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contained therein, was consumed. In an action by P., to recover for the loss,
Tieldj (1) that, as the loss of the money could have been prevented by reasonable
efforts for its preservation, the company were not responsible as to it ;
(2) that the question whether the injury sustained was too remote, was for the
jury. 1870. Toledo, Peoria and Warsaw Bailwag Co. v. Pindar (63 111. 447),
V,67.

39. In a time of extreme drought, one of defendant's locomotives, in

passing along its road, opposite plaintiff's land, dropped live coals upon the
track, which set fire to a tie, the fire thence communicated to weeds, grass and
rubbish, which defendant had suffered to accumulate by i)ie side of its track,
and thence it spread to plaintiff's land, baming and destroying his growing
forest trees. Held, that the damages to plaintiff were not too remote. 1872.
Webb V. Borne, etc., B. B. Co. (49 N. Y. 420); X, 889.

40. Burden of proof — evidence of negligence. Th^ mere fact of injury
from fire, set by sparks emitted from a railroad engine, is not prima facte evi-
dence of negligence on the part of the company. The burden of proof is on
the plaintiff to show that due care and caution have not been exercised by the
company : but this fact may be satisfactorily established by evidence of cir-
cumstances bearing more or less directly upon the fact of negligence, such al
the absence of, or defect in, the spark arrester, an unlawful speed or an extra-
ordinary heavy train. 1870. Qnndy v. The Chicago d Northwestern 'B, JB. •
Co. (80 Iowa, 420), VI, 682. •



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NEGLIGENCE. 275

41. In an action against a railroad company to reooYor for injnriea

occasioned bj the escape of fire from one of its engines, held, that the burden
of proof is on the company to show that the engine was properly constructed
and properly managed. 1872. Spaulding ▼. Chicago A Ifarthweitam S. B
Oo. (80 Wis. 110), XI. 550.

in. OONTBIBnTORT NBOLIOBNOB.

42. Xlfieot of oontrtbatory negligenoe — burden of prool Whenever there
is negligence on the part of the plaintiff, contributing directly, or as a proxi-
mate cause, to the occurrence from which the injury arises, such negligenoe
will prevent the plaintiff from recovery ; and the burden is always upon the
plaintiff to establish either that he himself was in the exercise of due care, or
that the injury is in no degree attributable to any want of proper care on his
part. 1869. Murphy v. Dsane (101 Mass. 455), lU, 890.

43. But in Illinois, the rule is that when the negligence of the plain-
tiff is slight as compared with that of the defendant, a recovery may neverthe-
less be had. 1869. Chicago db Alton B. M, Co. v. Pondrom (51 Dl. 888), II, 806.

44^ By infuit — negligmioe of parents. The plaintiff, an infant four years
and seven months old, while returning unattended from school, was run
over by defendant in the public street. In an action to recover for the inju-
ries, h^id, that it was for the jury to determine whether or not plaintiff's par-
ents were guilty of negligeuce in permitting him to be in the street alone.
1870. Lynch v. BmWi (104 Mass. 52), VI, 188.

46. In such action the opinion of plaintiif s school teacher as to his

capacity is admissible. lb.

46. When an infant is in the streets, without negligence either on the

part of himself or parents, he is bound to use only such reasonable care as he
is capable of, though of less degree than adults would be bound to use under
the circumstances. Ih.

47. Where a child about five years of age is negligently allowed, by

its parents, to go into the public street, yet does no act which prudence would
forbid, and omits no act which prudence would dictate, there is no negligence
^ contributory to an Injury and which will prevent a recovery by the child. i&.

48. Where a child, three years and two months old. Is fatally injured

by the negligent management of a street railroad car, if the child exercised
proper care, the company is liable irrespective of the negligence of its parents
in allowing it to go upon the street ; but if the child did not exercise proper
care, the conduct of its parents is essential to determine the liability of the
cpmpany. Negligence of the parents, in the latter case, releases the company
from liability, but the absence of negligence in the parents fixes the company's
liabiyty. 1872. Ihl v. The Forty-second Street and Gh-and Street Ferry B. B.
Co, (47 N. Y. 817), VII, 450.

49. It is not negligence per $e for a parent to send a child three years

* and two months old across an avenue, through which a street railroad runs, in
^charge of a sister nine and a half years old. The question of parental negli
gence in such a case is for the jury. lb.



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276 NEGLIGENCE.

