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1869. Oity of Bridgeport v. New York and Nwo Haven B. B. Co. (86 Conn. 255).
IV, 68.

62. It seems that such an assessment is not a tax within the meaning of

the act of 1864, imposing a tax upon railroad franchises in lien of all other
taxes, lb.

63. Of street railroad. A dty was authorized by its charter to pave its streets
and assess a proportional part of the expense upon persons whose property was
especially benefited, which assessment should be a lien liable to foredosure
like a mortgage. The dty having paved a street through which defendant's
horse railway was laid, held, (1) that defendant's track was real estate and
liable to assessment ; (3) that the remedy to recover the same by lien was not
exdusive, and that an action for debt would lie for it>; (3) that the company,
having suffered the dty to make the improvements with full knowledge and
without objection, were estopped from setting up that their diarter required
them to pave the road covered by their track at their own expense. 1871.
Oity of New Hanen v. Fair Hawn and Wes^field BaHroad Company (88 Conn. 423X
IX, 899.



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MUNICIPAL OOKPORATIONS. 267

64i Bitopp«l of a4Joliiing owner. Where a daase of a dty charter pro>
fidea, " that the dtj council shall have power to cause to be opened, paved,
repaved or improved, anjr street, lane, alley, market space or public landing,
on petition of not less than two-thirds of the number of owners of any square,
or parts of a square of said city bounding or abutting on such street," etc., a
person who signs and presents such petition is estopped from claiming that
the assessment of a tax for such improvement was unauthorized on the ground
that two-thirds of the abutting owners did not join in the petition. 1871.
CUy of Burlington v. GUberi (81 Iowa, 856), VU, 148*

66. Where an owner of property in a city sees a contractor go on and

make a street improvement adjoining said property, under a contract with the
dty, and makes no objection while the work is being done, he cannot, after the
work is completed and accepted by the city as having been done according to
the contract, eiyoin the collection of the entire assessments made for such
improvement, on the ground that the materials used and the work done were
not strictly in accordance with the contract ; in such case, a complaint for an
iig unction must show a tender, by the property owner to the contractor, of
the value of the improvement. 1870. Oity of JSSvantnlle v. FfisUrer (84 Ind.
86). VU, 214.

y. Municipal aid to bailboads.

66. An act of tha lagialatoni authorizing municipal corporations to aid in
the construction of railroads and to impose a tax therefor, held, unconstitutional.

1870. Peopls ▼. Salem (20 l^ch. 462), TV, 400. 1869. Haneon v. Vernon (27
Iowa, 28), 1, 215.

67. A legislature may authorize munidpal corporations to subscribe

for stock in railroads and to issue bonds therefor. 1871. Comr. of Lea/oei^
wMTth V. Miller (7 Kans. 479), XII, 425. 1870. Siewart v. Supervieors of Polk
Co., overruling Haneon v. Verthon, 1, 288.

68. The constitution of Alabama provides that private property shall

not be taken *' for private use, or for the use of corporations, other than muni-
dpal, without consent of the owner," and that *' the State shall not engage in
works of internal improvements, but its credit in aid of such may be pledged
by the general assembly on undoubted security." Held, (1) that the legisla*
ture of the State has power to authorize a county, as a body corporate, on a
popular vote of the county, to subscribe for stock in a railroad company ; and
(2) that, for the payment of stock so subscribed, the county, as a corporation,
may be authodzed and compelled (by inandamue) to issue bonds of the county
and deliver them to the railroad company in which the stock is subscribed.

1871. Exparte 8elma d Oulf R, R. Co. (45 Ala. 696), VI. 722.

69. Taxation in aid of railroads owned and operated by private indi-
viduals or corporations is unconstitutionai, and an act of the legislature

•SeeMatUr of Petition cf Sharp, 1 N. T. Sup. 4«7, where tt was held that one who
signed a petition for the repaTement of a street, was not thereby estopped from denying
the lefaUty of sa ■sswiinmit for such repavement on the ground that a majority of the
property ownvra had Dd signed the petition. This judgment was alllrmed In the Ooori oC
Appeals. .



