the most approved machinery, and such care, diligence, and skill, in using it, as skilful, prudent, and discreet persons would be expected to put forth, having a proper regard to the interests of the company, the demands of the public, and the interests of those having property along the road, exposed to fire, and to injury in * other modes.16 They are, at least, bound to exercise as much care as if they owned the property along the line, i. e. what would be regarded as the duty of a prudent owner under all the circumstances.17 It has been held that the company, when their

motive power, and allowed persons to use their cars, furnishing a conductor, that such conductor is the responsible person in charge of the train throughout its entire route. That the agencies provided for him, whether of steam, or horse power, become his agencies, and the ultimate responsibility in regard to their proper conduct, so far as strangers are concerned, rests upon him and upon the owners of the train, whose servant he is. And that where it was the practice to have cars pass over a portion of the road by the force of gravity, and after arriving at a given point, to be drawn by horse power to the storehouses, and the conductor left them standing across the usual crossing of the highway and went to his breakfast, and during his absence a lad, seven years old, attempted to crawl under the cars, in returning from an errand on which he had been sent, and by means of the starting of the train by the horse power, furnished by a stable-keeper, by contract with the state, and driven by the proprietors' drivers, was seriously injured, it was considered that the conductor and his employers were responsible for the injury.

It was also decided that where cars were so left standing in the highway unnecessarily, it is not a question to be submitted to the jury, whether they constitute an unlawful obstruction. As matter of law, such obstruction, if it could be avoided, is unlawful.

In such a case, no greater care and prudence is required to be exercised by such child than is reasonable to expect of one of such tender years. See Galena & Ch. Railw. v. Jacobs, 20 Ill. R. 478.

16 Baltimore & Susq. Railw. v. Woodruff, 4 Maryland R. 242, 257.

17 Quimby v. Vermont Central Railw., 23 Vt. R. 387. And where one was injured by the company's train, at a road-crossing, by collision between the company's locomotive and the carriage in which the plaintiff was riding, it was held, that the carelessness of the driver of the carriage cannot be shown by common reputation. Nor can the occupation of the plaintiff, and his means of earning support, be shown, with a view to enhance the damages for such an injury, unless specially averred in the declaration. Baldwin v. Western Railw., 4 Gray, 333. In O'Brien v. Philadelphia, Wilmington & Baltimore Railw., 10 Am. Railw. Times, No. 13, where plaintiff was injured at a railway crossing a highway, by collision with his team, Mr. Justice Woodward, of the Pennsylvania Supreme Court, charged the jury, that the plaintiff was only entitled to com

road passes the thoroughfares of a city, are bound to use extraordinary care not to injure persons in the streets.18

8. The general rule, in regard to the time of the accruing of the action is, that when the act or omission causes direct and immediate injury, the action accrues from the time of doing the act, but where the act is injurious only from its consequences, as by undermining a house or wall, or causing water to flow back at certain seasons of high tide or high water, the cause of action accrues only from the consequential injury.19 In the case of Backhouse v. Bonomi,20 it was held that no cause of action accrued from defendant's excavation in his own land, until it caused damage to the plaintiff's; and the case of Nicklin v. Williams,21 as far as it conflicts with this, was held not maintainable. The cases were examined very thoroughly in the course of the discussion of this case before the Queen's Bench, which held that the cause of action accrued from the act of defendant, and in the Exchequer Chamber, where that judgment was reversed, and finally in the House of Lords, where the judgment of the Exchequer Chamber was affirmed. The law on this point may now be considered settled in the English courts. Where the issue is in regard to the prudent use of a highway by the company, it is not competent to give evidence of the mode of using the same by the company at other times.22

9. As a general rule, in the English practice, and in most of the states of the Union, in actions for torts, where the defendant's conduct has been wanton, or the result of malice, the jury

pensatory damages, there being no pretence of any intentional wrong, or flagrant rashness, on the part of the agents of the company.

18 Wilson v. Cunningham, 3 Cal. R. 241.

19 Roberts v. Read, 16 East, 215. Where the act complained of was maliciously opposing plaintiff's discharge as an insolvent, and the act was more than six years before action brought, but the consequent imprisonment continued within the six years, it was held the cause of action was barred. Violet v. Simpson, 30 Law Times, 114, Nov. 1857.

The admissions of the corporators, or of the president, are not sufficient to remove the bar of the statute of limitations, in favor of a private corporation. Lyman v. Norwich University, 28 Vt. R. 560.

7 Jur. N. S. 809; s. c. 5 Jur. N. S. 1345; 4 Id. 1182.

21 10 Exch. 259.

22 Gahagan v. Boston & Lowell Railw., 1 Allen, 187.

are allowed to give damages of an exemplary character, and the term vindictive even is sometimes used.23 But this is questioned by some writers, and in many cases. 24

10. Where a level crossing over a railway is protected by a gate, established by the company and tended by one of its servants, in conformity with the law, those having occasion to cross the track, and who are injured by an attempt to cross when the gatekeeper assures them the line is clear, may recover such damages of the company. It is the implied duty of the gatekeeper to know when trains are due, and to give correct information in that respect, and not open the gate for passage across the track unless he knows no duly advertised train is due. And if a train not advertised to the gatekeeper, or at a time not advertised to him, is allowed to pass, whereby injury accrues to those having just occasion to pass the track, it is the fault of the company 25

SECTION VI.

Misconduct of Railway Operatives shown by Experts.

1. The management of a train of cars is so 4. The jury are the final judges in such

far matter of science and art, that it is proper to receive the testimony of experts.