60. A child, nineteen months old, strayed from ita mother to the rail-

road track of the Pennsylvania Railroad Ck>mpan7, and was mn over by a car,
which had been detached from the engine and sent around a curTe,on a slight
down grade, unattended by a brakesman. The track where the child was
Injured ran through a lot which the public had been permitted, by the railroad
company, to use freely. In an action to recover for the injuries received by
the child, the judge took the question of negligence away from the jury and
charged that no more than $8,000 could be recovered, by reason of the limit in
the act of assembly of 1868. The injury happened in 1864, and this action
was commenced in 1866. ffeld, (1) that, as in this case the negligence alleged,
consisted of a positive act of carelessness in sending a car around a curve out
of sight, on a descending grade, at a place where persons might be expected
to be, from the permissive use suffered by the company, the question of negli-
gence was for the jury ; (3) that the child was incapable of contributory neg-
ligence. 1870. Ka% V. Penmyhania JRailroad Co. (66 Penn. St d69), m, 6d8.

61. The fact that a parent living in a quiet street, where few vehicles

pass, permits a child six years old to go unattended upon the streets, does not
constitute negligence |>^««. It is a question proper for the jury. 1872. Cot
grove v. Ogden (49 N. T. 255), X, 361.

62. Arm prqjeotiag from oar. Pliuntiff 's arm while projecting from a car
window was injured by coming in contact with a car standing near the track.
Held, that defendants were liable. 1869. Chicago A AUon B. ILOo.y, Pan
drom (51 Dl. 888), II, 806.

63. While endeavodng to save Ufa. Plaintiff's intestate, while endeavor-
ing to rescue a child from being run over by an approaching railway tnin,
was himself struck by the train and so iigured that he died. MM, that it was
proper to submit to the jury the questiouj^ whether the negligence of the
deceased contributed to the injury. 1871. JSekert v. Long Idand E. B.Co.
(48 N. T. 502), III, 721.

64. The law has so high a regard for human life that it will not impute

negligence to an effort to preserve it, unless made under such circumstances as
to constitute rashness in the judgment of prudent persons. Although an expos-
ure to injury, for the purpose of saving property, is negligence, for the purpose
of saving human life, it is not so, unless such as to be regarded rash or reck-
less, lb.

66. ▲ boy was warned off a gangway, because it was a passage for labor-
ers to pass through with iron trucks, wheelbarrows, etc. He was subsequently
in the gangway, when he was killed by the falling of a car negligently pushed
off a tramway overhead. Held, that he was not guilty of contributory negli-
gence, there being no reason to expect danger from the cars above. 1871.
Qray db BeU v. 8coU and Wife (66 Penn. St. 345), V, 871.

66. Questions for Jury — o<miparatlve negligence — damages. In an action
to recover for iiguries received by the son of plaintiff in consequence of the
alleged negligence of defendant in placing barrels and a counter on a public
street, it appeared that the son was twelve years old, and that, in passing on
the sidewalk, he put his hands upon the counter, as if to jump upon it when



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NEGLIGENCE — NEW TRIAL. 277

It fell and fmctared his leg. ffM, (1) that the age and discretion of the boy
were subjects of consideration by the jury ; (2) that, as the negligence of defend-
ant was much greater than that of the boy, plaintiff could recover ; and (8) that
evidence tending to show permanent injury, as affecting the amount of damages*
was properly submitted to the jury. 1870 K&rr v. Fargue (54 111. 482). V,
146, and note, 148.

67. When violation of law not negUgencOi An action will lie for injuries
willfully or carelessly done to plaintiff, to which his own conduct has not con-
tributed, although at the time of the injury he was violating the law. 1870.
Steele v. Burkhardt (104 Mass. 69), VI, 191, and note, 198.

68. Plaintiff's team, while standing in a public street in a manner pro-
hibited by a dty ordinance, was negligently driven against and injured by
defendant's servant. Held, that plaintiff could recover, the only fault on his
part consiirting in the violation of the dty ordinance. lb.

69. So where one was injured by a defect in a street while driving at a

rate of speed forbidden by law, held, that he could recover, the jury having
found that the speed did not contribute to the injury. 1870. Baker v. Port-
land (68 Me. 199), IV, 274.

60. By one wrongfally on railroad track — when o<mipany not eaccused.
Plaintiff desired to cross defendant's track at a public crossing, but was pre-
vented from doing so by a train of defendant's cars standing at that point.
She then attempted to cross at another place, where there was no public cross-
ing, and, in so doing, was struck and injured by defendant's car. Held, that,
notwithstanding the fact that plaintiff was not rightfully on the track at the
place of the injury, yet, if the injury might have been avoided by the use of
ordinary care and caution by the defendant, the Utter was liable therefor. 1872.
Brown v. The Hannibal db 8t. Jdeeph BaOroad Oo, (60 Mo. 461), XI, 420, and

note, 426.

