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is the proper remedy." "I have examined," says the learned judge, "the leading cases cited by him (Collyer), and find that his doctrinę is clearly sustained by the English authorities, and there is no case in this state, I apprehend, which trenches upon it in the least." See Townsend v. Goewey, 19 Wend. 424; Musier v. Trumpbour, 5 Wend. 274; and other cases cited in Glover v. Tuck. In Bagley v. Smith, 10 N. Y. 489, it was held that an action would lie upon a covenant contained in partnership articles; and, in Wills v. Simmonds, 8 Hun. 189, that, although the partnership relation may exist between the parties, the court has jurisdiction to entertain a suit at law brought by one against another partner, where the action involved an inquiry only with respect to the damages that the plaintiff sustained because of an alleged breach of the co-partnership agreement by the defendant. In Paine v. Thacher, 25 Wend. 450, the court held that an action would lie by one partner against another upon an express promise to pay a certain share out of his partnership profits for extra services. These cases establish with clearness the right of one partner to maintain an action for any breach, on the part of another partner, of the contract which establishes the partnership relation.

THE LIABILITY OF RAILROAD COMPANIES IN MISSOURI FOR KILLING STOCK. II.

8. Failing to ring the bell or sound the whistle. -For neglecting to ring the bell or sound the whistle before crossing any public road or street, as required by the statute, the company is liable to a penalty of $20, and for all damages which shall be sustained by any person by reason of such neglect. 1 W. S. 310, § 38.

It would probably be the duty of the company to give timely warning when a train is approaching a public crossing, but whether its failure to do so would be negligence, in the absence of any statute requiring it, would depend on the situation and circumstances connected with the crossing. 33 Ind. 335; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535. But as the statute requires the company to signal the approach of a train before crossing a public road, by ringing the bell or blowing the whistle, its failure to do so is held to be negligence per se, and such negligence, with proof that stock was killed at the crossing, make out a prima facie case for the plaintiff,

without further evidence that such negligence caused the injury, and cast the onus on the defendant to show in rebuttal that the plaintiff's own negligence contributed, or the injury was not caused by such neglect of duty on the part of the company. Howenstein v. Pacific R. R. Co., 55 Mo. 33; Owens v. H. & St. Jo. R. R. Co., 58 Mo. 386. And here again, before the

ink with which this doctrine is announced is dry on the paper, the same court declares that, although the failure of the company to give the proper signal on approaching a road-crossing is negligence per se, yet it must be shown that the injury was the result of such negligence; that is, in addition to proving such negligence, and that the animal was injured at the crossing, the plaintiff must prove that the injury was caused by such negligence, either by direct evidence or by proving facts and circumstances from which it may be fairly and rationally determined; and, in the absence of such evidence, the plaintiff can not recover. Holman v. C. R. I. & P. R. R. Co., 62 Mo. 562; Stoneman v. A. & P. R. R. Co., 58 Mo. 503; Karle v. K. C., St. Jo. & C. B. R. R. Co., 55 Mo. 476. See also Harlan v. St. L., K. C. & N. R. R. Co., 64 Mo. 480; Fletcher v. A. & P. R. R. Co., 64 Mo. 484; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535.

This is the true rule. The statute makes the company liable for damages sustained by reason of the failure to give such warning; hence, as in a suit under § 43, the plaintiff must show that the injury complained of was caused by such failure, etc. If the plaintiff relies upon the negligence of the company, in omitting to ring the bell or sound the whistle, he must set it up in his petition or statement. Meyer v. A. & P. R. R. Co., 64 Mo. 542. Double damages can not be recovered in a suit founded on § 38. 55 Mo. 33; 54 Mo. 240; 60 Mo. 567. Nor can interest be allowed on the damages sustained. 64 Mo. 542; 63 Mo. 99, 367.

9. Negligence.-A railroad company is not liable for killing or injuring stock coming upon the track where the road is fenced, or where it is not bound to fence, unless such injury is caused by the negligence of the company or its agents, and the onus is upon the plaintiff to prove such negligence. McPheeters v. H. & St. Jo. R. R. Co., 45 Mo. 22; Musick v. A. & P. R. R. Co., 57 Mo. 134; 60 Mo. 405. In view of the dangerous means and instruments

employed in operating a railroad, the company is held to the exercise of proportionate skill and care to prevent the destruction of property or other injuries. 26 Mo. 441; 36 Mo. 351; 28 Wis. 487.

