Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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riska v. Kronk, 57 Misc. 552, 109 N. Y. Supp. 1092, on same point.
Laws relating to national banks.

Cited in National Bank v. Burr, 27 Hun, 109, on identity of laws relating to
state and national banks.

86 AM. REP. 595, FISHKIIJ:i SAV. INST. T. NATIONAIi BAlfK, 80 N.
Y. 162.

Liability of bank for nnanthorized act of its officers.

Cited in Binghamton Trust Co. v. Auten, 68 Ark. 299, 82 A. S. R. 295, 67 S. W.
1105, holding bank liable for false representations of its president as to solvency
of maker of certain notes, made during course of his employment to induce sale
of the notes; Smith v. Anderson, 67 Hun, 72, 10 N. Y. Supp. 278, affirming lia-
bility of a bank whose president deposits in the bank, and thereafter draws out
and converts to his own use, the money of a third person.

Cited in reference notes in 8 A. S. R. 636, on binding effect on bank of cash-
ier's acts and declarations; 9 A. S. R. 471, on liability of national bank to sav-
ings bank for bonds of latter pledged for advances to former by officer common
to both banks.

Cited in note in 29 L.R.A.(N.S.) 663, on imputation of knowledge of person-
ally interested officers to bank.
— Savings and exchange banks conducted together.

Cited in Kelley v. Chenango Valley Sav. Bank, 21 Misc. 240, 45 N. Y. Supp.
651, holding where savings bank and a national bank had offices in same room
and treasurer of the former was cashier of latter, and former issued a black pass-
book for deposits and the latter a white one, and the treasurer gave depos-
itors black pass-books at first and later white ones with assurance that they
where part of same management, the savings bank was liable for such de-
posits.
liiability of principal for wrongful acts of agent.

Cited in McCord v. Western Union Teleg. Co. 39 Minn. 181, 12 A. S. R. 636,
1 L.R.A. 143, 39 N. W. 315, holding telegraph company liable for fraud an!
misfeasance of agent, in sending false and fraudulent message, prepared by him-
self, over its line; Kolzen v. Broadway & S. Ave R. Co. 1 Misc. 148, 20 X. Y.
Supp. 700; Duffus v. Schwinger, 7 Misc. 499, 27 N. Y. Supp. 949,— holding prin-
cipal liable for tortious acts of agent done in course of his agency; Lowndes v.
City Nat. Bank, 82 Conn. 8, 22 L.R.A.(N.S.) 408, 72 Atl. 150, to the point that
where there is duty of finding out and knowing negligent ignorance has same
effect in law as actual knowledge.

Cited in note in 1 L.R.A. 145, on principals' liability for agents' fraudulent
acts.



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1153 NOTES ON AMERICAN REPORTS. [582-600

~ In action of deceit for fraud of agent.

Cited in Trankla v. McLean, 18 Misc. 221, 41 N. Y. Supp. 385, holding prin-
eipal liable.

— Acts within scope of agency.

Cited in Kolzem v. Broadway & S. Ave. R. Co. 48 N. Y. S. R. 656, 20 N. Y.
Supp. 700, holding street railway company liable for acts of its servants in
causing a tortious arrest; Nash v. Minnesota Title Ins. & T. Co. 159 Mass. 437,
34 N. £. 625, holding title insurance and trust company bound by representations
of its president and trust officer as to title of certain realty; Guilleaums v.
Rowe, 63 How. Pr. 175, 16 Jones & S. 169, holding client liable for illegal is-
suance of execution against the body by his attorney; Riley v. New York, L. E.
A W. R. Co. 34 Hun, 97, holding railroad company bound by a special contract
as to shipping freight made by its agent within scope of his authority.
liiability of corporation for acts of its agents.

Cited in Bank of Batavia v. New York, L. E. & W. R. Co. 33 Hun, 589, on
identity of its liability with that of individuals.

Cited in reference note in 47 A. S. R. 303, on liability of corporation for tort
of agent.

Cited in note in 1 LJI.A. 607, on corporation's liability for its agents' acts.

— Fraud of agents.

Cited in Dorsey Mach. Co. v. McCaffrey, 139 Ind. 545, 47 A. S. R. 290, 38 N.
£. 208, holding corporation liable for the fraudulent representations of its pres-
ident as to value of its stock and its solvency.

