yet, when it is proposed, by a statute, to avoid, modify, or alter a right or immunity granted by an explicit and unambiguous constitutional provision, the presumption is against the validity of the act, and the courts should enforce the constitutional provision, unless it is clear that such legislative act does not infringe it in letter or spirit. To the dissenting judges it seems that the protection afforded by the fifth amendment extends, not only to furnishing a good plea to a person prosecuted for an offense in respect to which he has been required to give self-incriminating testimony, but to preventing him from being prosecuted at all for such offense; for, if prosecuted, he is not only put to the trouble and expense of making a defense, but there is no perfect assurance that he will be able to maintain his plea, as witnesses may die, and papers and records be lost or destroyed. They also declare that the act of 1893 infringes the fifth amendment by subjecting the witness, not only to the hazard of a prosecution for an act concerning which he has been compelled to give self-incriminating testimony, but also the hazard of a charge of perjury in giving such testimony, which could never have been brought against him if the privilege of silence were not taken away. It is beyond the power of congress, they say, to give to any person immunity from prosecution in the courts of a State for an offense against the State, though that offense be disclosed by self-incriminating testimony, which such person has been required, under an act of congress to give in a tribunal of the United States, and that the probability that a witness may be prosecuted in a State court for an offense discovered through self-incriminating testimony which he is compelled to give before the interstate commerce commission is not so remote or fanciful as to warrant the court in disregarding it, when passing upon the constitutionality of an act of congress which takes away from witnesses the privilege of silence in respect to offenses committed by them. The dissenting judges do not concur in all these grounds of objections, some of them, however, arguing in favor of one or more. Where so many learned men disagree we hardly feel like venturing an opinion, but it strikes us that the only serious point made by the dissenting judges is that which is raised by Mr.

Justice Shiras to the effect that it is beyond the power of congress to grant immunity from prosecution in the courts of a State for an offense against the State and that therefore the protection afforded the witness by the statute in question is not coextensive with the constitutional privilege. As to that, however, it may be said by way of answer that the constitutional protection is solely against prosecutions of the government that grants it; that if the witness is guaranteed against prosecution in the federal courts the constitutional amendment is complied with.

NOTES OF RECENT DECISIONS.

TRIAL DEMURRER TO EVIDENCE-CONSTITUTIONAL LAW.-It is decided by the Supreme Court of Tennessee, in Hopkins v. Nashville C. & St. L. Ry., 34 S. W. Rep. 1029, that to compel plaintiff, in a suit for damages for death of his intestate, to join in a demurrer to the evidence, where the evidence is conceded to be true, and all legitimate and reasonable inferences that may be drawn from it are admitted, is not in violation of Const. art. 1, § 6, providing that the right of trial by jury shall remain inviolate, and that in such case, the demurrer is not in violation of Const. art. 6, § 9, providing that "judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law." The opinion of the court by McAllister, J., is very thorough and exhaustive..

MALPRACTICE-PHYSICIANS AND SURGEONS. -The law does not exact from physicians and surgeons the utmost degree of care or the highest attainable skill in the practice of their profession, although they, by virtue of their relation toward patients, impliedly engage that they possess ordinary knowledge and skill, and that they will, in the course of their employment, exercise such proper care and attention as may be reasonably expected from members of their profession. Such is the general rule of law on the subject. It was recently applied by the Supreme Court of Nebraska in Griswold v. Hutchinson, 66 N. W. Rep. 819, citing Barney v. Pinkham, 29 Neb. 350, 45 N. W. Rep. 694; Hewett v. Eisenbart, 36 Neb. 794, 55 N. W. Rep. 252;

Smothers v. Hanks, 34 Iowa, 286; Branner v. Stormont, 9 Kan. 51; Ely v. Wilbur, 49 N. J. Law, 685, 10 Atl. Rep. 385, 441; Small v. Howard, 128 Mass. 131; Ordr. Med. Jurisp. 42. The rule above stated is not limited in its application to physicians and surgeons, but applies with equal force to the members of all professions, including attorneys and counselor at law, who. assume to possess technical knowledge or skill.

