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An alleged copy of a survey, not made by order of a court of admi-
ralty, or under the sanction of an oath, is not admissible in evidence,
though certified and stamped by the American consul at the port where
the survey was made : Id.

A policy of marine insurance covers not only losses that result from
injuries caused by extraordinary perils of the sea which become imme-
diately known, but such also as result from latent injuries: Id.

The authority of a master to sell the vessel and cargo in case of marine
disaster, rests exclusively upon the ground of necessity, the burden being
upon the assured : Id,

Life Inaurnnce — Suicide hy Insane Person. — The condition in a policy
of life insurance, " that in case the insured shall die by his own hand,
or in consequence of a duel, or the violation of any state, national, or
provincial law, or by the hands of justice, this policy shall be null, void,
and of no effect/* does not include suicide by an insane man in a fit of
insanity : Easterbrook v. Union M. Lift Ins. Co., 64 Me.


Perpetual Right of Renewal — Fee of Landlord not passed hy such a
Contract. — A lease for a term of years, conditioned for the payment of
an annual rent, with a perpetual right of renewal, does not divest the
lessor of his fee in the premises : Page v. E>ity^ 54 Me.

A conveyance of the leased premises by the lessor makes the grantee
the landlord of the lessee, with the right to possession upon a forfeiture
for breach of the conditions of the lease: Id.

A surrender of the lease, after such conveyance, to the original lessor,
gives him no interest in the premises ; and if the lease is cancelled, the
grantee holds the premises discharged of the encumbrance : Id.


Words not Actionable. — Innuendo. — Words in a declaration of libel,
not in themselves libellous, are not enlarged or extended by an innu-
endo: Emery v. Prescott^ 54 Me.

The words, to "carry the" plaintiff "back to Thomaston, where he
came from," are not of themselves libellous: Id.

Nor does the innuendo that Thomaston means "the state prison
situated in the town of Thomaston, which place is known by the name
of the town," unexplained by introductory matter, make the words
actionable, which, without innuendo, would not be libellous: Id.

Limitations, Statute op.

Partial Payment. — The partial payment of an account, made within
six years, and appropriated toward the payment of the account as a
whole, and not to any one or more of its particular items, will take the
account out of the Statute of Limitations : Dyer v. ir<///».vr, 54 Me.


Upon the issue raised by a replication to a plea of misnomer, that the
defendant was known as well by the name in the indictment as by that
in the plea, the presiding judge, after stating to the jury the question at
issue, illustrated it as follows: — " if a stranger should go * * where the


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defendant is known, and inquire for the house of" the person named in
the indictment, " would those of whom he inquired recognise the man
inquired for as well hy that name as by the name used in the plea?'' '*If
BO, the issue is made out for the government -J* Held^ the illnstratioD in
anexceptionabie : State y. Dresser, 54 Me.

Neqlioemce. See Nuisance.


Excavation in Bvjhway, — If a private citizen be guilty of a nuisance
in making an excavation in a public highway, he will be responsible for
injuries arising therefrom during its continuance: Portland v. Richard^
son, 54 Me.

Office and Officer.

Tenure of Office — Construction of Penal Statutes, — An oflBce is a
public station or employment conferred by the government, and embraces
the ideas of tenure, duration, emolument, and duties: United States y
Bartwell, 6 Wall.

Accordingly a person in the public service of the United States, ap-
pointed pursuant to statute authorizing an assistant treasurer of the
United States to appoint a clerk with a salary prescribed, whose own
tenure of place will not be affected by the vacation of office by his supe-
rior, and whose duties (though such as his superior in office should pre-
scribe) are continuing and permanent, is an '* officer'' within the meaning
of the Sub Treasury Act of August 6th 1846 (9 Stat, at Large 69), and,
as such, subject to the penalties prescribed in it for the misconduct of
officers: Id,

The terms employed in the 16th section of that act to designate the
persons made liable under it, are not restrained and limited to principal
officers: Id.

The admitted rule that penal statutes are to be strictly construed is
not violated by allowing their words to have full meaning, or even the
more extended of two meanings, where such construction best harmo-
nizes with the context, and most fully promotes the policy and objects
of the legislature : Id,

The penal sanctions of the 3d section of the Act of June 14th 1866,
to regulate and secure the safe-keeping of public money, &c. (14 Stat, at
Large 65), is confined to officers of banks and banking associations : Jd.