86 AM. REP. 600, McVEANY v. NEW YORK, 80 N. Y. 185.
Right of de jare officer t6 emoulments of office.

Cited in Skinner v. Cowley County, 63 Kan. 557, 66 Pac. 635, holding an un-
authorized appointment of special sheriff and execution of process wrongfully
issued to him will not deprive the sheriff of the emoluments of his office, and
he may recover from county the compensation earned in execution of the process,
and for which payment has not been made; Kreitz v. Behrensmeyer, 149 III. 496,
24 L.R.A. 69, 36 N. E. 983; Nichols v. MacLean, 101 N. Y. 526, 64 A. R. 730, 5
N. E. 347, — holding right to office carries with it right to its emoluments; An-
drews V. Portland, 79 Me. 484, 1 A. S. R. 280, 10 Atl. 458, holding person hold-
ing legal title to office of city marshall has legal right to salary.

Cited in note in 13 L.R.A. 178, on right of officer de jure to salary when wrong-
fully prevented from performing duty.
Right of de facto officer to fees of office.

Cited in Stephens v. Campbell, 67 Ark. 484, 55 S. W. 856, holding person who
has acted as night watchman de facto of a city, but without legal title to the
.office, cannot recover fees for services performed as such night watchman.
liiablllty of manicipal corporation to de Jure officer for salary, fees and
emolnments of his office.

Cited in People ex rel. Harper v. Adams, 46 N. Y. S. R. 150, 18 N. Y. Supp. 896,
on right of skilled laborer in city water works department, who was legally dis-
charged to recover back pay between dates of his discharge and reinstatement;
Cross V. New York, 123 App. Div. 917, 107 N. Y. Supp. 942, holding city liable
for salary of inspector of police from date of order of his reinstatement.
Am. Rep. Vol. XVII.— 73.



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86 AM. REP.] NOTES ON AMERICAN REPORTS. 11*4

— Where no service was performed.

Cited in O'Hara v. New York, 46 App. Div. 518, 62 N. Y. Supp. 146, sustaining
right of a veteran of civil war to recover his salary for period during which he
was illegally removed from his position where no one was appointed in his
place and his salary had not been paid to any one else; Hogan v. Brooklyn, 4
Silv. Ct. App. 426, 27 N. E. 265; Sullivan v. New York, 33 Misc. 314, 67 N. Y.
Supp. 599, — ^holding an officer illegally removed from office who took no step*
to obtain reinstatement, and who performed no services while out of office, iHit
whose duties were performed by another who was paid therefor, cannot recover
salary for period he was out of office; Hogan v. Brooklyn, 126 N. Y. 643, 27
N. E. 265, same as to a fireman; Van Valkenburgh v. New York, 49 App. Div,
208, 63 X. Y. Supp. 6, holding same as to clerk in municipal department; Beard
v. Decatur, 64 Tex. 7, 53 A. R. 735, holding where city authorities, having a duly
appointed and unqualified city treasurer, place the city money with the mayor for
disbursement, the treasurer has right of action for the amount of commissions
he would have received had he disbursed it.

Distinguished in People ex rel. Ryan v. French, 91 N. Y. 265, holding board of
police have no power by its charter to make deductions from patrolman's sal-
ary, while detained from duty for sickness or injury caused by discharge of
official duty, such board not having authority to fix salary; People ex rel. Nu-
gent v. Police Comrs. 27 Hun, 261, upholding right of 4>olice officer to recover
salary for time during which, by reason of his being imprisoned he was pre-
vented from discharging the duties of his office; Higgins v. New York, 38 N. Y.
S. R. 400, 14 N. Y. Supp. 554, holding laborer in city employ, who was discharge'l
and later reinstated because he was a civil war veteran may recover his wages
for time be was deprived of such employment.

— Necessity of establishment of right to office or salary.

Cited in Walters v. New York, 119 App. Div. 464, 105 N. Y. Supp. 950, hold-
ing a clerk who has not established by some direct proceeding the invalidity of
reduction of his salary by which he fell to lower grade in civil service classifi-
cation, and was reinstated to his former office, cannot recover amount his sal-
ary was reduced.