INSURANCE-VERBAL CONTRACT PAROL EVIDENCE.-In connection with the opinion of the New York Court of Appeals in Rickerson v. Hartford Fire Insurance Co., lately decided, it may be interesting to read the opinion of the Supreme Court of Iowa, in Farmers' Co-operative Soc. of Geneva v. German Ins. Co., 66 N. W. Rep. 878. In the New York case it is held that where a regular documentary policy of fire insurance has been issued, parol evidence is not admissible either to show the intention of an agent of the company in negotiating the insurance, or of the company in writing it, and, furthermore, that parol evidence was inadmissible to authorize the inference by the jury of a prevailing custom in the business, in the absence of proof that the alleged usage was general, or that it prevailed in a particular locality, or that the plaintiff had knowledge of it. In the Iowa case, no documentary policy has been issued, and it was held that in an action at law on a verbal contract of insurance, the issue whether the contract was in fact made is to be determined by a preponderance of the evidence, and that if such evidence is conflicting, the verdict will not be disturbed.

The action was upon an alleged verbal contract of insurance against the loss by fire of a grain elevator, grain stored therein, and machinery connected therewith. There was a verdict for the plaintiff for the amount of its loss as determined by the jury, and the judgment thereupon rendered against the insurance company was affirmed on appeal.

EVIDENCE-PAROL EVIDENCE-USAGE AND CUSTOM.-In Coulter Manufacturing Co. v. Ft. Dodge Grocery Co., 66 N. W. Rep. 875, the Supreme Court of Iowa held that parol evidence is admissible to show that a guaranty in a contract for sale of goods, reciting "prices guaranteed against the market price

to date of shipment," meant according to business custom and usage, that the purchaser should have the benefit of any decline in prices. The dispute arose upon the proper construction of this guaranty, plaintiff contending that it is to be understood therefrom that the prices to be paid would not be more than those claimed in the contract, while the defendant contended that if the prices were less on the first of June (the date of shipment) the defendant was to have the benefit of the reduction. In other words, if there was a decline in the market, the purchaser was to have the benefit of the reduced market value. The following is from the opinion of the court:

The clause in the contract, was not self-explanatory; hence parol evidence is admissible to the effect that the terms used have a well known meaning in commercial transactions, not as contradicting the language or terms of the contract, but to apply to them the incidents which obtain by usage and custom. It is not necessary that words and terms in a contract should be technical, scientific or ambiguous in themselves, in order to entitle a party to show by parol evidence the meaning attached to them by the parties to the contract.

In the Louis Cook Manufacturing Co. v. Wendell, 62 Iowa, 244, there was a contract for buggies specify. ing "top buggies with poles." Against the plaintiff's objection the witness engaged in the trade was permitted to testify that these words in the order would be understood to mean a common grade of buggies. The language had a meaning understood by the trade, and that meaning must be understood in enforcing the contract, and it is very common for the courts themselves to obtain the true meaning of the language of contracts.

In Mida v. Geissmann, 17 Ill. App. 208, McAllister, J., held that it was entirely competent to prove that there was a custom or usage of the whisky trade in Chicago, well known to all dealing in whisky house receipts, that in their purchase the seller is never looked to as the responsible party; that the sole reliance is upon the warehouse issuing the receipts. Such evidence of usage does not contravene the provision of an express contract. The cases in the books disclose a variety of instances of such evidence. Various questions of weight, measurement, quality, etc., in the sale of goods are often determined by the usage of trade, as the best means of ascertaining the intention of the parties, when it is not declared by contract. Persons engaged in a particular trade are presumed to be acquainted with the usages of that trade, and to contract with reference thereto, and such usage under which the contract is made, may be shown to explain the meaning of a particular contract, but not to contradict its plain terms.

In Everingham v. Lord, 19 Ill. App. 569, Moran, J., said. "Ever since the leading case of Wigglesworth v. Dallison, Dougl. 201, it has been the established rule that customs which do not contradict the agreement, but add to it a consequential right or duty, are binding on the parties, without reference to the question whether the agreement is by deed or parol, or whether the undertakings are implied from certain

acts of the parties. All persons dealing in any branch of business are presumed to be acquainted with any usage affecting it, and are presumed to deal in reference to it. Such a usage is evidence of what is rea sonable, and what is suitably adapted to secure both parties in their rights." The court also cited Casco Mfg. Co. v. Dixon, 3 Cush. 410; Leach v. Beardslee, 22 Conn. 404: Ala. & Tenn. River R. R. Co. v. Kidd, 29 Ala. 221; Lyon v. Culberston, 83 Ill. 33.