The performance of every duty enjoined by statute, as making fences, road-crossings, cattle-guards, erecting signals, ringing the bell, and sounding the whistle, is not the whole duty of a railroad company; its agents must use such additional care to avoid injuring others as common prudence would dictate in the various conditions and circumstances in which they may be acting, and a failure to do so is negligence, for which the company is responsible. Hicks v. Pacific R. R. Co., 64 Mo. 430. On the other hand, a person of ordinary intelligence is bound to know that a railroad crossing over a public highway, where cars are likely to pass and are frequently passing, is a place of more than ordinary danger, and, before attempting to cross, it is his duty to stop and look both ways and listen for approaching trains. 61 Penn. St. 361; 56 Penn. St. 280. He must, at least, use due care in looking for the cars before he attempts to cross. 72 Penn. St. 27; 47 N. Y. 400; 35 N. Y. 75; 55 Ill. 379; 29 Iowa, 55; 64 Mo. 480, 484. If he sees a train, and determines to try the speed of his horses against that of the engine, he does it at his own peril. 29 N. Y. 315. Or if, on approaching a crossing with a team, he does not avail himself of his sense of sight and hearing, when, by the proper exercise of it, he could avoid a collision, he will be regarded as unusually negligent, though the bell may not be rung or the whistle sounded; if he could have seen the cars, had he looked, in time to avoid the injury, and did not, he is guilty of contributory negligence, and can not recover. 40 Ill. 218; 39 N. Y. 358; 34 Iowa, 153; 33 Ind. 335; 55 Penn. St. 396; 64 Mo. 484, 480.

10. Where there is contributory negligence.It is the general principle that, where there is mutual fault or negligence contributing directly or proximately to the accident, neither party can recover. 31 Mo. 411; 34 Mo. 55; 40 Mo. 131.

But if the negligence of the injured party was not the proximate cause of, or did not contribute directly to the injury, the party whose fault was the direct and proximate cause thereof would be liable. 45 Mo. 255. So, if the plaintiff's negligence was slight or remote,

and the defendant might have avoided the injury by the exercise of reasonable care and prudence, he is not excused. 36 Mo. 351, 484; 40 Mo. 153, 506; 42 Mo. 79; 43 Mo. 380, 523; 45 Mo. 322; 27 Mo. 95; Hicks v. Pacific R. R. Co., 64 Mo. 430.

In a few cases the Supreme Court has gone farther, and held that, although the plaintiff may have been guilty of negligence which contributed directly to the accident, yet, if the defendant could have prevented the injury by the exercise of ordinary care, it is liable. Brown v. H. & St. Jo. R. R. Co., 60 Mo. 461; Meyers v. R. I. & P. R. R. Co., 59 Mo. 223. There are other cases inclining to the same doctrine, though, upon careful examination of them, I am not prepared to say that they so decide. Karle v. K. C., St. Jo. & C. B. R. R. Co., 55 Mo. 476; Isabel v. R. R. Co., 60 Mo. 475; 43 Mo. 380; 64 Mo. 430. But the law, as laid down in Shearman & Redfield on Negligence, chap. 3, § 25, has been fully indorsed by that court, which is, that where the plaintiff has been guilty of negligence which proximately contributed to produce the injury, so that, but for his concurring and co-operating fault the injury would not have happened, he can not recover, except where the more proximate cause of the injury is the omission of the defendant, after becoming aware of the danger to which the plaintiff is exposed, to use a proper degree of care to avoid injuring him. Karle v. K. C., St. Jo. & C. B. R. R. Co., 55. Mo. 476; Maher v. A. & P. R. R. Co., 64 Mo. 267; 60 Mo. 475; Bell. R. R. Co. v. Hunter, 33 Ind. 335.