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268 NAVIGABLE STREAMS.

authoriziiig county orders to be issued in aid of a railroad, and taxes to be
levied for the payment thereof, on condition tliat the consent of the majority
of the people should be manifested by ballot, and the railroad should be
brought to a specified state of completion, is void. 1868. Whiting t. The
Sheboygan <k Fotid du Lae R E. Co. (25 Wis. 157), III, 80.

70. An act of the legislature authorizing a city to raise, by taxation of

its citizens, the money for constructing a railroad leading into such dty, from
points within or without the State, when the railroad is deemed by a majority
of the citizens to be essential to the interests of the dty, is not unconstitutionaL
1871. Walker v. City of Cincinnati (21 Ohio St. 14) VIU. 24.

71. Reetrlotion en SUte. A State constitution provided that " the State
shall never be a party in carrying on any work of internal improyement"
Held, not to be a restriction on munidpal corporations. 1871. Cdmrnienonen
of Lea/t>entDoHh y. IfiUer (7 Eans. 479). XU, 425.

72. Irregulaxity in proceedings — effect on bonds. Where a statute author-
izes the issue of county bonds after submitting certain questions to the
people of the county to be yoted upon, and the bonds are issued by the county,
of its own motion, and without submitting the questions to the yoters of the
county, the bonds are yoid, eyen in the hands of bona fide holders ; but the
legislature has power to cure the defect by authorizing the county to take up
the old bonds and issue, in lieu thereof, new bonds, which would be yalid.
1871. Steinee v. Franklin County (48 Moi 167), VIII. 87, and noU, 100.

73. Where county bonds are, by spedal act of the legislature, authorized

to be issued upon a popular yote " specifying the amount," and the bonds are
issaed upon a popular yote which failed to '^spedfy the amount/' this circum-
stance will be deemed an irregularity simply, and not suffident to render the
bonds void in the hands of bona fide holders. 1871. State of Mtsiouri ex reL
Neal V. SaliM County Court (48 Mo. 890), VIII, 108.

See HioHWATs; Watbb and WATER-couBas.

MURDER— iS^ Criminal Law.

MUTUALITY.
L Op ooNTRAcrrs — See Contracts.
IL Op wills— iSc^ Wills,

NAME.

Under what ciroomstanoes a name will be protected as a tiade-mark
Gee Trade-mark.

NATIONAL BANKS — iSiw Banks and Banking.
NATURALIZATION — iSiw Criminal Law; Jurisdiction.

NAVIGABLE STREAMS.
I. Legislation as to — See Constitutional Law.
IL Rights and incidents- ^Sm Water and WATER-oouBflxs.



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NEGLIGENCR 269

NEQUGENCE.

L MlBCSLLANBOUS 0A8B8.

IL Nbgliobnt c<5mmi7Nioation op fibs.

III. Contributory nbgligbncb.

IV. Of carriers— /Sm Carriebb.

v. Of municipal corporations — Bee Municipal Ck>RPORATiONB.

VI. Of MASTER OR SERVANT — /S^ MASTER AND SBRTANT.

VII. By Water — See Ship and Shippino.

I. Miscellaneous cases.

1. In sale of defeotire macliin«ry. A balance wheel, already made and in
nand, having defects which weakened it, was sold bj the defendant to a person
who bought it for his own use. The defects in the wheel were pointed out to
the purchaser, and fully understood by him. The wheel was used by the buyer
for Bome years, and was then taken into the possession of the plaintiff 'a intes-
tate, who used it for his own purposes. While bo in use, it flew apart by
reason of its original defects, and the plaintiff's intestate was killed. Held,
that the seller was not guilty of such negligence as would make him liable in
an action for causing the death of the plaintiff's intestate. 1870. Loop v.
LiUhfiM (42 N. Y. 851), 1, 548.