Compensation for Expenses. — An officer, holding funds arising from
the sale of goods attached, may deduct a reasonable compensation for
the expense of keeping and selling the same, before applying the balance
to the satisfaction of the execution, although the full amount of hip
charges is not taxed and allowed in the plaintiff's bill of costs : Baldwin
V. Batch, 54 Me.

The burden of paying such charges is upon the debtor and not upon
the creditor : Id,

An officer is not bound by the taxation of his fees in a suit in whicb
he is not a party : Id.

Alifer with a party : Id, •


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Purchase hy one Partner of the Interest of another with bond to
indemnify. — If the plaintiff (one of the members of a firm including the
defendant and others, each of whom purchased and held lands for the
general objects of the copartnership) sell his entire interest in the part-
nership property, including the lands, to the defendant, taking back a
bond reciting the sale, and conditioned to **save the plaintiff harmless
from all the liabilities of said firm and growing out of said firm ;" a
judgment rendered against all the members of the firm, on a petition
for partition of one not a member thereof, commenced before, but deter-
mined after such sale, and defended by an attorney retained by tho
defendant, in the name of all the members, is covered by the bond ;
and if the plaintiff pay such judgment, he will be entitled to recover tho
amount thus paid, in an action upon said bond : Bunion v. Dunn, 54 Me.


Delivery of Money hy Debtor with specific Instructions as to its Appli^
caiion — Violation of Instructions by Creditor. — If the defendant, being
cashier of a bank, receive, at the banking-house, a certain sum of money
from the plaintiff, with instructions to appropriate it to the payment of a
specific note signed by the latter, then undue, and he apply the same
upon another note signed by the plaintiff, both of which are payable to
said bank, and the plaintiff do not subsequently acquiesce in such appli-
cation, the defendant will be personally liable in an action for money had
and received to refund the sum thus received, with interest from the
time when received : Norton v. Kidder.^ 54 Me.

And whether the defendant applied the money to his own use or to
that of the bank is immaterial : Id.

The facts do not constitute a voluntary or involuntary payment : Id,


Amount of Bond — Action on. — A replevin bond, in less than " double
the value of the goods to be replevied,'' is good at common law: T ick
V. Mosfs, 54 Me.

If a plaintiff in replevin neglects to comply with the judgment for
return, following an abatement of the writ, because of such defective
bond, the defendant in replevin may maintain an action thereon, not-
withstanding the writ was abated upon his motion : Id

Against Express Company for not delivpring Goods. — The owner of
goods transported by an express company may, after tender of the suni
legally chargeable against such goods, and after demand and refusal,
maintain replevin therefor against the agent of such company having
the care of the goods in one of the company's places of deposit : Eveleth v.
Blossom, 54 Me.

When maintainable. — Replevin is maintainable only against a person
Laving possession or control of the chattels to be replevied : Ramsdcll v.
Buswell, 54 Me.


Indulgence of Principal by Creditor vrith consent of Surety. — Wliere,
i«) an action on a promissory note, by the payee against the principal and


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surety, the plaintiff testified, and the surety in cross-examination ad«
uiitted, that the latter requested the plaintiff " to wait on the principal
as long as he could j" and subsequently the plaintiff gave the principal
a written extension for one year : Htld^ that whether the delay granted
was by the request or with the consent of the surety was a fact for the
jury: Tr^at v. Smith, 54 Me.

A valid agreement for delay between the principal debtor and creditor
T,\\\ not discharge the surety, if made with his consent and approval : Id.


Abbott. — Digest of the Reports of the United States Courts, and of the
Acts of Congress, from the organization of the government to the year 1867.
Vol. 2» in which titles of importance or special character have been edited or
revised by Hon. George Sharswood, Hon. Samuel Blatchford, Hon. N. K.
Hull. George T. Curtis, Esq., Hon. William D. Shipraan, and Hon. Charles
C. Nott. The whole compiled by Benjamin V. Abbott and Austin Abbott.
New York: Diossy & Cockcrofi. 1867.