See TSviBASCE,

NEGOTIABLE INSTRUMENT.
Stook oerkifioate. A certificate of stock transferred in blank is not a nego
liable iBitnunent. 1868. ^SAm ▼. ^mvumt (100 Mank 882), 1, 116.
See Bills Aim Notsb.

NEWSPAPERS — See NonoB.

NEW TRIAL.

1, Jmon drank intoxioating Uqnom after they had retired to consider of
their verdict Hdd, ground for a new trial. 1889. Rffan v. Harrow (27 Iowa,
^4). 1, 802 ; Doom v StaU (86 Ind. 496), IX, 760, and nUe, 7B4.

2. Where, however, the liquor was used as a medicine, it was held not

to'vitiate the verdict in the absence of any showing that it was so used with-
out the knowledge of the defendant's counsel, or that the effbcts were intoxi-
cating. 1871. State v. Morphy (88 Iowa, 27). XI, 122.



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278 NEW TRTAL-^ NUISANCE.

3. An ordinanoe of a constitatioiial oonventioii, granting new trlala in cer-
tain cases, is yoid. 1878. Latoaan v. Jeffries (47 Miss. 086), XII, 842.

4. Where^ under an indictment for mnrder, the defendant is convicted of
manslaughter, and a new trial is granted on his motion, he may at the secoDd
trial be convicted of murder. 1871. State v. McGord (8 Kans. 282), XII, 469 ;
sed contra, note, 473 ; and State v. Martin (30 Wis. 216), XI, 567.

6. Zhridenoe of Jurors on motion for new triaL On a motion for a new trial
on the ground of bias on the part of one of the jurors, the evidence of jurors as
to the motives and influences which affected their deliberations is inadmissible,
either to impeach or to support the verdict. But a juryman maj testify to anj
facts bearing upon the question of the existence of anj extraneous influence,
although not as to how far that influence operated upon his mind. So a juiy-
man maj testify in denial or explanation of acts or declarations outside of the
jury room, where evidence of such acts has been given as ground for a new
trial. 1871. TTcTCH^toord v. X«<mM (107 Mass. 458), IX, 49.

NOLLE PROSEQUI — See CRiMmAL Law.

NON-RESIDENT — iS^ Limitation op Actions.

NOTARY— 5^ Bills and Notm.

NOTICE.
I. Publication op.
II. To AOENT — See Agbnct.
III. Op depbotb in strbbtb — See Highwatb.

When legal notices are directed to be published in a newspaper, a news-
paper in the English language is meant, in the absence of express directions
to the contrary. 1872. Ordham v. Eing (50 Mo. 22), XI, 401.

NUISANCE.

1. The aot of maMng a speech in a public street, although it may become a
nuisance by obstructing the public highway, is not a nuisance per ee. 1872.
Fairbanks v. Kerr (70 Penn. St. 86), X, 664.

2. Briok-buming, being a useful and necessary employment, will not be
restrained by injunction, although carried on in the outskirts of a dty, because
it occasions some discomfort, or even injury to those residing in the vicinity.
Upon an application to restrain the exercise of a lawful business, the court
will look at the customs of the people, the characteristics of their business, the
common uses of property, and the peculiar circumstances of the place. 1872.
ffuekemtine^s Appeal (70 Penn. St. 102), X, 669, and noU, 674.

3. Objoots within the limit of a highway which, in their nature, are calcu*
lated to frighten horses of ordinary gentleness, may be nuisances which make
the highway defective within the meaning of a statute requiring towns to keep



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injiSANOE. 279

their highways " in good and sufficient repair/' Whether in anj case sach an
object is a nuisance, is a question of fact for the jury. 1872. Ayer v. City of
Norwich (09 Conn. 876), XII, 896, and note, 400; Foshay v. Qlen ffaoen (25 Wis.
288), m, 78.

4. Steam whistle near highway. Plaintff was driving a horse of ordinary
gentleness on a highway. When passing defendant's factory, situated near
the highway, the horse became frightened by the blowing of a steam whistle
upon said factory, and plaintiff was injured. Held, that defendants were liable.
1871. Knight y. Goodyew^s India Rubber Olove Manvfaeturing Go, (88 Ck>nn.
488), IX, 406.

6. The disturbance of a religious congregation by singing, when the singer
does not intend so to disturb it, but is conscientiously taking part in the relig-
ious services, may be a proper subject for the discipline of his church, but is
not indictable. 1878. )»toto v. X»nA;^io (69 N. C. 214), XH, 645.

