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127. MASTER AND SERVANT Assumption of Risk. servant who, with full knowledge that the place where he is working is unsafe, remains in the service and assists in making it safe, while so engaged, assumes the risks from the known dangers, and those which he has an equal opportunity with the master to see and is as competent to understand.-Kansas City S. Ry. Co. v. Billinslea, U. S. C. C. of App., Fifth Circuit, 116 Fed. Rep. 335.

128. MASTER AND SERVANT-Contract of Employment.Where a workman has agreed to do work to the satisfaction of his employer, the doing of the work in a manner unsatisfactory to the employer is a breach of the contract.-Gwynne v. Hitchner, N. J., 52 Atl. Rep. 997.

129. MASTER AND SERVANT

Dangerous Machinery.Acts 1899, p. 234, § 9, Burns' Rev. St. 1901, § 70871, declaring it a misdemeanor to leave dangerous machines unguarded, held to give a right of action to a servant injured by a violation thereof. - Monteith v. Kokomo Wood Enameling Co., Ind., 64 N. E. Rep. 610.

130. MASTER AND SERVANT-Defective Appliances.-The duty of a master to see that the appliances for the servants are kept in repair must be continually performed by him or by one selected by him for that purpose. Budge v. Morgan's L. & T. R. & S. S. Co., La., 32 So. Rep. 535.

An

132. MASTER AND SERVANT-Injury to Employee. instruction that an employee could not recover it by any means whatever he could have avoided the consequences of his master's negligences is more favorable to defendant than is warranted by the law. Atlanta Ry. & Power Co. v. Bennett, Ga., 42 S. E. Rep. 244. 133. MASTER AND SERVANT-Switch Signals.-A Switchman held to have the right to assume that a towerman to whom he gave a signal would act upon it correctly, and that no train would be run in on a track not called for in the signal.-Welch v. New York, N. H. & H. R. Co, Mass., 64 N. E. Rep. 695.

The ob

135. MONOPOLIES-Illegality of Corporation. jection that a corporation is a trust or monopoly organ. ized and existing in violation of law cannot be urged by one who has voluntarily entered into a contract with it which is independent of, and has no relation to, its unlawful purposes, for the purpose of avoiding such contract.-Harrison v. Glucose Sugar Refining Co., U. S. C. C. of App., Seventh Circuit, 116 Fed. Rep. 304.

136. MORTGAGES Assignee. A corporation being assignee of mortgage, affidavit to mortgage claim, in proceedings under it, may be made by its treasurer. McCausland v. Baltimore Humane Impartial Soc., Md., 52 Atl. Rep. 918.

Contract with City

137. MORTGAGES-Foreclosure. Sale under power in mortgages is a foreclosure, and cuts off equity of redemption.-Woodruff v. Adair, Ala., 32 So. Bep. 515. 138. MUNICIPAL CORPORATIONS Officer. An election commissioner of St. Louis held not a city officer so as to prevent the corporation of which he is president making a contract with the city.-State v. Meier Mo., 69 S. W. Rep. 668.

139. MUNICIPAL CORPORATIONS-Removal of City Officer. -City officer, after removal, not having sought reinstatement by a formal demand and appropriate legal proceedings, could not maintain an action for his salary.-Cote v. City of Biddeford, Me., 52 Atl. Rep. 1019.

140. MUNICIPAL CORPORATIONS — Vault in Street - One by constructing a vault into a street, and maintaining it without a permit, when ordinances require one, acquires, against the public, only a revocable license. - Deshong v. City of New York, 77 N. Y. Supp. 563.

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141. MUNICIPAL CORPORATIONS Water Frontage Assessment. Sp. Laws 1885, c. 110, §§ 26, 27, providing for water frontage assessments, is not a violation either of the state or the federal constitution. - Ramsey County v. Trustees of Macalester College, Minn., 91 N. W. Rep. 484. 142. NEW TRIAL - Disputed Facts. On a motion for a new trial all disputed facts must be considered found in favor of the party in whose favor verdict was given.Clark v. Lyons, 77 N. Y. Supp. 967.

144. NUISANCE - Liability of Landlord. - A board of health cannot give the owner of premises rented to another a right of re-entry, so as to make him chargeable with maintaining a nuisance created by the tenant.— Eastlock v. Local Board of Health of West Deptford Tp., N. J., 52 Atl. Rep. 999.