CREDIT INSURANCE-DEATH OF MEMBER OF FIRM.-In American Credit Indemnity Co. v. Cassard, decided by the Court of Appeals of Maryland in March, 1896 (34 Atl. Rep. 703), it was held that where a member of a firm dies after the sale by it of goods on credit, but before the vendees fail in business, the business of such firm is not discontinued by, and on the date of, the death of such member within the meaning of a condition in a credit insurance policy issued to such firm, providing that it shall be void in the event of discontinuance of business by the firm.

The court said in part:

Contracts of this character, like policies of fire insurance, to which they are closely analogous, must receive a reasonable construction, so as to give effect to the intention of the parties thereto, and so as to carry out, rather than defeat, the purposes for which they were executed. They should neither, on the one hand, be so narrowly or technically interpreted as to frustrate their obvious design, nor, on the other hand, so loosely or inartificially as to relieve the obligor from a liability fairly within the scope or spirit of their terms. It is difficult to suggest a satis factory reason for holding that the death of one member of a creditor firm, long after goods have been sold and delivered, releases the obligor company from its liability to make good the loss arising from a subse. quent insolvency of the debtor during the continuance of the bond that would not equally apply to the case of an individual creditor who was not a member of any firm. The object of this peculiar kind of indemnity is to guaranty vendors against loss by reason of the insolvency of their debtors; and if the debt has been contracted during the continuance of the bond of indemnity, and while the firm or the individual protected by the bond is actually engaged in business, though the loss happens after the death of one member of the creditor firm, or after the death of the individual creditor, when there is no firm, the contingency contracted against-the insolvency of the debtor-is precisely the same as though the death of the creditor had not occurred at all. If, in the case of an individual creditor who is indemnified by such a bond, and who, after selling his goods, dies, it be held that the bond is made void because of his death, there would be superadded, by construction, a provision of avoidance beyond the two designated in the eighth clause. The failure of the person indemnified, and his discontinuance of business, are specified. His death is not. In addition, then, to the requirements that he should not fail and should not discontinue business, the obligation of the bond would be made subject to the further condition that the creditor survive the period of time covered by the contract

of indemnity; and thus, by pure implication, there would be written into the eighth condition, heretofore quoted, a contingency not therein expressed, or even necessarily implied. And in the case of a firm precisely the same situation would exist. Undoubtedly, the death of a member of a firm does, by operation of law, dissolve the partnership, but such a dissolution of the firm can in no sense be said to be a discontinuance of business by the indemnified. The surviving partner winds up the concern. The dissolution is by operation of law, and not by the act of the parties; and the discontinuance of business on the part of the firm is not a discontinuance by the firm, but by operation of law, in consequence of an act of God. Obviously, the term "discontinuance by the indemnified" has relation to the act of the indemnified (either his voluntary act, or the consequence of his voluntary act), precisely as the other condition (the failure of the creditor) relates to a situation arising from his own acts or conduct. Had the design been to constitute the death of the creditor a ground for avoiding the bond, the addition of the words "and the death of the indemnified," or words of like import, would have placed the matter beyond dispute, and every individual purchasing such a bond would then have been advised, in plain terms, that the contingencies which he encountered, and was obliged to avoid, so as to enable him to recover on the bond, were not only his own failure in, or discontinuance of business, but his death during the period covered by the indemnity. The construction contended for by the appellant places death (an act of God) in the same category as discontinuance of business by the indemnified (an act of the individual). It does not discriminate between what is the act of the party himself, on the one hand, and the consequence resulting from his death, which, on the other hand, is not his act, but makes the one the equivalent of the other, in so far as respects the continuing validity of the bond. And it does this, too, by ascribing to the words of the bond a meaning which, at best, is both strained and unnatural. In resisting the enforcement of an obligation of this character upon the ground here relied on, the defendant must show that its refusal to fulfill its contract is justified by some term of defeasance contained in the undertaking itself; and, unless this appears with reasonable clearness, the obligor cannot escape liability. If we entertained any reasonable doubt as to the correct interpretation to be placed on words we have been considering in the eighth condition indorsed on the bond, that doubt would be sufficient to solve the question against the defendant, because its contract to indemnify must stand in full force unless more than a doubt exists as to whether the defeasible conditions embrace the particular ground of avoidance relied on.

CONTRIBUTORY NEGLIGENCE PER SE IN ACCIDENTS AT RAILWAY CROSSINGS.