Liability of mnnicipal corporation to de jare officer for salary of an office
it has paid to de facto officer.

Cited in Coughlin v. McElroy, 74 Conn. 397, 92 A. S. R, 224, 50 Atl. 1025,
holding city paying de facto officer the fees of his office before judgment of
ouster, is not liable for the same fees to the de jure officer after his title ia
legally established; State ex rel. McDonald v. Newark, 58 N. J. L. 12, 32 Atl.
384, denying the liability; El Paso County v. Rohde, 41 Colo. 258, 124 A. S. R
134, 16 L.R«i.(N.S.) 794, 95 Pac. 551; Henderson v. Glynn, 2 Colo. App. 303,
30 Pac. 265; Chandler v. Hughes County, 9 S. D. 24, 67 N. W. 946; Brown v.
Tama County, 122 Iowa, 745, 101 A. S. R. 296, 98 N. W. 662; State ex rel.
Greeley County v. Milne, 36 Neb. 301, 38 A. S. R. 724, 19 L.R.A. 689, 54 N. W.
521; Gibbs v. Manchester, 73 N. H. 265, 61 AtL 128; Terhune v. New York,
88 N. Y. 247, 42 A. R. 248; People ex rel. Swinburne v. Nolan, 101 N. Y. 539,
5 N. E. 446; McManus v. Brooklyn, 25 N. Y. S. R. 938, 5 N. Y. Supp. 424:
Demarest v. New York, 147 N. Y. 203, 41 N. E. 405 (affirming 74 Hun, 517, 2S
N. Y. Supp. 585), — ^holding payment of salary of office to de facto officer dis-
charging its duties, is defense to action by de jure officer against municipality
to recover the same salary; Martin v. New York, 176 N. Y. 371, 68 N. E. 640



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1165 NOTES ON AMERICAN REPORTS. [600

(affirming 82 App. Div. 35, 81 N. Y. Supp. 412), holding payment to de facto
clerk is good defense to action by de jure clerk for salary accruing between dated
of his removal and reinstatement; Stemmler v. New York, 179 N. Y. 473, 72
N. E. 581; Monroe v. New York, 28 Hun, 258, — denying liability where salary
was paid to de facto officer who performed the duties of the office; Re Grady, 16
App. Div. 504, 44 N. Y. Supp. 578, holding where fiscal officer of mimicipality
has paid a salary to person de facto in office under color of title he cannot be
compelled by mandamus to pay the salary again to another person claiming it;
Grant v. New York, 111 App. Div. 160, 97 N. Y. Supp. 685, denying liability to
police officer for amount of his salary during period of his dismissal where such
salary was paid to de facto encumbent of the office; People ex rel. Blair y.
Grout, 45 Misc. 505, 92 N. Y. Supp. 742, holding payment to de facto officer
is a good defense to an action brought against city by de jure officer to recover
the same salary after he has acquired or regained possession; Walden v. Head-
land, 156 Ala. 562, 47 So. 79; Stearns v. Sims, 24 Okla. 623, 24 L..RA.(N.S.)
475, 104 Pac. 44; Sutliflfe v. New York, 132 App. Div. 831, 117 N. Y. Supp. 813,—
holding that if salary is paid to de facto officer de jure officer cannot recover
from city but may from de facto officer.

Cited in reference note in 41 A. R. 134, on right of officer de jure to salary.

Distinguished in People ex rel. Blair v. Grout, 44 Misc. 526, 90 N. Y. Supp.
122, holding by statute, that civil war veterans are excepted from general rule
that city officer illegally removed cannot recover the salary paid to his succes-
sor before city had knowledge that the removal was illegal; Ransom v. Boston,
192 Mass. 299, 78 N. E. 481, 7 A. & E. Ann. Cas. 733, holding rule that pub-
lic officer de jure whose salary has been paid to officer de facto must estab-
lish his right by mandamus to recover salary does not apply to action by veteran
against city for its refusal to employ him as a laborer and employing nonvet-
erans to his exclusion.
— Where payment was after establishment of title.

