Volume 28 — New York State Reporter

<p>1. Master and servant—Negligence—Railroads.</p> <p>A train, dispatcher is not, by mere virtue of his employment as such, the representative of the master, hut a fellow servant with the other employees. The dispatching of trains is not a duty which the directors or superintendent can perform and which cannot he delegated.</p> <p>3. Same.</p> <p>The master cannot he held liable to his servant for the disobedience of a fellow servant, whatever his duty, (unless it he a duty imposed by law on the master himself), of rules and regulations properly prescribed by the master, which, if obeyed, would have prevented the injury; and where any question exists as to the adequacy of the rules or the sufficiency of their promulgation, the question is one for the jury.</p>

<p>Eminent domain—Railroads.</p> <p>Petitioner owned property at Charlotte, which it had leased to a company for purposes which largely increased railroad travel. Held, that the fact that it owned this property was no objection to an application to con" demn other lands for depot purposes ; that petitioner was not required to resume possession of its land and employ it for its necessary structures before it could condemn other land for that purpose.</p>

<p>1. Negligence—Railroad—Pences along route—Sufficiency of.</p> <p>If a railway company permits a portion of its fence along the route to he broken down to a height little more than one-half of the height which it deemed originally to be necessary, and cattle escape through the same upon the railway lands, the company is liable for damages done by its engine to such cattle.</p> <p>3. Same.</p> <p>This is not a case which required expert testimony, but a jury acting on knowledge common to all men of affairs might say that a once properly constructed fence of sufficient height and strength to turn cattle might be deemed insufficient if permitted to remain in a broken condition in places ■ leaving it only two feet and eight inches in height.</p>

<p>Negligence—Conteebutoby—Railboad cbossing-.</p> <p>Plaintiffs intestate, a boy of thirteen years, attempted to cross defendant’s track in company with an older brother. There was proof that the-latter looked both ways before attempting to cross, and not hearing or seeing anything, told decedent to come, and, as they hurried across, decedent was killed. Held, that there were facts and circumstances which tended to show that the accident might have occurred without the negligence of the decedent, and that it was for the jury to say what inferences should be drawn from the facts and circumst.'.nces disclosed by the evidence.</p>

<p>Negligence—Railroad crossings.</p> <p>Plaintiff, while crossing defendant’s tracks, wai injured by a train from, the west. He testified that he looked both ways but saw no train. The night was dark ; there was a switch engine with a head-light close by, and several switch lights, and also lights on the rear of a train that had just passed in that direction. The evidence as to whether the bell was rung or whistle blown was conflicting. Feld, that the questions of negligence and contributory negligence were properly submitted to the jury,</p>

<p>[This opinion was received to late to he published in its proper place in vol. 27. Ed.]</p>

<p>Appeal from order resettling order denying motion for a new •trial.</p>

<p>Appeal from order denying motion for new trial.</p>

Action for money had and received to plaintiff’s use. The defendant set up a counterclaim for $444.43, for repairs, etc. The 0 facts mainly appear in the opinion. On the trial the court found on defendant’s undisputed testimony that the $200 received by him on the signing of the contract for the sale of plaintiff’s house was expended for plaintiff’s benefit and at her request.

The relators and the defendants were the members of the board of inspectors of election, appointed for the district of the city of Troy. The defendants refused to affix their signatures to the election returns, and these proceedings were instituted by the relators to compel them to perform that act.