Accidents caused by trains colliding with persons attempting to cross railroad tracks at highway and foot crossings, have on account of their frequency, been a lucrative source of revenue for lawyers making a specialty of non-contract law both in England

and America, since the immense developments in railway systems. In every litigated case, negligence is the cause of the accident whether that of the plaintiff or defendant, but the question of paramount importance in each is, not whether the defendant has been negligent or not, but whether the plaintiff has precluded his right to a recovery by his own contributory negligence. This is almost invariably the contention of the defendant, and no lawyer should go into court without being thoroughly conversant with this phase of the subject of negligence. As defendant may be clearly negligent without incurring liability when plaintiff has also been negligent, proof of defendant's negligence is not nearly so important as proof that plaintiff exercised ordinary care, except perhaps in the States of Illinois and Georgia where the doctrine of comparative negligence obtains. The prov

cases.

ince of this article is not to discuss rules with which to instruct juries in deciding questions of contributory negligence in given cases, but merely to deal with that narrower class of cases in which a judge is justified in entering a non-suit. The rules laid down by supreme courts have differed widely as will be seen by glancing at a few of the leading In considering the rule in England it will be noticed that railway companies are favored more than they are in many American States.2 Lord Coleridge said in Davey v. London & Southwestern Ry. Co., that "at one time the view has been in favor of leaving everything to the jury in such cases, but it seems to be settled now that it is for the judge to say whether there is anything that can reasonably be held to be evidence of negligence for the jury and if there is, it is for the jury to say what the effect of it is." this case the plaintiff went upon the track in broad day light, and if he had looked, he would have seen the train. The engineer was negligent in failing to give a signal by whistling, and the gatekeeper was negligent in failing to warn the plaintiff of the approaching train. Still it was held that the plaintiff had been the proximate cause of the accident, and the non-suit by the court below was sustained on appeal to the Queen's 1 Chicago, etc. Ry. Co. v. McKean, 40 Ill. 218; Augusta, etc. Ry. Co. v. McElmurry, 24 Ga. 75.

In

2 Davey v. London & Southwestern Ry. Co., 11 Q. B. D. 213, L. R. 2 C. P. 631.

3

Bench Division. This case reviews the earlier English decisions generally, and is accepted now as a good statement of the rule of law in such cases in England. To reconcile the American decisions is a more difficult task; there being a wide range of opinion as to what constitutes contributory negligence, per se, as will be seen from the few cases which will be mentioned here. Of all States holding strongly against the plaintiff in negligence cases, Pennsylvania has been most conspicuous. In the leading case of Pa. Ry. Co. v. Beale, the rule is stated by Sherwood, J. thus: There never was a more important principle settled than that the fact of the failure to stop immediately before crossing a railroad track is not merely evidence of negligence for the jury, but negligence per se and a question for the court." The principle as thus stated has not been followed exactly in any other State, and in the western States especially the rule has been much more favorable to the plaintiff.

And

in no case in the west has it been held that the mere failure to stop, on the part of the person crossing the track, was such negligence as would sustain a non-suit. Cases have been decided in which it is held that a failure to stop, and even a failure to look and listen is not necessarily negligence but a question which is to be decided by the peculiar circumstances of the case and is to be left to the jury.5 The authorities cited in the case of Terre Haute & Indianapolis Ry. Co. v. Voelker, which sustain the decision will on examination be seen to be western cases." The cases cited from Maryland in support of this decision are upon facts in which the plaintiff's duty is not so clear as it is in this case, nor do they go quite so far. In a Wisconsin case, Mr. Justice Cassoday has laid down the following rule: "It is only when

7

3 14 Am. & Eng. R. R. Cases, 650, and cases cited. 4 N. Pa. Ry. Co. v. Heileman, 49 Pa. St. 60; Pa. Ry. Co. v. Beale, 73 Pa. St. 504; Pa. Ry. Co. v. Fortney, 90 Pa. St. 323; Reading & C. Ry. Co. v. Ritchie, 102 Pa. St. 425; Lehigh Valley, etc. Ry. Co. v. Brandtwein, 113 Pa. St. 610.

5 Shaber v. St. P. M. & M. Ry., 28 Minn. 103; Voelker v. Terre Haute & Indianapolis Ry. Co. (Ill.), 39 Am. & Eng. R. R. Cases, 615.

6 T. & P. R. Co. v. Chaman, 57 Tex. 75; Laverenz v. C., R. I. & Pac. Ry., 56 Iowa, 689; Chicago & E. I. Ry. Co. v. O'Connor, 119 Ill. 586; Chicago & A. R. Co. v. Fennell, 94 Ill. 448.