Cited in Scott v. Crump, 106 Mich. 288, 58 A. S. R. 478, 64 N. W. 1, holding
municipality liable for payment of salary to de facto officer after judgment of
ouster against him; Jones v. Buffalo, 178 N. Y. 45, 70 N. E. 99 (affirming 79 App.
Div. 328, 79 N. Y. Supp. 754), holding city liable for salary of officer illegally
removed if it pays the salary to a person after order of court vacating the offi-
cer's discharge and adjudging such person to be a usurper; Fylpaa v. Brown
County, 6 S. D. 634, 62 N. W. 962, holding person adjudged to be a legally elected
public officer and who has qu^Jified and demanded possession of his office, may
recover salary from municipality although it has been paid to a person in pos-
session of the office; Rasmussen v. Carbon County, 8 Wyo. 277, 45 L.R.A. 295,
56 Pac. 1098, holding county liable to de jure officer for salary of office to which
he has been declared legally entitled from commencement of the term.
Noncontractual nature of relation existing between officer and govern-
ment.

Cited in Truesdale v. Rochester, 33 Hun, 574, holding relation between city and
its police justice is not that of contracting parties in respect to compensation
so as to preclude common counsel from altering his salary; Metz v. Maddox,
121 App. Div. 147, 105 N. Y. Supp. 702, on office as not being the property of the
office holder, or held by contract, but as being a public trust; Erie County v.
Jones, 17 N. Y. S. R. 512, 1 N. Y. Supp. 557, holding unearned salary of public



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36 AM. REP.] NOTES ON AMERICAN REPORTS. 115C

officer is in no sense property, and it may be changed at any time during his
term, if legislative power in that respect is unrestricted by Constitution; Stein-
son V. Board of Education, 49 App. Div. 143, 63 N. Y. Supp. 128 (dissenting opin-
ion), on necessity of rendition of official services in order to recover compensa-
tion; Wilson V. New York, 31 Misc. 693, 65 N. Y. Supp. 328, holding prospec-
tive salary of New York city department clerk may be reduced.

Distinguished in People ex rel. Murray v. McClave, 3 How. Pr. N. S. 8, sustain-
ing power of legislature which fixes salary of police officers to deduct two dol-
lars from each policeman's salary to establish life insurance fund for the pol-
ice department.
Effect of Jadgment of ouster against incumbent of public office.

Cited in State ex rel. Craig v. Woodson, 128 Mo. 497, 31 S. W. 105, holding
judgment of ouster divests tenant of office of all official authority so long as
the judgment remains in force.

Necessity of qualification to constitute person chosen to fill office an
officer de Jure.

Cited in State ex rel. Keifer v. Wheatley, 160 Ind. 183, 66 N. E. 684, holdmg
an information in nature of quo warranto seeking removal of encumbent of
county office and its possession by relator which fails to show that relator has
taken oath of office and given bond as required by law is fatally defective; Min-
nick V. State, 154 Ind. 379, 56 N. E. 851, holding if person appointed school
trustee fails to qualify within statutory time and another is appointed in hia
place, the title of former to the office is thereby forfeited.
Jurisdiction of courts as to offices.

Cited in Osgood y. State, 69 Wis. 472, 25 N. W. 529, holding unless statute
conferring upon city council jurisdiction to judge of the election of its own
members unequivocally excludes jurisdiction of the courts, such jurisdiction re-
mains in the courts, and that conferred upon council is only concurrent or tem-
porary.

Cited in notes in 16 A. S. R. 222, on jurisdiction of law courts to review pro-
ceedings of bodies having power to judge of the election and qualifications of
members; 26 L.R.A.(N.S.) 208, on provision for testing election of officer be-
fore municipal body as exclusive remedy.

36 AM. REP. 608, WASMER ▼. DSIiAWARE, Ij. & W. B. CO. 80 N. Y.

212.
Duty of railroad company to maintain crossings over public highway in

proper condition.