American Law Review. — April, 1868. Vol. 2, No. 3. Boston: Little,
Brown & Co.

Brown. — The Relation of the Legal Profession to Society. A Lecture
before the Maryland Institute, March 9th 1868.- By George William
Brown. 8vo. pamph., pp. 28. Baltimore: Kelly & Piet. 1868.

Carpenter. — Argument of Matt. H. Carpenter, in the Supreme Court
:»f the United States, March 3d and 4th 1868, in Ex parte McCardle, with
extracts from the brief where necessary to explain the argument. Reported
by D. F. Murphy. Washington, Government Printing OflSce. 1868.

Haywood. — Argument of E. Graham Haywood, special Judge Advocate,
before a Military Commission at Raleigh, N. C, upon the Trial of William
J. Tolar and others charged with murder. Pamph. 8vo., pp. 94. Raleigh
N. C. 1867.

Massachusetts — Reports of Cases argued and determined in the Supreme
Judicial Court of Massachusetts. By Charles Allen. Vol. 13. Boston:
H. 0. Houghton & Co. 1868.

Nott and Huntington. — Cases decided in the Court of Claims of the
rtjitod States, at the December Term 1866. Reported by Charles C. Nott
and Samuel H. Huntington. Vol. 2, 8vo., pp. 646. Washington, Govern-
uient Printing OflBce. 1868.

Quarterly Journal of Psychological Medicine and Medical Jurisfrit-
iiF.NCE. Edited by William A. Hammond, M. D. Vol. 2, No. 2. April,
H6,s. Xew York: Moorhead, Simpson & Bond.

Treat — A Discourse delivered by Hon. Samull Treat, at the Inaugurar
ti')ii »)f the St. Louis Law School, being the Law Department of Washington
University. Pamph. 8vo., pp. 41. St. Louis: R. P. Studley & Co. 1868.


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JUNE, 1868.


TnB adjudicated cases in the United States, upon the liability
of rwlroad companies for negligence, are far too numerous to bo
examined in detail within the limits of an essay. But the gene-
ral principles applied by the courts are essentially the same in all
the states, and it has been thought by the writer of the present
article that a discussion of the most important rules which may
be considered as establlihed, although illustrated chiefly by
reference to the decisions of a single state, will not be without
interest and value to the profession generally.

A railroad corporation has relations to its employees, to its
passengers, to the public generally, and to property. Its duties
to the public may be considered with reference to adults and
infants, and to them when at the crossings, and on the company's
roadway. Its duties to property may be discussed in respect to
the domestic animals, at crossings and on the company's roadway,
and also in respect to real and other perishable property along its

The rights and duties of such a corporation as to its employees
are determined by the law of master and servant. The company
is bound to hire men who are fit for their business, and who are
sober and tried. It is the right of each servant, that his fellow-
servants should be able to discharge their duties, so that while he

Vol. XVI.— 29 (449)


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is fulfilling his, he may not be imperilled by their incompetency.
Passengers and the public have the same right. Hence it is thai
the company must answer for consequences resulting from the
inefficient performance of the business of their employees.

The company engage, in law, to carry each passenger safeF;
from his point of entrance to his point of exit. They must pro
vide staunch and roadworthy carriages. They must have theii
track in good order and free from obstruction. They must pro
vide convenient and easy means of access to and departure from
their cars. The passenger, in turn, must comply with all reason-
able regulations concerning his entrance into, his stay in, and his
departure from the cars. Safe carriage is the paramount duty
of the company. Hence they have a right to a free track as
against all trespassers, and must keep a clear track for their pas-
sengers by the exercise of their utmost diligence.

The public are not entitled to occupy the roadway of the com-
pany except at the crossings, and then they must use reasonable
despatch in crossing. The duty of care upon the company's ser-
vants and upon the public at intersections is mutual. Each has a
right to expect this from the other. Therefore, in a city the com-
pany is bound to use all known and reasonable precautions tc
jnsure the safety of the public, such as the use of bells, steam-
whistles, flagmen, gates, lights by night. The employment of any
or all these must depend on the degree of public use of the high
way. The public are bound to a diligence proportioned to the
possible danger, and on warning given to stop. At all other
places than crossings, the company is entitled to exclusive posses
sion of their roadway, and any person on it without authority of
law is a trespasser.