2. Defendant manufactured a steam boiler and«old it. While it was

in the possession and control of the purchaser it exploded, and plaintiff, a third
party, was injured. Held, that defendant was not liable to plaintiff, even if
the construction of the boiler was defective. 1878. Loeee v. Clute (51 N. T. 494),
X,688.

3. Bale of poison. Defendant, an apothecary, by his servant, negligently
sold, as and for tincture of rhubarb, two ounces of laudanum to P., who pro-
cured it for the purpose of administering it, and who did administer it, as a
medicine to his servant, the plaintiff's intestate, from the effects of which he
died. Held, that defendant was liable in damages to plaintiff, the administra-
trix. 1870. Ntrrton v. ISewaU (106 Mass. 148), VIU, 298, and noU. 299.

^ In keeping or osing property. The owner of a steam boiler who oper-
ates and uses the same upon his own premises, in such a manner that it is not
a nuisance, is not liable for damages done to an a4Joining owner by its explo-
sion, without proof of fault or negligence on his part. 1873. Losee v.
Buchanan (51 N. Y. 476). X, 628. See contrary principle, WUeon v. CUy of
NevD Bedford (108 Mass. 261), XI, 852.

6. Defendant excavated a tunnel in his own land, extending under the

bed of a stream. The pressure of the water having broken in the roof of the
tunnel the water rushed in and through the tunnel and undermined plaintiff's
land. Held, that defendant was liable for the damage without proof of negli-
gence or want of skill on his part. 1871. CahUl v. Eastman (18 Minn. 824),
X,184,

6. So where defendant accumulated water in a reservoir, which by per-
colation escaped upon to the plaintiffs land and injured it ; held, that defend-
ant was liable even though plaintiff sold the land to the defendant for the par



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270 NEGIIGENCR

pose of oonBtraetiiig the iMerroir. 1871. WUion t. OUif <^ 2f0W B6tfford (106
Mass. 261), XI, 862.

7. At railroad oroulng* In an action against a railroad company to recover
for caosing the death of plaintiflTs decedent, held, that it is negligence for one
approaching a railway crossing not to use the sense of sight and hearing to
discoyer a coming train, and that, in the absence of special statute, the omission
of all signals at crossings is not negligence p&r se on the part of the railroad
company. 1870. BeiitfotUains Bailuatf Oo, y. HunUr (88 Ind. 885), V, 201,
and noU, 216.

8. The citizen who, on a public highway, approaches a railroad track

and can neither see or hear any indications of a moying train, is not chargeable
with negligence in assuming that there is no car sufficiently near to make the
crossing dangerous. He has a right to presume that in handling their cars the
railroad companies will act with appropriate care, and that the usual signals
of approach will be seasonably given. 1870. labor y. MUsouri VaUey M. B,
Co, (46 Mo. 853), II, 517.

9. Question of oare for Jnry. In an action against a railroad company for
killing plaintiflTs horse at a highway crossing, evidence was adduced showing
that a servant of plaintiff, employed to deliver goods, upon stopping with the
horse and wagon to deliver a parcel at a house from fifty to a hundred rods
from the railroad crossing, left the horse unfastened for four or 'five minutes,
while he was in the house, knowing it was not afraid of cars, and having used
it for three or four months without ever hitching it or knowing it to start, and
that the horse started while the servant was in the house, and ran down the
street and into defendant's train, which was crossing the street at the moment,
whereby it was killed. The Judge ruled that, as at the time of the accident
the horse was frightened, and not under the control of any one, it was not the
subject of any care whatever, and, therefore, the plaintiflT could not recover,
whatever negligence might be shown on part of defendants. Held, error, and
that the question of due care of plaintiff was for the Jury. 1870. JSotUhtDorth
v. Old Colony df Netoport RaUiDay Company (105 Mass. 842), VII, 528.