Cited in Voisin v. Commercial Mut. Ins. Co. 125 N. Y. 120, 9 L.RA, 612, 25
N. £. 325, holding lessee is not liable for negligence of its lessee in reference
to repair of railroad trestle; Atchison, T. & S. F. R. Co. v. Henry, 57 Kan. 154,
45 Pac. 576, on liability of railroad company for defective crossings; Moberly
v. Kansas City, St. J. & C. B. R. Co. 17 Mo. App. 518, holding company liable
for negligent performance of statutory duty to maintain planks on sides of
rails at crossing; Schild v. Central Park, N. & E. River R. Co. 41 N. Y. S. R.
795, 16 N. Y. Supp. 701, holding street-railway company allowing one of its
track rails to project three inches above surface of street cross-walk is liable^
to person injured by falling over it; Bell v. New York C. & H. R. R. Co. 29 Hun,
560, holding company liable for failure to restore street to such a state as not
unnecessarily to impair its usefulness > Sibbald v. Grand Trunk R. Co. 18 Ont



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1157 NOTES ON AMERICAN REPORTS. [600-608

App. 184, to the point that railroad cannot escape liability for condition of cross-
ing because it is simply lessee of road.

Distinguished in Wood v. Third Ave. R. Co. 13 Misc. 308, 34 N. Y. Supp. 698,
denying liability to plaintiff who was thrown down and injured by his crutch
going into hole in manhole cover between defendant's tracks, where such hole
was made when originally constructed as a means of speedily lifting the cover
when required.

— Duty of successor.

Cited in Moundsville v. Ohio River R. Co. 37 W. Va. 92, 20 L.R.A. 161, 16 S.
E. 514, on duty of successor to maintain safety of crossing; Buffalo Stone &
Cement Co. v. Delaware, L. & W. R. Co. 27 N. Y. S. R. 216, 7 N. Y. Supp. 604,
holding the statutory duty of lessor to build form crossings became the duty
of the lessee under a lease providing that lessee should do the things which les-
sor "would be bound by law to do had this indenture not been made."
Duty of those interfering with public street to restore it to its original
condition.

Cited in note in 52 L.R.A. 459, on liability of street railway company for de-
fects in street not caused by the company.

Distinguished in Nolan v. King, 97 N. Y. 565, 49 A. R. 561, holding if person
removing sidewalk of city street and excavating for purpose of building a vault,
builds a bridge over the excavation which it necessarily raised above level of
street, he need not make the same as safe and convenient as was the sidewalk
removed; Fredericks v. Illinois C. K. Co. 46 La. Ann. 1180, 15 So. 413, holding
there is no duty of possessor of premises to keep them in a safe condition for
other persons than those whom he invites, and he is not liable to trespassers
for defects not amounting to traps in such premises.
Negligence under imposed peril.

Cited in Pullman's Palace Car Co. v. Laack, 41 HI. App. 34, holding employer
cannot escape consequences of his own negligence, and defeat an employee's
claim for personal injury, by urging against him his faithful endeavor to pro-
tect his employer's property from a danger which such negligence created;
Mitchell V. Union Terminal R. Co. 122 Iowa, 237, 97 N. W. 1112, holding driver
of wagon, injured by his team which became frightened by a passing train is
not guilty of contributory negligence as matter of law in attempting to prevent
the escape of the frightened horses; Sherry v. New York C. & H. R. R. Co. 101
N. Y. 652, 10 N. E. 128, 1 Silv. Ct. App. 319, holding person killed while cross-
ing six tracks with her view obstructed by defendant's cars standing on side
track, where locomotive appeared suddenly without warning amidst steam and
smoke driven by the wind cannot as matter of law be held guilty of contribu-
tory negligence; Harnett v. Bleecker Street & F. Ferry R, Co. 17 Jones & S.
185 (dissenting opinion), on mistake in judgment by person in perilous situa-
tion, where had he remained quiet, he would have escaped injury, as not barring
his action; Northrup v. New York, 0. & W. R. Co. 37 Hun, 295, holding a person
whose view of defendant's main track was obstructed by cars on next track is
not as matter of law guilty of contributory negligence in recrossing main track
while trying to get out of way of train backing down main track.