Off the crossings the company's servants have a right to pre-
fiume that there are no trespassers on the roadway. They are
not bound to look out for trespassers, except for the safety of
passengers. If a trespasser is seen, the company's servants will
not render the corporation liable except for wanton negligence.
The obligations of care and diligence rest on the trespasser.

But in the case of a child of tender years the rule is different.
Such a child lacks the capacity of exercising care. If left to go
unattended, this is negligence in the parent and debars him from
recovery. But the child is not barred. The company must exer-
cise at crossings a diligence increased by the child's want of


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capacity, and if, on the roadway, the child, though a trespasser,
is seen, the engineer must use every practicable effort to stop.

Animals let loose and unattended are trespassers on the public
road. Hence if injured at a crossing the company are not liable
for anything but wanton negligence. But if attended, and travel*
ling, and the attendant is not negligent, the company are liable
for injuries done to them, if the result of want of care. What
has been said of the duty of the company to the public at cross-
ings, is predicable of its duty to animals also.

The company, as against the owners of animals, are not bound
to fence. Hence cattle on the roadway of the company trespass,
and the owner can recover only for wanton negligence. If injury
accrues to the company, the owner is liable to it. A duty to
fence or to take any other precaution, arises solely from the obli-
gation to transport safely.

With respect to perishable property along the line of the
route, such as woods, hay, lumber, buildings, the company are
bound to use ordinary care. But care varies with circumstances.
In dry weather ordinary care is a watchfulness much greater than
in wet. The company are bound to use the best spark arresters
as to have competent men to manage the fires of their engines.

Negligence is not doing what should have been done, or doing
what should not have been done, in either case occasioning injury
to another unintentionally. Where the measure or standard of
duty is fixed, negligence is a question of law. Where the rule is
a shifting one, the question is one of fact. Hence it is sometimes
the province of the court to lay down what negligence is, at other
times the jury alone must determine '^ what the standard is, as
well as find whether it has been complied with."

It is law that a plaintiff whose negligence has assisted at all in
causing the alleged injury cannot recover. Where the rule of
duty is fixed and definite, it is usually the plaintiff's duty to show
that he complied with it ; and in such cases the burden of proving
that he was not negligent falls on him. But where the standard
shifts with the facts of each case, negligence must be proved by
the party averring it. The plaintiff must always establish the
alleged negligence of the defendant. The law will not presume
it for him.

Where a rule of duty is fixed and clear, proof of what the
plaintiff's conduct was will show at ^nce whether he has or has


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not complied with the rule, or, it will enable the court to ascertain
and pronounce whether the plaintiff has or has not committed con-
tributory negligence. But where the rule is not a fixed one, but
the question is whether either party did as they should not have
done, or did not do as they should have done, the proof of the con-
duct of the parties is at most evidence of negligence for the jury.

In Ryan v. Cumberland Valley Railroad^ 11 Harris 384, it
was ruled that where several persons are employed in the same
general service, and one is injured from the carelessness of an-
other, the employer is not responsible. This rule was affirmc d in
Frazier v. The Penna. Railroad^ 2 Wright 104 ; but the follow-
ing exception was announced : that the company is responsible to
an employee for the carelessness of another known by it to be
unfit for his business.

The same principle is announced in Caldwell v. Brown^ 8 P. F.
Smith 453, 6 Am. Law Reg. N. S. 752, which, however, is not a
railroad case, in these words : " An employer is not bound to
indemnify an employee for losses in consequence of the ordinary
risks of the business, nor of the negligence of another person
employed by the same employer in the same general business,
unless he has neglected to use ordinary care in the selection
of the culpable employee."

The rule, as stated, was adhered to in Armstrong v. Catawissa
Railroad^ 13 Wright 186, but not extended ; *c being held that
where two companies used a road in common, a servant of the onf
was not a fellow-servant of the servants of the other ; and thw
employers of the latter were responsible to the former for thei*
carelessness. In Frazier* b Case it was ruled that the exception
was nullified, if the servant injured was iware of his fellow-ser
vant's incompetency and made no complaint, and continued to serve
with him. In Lockhart v. LichterAhaler^ 10 Wright 151, 4 Am.
Law Reg. N. S. 15, it was held, thut a brakesman in the employ-
ment of the owner of a private line of cars was not a servant of, but
a passenger on the road furnishing the motive power.- Pinna.