10. PlaintiflT, a passenger upon defendant's railroad, had a ticket for F.,

where the train was advertised to stop. The train' did not stop, but passed by
the station very slowly, and a brakeman told plaintiff that the train would not
stop, and that she had better get off, which she did, and in doing so was thrown
down and injured. Held, that the plaintiff was not, as a matter of law, negli-
gent, but that the question should go to the Jury. 1872. Filer v. H, T, O. B,
iJ.(7<>.(49N.T. 47),X,827.'

11. Oolliaion — grounded tow — towboat The defendant's steamer, St.
John, in attempting to pass a grounded tow belonging to the plaintiff, instead
of taking the ordinary channel, which was on the west side of the tow, went
to the east side, the pilot supposing that the channel had changed. The pilot
knew that the tow was aground. Held, that the pilot was guilty of negligence,
and the owners of the St. John liable for damage done by collision with a yes
sel belonging to the tow. 1870. Auitin t. If. J, Bteamboat Oo. (48 N. T. 76),
ni,668.



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NBGIIGENCB. 271

12. Ee was negligent, although the accident maj have been caused bj

an obstacle which had been recentlj and suddenlj fonned and could not be
seen by him. A partj cannot avail himself of the defense of " inevitable acci-
dent/' who, by his own negligence, gets into a position which renders the
accident inevitable. lb.

13. The St. John» before reaching the tow, signaled that she intended

to go to the east. No answer was made by those on the tow, though it had
been grounded by its pilot making a mistake similar to that of the pilot of the
St John, and some of those in charge had sounded and discovered that the
channel had changed. Held, that those managing the tow were not guilty of
contributory negligence. lb,

1^ There was no legal duty on the part of the tow to either signal or

impart any information as to the channel to tiie St. John. A steamer with full
control of its machinery, desiring to pass a vessel, whether stationary or mov-
ing, must do it on its own responsibility, and is bound to select its route at its
periL lb.

16. When landlord liable for injuries from leased pramiseSi The plaintiff,
while passing along a highway, was injured by a mass of ice and snow falling
upon her from the roof of defendant's building. In an action to recover dam-
ages, ^«M, that the defendants were liable, although the building was occupied
by tenants wlio had covenanted to keep the tpremises in repair, as it did not
appear that the roof was under their control. 1869. Shipley v. Fifty Anodatei
(101 Mass. 251), lU, 846.

16. So when a building is so near the street, and of such a shape and

' character that snow and ice collected upon the roof, in the natural pourse of
things, falls down upon the sidewalk, and thereby injures a passer, using due
care, the owner of the building is liable ; and this is so notwithstanding the
rooms in the building are occupied by tenants, the owner having access to and
control of the roof . 1870. /9Aip%v. JV^j^jlMooto^M (106 Mass. 194), VIU, 818.

17* Where premises are in possession of a tenant the owner is not liable

for injuries occasioned by their getting out of repair, unless he is bound to
repair, or unless the premises were in bad condition when possession was given
to the tenant. 1870. Fish&r v. TMrkeU (21 Mich. 1), IV, 423.

18. Defendant, owner of a building, rented the lower story to plaintiff

and the upper stories to other tenants. There was, in the upper part, a water-
closet, to which all the tenants had access, and which, though properly con-
structed, had become out of order by reason of the negligence of the tenants,
of which fact defendant had notice. Meld^ that defendant was liable for dam-
ages occasioned to plaintiffs goods by reason of the overflow of said closet

1871. Mar$haU v. Cohen (44 Ga. 489), IX, 170.

19. Plaintiff fell through the covering of a coal hole in the sidewalk.

Defendant was the lessee of the premises to which the coal hole was appur-
tenant. The injury occurred by reason of the improper construction of the
oovering. Held, that defendant was liable, separately, or jointly with the
lessor, and that no proof of notice of the defect to the lessee was necessary

1872. Jreins v.Fbod (61 N.T. 224), X, 608.



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272 NEGLIGENCR

20. Aninudi killed by oan. An animal was killed byatralnof can mnning
at the otdinaiy speed. Held, that the fact that the speed of the train was not
checked while approaching the animal did not tend to show negligence ; nor
did the fact that the engineer did not see the animal until the train was cloee
to it show want of ordinary care. 1869. Bemia v. ConnsetmU B. B. Co, (42
Vt. 875), 1, 889.