— Encountering danger in protection of imperilled property as contrib-

utory negligence.
Cited in Hlinois C. R. Co. v. Siler, 229 111. 390, 15 L.R.A.(N.S.) 819, 82 N. K
862, 11 A. & E. Ann. Cas. 368 (affirming 133 HI. App. 2), holding railroad com-



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36 AM. REP.] NOTES O

pany liable foi the burning to c
was endeavoring to save her d^
ward house from railroad right
negligence; Liming v Illinois C.
son acting with reasonable pruc
to protect his own property mj
the injury to himself and the d
R. & N. R. Co. 115 Iowa, 377, 5(
by train at street crossing wh
escaped from him is not guilty
failure to look and listen, but tl
A P. Co. V. Hodges, 109 Tenn. 3
on recovery of damages by pen
as a reasonably prudent man
Christensen v. Oregon Short Lin
between eight and nine years 0I4
to pasture from going upon rail
guilty of contributory negligence

Negligent failure to avert in

Distinguished in Harnett v. '.
185 (dissenting opinion) ; Gray
—on liability for such negligent

— Towards negligent person <

Cited in Texas & P. R. Co. 1
holding railroad liable for such 1
699, 45 S. W. 1036, holding it
negligent person and failed to i
R. Co. 198 N. Y. 102, 91 N. E. 2
able care to avoid injuring tresf

Distinguished in Rider v. Syi
L.R.A. 125, 63 N. E. 836, holdinj
into a person who is on track th
a driver attempts to cross trac
IB so near as to render the attc
Leaving horse untied in city

Cited in Moulton v. Lewiston,
(N.S.) 845, 66 Atl. 388, holding
tached to can-iage in the street
Atl. 1010, holding it not neglig
while driver is on sidewalk loa«
67 N. J. L. 255, 91 A. S. R. 429
ligence to leave quiet, gentle ho
thing likely to frighten him, th
the wagon to which the horse wi
R. R. Co. 22 Misc. 10, 48 N. Y.
untied while he is near it at tir
contributory negligence.
Liability of continuer of a n

Cited in Dukes v. Eastern D



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1159 ' NOTES ON AMERICAN REPORTS. [608

Marine Ins. Co. v. St. Louis, I. M. & S. R. Co. 41 Fed. 643, — holding he is just
as guilty as person creating it.

Necessity of knowledge by continuer of nuisance to render him liable
therefor.

Cited in Haggerty v. Thomson, 45 Hun, 398, holding purchaser of premises
is not liable for a nuisance thereon until notified of its existence; Timlin v.
Standard Oil Co. 54 Hun, 44, 7 N. Y. Supp. 158, holding tenants maintaining
structure with knowledge of its dangerous condition are liable for death of
person caused by its fall; Kuechenmeister v. Brown, 13 Misc. 139, 34 N. Y.
Supp. 180, holding a lessee of premises to which a nuisance is appurtenant, is lia-
ble therefor if he knowingly acquiesces in its existence or maintenance; Pitcher
V. Lennon, 16 Misc. 609, 38 N. Y. Supp. 1007, holding the continuer is not lia-
ble without proof of scienter.

Distinguished in Wenzlick v. McCotter, 87 N. Y. 122, 41 A. R. 358, holding
the omission of person acquiring title to land upon which there is a nuisance
to abate it does not render him liable therefor, if he does not actually use it,
or there is no request made to him to abate it.
What constitutes contributory negligence.

Cited in Gerlach v. Edelmeyer, 15 Jones & S. 292, holding it consists in a want
of ordinary care by person injured, which want of care is the immediate and
proximate cause of the injury complained of; Thompson v. Seaboard Air Line
R. Co. 81 S. C. 333, 20 L.R,A.(N.S.) 426, 62 S. E. 396, holding that is not con-
tributory negligence for one charged with protection of property to manifest
risk to save it unless risk was wanton or unreasonable; Grant v. Oregon R. cfc
Nav. Co. 54 Wash. 678, 25 L.R.A.(N.S.) 925, 103 Pac. 1126, to point that it is
not contributory negligence not to stop, look, and listen before crossing railroad
if done because of sudden fright from runaway team; Sullivan v. McWilliam,
20 Ont. App. 627, holding that it is not negligence for driver of gentle horse to
lay down reins while he alights in street; Council v, Prescott, 20 Ont. App. 49,
holding person not guilty of contributory negligence by acting as reasonable
man would in hope of saving property from probable injury; Prescott v. Con-
nell, 22 Can. S. C. 147, holding plaintiff not guilty of contributory negligence
in trying to stop his team from running away when frightened by blast.

Cited in notes in 55 A. D. 676, on act in discharge of legal duty to save lif«;
or the like as contributory negligence preventing recovery for injury; 2 L.R.A.
(N.S.) 955, on contributory negligence by railroad servant in attempting to save



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 116 of 123)