Here the important fact of notice or knowledge on the part of the defendant of plaintiff's danger is deemed essential to the plaintiff's right to recover, while in the cases of Meyers and Brown, supra, it is overlooked or ignored. This doctrine is in harmony with the general principle, that no one can hold another responsible for an injury which he was equally instrumental in bringing about, or to which his own fault or negligence directly contributed. When both parties are guilty of wrong or negligence, but neither anticipates harm to another as the result thereof, there should be no liability between them, and neither can be called upon to repair the other's loss. To say that the defendant is liable notwithstanding the plaintiff's negligence, if, by the exercise of ordinary care it could have avoided the injury, is, in

effect, to hold it liable for an injury to which its negligence was only contributory. If, by the use of ordinary care on the part of the defendant, the injury could have been avoided, then, but for the fault of the defendant it would not have happened; therefore the defendant caused the injury and must pay for it. But, if the plaintiff was negligent, the same theory will apply to his negligence, and as he caused the injury, he should not recover. Hence the principle that, where there is mutual fault or contributory negligence, neither party shall recover. But if the defendant is aware of the plaintiff's danger, and could, by proper care, avoid hurting him, and does not, his conduct would evince a willingness to inflict the injury, or imply a disregard of consequences, and the plaintiff may recover, though he be a trespasser, or be guilty of negligence contributory to the accident. Bell. R. R. Co. v. Hunter, 33 Ind. 335; 26 Ind. 76; 47 Ill. 408. What constitutes negligence, and whether it be proximate and contributory to a given result, depends so much upon the attending circumstances of the case and the peculiar notions of different judges as to the relative duties and obligations of individuals, that much confusion and contradiction exist in the reported cases, and no general or universal rule can be laid down as the settled law of the land. The following propositions, however, are deducible from the authorities, and may be considered as settled law:

(1.) That a party seeking to recover for injuries occasioned by the negligence of another, must be shown to be himself free from negligence contributory to the injury complained of, or, if not, that the defendant could have avoided the injury by the exercise of ordinary care after becoming aware of plaintiff's danger. (2.) That where the defendant's negligence was the proximate cause of the injury, and the negligence of the plaintiff was only slight or remote and did not contribute directly to the injury, he may recover.

(3.) A person attempting to cross a railroad, whether alone or with a team or with stock, must make use of his ordinary faculties to ascertain if there is danger in the attempt, or he will be held guilty of negligence.

(4.) Where the facts are uncontroverted, the question whether they amount to negligence, or to contributory negligence, is one to be determined by the court; but when the question

of negligence, or contributory negligence, depends on conflicting evidence, or inferences to be deduced from a variety of circumstances, in regard to which there is room for fair differences of opinion among intelligent men, it should be submitted to the jury under proper instructions. In other words, ordinarily the question of negligence is a mixed question of law and fact, and should be submitted to the jury, under proper instructions, when there is any evidence from which it may be fairly and rationally deduced. 50 Mo. 461; 55 Mo. 476, 485; 64 Mo. 480, 484; 38 N. Y. 49, 440.

(5.) Where the negligence of the defendant, by which the plaintiff was injured, is established, and the plaintiff was not guilty of contributory negligence on his part, the negligence of a third person contributing to the injury furnishes no excuse for the negligence of the defendant, and no reason why he should not respond in damages. Webster v. H. R. R. Co., 38 N. Y. 260; 36 N. Y. 39; Robinson v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 11; Slater v. Mersereau, 64 N. Y. 138. H. S. K.

CONTRIBUTORY NEGLIGENCE.

BALTIMORE & POTOMAC R. R. v. JONES. Supreme Court of the United States, October Term 1877.

PLAINTIFF, a laborer in the employ of defendant, when about to leave the place where he was working, on one of defendant's trains, was told by the person superintending him, who was also conductor of the train, to get on anywhere, as the train was in a hurry to leave. Plaintiff got on the pilot of the locomotive, which was a dangerous place to ride. While on the trip he was injured by a collision between the locomotive and some other cars of defendant, caused by defendant's negligence. The proper place for plaintiff to ride was in a box-car on the train provided for the employees; he had been told previously to always ride there and had been forbidden riding on the pilot of

the locomotive. No one of those in the box-car was injured, and plaintiff would not have been if he had ridden there. Held, that plaintiff was guilty of contributory negligence and could not recover of the defendant for the injury.

In error to the Supreme Court of the United States for the District of Columbia.