21. Where the live stock of plaintiff, running in his field, strajed upon
defendant's unfenced railroad and were killed by a passing train, these facte,
unexplained, make a prima fade case of negligence against the defendant.
The plaintiff was not chargeable with contributory negligence, from the fact
that he knew that the railroad was not fenced when he turned the stock into
the field. 1871. McCoy v. California Pacific Bailroad Co. (40 CaL 532), VI, 023.

22. Declaration against a railroad o<mipany for negligence whereby pluntiff
was injured, not averring that he was himself in the exercise of due care, hetd,
good. 1878. Thompaon ▼. Iforth MisBouri BaUroad Company (51 Mo. 190).
XI, 448.

23. Of railroad — burden of pvoo£ In an action against a railroad company
to recover for injuries occasioned through its alleged negligence, Juid^ (1) that
the fact that the defendant had leased that part of the road where the accident
happened, without authority of law, was no defense ; and, (2) that although the
burden was on the plaintiff to prove defendant's negligence, yet proof that the
injury was caused by the cars running off the track was evidence of negligence
sufficient to charge defendant li^ the absence of explanation. 1872. Il^rilal v.
Middlesex B, B. Co, (109 Mass. 898). XII, 720.

24. In 6rder to extinguish a fire in plaintiff's building it was necessary to,
and firemen did, lay a hose across defendants' railroad. Defendants' servants,
with notice of the presence of the hose, and although having time to stop the
train until the hose could be uncoupled, ran a train over and severed the hoee,
thereby cutting off the water from the fire which otherwise might and probably
would have been extinguished, and the building was consumed. Held, that
the hose was lawfully laid across the track, and that the act of the defendants'
servants was the proximate cause of the destruction of the building, and that
the defendants were liable. 1872. MetaUie Compreeeion CatUng Co. v. Fitch'
burg B. B. Co. (109 Mass. 277), XII, 689.

26. Bvidenoe. In an action against a railroad company to recover damages
for causing the death of plaintiff's intestate, held, that the declarations of the
fireman of the train which caused the death, made soon after the accident, as
to the speed of the train, the position of the deceased, and the giving of the
customary signals, were inadmissible. 1870. Bellrfontains By. Co. v. MurUer
(33 Ind. 836), V, 201.

II. Negligent commukication of fire.

26. A man who negligently sets fire on his own land, and keeps it negli-
gently, is liable for injuries done by its direct communication to the property
of another, whether through the air or along the ground, and whether he
might or might not have reasonably anticipated the particular manner and



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NEGLIGENCE. 273

direction in which it was actually communicated. 1871. JBiggins y Dewey
a07 Mass. 494), IX, 68.

27. He who negligently sets or negligently manages a fire in L s own

property is liable to his immediate neighbor for the damages caused to him by
the spread of the fire on to his neighbor's next adjacent property. 1872. Webb
V. Rome, etc., S, B. Co. (49 N. T. 420), X, 889.

28. By railroad locomotive. Where, from the defect in the construction
of a railway engine, carelessness in those operating it, or want of proper
appliances to prevent the emission of sparks or coals of fire from the smoke
stack, property adjoining a railway is destroyed by fire, the railroad corpora-
tion is liable for the damages resulting from such fire ; and absence of the
best contriyance known to prevent the spread of fire from a locomotive will
be construed as negligence on the part of the railroad corporation. 1870.
Jackwn v. The Chicago di N, W. Railway Co. (81 Iowa, 176), VII, 120 ; Steimocg
V. Brie RaHway Co. (48 N. T. 128), III, 678.

