with' bMvitl10ilLt the guararity; ,imdtlie; :factthat not erased:when the-bonds were delivered raises a strong presumption that it wl1sintehdedto be ann6xed, and to be a continuing obligation of the seller. ,<, Thig, presumption is attacked by the inherent improbabilities of suehfi'ttansaction, and by the fact that the resolutiouswhichauthorized, the sale' were silent t& the guaranty,a circumstance which t1ffirmative evidenceontthesubject. It is not credible that the defelldiant 'entered into the sale with the belief that it was undertakingtodeliver guarantied bonds. Such a transaction would be too ptovident, and too nearly akin, to fraud upon any non-assenting stockholder, ito OOmrriend itself:tothejudgment of the stockholders, and strong proofisillElkluired to com,pela finding tQat they werewillilag to imperil the· existence'or,the companyby" such ll. ruinous agreement. , Nptwitb" standing :the':fact that guaranty Wf!,S not' erased, and: was delivered withthe.bonds, lam not able to ,believe that the Contract ofsale, as pe-' tweeo'tli$'istookholders and· the cOriporation, was,that of a guarantie\l bond, 'but '1'ltMr that tije' existence :ofthe guaranty was deemed to con,-: fer' r:ioPigl1tsl upon the stclckholder:against the company., ' I cannot fipd that a wasmll.de fortheoatensible purpose or. paying. a debt :to:increase it to $2,000,000, and bound the seller to the payment of the laUenum. ' JUdgtttEmt 'ordered to be' entered for the plaintiff for the amount due upon 220 bonds "numbel!ed from 4,361 to 4 j 5S0, jnclusive, aQd, upon the :Unpaid coupons attached !thereto, and the interest thereon, and the interestJ'flipon the prineipal sum after the maturity of said bonds.
(';';f ,; : (";
. PEARcE tI. H@:PHREYS
E ·..D. Michigan.
March 12, 1888.),
driving a truck along a private way t'll.r<111gh which .wills lcommonly used by teams in going to, and from lin elevato,r, alid "which crosse411t large number of,l,'aHwaytracks. Hlsview of the main posed by pas,s,enger trains. by a lineoffrei.ghtcars stall;dihg upon the .next track, whIch' had'been Opened at tbecrossmg of thepm'ate way toform'll' 'passage for teams '\0.cr088 the tracltB.. Plaintiff was abour crpSS tl\e main track. He dil! llot StOPr but listened for the ll:pproach of trams. by.an engin'e wh'i(!h Hearing no signal, he attempted to cross, but Wl!:S had just leftthet>assengetlltation,landwas proceeding at a speed.of 10 or· 12 , miles anh.Oll:r.i ,11'bere was evidence tbat there was no lli&"nal given of its; proach. lHela, the ql).estionrespectively of the ne¥hgence of tbej>lain. ,plf'and was properly submitted to the jury. . " ,,', by
,', - ' "",'
lIM, Durbinv·.Na.vigatlOn CP··
IOn the gehElrai:sUbjeCt of the approaching.' a'railrbad cro8sin.·g '" (Or,) 17 Pac, Rep. 5, and note. As to the d)l.ty of,l1Iofi.:. road Co.V. SChuster, (Ky.) 7 S. W. Rep. 874, 'aDll 'note. ., ."" ,.. ,. ' . ... . " ,
On Monon for a New Trial. This was an action, by Ilerbert· Pearce, for personal,. injuries receiived in .theyard.. ofthe Wabash Railway Company in Detroit, of which company the defendant 80lon Humphreys nndanother were the receiv;. ers. Plaintiff' was the driver of a pair of horSes attached to a heavy truck, which he had dl'iveninto defendant's yard to deliver some tobacco at the freight depot. A'surveyed pian of the yard produced in court shows it tobes. parallelogram; upon the north side of which is bridge street, the east side Twelfth street, and the south side the Detroit l'iver.Thefreigbtdepot at which the tobacco was delivered was in the south-easterly'corner formed by Twelfth street and the river, and access to the depot is afforded by a drive-way leading from Twelfth street along-side the freight house. The yard extends to the west some 2,000 feet, with some 20 tracks,;and near the westerly end, and about 1,700 feet from the freight-house, there is an elevator, and a private way leadingnorthl. erly from the 1elevator across the tracks to WMdbridge street, this ,way being nearly parallel with Twelfth street, anQ' about 1,700 feet distant; Freightcltrs swnding upon the traoksare opened at tbis private way, which was used solely for the convenience of persons doing business at ,the elevator, and was maintained by the elevator, and not by the railway. Plaintiff: drove into the. yard by the way of Twelfth street, delivered his freight at the freight house, but instead of turning'about and coming out by the way he came in, drove westward through the yard, parallel with the tracks, uritUhe reached the private way running from the elevator northerly to Woodbridge street, when he turned hortherly upon this road between the cars of a divided freight train, and, while passing across the main track, was struck by a locomotive coming down from the passenger station, which was also upon Twelfth street. He did not stop before crossing the track, but listened as he approached it. The evidence tended to show that he could not have seen a train coming down from the station if he had stopped, by reason of the intervening line of freight ca.rs. Plaintiff recovered a verdict for $500, and motion was ma.de for a new trial, upon the ground. that the accident was the result of his own negligence; The case was argued before the circuit and district judges. Israel T., O<rwles and Isaac Marston, for plaintiff. Alfred RU88eU, for defendantS.