6. ▲ person who uses his property in such a manner as necessarily tends
to injure the property of another is liable to that other for any injury which
may result from such use, without regard to considerations of care and skill
therein. 1871. CoAiU v. .S^utma/i (18 Minn. 824), X, 184.

7. 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. Heldt that the defendant was liable for the damage occasioned, without
proof of negligence or unskillf ulness on his part. lb.

8. One who brings or accumulates on his own land any thing which, if

it should escape, may cause damage to his neighbor, and which does escape
and cause such damage is liable. 1871. WiUon v. City of New Bedford (108
Mass. 261), XI, 852 ; see, otherwise, Loeee v. Buchanan (51 N. Y. 476), X, 628,
where the owner of a steam boiler which exploded without his fault and
injured his neighbor was held not to be liable.

9. To render a party liable to an action lor damages resulting from a no^
sance upon his land, where the nuisance was created by a previous owner of
the land before the conveyance to the defendant, the proof must show notice
to. or knowledge on the part of the defendant of the existence of the nuisance,
but no request to abate it is necessary. Proof of the mere continuance of the
nuisance on the land of the defendant, without such knowledge or notice of its
existence as to charge it with fault for such continuance, is not sufficient to
maintain the action. 1878. Oonhoetan Stone Road v. The Buffalo, etc., B. B.
Go, (51 N. Y. 573), X, 646.

10. Liability of landlord lor injuries occasioned by the leased premises.
iL landlord is liable for injuries occasioned by ice and snow falling from the
roof of the demised premises, although the^uilding was occupied by tenants
who had covenanted to keep the premises in repair, where it does not appear
that the roof was under the control of the tenants. 1869. Shipley v. Fifty
Aeeodaiee (101 Mass. 251). UI, 846 ; Shipley v. F^fty Aeeodatee (106 Mass. 194).
711,818.



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280 NUISANCE,

11. Defendant, owner of a boildinf, rented the lower story to plaintiff

and the upper stories to other tenants. There was, in the apper part, a water-
closet to which all the tenants had access, and which, though properlj con-
structed, had become out of order bj reason of the negligence of the tenants,
of which fact defendant had notice. Hdd, that defendant was liable for dam-
ages occasioned to plaintiff's goods by reason of the overflow of said closet
1871. Ma/rshaU v. Cohm (44 Ga. 489), IX, 170.

12. When lenee liable for. Where a coal-hole had been excavated in the
sidewalk of a city, and was used by a subsequent lessee of the premises for
the benefit of which it was made, and to which it was appurtenant, and in con-
sequence of its defective covering, the plaintiff, passing along the street, fell
through the opening and was injured 7 hM, that the lessee was liable sepa-
rately, or jointly with the lessor, for the injuries sustained, and that proof of
notice of the defect to the lessee was not necessary. 1872. Irvine v. Wood (51
N. T. 224), X, 608.

13. Where there is no provision in a lease in regard to injuries, it is

the duty of the person having control of the premises to keep a scuttle in the
sidewalk in repair ; and the owner of the premises will not be liable to an
injured party for neglect to keep the scuttle in repair if it was in good condi-
tion when possession was given under the lease. 1870 FMer v. TkirkeU
(21 Mich. 1), IV, 422.

14. Cooking range — i^en landlord Uable. Defendant erected in his house
adjoining plaintiff 's premises, a cooking range, so near to the partition wall
that the ordinary use of it injured plaintiff's goods and rendered his premises
uncomfortable and disagreeable. HM, that the use of the range was a nui-
sance, and that an action on the case would lie against defendant, although he
had leaeed the premises containing the range to a tenant, who built the fires.
1871. Orady v. WoUwr (46 Ala. 881), VII, 598 .

16. Where maohinery prodooes a Jarring of buildings. Defendant carried
on a manufactory in a building adjoining two buildings owned by plaintiff.
Defendant's machinery was run by steam power, and its operation produced a
jarring and shaking of plaintiff's buildings, to their injury aad to the annoy-
ance of the occupants. PlaintilE^s house had been leased by the defendant for
ten years, and the alleged nqisanns vaa erected and put into <^»erat&on during
the existence <^ the lease. Fourteen days after the lease ezf^red plaintiff
brought an action to restrain defendant from the use of his steam power.
Plaintiff's evidence as to the injurious efibcts of his premises was confined to
the effects produced during the #xistenoe of the lease. MM, that plaintiff was
entitled to a judgment, enjoining defendant from so conducting his business as
thus injure the plaintiff; that pUintiff was not bound to take measures to
abate the nuisance during the existence of the tenancy, and his delay in com-
mencing suit until the termination thereof was no laches; and that the fact
that the premises were leased in no way affected the competency or weight of
the evidence as to the injuries sustained. 1873. MeKeon v. See (51 N. T. 800),
X,659.