' Judge Redfixld, commenting on Railroad Co, v. Collins^ 5 Am. Law
Reg. N. S. 274, claims that the masur is responsible for any want of skill or car«>
in respect of employing competent an<- trustworthy servants and in sufficient num-
bers ; and also in respect of furnishing safe and suitable machinery for the work
in hand, unless the servants knowing, or having the means of knowing of the
deficiency in furnishing proper help or machinery, consent to continue in the em-
ployment. And the neglect or want of skill of the master's general agent em«
ployed in procuring help and machinery is the act of the master.


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Railroad v. Zebe^ 1 Wright 423, holds that a company is bound
to have safe and convenient means of egress and regress to and
from the line of the road. Penna. Railroad v. Kilgore^ 8 Casey
292, and Passenger Railway v. Stutler, 4 P. F. Smith 375, hold
that a company is bound to stop a sufficient length of time to allow
all passengers whose destination is a given point to alight there,
Penna. Railroad v. Zehe^ 9 Casey 318, holds that the passenger
must alight at the point and on the side provided by the company.
These principles are illustrated by the opinion of Woodward, late
C. J., in Sullivan v. Phila. and Reading Railroad, 6 Casey 238,
who announces that, on the part of the passenger, his consent is
implied to all the company's reasonable rules and regulations for
entering, occupying, and leaving their cars, and if injury befall
him by reason of his disregard of them, this is his own negligence
concurring in causing the mischief. On the part of the company,
the contract implies that they are provided with a safe and suffi-
cient railroad to the point indicated ; that their cars are staunch
and roadworthy ; that means have been taken beforehand to guard
against every apparent danger that may beset the passenger, and
that the servants in charge are tried, sober, and competent men.
If in performing this contract a passenger not at fault is hurt, the
law presumes negligence and throws on the company the onus of
showing it did not exist. Their paramount duty is the passen-
ger's safety.

But the company is not bound to place guards on the car
windows ; and if the facts are undisputed that a passenger was
injured from putting his arm out of a car window, the court
should pronounce him negligent as matter of law: Pittsburgh
and Conn. Railroad v. McClurg, 7 Am. Law Reg. 277.

To this may be subjoined, by way of in pari materia, observa-
tions of Judge Gibson in Tenery v. Pippinger, 1 Phila. Rep.
643, that '^ a carrier of passengers is bound to exercise the ut-
most care and discretion. He is answerable for the least possible
degree of negligence or carelessness. The happening of an injury
raises a presumption of want of care, and throws on the carrier
the burden of disproving it."

But, as ruled in Q-oldey v. Penna. Railroad, 6 Casey 242, a
contract, limiting the liability of a railroad as carriers, may
relieve them from those conclusive presumptions of law which
Arise when the accident is not inevitable, and require that negli-


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gence be proved against them. This ruling is maintained in
Powell V. The Railroad^ 8 Casey 414, and in Headenon y. The
Railroad, 1 P. F. Smith 815.

At this point may be noticed a proposition of Judge Gibson il
Tenery v. Pippinger, supra. This case related to the rights and
duties of passengers on a public stage, but, it is submitted, is
applicable to railroads. ^' Passengers engage their passage on
the basis of the customs of the country. These are incorporated
with, and become a part of, the contract. It is matter of experi-
ence, I might almost say of general history, that our public
stages have been crowded with as many passengers as they could
carry. A railway company differs from a stage company, in its
possession of an almost limitless motive power, and in its ability
to attach to an engine a great number of carriages. There is^
therefore, ordinarily no necessity for overcrowded cars, and the
company would seem bound to take notice of the habits of the
travelling public, and to provide corresponding accommodations.''
In The Railroad v. Hind, 3 P. F. Smith 617, Woodward, C. J.,
says, " To allow undue numbers to enter a car is a great wrong,

Online LibraryAndrew PritchardThe American law register, Volume 7 → online text (page 48 of 93)