J., (after stating the facta aB above.) The testimony leaves no doubt in my mind that plaintiff was guilty of negligence in not retu1'ningto Woodbridge street by way of Twelfth street as he had eutered. It was not only the proper and safer route, but it was actuallY' shorter than the one he took; and if, in driving along parallel with the railroad tracks"and before reaching the private way to the elevator, he had met with an injury, I should hllive regarded his taking this route as contributingtO tbe accident; but as he met with the injury after he had reached and taken the private way from the elevator, I do not feel atliherty to inquire how he came· there. In Qther words, his negligence had ceased
to operate before he crossed the track, and cannot therefore be considered as the proximate cause of theacoident. Applying the rule laid down in RailrQad 01. v. Kellogg, 94 U. S. 469, it does not appear to me that the injury was the natural and probable consequence of this negligence or wrongful act, or that it ought to have. been foreseen in the light of theattending circumstances. From ,the momeltt he reached the private way and turned northward, he was w'!'Jl:l'uch entitled to be .protected against the negligence of the oompany as if he hnd originally started from the elevator. The case of Daniels v. BaUantine, 23 Ohio St: 532, is an excellent illustration of this principle. In that case a tug which had taken a barge under an agreement to tow her from Saginaw to Buffalo, delayed unnecessarily in the St. Clair river. After resuming her voyage the barge was lost: in Lake Erie. Although it was shown that if the tug had not delayed the loss would probably not have occurred, the court held that the deviation was not the proximate cause of loss, although it would have been otherwise, if the loss had occurred during the deviation. Other cases ofa similar cparacter are· RauroadCo. v. Reeves, 10 Wall. 176; Morrison v. Davis, 20 Pa. St. 171; Denny v. Railroad 00.,13 Gray, 481. The main questions in this case are-'First, whether there was negligenceou the part of the engineer in proCeeding too fast, and in failing to ring his belli and, second, whether there was contributory negligence on the part of the plaintiff in crossing the track without using sufficient care to ascertain whether there was a train approaching. The road upon which the accident occurred, though within the yard of the defendants, was a well-recognized way from the' elevator to Woodbridge street, laid out, cindered,and planked, and in constant use by teams going to and from the elevator. If not originally desiHnated and laid out by the railroad company, it had been done with the consent of its officers, and they were .Mcustomed .to open their trains at the crossing of this road, so as to leave .a free and unobstructed Mcessto the elevator. At the time the accident occurred, the track next south of the one on which the plaintiff was injUIled was tlCcupied by a line offrt'iight .cars, which had been opened at the crossing of the roadjust wide enough for teams to pass. The view towards the station from which the locomotive started was concealed, or at least obstructed, by this cars. Under these circumstances, I do not think that plaintiff can be considered asa trespasser in making use of this road. Delaney v. Railway 00., 33 Wis. 67. And defendants were bound to the exercise of ordinary care and prudence to make their premises safe for the use of teams. Cooley, Torts, 607; Bennett v. Railroad 00., 102.,U. S. 577,585; Railroad Co. v.Stout. 17 Wall. 657; ·Elliott v. Pra.y,10 Allen, 378. Now, while there is no statutory obligation to ring a bell at a crossing within the company's yard, I consider it a ,question dol' the jury whether, in this case, there was due care exercised in running this locomotive at a speed of 10 to 12 mBes an hour 'behind this line of freight curs, and crossing this road without giving any notice of its approach. I understand that where the view of the track from a highway is obstructed, or when, for any reason, there is difficulty
in saeillg an approaching train, this is a circumstance which demands of the engineer the exercise of Beach, Cont. Neg. 2QO. rhe existence of the road, and of its constant use, and the fact that.lIo:team might approach the track from the southward, where the Vie,w of the main track was obstructed, were well known. A locomotive moving at the rate of 10 miles an hour might not of itself make .sufficient poise to attract attention, and I thirik it is not demanding too much of the c\:lmpany to require either that the engineer proceed at a very low rate of speed, or ring the hell whileapprpaching this road; at least it was a question for the jury, and they have found this fact adversely to the defendants. I also think the. question of contributory negligence