29. But a railroad company is not bound to use every possible preven-
tion which scientific skill may suggest, nor to adopt an untried machine, and
therefore it is negligent in not supplying its engines with spark arresters only
when such apparatus is known and in practical use. 1870. SUintoeg v. Brie
Railway Co., $ttpra.

30. It is evidence of negligence for a railroad company to run an

engine without a screen on the smoke-pipe, from which large sparks are
emitted so as to set fire to an adjoining dwelling. 1871. BedeU v. Long l$land
R. R. Co. (44 K Y. 867), IV, 688.

31. It is a question for the jury whether a railroad company has taken

reasonable precaution to prevent the escape of sparks from its engine. 1870.
Toledo, etc.,R. R. Co. v. Pindar (58 111. 447), V, 57.

32. Where a locomotive, which is well constructed and properly man-
aged, nevertheless emits sparks sufficient to set fire to cut and dried grass and
weeds which the railroad company had permitted to lie in a combustible state
upon its land along the track, and the fire is communicated thence to an
adjoining field and, through stubble and uncut but dry grass, to a wheat-stack,
which is thus consumed, the company is liable for the loss. 1870. Flynn v.
San Francisco d San Joae R. R. Co. (40 CaL 14), YI, 595, and no^, 597.

33. Whether or not a railroad company is guilty of negligence in per-
mitting combustible materials to accumulate upon its lands is a question for
the jury. 1870. Eesee v. Chicago dN.W.R, R. Co. (80 Iowa, 78), VI, 648 ;
' Kellogg v. Chicago d N. W. R. R. Co. (26 Wis. 228), VII, 69, and note, 80 ;
Webb V. Rome, etc., R, R. Co. (49 N. Y. 420), X, 889.

34. oontribntory ne^big«no« by land owner. Land owners contiguous

to railroads are as much bound, in law, to keep their lands from an accumu-
lation of dry grass and weeds as railroad companies are ; and when a fire is
ignited on a railroad company's right of way, and is communicated in con-
sequence of such accumulations to fields adjoining, the negligence of the
owner will be held to have contributed to the loss, and unless it appears that

35



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274 NEGLIGENCR

the negligence of the company is greater than that of the land owner, the
latter cannot recover. 1870. OMcago and NcrthwetUm B. R, Co. t. 8imonaon
(64 111. 604), V, 166; Kewe v. Chicago A N. W. B. B. Co. (80 Iowa, 78), VI, 648;
Bee, contra, note, 167.

36. Bat, on the other hand, it was held that the failore of a land

owner to remove the dry grass or stubble from his own land in order to avoid
anticipated danger from fire caused bj the default or misconda<^ of a railroad
company was not negligence on his part. 1870. Kellogg v. Chicago db N. W.
B. B. Co. (26 Wis. 228), VU, 69, and note, 80.

36. Proximate and remote cause. By reason of defendant's negligence
sparks from one of its locomotives set fire to a warehouse near the railroad
track, which communicated fire to plaintiff's building, situated thirty-nine feet
distant. Held, that defendant was not liable therefor, the injury being too
remote. 1870. Penneylwinia B, B. Co, v. Kerr (62 Penn. St 868), 1, 481.

37. ^-^ On the contraiy, heid, that the fact that natural agencies, as high
winds or drought, contributed to cause the injury, or that the property
destroyed was at a distance from the place where the fire originated, does not
affect the question as to the liability of a railroad company, or render the
fire the remote and not the proximate cause of the injtiry done. 1870. Kel-
logg V. Chicago db N. W. B, B, Co. (26 Wis. 228), VII, 69, and noU, 80.

38. A building belonging to a railroad company took fire from spaiks

from one of their engines, and from this building fire was blown across the
street to the storehouse of P., which, with several thousand dollars in money



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