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NUISANCE. 281

16. Where the owner and not the oontniotor is liable. The owner of a
city lot, having determined to build, let parts of the work to different persons
— to one the excavation, to another the stone-work, to another the superstruc-
ture ; while himself delivered stone, lime and sand. Meld, that the owner, and
not the contractor, was responsible for an injury to a traveler, caused by the
excavation being insufBdently guarded. 1871. Roman v. Stanley (66 Penn.
St. 464). V, 889.

17. Erected by semrant of contractor. The defendant company were
engaged in constructing their railroad, and the other defendants were contrac-
tors with the company for doing a portion of the work, under a contract which
prohibited them from suUetting any part of the work, without the consent of
the company's engineer; required them to employ competent servants, and
provided that they should immediately discharge, whenever required by the
engineer so to do, any servants considered by the engineer to be incompetent.
The contractors, with the consent of the company, snblet the zock excavations
to S., it being understood by all parties that nitro-glycerine was to be used in
blasting the rock. 8. received permission of the engineer to erect on the com-
pany's land a magazine for storing nitroglycerine necessary for the work.
Afterward 8.^ without knowledge of the defendants, stored In nid magazine a
qoantl^ of nitroglycerine belonging to, and for the benefit of another company.
While a portion of this last-named nitro-glycerine was being removed, at the
request of its owners, an explosion occurred^ through the negligence of a ser-
vant of 8., the sub-contractor, by which plaintiff's intestate was killed. Hdd,
that defendants were not liable. The relation of master and servant did not
exist between the servant of S. and the defendants, nor, under the drcum-
stanoes, did the injury result from a nuisance, erected and maintained on the
defendant company's land by their consent. 1870. Oujf v. Newwrk, ete., J3. JR.
Ci>.(35N.J.17),X,206.

18. Ordinanoa of town oonnoil as to. In an action against defendant, for
pulling down and removing plaintiff 's livery stable, an ordinance of the town
conndl ordering such removal is no defense, the nuisance not being caused by
the erection itself but by the persons who resorted there. 1869. MUler v.
Bureh (8d Tex. d08). V, 248.

19. An ordinance of a town declaring a nuisance aU intoxicating

liquors kept within the limits of the town for the purpose of being sold or
given away as a beverage to be dmnk within said town, and directing the
police officers to abate said nuisance by removing the liquors beyond the
town limits, will not justify sudi officers in seizing and carrying away liquors
until it has been determined by a court of justice that the ordinance has been
violated. 1869. Dori^ v. PMSPltf (51 m. S86), U, 801.

2a Defoot In biidga. A canal company was required by its charter to keep
in repair the bridges over the canal. Plaintiff was injured by reason of a
defect in one of such bridges. HM^ that the c(nnpany was liable without
evidence of actual or willful negligence on its part 1870. Penmylwnia and
Ohio Oanal Oo. t. €fraham (68 Penn. 8t. d90), m, 549.
See HIOHWAT8 ; PBBSoaiFnoif .
86



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282 OFFICE AND OFFICEK.

OFFICE AND OFFICER.

1. A pnblio office is an agency for the State, and the pereon whose duty it
is to perform this agencj is a pablic officer. 1872. SUUe y. Stanley (66 N. C.
59), Vni, 488.

2. An act providing for the appointment of a director for the State in

all corporations in which the State Li a stockholder creates an office, and the
person so to be appointed is a pablic officer. Jb.

3. The constitution prohibited judges from holding any other *• office

or public trust." Q., a judge, was appointed by the legislature one of a com-,
mittee to pass upon the genuineness of certain relics, about to be purchased
by the State. MM, that the appointment was not in yiolation of the consti-
tution, the position not being an " office.'* 1878. People ▼. NichoU (52 N. Y.
478), XI, 734.

4. An alien who has not declared his intentioiis to become a citizen of
the United States, may be elected to a public office and may hold the same in
case his disability be removed before the term of office begins. 1871. 8iaU
V. Murray (28 Wis. 96), IX, 489.

6. The legislature has no power to appoint permanent officers for the full
term whose duties are purely municipal. 1871. People ▼. HurUmt (24 Bfich.
44), IX, 108.

6. Legislative control of. The constitution fixed the term of judicial offi-
cers. The legislature passed an act establishing a new judicial district and a



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 36 of 51)