under New York code. Webber v. Herkimer & M. St. R. Co. (N. Y.).
Personal injury, application of statute to action for. 583 n.
MASTER AND SERVANT, SEE CONTRACT.
Assaults by servants upon passengers. 380 n.
Assault upon passenger. Street car company is liable to passenger for wilful assault upon him by driver of car. Winnegar v. Central Pass. R. Co. (Ky.). 462. Baggage master has no authority to invite or permit persons to ride on train; such permission cannot create relation of carrier and passen- ger. Reary v. Louisville, etc. R. Co. (La.). 277. Brakeman. Authority. It is within the scope of a brakeman's author- ity to prevent passengers from getting on train and to remove those wrongfully thereon, but if he does not exercise due care the com- pany is liable. Kansas City, etc., R. Co. v. Kelley (Kan.). 281. Conductor on branch road represents company as to his own route, but not in giving information as to running of trains upon main line. Atchison, etc., R. Co. v. Gants (Kan.). 290. Conductor. Scope of authority. Conductor represents the company in the discharge of his functions; and in the line of his duty, company is liable for any abuse of authority. Southern Kansas R. Co. v. Rice (Kan.). 316. Declarations of servant.
Declarations made by section master concern- ing sufficiency of culvert, not falling within the scope of his duties, are inadmissible in action for overflow of land. Waldrop y. Green- ville, etc., R. Co. (S. Car.). 204. Evidence of employment. In an action by a special policeman to re- cover arrears of salary, where the defendant claims that during a certain period plaintiff had not been recognized as a special police- man a letter directed to him during such period by the company's yard master is admissible. Porter v. Richmond & D. R. Co. (N. Car.). 137. Exemplary damages. Newsboy pushed from step of street car by con- ductor and run over, held not entitled to recover exemplary dam- ages, there being no evidence that the act was wilful or wanton. Philadelphia Traction Co. v. Orbann (Pa.). 432.
Exemplary damages: recovery of, for torts of servants. Newsboy selling papers on street car not an employee on or about the road within meaning of Pennsylvania statute. Philadelphia Trac- tion Co. v. Orbann (Pa.). 432.
Persons "engaged or employed on or about roads," etc., who are within meaning of Pennsylvania statute.
Risks assumed by servant. 276 n.
Risk of employment. If through neglect to keep track in suitable re- pair an injury occurs to one lawfully on the train, and without fault of his own, he may recover. Rosenbaum v. St. Paul, etc., R. Co.
Scope of authority. Company is responsible to passenger for injuries.
MASTER AND SERVANT-Continued.
caused by negligence of engineer "learning the road," although he had been placed on engine by material agent who had no authority to employ any person. Lakin v. Oregon Pac. R. Co. (Ore.). 500. Scope of employment. Instructions. An instruction in an action for injuries caused by company's servants that if employees permitted engine to be moved without consent of engineer, whether within the scope of their employment or not, the company would not be liable for the injuries, held not a ground for reversal. Lakin v. Oregon Pac. R. Čo. (Ore.). 500.
Scope of employment. Presumption. Where servants are on com- pany's premises performing duty for company as they had on other occasions, it will be presumed that they were acting within the scope of the authority given them. Atchison, etc., R. Co. v. Johns (Kan.). 480. Special finding by jury, in action for servant's tort that he was not acting in the course of his employment, is a conclusion of law and may be set aside. Fick v. Chicago, etc., R. Co. (Wis.). 378. Ticket agent. Assault. Person left in charge of office during absence
of regular agent is a servant of the company, which is liable for an assault committed by him. Fick v. Chicago, etc., R. Co. (Wis). 378. Torts of servants. Exemplary damages. In action for injury received through negligence of servants, exemplary damages may be re- covered where injuries are wanton, although act may not have been previously authorized or subsequently ratified. Philadelphia Trac- tion Co. v. Orbann (Pa.). 432.
Unskilful employee. In an action against a street railway company for personal injuries caused by driver's negligence, instruction as to failure of defendant to employ prudent drivers held argumentative and improper. Hays v. Gainesville St. R. Co. (Tex.). 97.