7 Hoye v. C. & N. W. Ry. Co., 19 Am. & Eng. R. R. Cases, 317, 62 Wis. 666.

8

the influence of negligence, or the absence of it, is necessarily deducible from the undisputed facts and circumstances proved, that the court is justified in taking the case from the jury. If, on the other hand, such facts and circumstances, though undisputed, were ambiguous and of such a nature that reasonable men, unaffected by bias or prejudice, might have disagreed as to the inference or conclusion to be drawn from them, then the case should have been submitted to the jury. This rule does not seem to have been subsequently cited in Wisconsin, and the general tendency now is to be somewhat stricter and to require the person crossing the track to use his eyes in seeing and his ears in hearing, and in one case it was held that where the highway had a steep grade down to the railroad track from a point about forty feet away from it, and where it would be impossible for the driver to stop his team after he had started down the grade, it was contributory negligence per se to start down the grade without first stopping." In New York the rule seems to have varied somewhat both in favor of and against the railway companies.10 In Glushing v. Sharp, it was held that, where the plaintiff looked both ways when about thirty feet from the track where his view was somewhat obstructed, and did not look again while passing the thirty feet, although during that time his view was unobstructed and he could have seen the train if he had looked, the question as to the plaintiff's negligence was held to have been properly submitted to the jury. The circumstance that the gateman raised the gate, was held to be a substantial assurance to plaintiff of safety; just as significant as if the gateman had beckoned to him or invited him to come on, and that any prudent man would in all probability be influenced by it. It was decided that plaintiff was entitled to recover; thus holding almost directly contrary to the English case of Davey v. London & Southwestern Ry. Co. before cited. But the rule in a case in which the negligence of defendant is not so clearly proven, has been laid down that

11

8 Bowers v. C., M. & St. P. Ry. Co., 61 Wis. 457; Nelson v. Ry. Co., 88 Wis. 392.

9 Seefeld v. C., M. & St. P. Ry. Co., 70 Wis. 216. 10 Davis v. N. Y. & C. Ry. Co., 47 N. Y. 400; Glushing v. Sharp, 96 N. Y. 676; Weber v. N. Y. & C. Ry. Co., 58 N. Y. 451, 67 N. Y. 587.

11 Tollman Admx. v. Ry. Co., 98 N. Y. 198.

And

where plaintiff's intestate was killed at a crossing on defendant's road and there was no obstacle to prevent seeing an approaching train for more than half a mile from the crossing, the failure to look and listen was contributory negligence, and the refusal of the lower court to non-suit was held error on appeal. This decision also held that the burden of proof was on plaintiff to show that he was free from contributory negligence. it seems to be the rule in a great number of States, that when plaintiff or plaintiff's intestate fails to look and listen before crossing defendant's track, no matter what the particular circumstances may be, the plaintiff will be non-suited by the judge even though the defendant has been clearly shown to have been negligent.12 This rule seems to have sanction of more courts than any other rule which has been formulated, and for cogent reasons, and, though couched in different language in different States, it is stated most succinctly in Maine as follows: "The rule is established in this State, that it is negligence per se for a person to cross a railroad track without looking and listening for a coming train, if there is a chance for doing It would be well if this rule were generally recognized in all these cases. If it were necessary, as it has been held in Pennsylvania to "stop, look and listen" before crossing a railroad track, and if necessary, to get out of the carriage and lead the horses across the track13 it would be well nigh impossible for such accidents to occur at all, and if they did occur, the mere fact that the person crossing was killed or injured would be evidence that he was as a matter of law, negligent, and unable to recover damages. This rule is manifestly harsh towards the injured person, and though it might tend to increased care on the part of the public who use the crossings, it must inevitably lead to carelessness and even recklessness on the part of the railway employees, as then the railway companies would not be liable for damages except in cases of gross negligence, and they would naturally deal leniently with

so."

12 Grostick v. Detroit, L. & N. R. Co. (Mich.), 51 N. W. Rep. 667; State of Maine v. Maine Central Ry. Co., 76 Me. 357; Lesan v. Maine Central R. R. Co., 77 Me. 85; Hayden v. Missouri, K. & T. Ry. Co. (Mo. Sup.), 28 S. W. Rep. 74; Tulley v. Fitchburg R. Co., 134 Mass. 499; Magner v. Truesdale, 53 Minn. 426, 55 N. W. Rep. 607; Nelson v. Ry. Co., 88 Wis. 392. 13 Pa. Ry. Co. v. Beale, 73 Pa. St. 504.