145. PARENT AND CHILD-Emancipation.-That a minor son received his own wages, paying his parents' board and retaining the balance, shown an emancipation. Berla v. Meisel, N. J., 52 Atl. Rep. 999.

146. PARTNERSHIP-Agency.-Where, in a suit against a "company," the written contract showed it was made with an individual, and there was no proof of agency, there could be no recovery.-Rothrock Const. Co. v. Port Gibson Mfg. Co., Miss., 32 So. Rep. 484.

148. PATENTS Combination of Old Elements.-A com bination which is not only of old parts, but of old results without the addition of any new and distinct function as a result of their new association, is not patentable. Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co., U. S. C. C. of App., Sixth Circuit, 116 Fed. Rep. 363.

149. PHYSICIANS AND SURGEONS-Osteopathy.-Persons practicing osteopathy held practicing medicine, within Civ. Code, § 3261, and Cr. Code, § 5333. — Bragg v. State, Ala., 32 So. Rep. 767.

150. POST OFFICE — Blackmail.-The sending of a letter through the mails threatening to publish charges against the person to whom it is addressed, accusing him of the commission of crimes unless he pays a sum demanded, is a criminal offense.-Horman v. United States, U. S. C. C. of App., Sixth Circuit, 116 Fed. Rep. 350.

151. PRINCIPAL AND SURETY — - Contribution.-The right to contribution by the surety on the bond of a public officer against the sureties on other bonds may extend to costs of defending a suit on the bond. — Carter v. Fidenty & Deposit Co. of Maryland, Ala., 32 So. Rep. 632.

152. PROCESS-Amendment of Trial.-Where defendant is served with a process in which an entirely different person is named as defendant, the name of the real defendant cannot, by amendment at the trial term be substituted. Neal Millard Co. v. Owens, Ga., 42 S E. Rep.

155. RELIGIOUS SOCIETIES-Expelled Member.-Where a trustee of an incorporated church is expelled from ecclesiastical membership therein, the court has no jurisdiction, under Code, §§ 1302-1305, to compel his restoration to such membership by mandamus.-Hundley v. Collins, Ala., 32 So. Rep. 575.

156. REMOVAL OF CAUSES-Existence of Controversy.It is not essential to the right of a defendant to remove a - cause that an answer should be filed in the state court disclosing the existence of a controversy, where the petition for removal states that there is a controversy. -Wilcoxen v. Chicago, B. & Q. R. Co., U. S. C. C., S. D. Iowa, 116 Fed. Rep. 444.

157. SALES-Election of Remedies.

Where a machine

is sold with a warranty as to fitness, on failure of the warranty the purchaser may keep the machine and recover the damages, or may return the machine and recover the consideration paid. D. M. Osborne & Co. v. Walther, Okla., 69 Pac. Rep. 953.

158. SHERIFFS AND CONSTABLES Trover Against Corporation.-A sheriff cannot be held liable by plaintiff in trover against a corporation for failure to arrest the officer or to take a bond from the defendant for the property when it declines to give one. — Hall & Brown Woodworking Mach. Co. v. Barnes, Ga., 42 S. E. Rep. 276' 159. STREET RAILROAD- Contributory Negligence. driver held guilty of contributory negligence in attempting to cross in front of a motor car running at 20 miles an hour, and not more than 50 feet away. -Seggerman v. Metropolitan Ry. Co., 77 N. Y. Supp. 905.

A

160. SUPREME COURTS-Jurisdiction. It is only when the lower court holds a statute unconstitutional that the cause may be appealed to the supreme court, where the matter in dispute is below its appellate jurisdiction. State, ex rel., McMain v. Town of Pollock, La., 32 So. Rep. 558.

163. TRESPASS-Punitive Damages. A trespass on another's land held not liable for punitive damages when the acts causing the injury were done in good faith.Georgia R. & Bankin v. Gardner, Ga., 42 S. E. Rep. 250.

164. TRIAL-Findings of Fact.-Where a circuit court in an action tried without a jury, has made a general finding and rendered judgment thereon, it has no authority, without vacating such finding or judgment, to subsequently sign special findings and embody the same in the bill of exceptions -Corliss v. Pulaski County, U. S. C. C. of App., Seventh Circuit, 116 Fed. Rep. 289.