was one for the jury. Plaintiff says he listened for the train as he approached the track, but heard nothing. Had he been on foot, I should have held without hesitation that it was his duty to stop and look before crossing the track. Pwlla v. Railroad Co., 54 Mich. 273, 20 N. W. Rep. 71. He was, however, driving a team of horses. If he had ,stopped. before the ho"ses reached the track, it is at least doubtful whether he could have seen anything, owing to the intervening line of freight cars, and while so standing still would have been exposed to injury from cars passing upon tracks to the southward of the main track. It would evidently have been of no av-ail'tO'stop after the horses had begun to cross the track. It is difficult to see what he could have done, unless it was to get out of his wagon'land go forward on foot for the purpose of looking; but this he was'uqtobliged to do,particularly in view of the fact that he would have 'had to leave his team standing upon the track south of the line of freight cars. It istrue, it was held in the case of Railroad Ch. v. Beale, 73 that if a tra,veler cannot see a track by looking out of the :clJ,rriagfM get lead bis horse, but I think this case is opposed to the great weight of authority, and particularly to the cases of Mdtlcayv. Railroad Co.,35 N. Y. 75, and Co., 47 N. Y. 400. The circumstances may be such as to require a driver to stop his team and listen,-as where a highway is approached through a deep cut obstructing the view,-but I do not think that applies to a case 'of this the plaintiff is crossing a large number of tracks laid close together, tl:nd where a train is liable to approach at any moment upon either. of t4em. Upon the. whole, I think the question of the respective the two parties.in this submitted to the jury, and that a new trial should be denied. ,
, JACKSON, J., (concurring.) While this is a close cas.e, I am of the opinon the ion that the facts do not disclose such a clear case part of the plaintiff as tQ warrant the court in taking the question of negfro,m the jury, or in holding as matter of law that the plaintiff could not recqver for the injury sustained. His, injury was not, an ).lnavoidable accident. It was clelj.rly the result of but,under the facts and circumstances oithe case, the trial judge cQuld ,as matter ofl1\.w, the negligence caused
-defeatlii\!!)rigbtof recdverjll.> 'Thetoa:dway on which h4 WItS dlliving 'Was known toiti:M sane'tibnM by 'the clElfendants;'atid 1#iirossthat l'Md:' slgnl\ll warDIng 'of ,thelll.pp'fQachmg''tram, was not i!JterCl8eof'Taa'sbnitb}e: and on;tJ;1epart'ofd:efendant's eroployeedncharge of f3ueli'train.' iWhetllel'tlHill fitiltlte to exercise proper care ih 'erossing this cit the dfproper 'cautioiHh ¢rbSSitJg the track, 'case, a fact to be'determined by the coucnrwith the lenmeddistrict judge in the opinion that the question of Il;egligence was properly left ,to the jury, and in t,he; conclusion reached by hiro there 'shou.ldbe ,no new tril:l.l in this case. ,,',
I ' " , · '::':,
,·i.i '. ,(cJircuit ,Oofldlt.:1J. D.
T. & S. F. R;
,Micliiigan.' March :19,1888;)
. 2. RAILRO.An CO)iPA'NIES-'-A6TIONS";,,SERVIClll O:S' PROCESS. ' ;In:an .action against 81lailwaiV c ltporation of another at8te, service of process Qallnot be made uppn,a passen,&,er agent whose sola duty it is to solicit travel for the defendant road, notwithstimdlng he, may' have been employed to effect a compromise Of plaintiff's claim. " " 8. JURISDICTION.-ToR'ts--AMoUNT ,IN CoNTROVERSy-ACT OF under the act of in actions of tort. it it c1earIylTom-the plairitiff's own statement 'or the testhnony of his witness-es th80t averdicHor $2,000 would be. so, excessive as 'to require to set it aside, !\ndgi'ant a. neW' trial, it is its dutrto dis!Jlissthe c8sefor th.e want of jurisdiction., ' , " . " ,
A (lause oK action ,up,01! is dlade;brlt' where It lS broken.
arises, not in .'
st,ate. ':Vhere .
At Law.. Oh demurrer to replication. ' , This was an action of trespass case to recover damages for the alleged' expulsion of :plaiI).tiff of, defendant's passenger alrs within the state' of Kaiisas.' , Plaintiff,' who' is a resid'entand citizen of thisC6unty, boughtfro'nrthe Company, inpetroit, a for Denver, Colo., and- ;tt'ri;urn .' This 'ticket was composed of, severa} coupons,oneofwhichentitled him to ,Pe. transported over the railroall of the defendant in the state of Kansas," Hisexpo;lsion took place on his returnifromDenvei':' "'Defendant ,pleaded to of the oouirt:' ,Firat·. That defendll,nt' under the, has nO' agent upoI1whom processcpuld be lawfully served; that GeotgeE; <WIman, "t'l'pon ",liom' siIch was desk-rooID.;ifor which this defendant pays,in'acoab>ffi6b inthis'dty;and has merelj'atIthority so.icit persons intending in KatiSas to patroriizetb.e defendant'rohdi thathe'baino authority to