CHICAGO & A. R. CO.
ence between his ability to earn before and after the injury, mcluding suffering in consequence of his injury. If you find the issues for the defendants, you will return a verdict accordingly.
& A. R. Co.
'Circuit Court, D. Missouri. October Term, 1883.}
1. PERSONAL INJURY - NEGLIGENCE - CONTRffiUTORY NEGLIGENCE - RAILROAD
In cases of unexpected and Immediate danger, calculated to affect the judgment of him who is to meet it, a mistake made in his movements is not negligence. '
SAME-ACTS OF CO-SERVANTS.
The acts of the plaintiff's co-servants held, for the purpO!les of this case, and to determine whether the plaintitI was guilty of contributory negligence, to be the acts of the plaintiff.
Alton Railroad Company for killing her husband, Charles Stevenson. The cause of action, as stated in the declaration, is as follows: On the twenty-seventh day of February, 1883, Charles Stevenson,the husband of plaintiff, was in the employ of one Mead, who controlled an elevator on the gronnds of the Chicago & Alton Railroad Company, and while engaged in unloading a car, using due care, .waskilled by the negligent running ofa car of the defendant railroad company against the' car Stevenson was unloading. The railroad company, .in answering the charges made, denies all neglect, and, avers that Stevenson, by' his own carelessness, contributed to, the .injury, of which he died. These pleadings, both declaration and,illiDStWer, have been oriticised. For the purposes of this trial they maybe taken as sufficient, leaving a;ny further consideration, if necessary, to ' be settled hereafter by the court. The question you are to determine is, was the defendant railroad company neglectful in the performance of its duty,and didsucb neglect cause. the death of Charles Stevenson? The plaintiff" the widow of Charles Stevenson, cha;rges such neglect, and is bound to prove the charge t'o your satisfaction. The' law does not presume negligence. Among the' material points to be determined is the condition of the earsaathey stood upon the com track on. the morning of the twenty-seventbof February, 1883. Were they ,coupled and properly secured by brakes? If they were, and the' additional cars which were afterwards set upon the same track were ,handled
. Tichenor, Warner et Dean, for plaintiff. McFarlane (/: Trimble and Ga.rdiner Lathrop, for defendants. KREKEL, J., (charging jury.) Mary Stevenson sues the Chicago &
with duo care, defendant. is not liablEl. For interferences, if any, by other than the railroad company employes, the company is not liable. If the employes of the railroad company either failed to make the coupling or to set the brakes so a& to secure the cars on the track, and one of them became detached in consequence of their neglect and ran down the track, injuring the plaintiff's husband, the company is liable, unless Stevenson contributed to the injury himself, as hereafter pointed out. From the mere coming down of the car, without any fault or neglect on the part of the employes of the railroad company, you cannot infer negligence. You must 1)13 satisfied from the evidence that such coming dawn of the car was caused by some fault or neglect on the part of the employes of the railroad company. Passing to the question of contributory negligence, you are instructed as follows: The railroad company, in its defense, says that the deceased, Stevenson, by his own acts contributed to his injury, and that the company, on that account, is not liable. This contribu.tory negligence the railroad company charges on Stevenson, and must prove the same to your satisfaction. The deceased, Stevenson, had a right, in the pursuit of his employment, to go upon any part of the track of the railroad company to do the work in which he was engaged, but in doing so he wasbo.und to uS60rdinary care. If the car coming down the ,track struck and injured Stevenson while e'ngaged in his employment, without fault of his own, the company is liable;'UlHess due care had been taken to secure the cars on the track, as already charged. In cases of unexpected and immediate danger, calculated to, affect the judgment of him who is to meet it, a mistake made in his movement.s is not negligence. Thus, if you shall find from the evidence that the coming down of the car might reasonably cause apprehension of danger, and under the influence thereof the deceased attempted to pass between the cars and was caught thereby fl,nd injured, such an act is not an act of ,negligence on his part. If, on the other hand, you shall find from the evidence that the deceased, Stevenson, or anyone of those who were engaged with him in moving and unloading cars, I:emoved the brakes froin one or more of the ca,rsstanding on the c()rn track, or uncoupled one or more of them, and that in consequence thereof the car came down on the track, which otherwise it would nO,t have done, and that the injury to the decea.sed resulted froDl this cause, sucb, acts constitute contri· . butory negligence. It makes no difference whether Stevenson or those who were engaged with him in removing cars interfered with them as stated.· The acts of any of those who worked with Stevenson ,in removing cars, for the purposes ,of this case, are the acts of Ste·venson; and ,if interferences, as charged, took it is contributory -negligence;;and,the verdict should be for the.dj;lfendant. Stevenson had .the,right to: the,c9rn track of the to repair his shovel,i£ he did sOiand it is not contributqry on his part if he took the ordinary .care and precaution against the
usual and ordinary danger of his employment. What the duties of n. railroad company setting a string of cars upon a grade, as to coupling and the setting of brakes, are, we have no satisfactory evidence, nor as to the obligations of persons engaged in moving cars in such a condition; that is, whether they are bound to see that the cars rel;Daining on the track a,re properly secured. We have to pass upon the case as presented by the evidence, leaving these matters for further " ' . consideration of the court, if necessary. If you find the issue for plaintiff, you will say so in your verdict, and fix the amount of damages at $5,000. . If you find the issues for the defendant, your verdict will beaccordingly. The present plaintiff has the same rights as her deceased husband would have had, and no others.
'Oirouit OlJ'Urt, E. D. Wi8oonsin. December 1,1883.)
The rule of the common law by which the release from a rent-c\1arge of any portion of a tract of land subject thereto discharges all the rest, has no applica-: tion to a release made after the owner of the rent-charge, either by actual entry upon the land, or by the institution of a posselilsory action, which is equivalent to entry, has declared a forfeiture for breach of the condition of payment.
TAX TITLES-WHAT INTEREST ES1'OPS. FROM ACQUIRING.
Where land Eubject to a rent-charge is mortgaged, the mortgagor being, bound to pay the rent and taxes, and after the ¢on:lmeI)cement of a suit forclosin'e by the mortgagee, he, or anypel'son for his benefit, pnrchases the Jandat a tax sale and receives thetax certificates, but hefore the tax title is perfected, the mortgagee, to satisfy his decree of foreclosure, takes from the mortgagor a conveyance of the land, subject to the rent-charge, neither he nor the person acting in his interest can, by taking tax deeds in pursuance of the tax certificates already, seeUl'ed, acquire a title paramount to the rent-charge. Tile institution of the suit of foreclosure places the plaintiff in an .incipient contractualrelatioIi with the owner of the rent-charge, and this relation, aIter it has heen perfected by a conveyance to him of the land subject to the charge, estops him from ripening into a paramount title the right acquired in the interval under the tax cer. tificates.
Where a deed conveying two parcels of land stated in terms that the conveyance was upon the express condition that a certain sum should bepaidannuallv as a rent-charge on the larger ,lot, but provided in a subsequent clause that upon default in the payment of such rent the grantor might enter upon all the land so conveyed the smaller lot, /ulZd,that the former thougl!,. standing alone it would give the grantor the right to recover boih lots for non.' payment of the rent, was controlled by the 'subsequent provision, Which, upo'n any other construction, would be insensible. ' , ' "
STATEMENT OF THE CASE.
The owner of two parcels of land, containingrespecdvelytwo acresand.a: acre, conveyed both by a single deed, which stated (Without con'flliih'g the stipullltion to the lot) that the conveyance was upon expVlIllsconditioIl: that a certain a.nnual $ulUshould be paid thegrllUtor. asa rent-charge upon'