165. TRIAL-Marking of Instructions.-The mere fact that the trial judge did not mark "Given" on a charge which was requested by plaintiff and given held not reversible error -Bessemer Sav. Bank v. Anderson, Ala., 32 So. Rep. 716.

166. TRIAL-Presumption.--The court cannot comment upon the weight or credibility of the testimony, nor sub. mit a disputable presumption as an imperative rule of law. Winter v. Supreme Lodge K. P. Mo., 69 S. W. Rep. 662.

167. TRIAL-Sealed Verdict.-Where a jury has returned a sealed verdict, and it appeared, when read in their presence, that they had failed to compute the amount of re

covery, it is proper to instruct them to retire and complete the verdict.-Canon v. Farmers' Bank, Neb., 91 N W. Rep. 585.

168. TRUSTS-Savings Account.-That a savings bank account was opened by a person in her own name in trus for another held not conclusive as to the trust.-In re Totten, 77 N. Y. Supp. 928.

169. VENDOR AND PURCHASER-Notice.-Record of a deed from another than the record owner is not constructive notice to a subsequent purchaser of a prior unrecorded deed.-Tennessee Coal, Iron & R. Co. v. Gardner, Ala., 32 So. Rep. 622.

170. VENDOR AND PURCHASER-Sale of Land. - After contract for sale of land easements appurtenant thereto belong to the vendee, and the vendor must account for their value.-Marvin v. Bernheimer, 77 N. Y. Supp. 915.

171. WATERS AND WATER COURSES-Cutting Trees.The motive of a riparian owner in cutting trees on the bank of the stream, thereby causing greater evaporation, and in building dams, cannot affect the lawfulness of such acts with respect to owners lower down the stream.Fisher v. Feige, Cal., 69 Pac. Rep, 618.

172. WATERS AND WATER COURSES-Overflow of Lake. -In an action for injuries from overflow of a lake, the burden was on plaintiff to show that the lake was under defendant's control.-Birmingham Ry. & Electric Co. v. Dorse, Ala., 32 So. Rep. 493.

173. WILLS-Attestation. - A will witnessed by persons signing their names after testator's name, and under the word "Witnesses," held not sufficiently witnessed.-In re Akers' Will, 77 N. Y. Supp. 643.

174. WILLS - Attestation.-Under the statute providing that wills must be attested by three or more credible witnesses in the presence of the testator and each other, it is not necessary that the witnesses know at the time they sign that the instrument is a will.--In re Claflin's Will Vt., 52 Atl. Rep. 1053.

175. WILLS-Beneficiaries.-Persons born after death of testator do not take under a bequest of a certain sum tɔ each of the children of his nephews and nieces.-Pierce v. Knight, Mass., 64 N. E. Rep. 692.

176. WILLS - Declarations of Testator. On a will contest, it was proper not to admit declarations of testatrix that the will in question was not her will.-Woodroof, v. Hundley, Ala., 32 So. Rep. 570.

177. WILLS-Posthumus Child.-Where testator gave to his wife all his property, stating that he knew she would take care of the children, and thereafter a child was born, it revoked the will.-Sutton v. Hancock, 42 S. E. Rep. 214. 178. WILLS-Rights of Legatees.-Legacies given in the first part of a will held proper to be paid before legacies given in the latter part thereof.-Morse v. Tilden, 77 N · Y. Supp. 505.

179. WILLS-Subscription by Testator -Subscription to will of illiterate by a mark or symbol cannot be dispensed with. In re Beneventano's Will, 77 N. Y Supp. 651.

180. WILLS-Undue Influence.-Declarations made by a testator some time before his death as to his intentions held admissible to show will not made under undue in fluence. In re Munger, 77 N. Y. Supp. 648. 181. WITNESSES Husband of Adultery. separately indicted held competent witness against male defendant in prosecution for living in adultery.-Campbell v. State, Ala., 32 So. Rep. 635.

woman

182. WITNESSES - Competency. · The widow of an intestate, whose administrator is defendant in an action for land brought by the heirs at law of another intestate, held not disqualified from testifying as to transactions between her husband and the plaintiff. Elliott v. Banks, Ga., 42 S. E. Rer. 218.