MR. JUSTICE SWAYNE, delivered the opinion of the court:

The defendant in error was the plaintiff in the court below. Upon the trial there he gave evidence to the following effect: For several months prior to the 12th of November, 1872, he was in the service of the company as a day laborer. He was one of the party of men employed in constructing and keep

ing in repair the roadway of the defendant. It

was usual for the defendant to convey them to and from their place of work. Sometimes a car was

used for this purpose. At others, only a locomotive and tender were provided. It was common, whether a car was provided or not, for some of the men to ride on the pilot or bumper in front of the locomotive. This was done with the approval of Van Ness, who was in charge of the laborers when at work, and the conductor of the train which carried them both ways. The plaintiff had no connection with the train. On the 12th of November, before mentioned, the party of laborers, including the plaintiff, under the direction of Van Ness, were employed on the west side of the eastern branch of the Potomac, near where the defendant's road crosses that stream, in filling flat-cars with dirt and unloading them at an adjacent point. The train that evening consisted of a locomotive, tender, and box-car. When the party was about to leave on their return that evening, the plaintiff was told by Van Ness to jump on anywhere, that they were behind time and must hurry. The plaintiff was riding on the pilot of the locomotive, and while there the train ran into certain cars belonging to the defendant and loaded with ties. These cars had become detached from another train of cars, and were standing on the track in the Virginia avenue tunnel. The accident was the result of negligence on the part of the defendant. Thereby one of the plaintiff's legs was severed from his body and the other one severely injured. Nobody else was hurt, except two other persons, one riding on the pilot with the plaintiff, and the other one on the cars standing in the tunnel.

The defendant then gave evidence tending to prove as follows: About six weeks or two months before the accident, a box-car had been assigned to the construction train with which the plaintiff was employed. The car was used thereafter every day. About the time it was first used, and on several occasions before the accident, Van Ness notified the laborers that they must ride in the car and not on the engine, and the plaintiff in particular, on several occasions not long before the disaster, was forbidden to ride on the pilot both by Van Ness and the engineer in charge of the locomotive. The plaintiff was on the pilot at the time of the accident, without the knowledge of any agent of the defendant. There was plenty of room for the plaintiff in the box-car, which was open. If he had been anywhere but on the pilot he would not have been injured. The collision was not brought about by any negligence of the defendant's agents, but was unavoidable. The defendant's agents in charge of the two trains and the watchman in the tunnel were competent men. The plaintiff, in rebuttal, gave evidence tending to show that sometimes the box-car was locked when there was no other car attached to the train, and that the men were allowed by the conductor and engineer to ride on the engine, and that, on the evening of the accident, the engineer in charge of the locomotive knew that the plaintiff was on the pilot.

The evidence having closed, the defendant's counsel asked the court to instruct the jury as follows: "If the jury find from the evidence that the plaintiff knew the box-car was the proper place for

him, and if he knew his position on the pilot of the engine was a dangerous one, then they will render a verdict for the defendant, whether they find that its agents allowed the plaintiff to ride on the pilot or not." The instruction was refused, and the defendant's counsel excepted.

Three questions arise upon the record: 1. The exception touching the admission of evidence. 2. As to the application of the rule relative to injuries by one servant by reason of the negligence of another servant, both being at the time engaged in the same service of a common superior. 3. As to the contributory negligence on the part of the plaintiff.

We pass by the first two without remark. We have not found it necessary to consider them. In our view the point presented by the third is sufficient to dispose of the case.

Negligence is failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion. See Wharton on Negligence, section 1 and notes. One who by negligence has brought an injury upon himself, can not recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is-1. Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or 2, whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that, but for such negligence or want of care and caution on his part, the misfortune would not have happened. In the former case, the plaintiff is entitled to recover. In the latter he is not. Tuff v. Warman, 5 Scott C. B. N. S. 572; Butterfield v. Forrester, 11 East, 60; Bridge v. G. J. R. R. Co., 3 M. & W. 244; Davies v. Mann, 10 M. & W. 546; Clayards v. Dethic, 12 Q. B. 439; Van Lien v. Scoville Co., 14 Abbott's Pr. N. S. 74; Ince v. East Bost. Co., 106 Mass. 149.

us.

It remains to apply these tests to the case before The facts with respect to the cars left in the tunnel are not fully disclosed in the record. It is not shown when they were left there, how long they had been there, when it was intended to remove them, nor why they had not been removed before. It does not appear that there was a watchman at the tunnel, and that he and the conductor of the train from which they were left, and the conductor of the train which carried the plaintiff, were all well selected and competent for their places. For the purposes of this case we assume that the defendant was guilty of negligence.