2. In cases of alleged torts company not bound to exculpate.

3. So, too, the plaintiff is not bound to produce testimony from experts.

cases. But omission to produce testimony of experts will often require explanation.

n. 6. General rules of law in regard to the testimony of experts.

§ 134. 1. The conduct of a railway train is not strictly matter of science perhaps. Its laws are not so far defined, and so exempt from variation, as to be capable of perfect knowledge, like

23 Sedgwick on Dam. 38, 98, 454; ante, § 131, 154. In the case of Shaw v. Boston & Worcester Rail w., ante, n. 4, where the plaintiff's husband was killed, by the same collision, and she was shown to have had a family of young children, and to be without sufficient property for their support, it was held to be error in the court not to charge the jury, when specially requested so to do, that these facts could not be considered by them in estimating damages.

24

Appendix to Sedgwick on Dam. 609; Varillat v. N. Orleans & Car. Railw., 10 Louisiana Ann. 88.

25 Lunt v. London & N. W. R. Co., 12 Jur. N. S. 409.

those of botany and geology, and other similar sciences, or even those of medicine and surgery perhaps, whose laws are subject to more variation. But they are nevertheless so far matters of skill and experience, and are so little understood by the community generally, that the testimony of inexperienced persons in regard to the conduct of a train, on a particular occasion, or under particular circumstances, would be worthy of very little reliance. They might doubtless testify in regard to what they saw, and what appeared to be the conduct of the operatives, but those skilled in such matters might, as experts in other cases are allowed to do, express an opinion in regard to the conduct of the train, as shown by the other witnesses, and how far it was according to the rules of careful and prudent management, and what more might, or should have been done, consistently with the safety of the train, in the particular emergency.2 But where the plaintiff, who claimed damages on account of the misconduct of a flagman at a railway crossing, had attempted to prove that he was a careless and intemperate person, it was held that the company might show that he was careful, attentive and temperate, and that these facts might be proved by those who had seen his conduct, and need not be shown by experts.3

2. But a railway company, when sued for misconduct, are not bound, in the first instance, ordinarily, to show, by the testimony of experts, that they were guilty of no mismanagement. But in the case of an injury to passengers, the rule is otherwise.4

3. And it has been said, that one who brings an action against a railway, founded upon negligence and misconduct, is not bound, in opening his case, to show, that by the laws and practice of railway companies there was mismanagement in the par

Caton, J.

"The

1 Quimby v. Vermont Central Railw., 23 Vt. R. 394, 395. 2 Illinois Central Railw. v. Reedy, 17 Illinois R. 580, 583. burden of proof is on the plaintiff, and it is for him to show, by facts and circumstances, and by those acquainted with the management of trains, who could speak understandingly on the subject, that it was practicable and easy to have avoided the collision, and that, in not doing so, those in charge of the train were guilty of that measure of carelessness, or wilful misconduct, which the law requires to establish the liability.”

* Gahagan v. Boston & Lowell Railw., 1 Allen, 187.

Post, § 176; Galena & Chicago Railw. v. Yarwood, 17 Illinois R. 509.

ticular case. If he sees fit to trust that question to the good sense of the jury, he may.5

4. But it is obvious, that in cases of this kind, although the jury are ultimately to determine, upon such light as they can obtain, and will be governed a good deal by general principles of reason, based upon experience, and that the testimony of witnesses, unskilled in the particular craft, will doubtless have a considerable influence in establishing certain remote principles, by which all men must be governed, in extreme cases, nevertheless, in that numerous class of cases, in courts of justice, which have to be determined * upon a nice estimate and balance of conflicting testimony, the opinion of experienced men, in the particular business, must be of very controlling influence. And it is very well understood, that generally, the fact that such evidence is not produced, unless the omission is explained, will tend to raise a presumption against the party.6

6

Quimby v. Vermont Central Railw., 23 Vt. R. 394, 395.

Murray v. Railroad Company, 10 Rich. (S. C.) 227. As we find few cases in the books bearing upon this general question, in regard to railways, we may refer to analogous subjects where the question has arisen. Nautical men may testify their opinion, whether, upon the facts proved by the plaintiff, the collision of two ships could have been avoided, by proper care on the part of defend ants' servants. Fenwick v. Bell, 1 C. & K. 312. So, too, in regard to the proper stowage of a cargo. Price v. Powell, 3 Comst. 322. So a master, engineer, and builder of steamboats, may testify his opinion, upon the facts proved, as to the manner of a collision." The Clipper v. Logan, 18 Ohio R. 375; Sills v. Brown, 9

C. & P. 601.

It has been held, that even experts may not be called to express an opinion, whether there was misconduct in the particular case on trial, as that is the province of the jury, but that they may express their opinion upon a precisely similar case, hypothetically stated, which seems to be a very nice distinction, and which is combated in a very sensible note to Fenwick v. Bell, 47 Eng. Com. Law R. 312. The opinion of Lord Ellenborough, in Beckwith v. Sydebotham, 1 Camp. 116, 117, that where there is a matter of skill or science to be decided, the jury may be assisted by the opinion of those peculiarly acquainted with it, from their professions and pursuits, seems to us more just and wise.

We have always regarded the testimony of experts, as a sort of education of the jury upon subjects in regard to which they are not presumed to be properly instructed. The distinction we make upon the subjects, where we allow the testimony of experts, and where we do not, shows this. The nearer the testimony comes to the very case in hand the more pertinent and useful. And the finesse of keeping the very case out of sight by name, but describing it by alle