183. WITNESSES Former Statements. Former statements and testimony of witnesses in conflict with their present testimony cannot be used by the adverse party for the purpose of showing their truthfulness, but only for impeachment. - In re Claflin's Will, Vt., 52 Atl. Rep.

1053.

Central Law Journal.

ST. LOUIS, MO., JAN. 16, 1903.

WHETHER PASSENGERS GOING TO OR FROM TRAINS ARE GUILTY OF CONTRIBUTORY NEGLIGENCE FOR FAILING TO STOP, LOOK AND LISTEN WHEN CROSSING INTERVENING RAILROAD TRACKS.

For

Two recent cases in adjoining states seem to evidence quite a radical disagreement as to what the law is or should be on the question stated as the subject of this editorial. instance, in the case of Steber v. Chicago, etc., R. R., 91 N. W. Rep. 654, the Supreme Court of Wisconsin held definitely that the fact that one has the rights of a passenger, as regards protection by the railway company, and is killed while taking the only way open to her destination, affords no excuse for failing to look and listen before crossing an intervening track. The court said: "As we read the evidence and the argument of counsel for appellant, there is no claim that the plaintiff looked north on the track or listened for a coming train or engine before she proceeded into the region of danger. Counsel seems to think that she had the rights of a passenger, and that no other way to reach her destination than the one she pursued was opened to her, hence that she was excused for proceeding as she did, regardless of the probability of danger, and was warranted in depending upon respondent to avoid injuring her. We know of no such rule of law. There is no such rule. No one is excusable for stepping upon a railway track without first using the precautions we have stated for his own protection. As has often been said the mere presence of the track is an efficient warning of danger. That warning must be reasonably heeded by a person about to cross the track, else he will be presumed conclusively, as a matter of law, to assume the risk of doing otherwise."

On the other hand, a rule just contrary to that in Wisconsin is laid down by the Supreme Court of Illinois in the recent case of Chicago Terminal Transfer R. R. v. Schmelling, 64 N. E. Rep. 714, where it was held, without limitation, that a passenger, in alighting

from a train at a regular stopping place, may assume that a safe means of passage from the train has been provided, and is not required to stop, and look, and listen, to see whether a train is approaching on a parallel track, before attempting to cross it. The court said: "It was not the duty of the defendant in error, when alighting from the train, to look out for engines or cars that might be approaching on the track east of the track on which the train from which he alighted stood. It was the duty of the plaintiff in error to provide a safe means of access to and from its station at Twenty-sixth street for the use of its passengers; and the defendant in error had a right to assume that the place adopted for discharging its passengers at that point was safe." This decision of the Illinois court, so thoroughly unequivocal, is borne out by its former decisions. Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 N. E. Rep. 713; Railroad Co. v. Winters, 175 Ill. 293, 51 N. E. Rep. 901. In the case of Chicago, etc., R. R. v. Wilson, 63 Ill. 167, this court went even further and held that a passenger in going on a platform between two tracks where trains passed was not negligent, though he saw another train approaching the passing point, since he might assume that it would have stopped before entering such a dangerous place.

We believe the great weight of authority, and certainly the better reason favor the rule announced by the Illinois courts, at least to the extent of holding that it is not contributory negligence, as a matter of law, for a passenger going to or from a train to fail to stop, look and listen before crossing intervening tracks, the reason being that it is the safer and more reasonable policy to impose upon the railroad company the duty of providing a safe and convenient way for passengers going to or from trains at regular stations. Richmond, etc., R. R. v. Powers, 140 U. S. 43; St. Louis, etc., R. R. v. Johnson, 59 Ark. 122, 26 S. W. Rep. 593; Atchison, etc., R. R. V. Shean, 18 Colo. 368, 33 Pac. Rep. 108; Baltimore, etc., R. R. v. State, 81 Md. 371, 32 Atl. Rep. 201; McDonald v. Railroad Co. 127 Mo. 38, 29 S. W. Rep. 848; Parsons v. Railroad Co., 113 N. Y. 355, 10 Am. St. Rep. 450; Pennsylvania, etc., Co. v. White, 88 Pa. St. 327. Warner v. Railroad Co., 168 U. S. 339; Betts v. Railroad Co., 191 Pa.