The plaintiff had been warned against riding on the pilot and forbidden to do so. It was next to the cowcatcher, and obviously a place of peril, especially in case of collision. There was room for him in the box-car. He should have taken his

place there, He could have gone into the box-car in as little if not less time than it took to climb to the pilot. The knowledge, assent, or direction of the company's agents as to what he did is immaterial. If told to get on anywhere, that the the train was late, and that he must hurry, this was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cowcatcher, or put himself on the track before the advancing wheels of the locomotive. The company, although bound to a high degree of care, did not insure his safety. He was not an infant, nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter, the former could not arise. He, and another who rode beside him, were the only persons hurt upon the train. All those in the box-car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own recklessness and folly. He was himself the author of his misfortune. This is shown with as near an approach to a demonstration as anything short of mathematics will permit. The case is thus clearly brought within the second of the predicates of mutual negligence we have laid down. Hickey v. R. R. Co., 14 Allen, 429; Todd v. R. R. Co., 3 Id. 18; s. c., 7 Id. 207; Gavett v. R. R, Co., 16 Gray, 501; Lucas v. R. R. Co., 6 Gray, 64; Ward v. R. R. Co., 2 Abbott's Pr. (N. S.), 411: Galena R. R. v. Yarwood, 15 Ill. 468; Doggett v. R. R., 34 Iowa, 285.

It

The plaintiff was not entitled to recover. follows that the court erred in refusing the instructions asked upon this subject. If the company had prayed the court to direct the jury to return a verdict for the defendant, it would have been the duty of the court to give such directions, and error to refuse. Gavett v. R. R. Co., supra; Merchants' Bank v. State Bank, 10 Wall. 605; Pleasant v. Fant, 22 Wall. 121.

The judgment of the Supreme Court of the District of Columbia is reversed, and the case will be remanded with directions to issue a venire de novo, and proceed in conformity with this opinion.

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by plaintiff while in the employment of defendant, by reason of the negligence of defendant's employees. There was a verdict and judgment for plaintiff; defendant appeals. The facts involved in the questions of law determined by the court are found in the opinion. The case has before been in this court upon a former appeal by defendant. See 41 Iowa, p. 344.

Cook & Richman, for appellant; W. A. Foster, for appellee.

BECK, J., delivered the opinion of the court: Plaintiff, with numerous other men, was employed by defendant in taking down and removing its old railroad bridge across the Mississippi river, between Davenport and Rock Island. The timbers of the bridge were, when taken down, placed upon cars and in that manner transported to a place convenient for depositing them. To reach this place with the train, it was necessary to draw it westward with an engine, and, at a certain point, change it by means of a "switch" to another track, upon which it was "backed" to the place where the load was deposited.

Plaintiff was required by the employee of defendant, under whose direction he was working, to go from the bridge when the train had received its load with it, in order to assist in unloading the timbers. With other men he went upon the train and seated himself upon the timbers. In backing, the timbers upon which he was sitting were thrown off the car and plaintiff himself also was thrown to the ground, the timbers, or some of them, falling upon him. Plaintiff claims that the accident occurred through the negligence of defendant's employees, and that the injuries he received were severe and permanent in their character, and have so far disabled him that he can not engage in employments requiring ordinary strength and vigor.

The issues of the case involved the extent of the injuries inflicted upon plaintiff, and their effect upon his health and strength. He testified upon the first trial that he was so far disabled that he could not engage in labor requiring the exercise of common strength and activity. His testimony was to the effect that his hips and back were the seats of great pain, and that the injuries had impaired his nervous system, and that his limbs and some of his internal organs were to an extent paralyzed. After the jury were empanneled, and before the introduction of any testimony, the defendant filed a written application, asking that a proper order of the court be made requiring the plaintiff to submit to an examination by physicians and surgeons, that they might determine the true condition of his health and character and extent of his ailments, to the end that it might be known whether, indeed, he was suffering from any disability, and if so found, whether it originated from the injuries sustained by the timbers falling upon him as claimed by him in his petition and testimony. The defendant, in its application, asked that such an examination should be made by a proper number of physicians, to be selected, the equal numbers by plaintiff and defendant, and it

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