Sale of road before construction. Where one company sells it road to another before completion, and enters into a contract to complete it, a third person with whom it enters into a contract for work stands in the relation of a sub-contractor and is entitled to a lien only in the event of his complying with the statute. Templison v. Chicago, etc., R. Co. (Iowa). Sub-contractors.
Where one company sells its road to another and enters into a contract with a third party for the construction of the track, such third party cannot acquire a lien for material and labor against the purchasing company unless they are sub-contractors. Templison v. Chicago, etc., R. Co. (Iowa). 107.
NEGLIGENCE. See BRIDGE; DEATH; MASTER AND SERVANT; PASSENGER; STREET RAILWAY; SURFACE WATER; TRESPASSERS; WATER.
Active and passive negligence. 21 n.
Comparative negligence: doctrine of, has never been recognized in Mis- souri. Hurt v. St. Louis, etc., R. Co. (Mo.). 422.
Due care. Evidence of positive act. Where an employee in an elevator was found lying dead across the track soon after cars had been sent violently into the building, held, that the case was not one in which it was necessary to show some positive act of the intestate in order
to prove that he exercised due care. Maguire v. Fitchburg R. Co. (Mass.). 9. Gross negligence. Averment that plaintiff was injured through de- fendant's "gross negligence" will not limit plaintiff's right to re- cover for an injury inflicted by the wilful act of another. Hays v. Gainesville St. R. Co. (Tex.). 97.
Instruction precluding plaintiff from recovering for injuries unless he exercised prudence to avoid the injury is erroneous, there being no rule of law which requires him to use more than ordinary caution to shield himself from the consequences of contributory negligence. Hays v. Gainesville St. R. Co. (Tex.). 97.
Omission of statutory duty as affecting company's liability. 5 n. Omission of statutory duty. Where an act is expressly enjoined by statute the act is within all degrees of diligence, even the very lowest, and its omission is negligence per se. Central R. & B. Co. v. Smith (Ga.). I.
NEGLIGENCE, CONTRIBUTORY. Instruction as to effect of plaintiff's contributory negligence and defend- ant's negligence, held not open to objection that it charged that even if negligence of plaintiff as well as defendant contributed to injury, defendant is liable. Dougherty v. Missouri R. Co. (Mo.). 488. Instructions. If other instructions sufficiently instruct jury as to effect of contributory negligence, instruction that if jury find defendant negligent, they must find for plaintiff, is not such as to warrant a reversal. Dougherty v. Missouri R. Co. (Mo.). 488.
Instruction that it was not enough that plaintiff may not have used ordinary care, but such want of care must have contributed to the injury to bar recovery, held not erroneous. Ohio & M. R. Co. v.
Hecht (Ind.). 447. Knowledge of danger will not impute contributory negligence. 9 n. Knowledge of defects. A person crossing a bridge is not guilty of negligence contributing to injury caused by defects in such bridge although he attempted to cross in the knowledge of such defects. Gulf C. & S. F. R. Co. v. Gascamp (Tex.). 6.
Liability notwithstanding. If by the exercise of reasonable care on the part of the company an accident might have been avoided, the com- pany is liable notwithstanding the contributory negligence of the plaintiff. Troy v. Cape Fear, etc., R. Co. (N. Car.). 13. Liability notwithstanding. Plaintiff may recover for personal injuries even though guilty of contributory negligence, if defendant could have avoided injuring him by the use of such means as a prudent man would have employed. Hays v. Gainesville St. R. Co. (Tex.). 97. Recovery notwithstanding contributory negligence. 102 n. Recovery under statute. Under Georgia statute giving a right to re- cover partial damages where person injured has been guilty of contributory negligence, plaintiff cannot recover if he has trespassed upon track and been grossly negligent. Central R. & B. Co. v. Smith (Ga.). I.
Defective bridge. Where the erection of a bridge causing overflows is a continuing nuisance, in consequence of which a recovery is limited to damages accrued, a judgment in one action is no bar to a second action. Omaha, etc., R. Co. v. Standen (Neb.). 179.
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