St. 575, 43 Atl. Rep. 362; Graven v. MacLeod, 92 Fed. Rep. 846; Conway v. Railroad Co., 51 La. Ann. 146, 24 So Rep. 780; Atlantic, etc., Railway Co. v. Goodin, (N. J. 1899), 42 Atl. Rep. 333; Beecher v. Railroad Co., 161 N. Y. 222, 55 N. E. Rep. 899; Chesapeake, etc., Railway Co. v. King, 99 Fed. Rep. 251.

In Massachusetts, on the other hand, a rule is laid down similar to that in the Wisconsin case. Thus, in the case of Connolly v. Railroad Co., 158 Mass. 8, the court held that where defendant in leaving his train for the purpose of reaching the highway, crossed an intervening track without stopping to look and listen, he was guilty of contributory negligence, even though there was a regulation of the railroad company that a train should not pass another which was discharging passengers at a station. Justice Holmes said: "The question comes down to this-whether a person is warranted in assuming that trains will not cross each other at a station, and in shutting his eyes and walking ahead on that assumption." The court answered the question propounded in the negative. In its latest decisions this court has consistently sustained the rule thus laid down. Debbins v. Old Colony Railroad, 154 Mass. 402; Winslow v. Railroad, 165 Mass. 264.

on an

In Texas it has been held that if a passenger walks intervening track, knowing a train to be due, without looking and listening he is guilty of contributory negligence. Missouri, etc., R. R. v. Martin, (Tex. Civ. App.) 44 S. W. Rep. 703; Sanchez v. Railroad Co. (Tex. Civ. App.) 27 S. W. Rep. 922. Contra, Atlantic, etc., Railway Co. v. Goodin (N. J. 1899), 42 Atl. Rep. 333. But, otherwise, if he had no reason to believe that a train was due to arrive. Sanchez v. Railroad Co., 3 Tex. Civ. App. 89, 22 S. W. Rep. 242. So also, where a person jumps from a moving train at a place other than the station and not on the invitation or the consent of the conductor, he takes the risk of being struck by a train on an intervening track. Lenix v. Railroad Co., 76 Mo. 86. But otherwise, if he jumps off on the invitation or with the consent of the conductor. McDonald v. Rapid Transit Railway Co., 127 Mo. 38, 29 S. W. Rep. 848. In Rhode Island it was held that when a passenger got off at a station merely to stroll around and, his train starting, made a dash

to get on board without looking for approaching trains on intervening tracks, he was guilty of contributory negligence. Chaffee v. Old Colony R. R., 17 R. I. 658, 24 Atl. Rep. 141. But, even if an intending passenger sees a car approaching on an intervening track, he is not always guilty of contributory negligence in attempting to board a train on a farther track. St. Louis, etc., Railway Co. v. Casseday (Tex. 1898), 48 S. W. Rep. 6. In this case while a train was standing at the station and passengers crowding into it, a freight train plunged into the crowd and injured certain of them, The plaintiff in this case saw the freight train but did not know it was moving. It was held that he had a right to assume that the freight train would not be pushed into the crowd without warning; so that it was not contributory negligence to fail to keep an eye on the freight train.

It is evident from the authorities cited that the Wisconsin rule is not the law generally recognized. The rule making it necessary to "stop, look and listen" before a person ventures to cross a railway track is harsh enough in this age of haste and hurry, without extending it unreasonably. The natural instincts of a man tell him to hesitate in the presence of danger, and of course no sane man would rush intentionally into death. Nevertheless, the rule is doubtless fair and reasonable under ordinary circumstances and when applied to accidents at railroad crossings upon the highway. But a passenger upon a train, or about to board a train, stands upon a different footing. He goes upon the tracks of the railroad at the express invitation of the railroad company, and upon the latter rather upon the former should be the duty of providing for the safety of their invited guests. Indeed, the most careful persons, when leaving or arriving at a railroad depot are so bewildered by the noise and smoke and the din of traffic as to be utterly incapable of using their senses with the same accuracy or judgment as they or others may think they ought to have done in looking back upon the occurrence in the calm and quiet of the court room. Moreover, by the enforcement of simple rules, altogether within the power of the railroad company, no danger or injury from crossing intervening tracks would exist to passengers boarding or leaving a train. The difficulty,

however, is that these rules when made are not enforced.

Indeed, in a case in Massachusetts a railroad defendant admitted that they had made a rule that a train should never pass another which was either receiving or letting off passengers, but that it never was enforced. And yet the supreme court of that state made the ridiculous holding that the rule was not made in the interest of passengers. It is just such decisions that encourage the lax enforcement of reasonable rules for the protection of passengers in such places. If railroad companies were held responsible for the safety of passengers crossing intervening tracks to or from their destination, while acting with ordinary care, and within the rules or on the direct invitation of the company, there would be a marked reduction of the number of accidents arising in that particular class of cases.

The proper rule, therefore, may be said to be that when a train has stopped and the invitation, either expressed or implied, is given by the railroad company for passengers to board or alight, the duty rests upon the railroad company to have the way clear to and from the train, and it is not contributory negligence for a passenger in crossing intervening tracks not to stop, look and listen. So also, where, in order for a passenger, who has alighted from a train, to leave the station premises, it is necessary to cross intervening tracks, while he is not absolved from the duty of exercising care to avoid danger, he certainly is justified in presuming, in the absence of circumstances of warning, that the trains of the company will not be so operated as to impose upon him the same high degree of care which he would be required to exercise if he were not a passenger, but a traveler crossing at a public crossing. We might call attention to the fact in passing, that this latter phase of the rule is eloquently maintained in the recent case of Chesapeake, etc., Railroad Co. v. King, 99 Fed. Rep. 251. Thus, it is evident that the rule announced by the Wisconsin case, supra, is not the law. The Illinois court, on the other hand, while a little in advance of the procession, evidences the tendency of the authorities to uphold a more reasonable and humanitarian doctrine in this class of cases.

NOTES OF IMPORTANT DECISIONS.

SEDUCTION-CAN A MAN BE SEDUCED INTO CARNAL INTERCOURSE WITH A FEMALE.-Strange and curious cases are, of course,not uncommon in the law, but the plea made by the defendant in the recent case of State v. Maxwell, 91 N. W. Rep. 772, that the young woman whom he robbed of her chastity, in reality seduced him into carnal intercourse against his will, forces a feeling of incredulity into the mind that renders it insusceptible and impatient of any argument or evidence in support of it. This was also very evidently the state of mind of the Supreme Court of Iowa in deciding the case we have just mentioned. The court says: "The evidence tends to show that there was talk of marriage between the parties as early as 1896; that the defendant caressed and kissed the prosecutrix and addressed to her endearing terms and words of love, which since the beginning of time have been the insignia of affection and desire. She also testified that she permitted him to deflower her only after his solemn promise of marriage, and assurance to her that it was not wrong under the circumstances, and that many other young people were doing the same thing. This promise and these assurances he of course denies, and says that at the time of their first intercourse she made the advances, and in reality seduced him. This plea is hoary with age, but to the credit of the sex it may be said that it is seldom interposed, and less often believed. Indeed, we think it may safely be asserted that from its interposition in the garden of Eden to the present time it has been but little favored by either layman or divine; hence it is not strange that the jury in this case did not give it more credit than the verdict indicates."

NEW TRIAL-WHEN NEWLY DISCOVERED EVIDENCE, EVEN IF CUMULATIVE, WILL BE GROUND FOR NEW TRIAL. It is well settled that newly discovered evidence, to be a sufficient ground for a new trial, must have the following characteristics: 1st, it must be such as will probably change the result if a new trial is granted; 2d, it must have been discovered since the trial; 3d, it must be such as could not have been discovered before the trial by the exercise of due diligence; 4th, it must be material; 5th, it must not be merely cumulative; 6th, it must not merely impeach or contradict former evidence. As to the fifth requirement, that such evidence must not be merely cumulative, there seems to be a very confused idea in the minds of both courts and lawyers as to just what is meant by the word "cumulative," if we may judge from the great mass of litigation in which this point of law is very prominent.

This particular question, however, comes up in an interesting form in the recent case of Parsons v. Lewiston Street Railway, 52 Atl. Rep. 1006. In this case plaintiff sued for damages occasioned by the fright of his horse from the operation of a snow-plow by the servants of defendant railway.