QUESTIONS FOR JURY-Continued.
the age of the young lady, and made no further inquiry of
any one, the Court should have given the plaintiff's prayer
for instruction that as a matter of law defendant failed to
make reasonable inquiry as to the age of plaintiff's daughter.
Morrison v. Teague, 186.
In passing upon the question as to whether the will was procured
by undue influence, the age of the testator, his mental and
physical condition, and other relevant facts may be consid-
ered by the jury. Linebarger v. Linebarger, 229.
Where the testimony shows that plaintiff, a foreman of a force
unloading cars, engaged in the performance of his duty, was
injured because some cars, which had been stopped on an
incline thirty steps away, commenced to move without warn-
ing to plaintiff and, rolling down the incline, struck the car
on which plaintiff was standing doing his work, and caused
the injury, the Court properly submitted the case to the jury,
it being the duty of the engine crew to place and securely
scotch the cars on the incline, there to remain until moved
by plaintiff's order. Bird v. Leather Co., 283.
Direct evidence of negligence is not required, but the same may
be inferred from acts and attendant circumstances, and if the
facts proved establish the more reasonable probability that the
defendant has been guilty of actionable negligence, the case
cannot be withdrawn from the jury, though the possibility of
accident may arise on the evidence.
Where the plaintiff testified that he was applying the brakes in
the customary and usual way when he was injured by a collis-
ion with cars that rolled unexpectedly down an incline, and
being stationed between two cars loaded with bark, it is not
likely he could have noted the approach of the cars, and the
evidence shows that he had not noted their approach, the
Court properly decline to hold as a matter of law that.
plaintiff was guilty of contributory negligence. Ibid.
Where the parties waived a jury trial and agreed that the Judge
should find the facts and enter judgment thereon, and the
Judge found the facts and entered judgment in favor of the
defendant, and upon appeal this Court was of opinion that
upon the facts found judgment should have been entered in
favor of the plaintiff, and entered its order "Reversed": Held,
that upon presentation of the certificate of opinion, the Court
below properly entered judgment for the plaintiff, and the
defendant's motion for a trial de novo on the ground that some
of the findings of fact had been made without any evidence to
QUESTIONS FOR JURY-Continued.
support them, came too late, he having acquiesced in the
findings without exceptions. Matthews v. Fry, 384.
In an action for an injury from an alleged negligent blasting,
where plaintiff's evidence tends to prove that defendant was
blasting rock with dynamite on the outskirts of the city
about 100 yards from a street and 175 yards from plaintiff's
residence, and in close proximity to other houses, and that a
rock weighing 20 pounds, from one of the blasts, crashed
through plaintiff's residence; that defendant's foreman was
not an expert blaster, and was absent a part of the time;
that his assistants had but little experience; that the blast
was fired off without being properly smothered; that smoth-
ering is a safe method usually employed in such operations,
and had it been properly done on this occasion the injury
could not have well resulted: Held, that this evidence of
negligence was amply sufficient to have been submitted to the
jury. Kimberly v. Howland, 398.
In an action for malicious prosecution, an instruction that if the
jury find that the defendant sold the goods straight-out to the
plaintiff, and that the defendant had him arrested for the
purpose of collecting the debt, they would answer the issue
of malice in favor of the plaintiff, because that would be a
wrongful act done intentionally and without just cause and
excuse, was erroneous, as it was for the jury to determine
and not for the Court whether such an act was committed
when the defendant caused the plaintiff's arrest under the
evidence in this case. Stanford v. Grocery Co., 419.
In an action for malicious prosecution, the term "malice,” in
reference to the question of damages, means malice in the
sense of personal ill-will, while in respect to the issue
fixing responsibility it need not necessarily be personal ill-
will, but may be said to exist where there has been a
wrongful act knowingly and intentionally done plaintiff
without just cause or excuse, and it may be inferred from
the absence of probable cause. Ibid.
In an action for malicious prosecution, on the question of dam-
ages the Court properly told the jury they could allow for a
reasonable attorney's fee paid by plaintiff in the case in
which the prosecution was had. Ibid.
In an action for malicious prosecution, punitive or exemplary
damages may be awarded by the jury, but the right to such
damages does not attach, as a conclusion of law, because the
jury have found the issue of malice against the defendant,
QUESTIONS FOR JURY-Continued.
but the jury must find that the wrongful act was done for
actual malice in the sense of personal ill-will, or under cir-
cumstances of insult, rudeness or oppression, or in a manner
which showed a reckless and wanton disregard of the plain-
tiff's rights. Ibid.
Juries should not only find the facts, but they should draw their
own conclusions therefrom uninfluenced by the acts or language
of the Court; and the language of a charge, "if you believe
the evidence, the defendant is guilty, and you will return
a verdict of guilty," is improper, though, standing alone, not
reversible error. State v. Simmons, 613.
It is error for the Court below, when informed by the jury in
answer to his question, that some of them believed the defendant
guilty and some not guilty, to poll the jury, ascertain from
each that he believed the evidence, and then again instruct
them, "if they believe the evidence to return a verdict of
guilty," it being an intimation of opinion upon the facts
and calculated to prevent an impartial consideration of the
case. Ibid.
The findings of a special verdict on an indictment for selling
liquor without a license must be sufficient for the Court, as a
matter of law, to determine the innocence or guilt of the
defendant; when the verdict leaves open the inference of
innocence or guilt as one of fact, it is defective, and a new
trial will be ordered. State v. Hanner, 632.
A railroad company which has leased its road-bed, track and roll-
ing-stock to another corporation is liable for the torts of the
lessee, and this liability extends to an injury sustained by a
passenger by the negligence of the servants of the lessee.
Carleton v. Railroad, 43.
Where a complaint alleges that two railroad corporations jointly
operating their properties through the agency of a lessee
between two points connected by their road-beds and tracks,
in the discharge of their duty as common carriers undertook
to carry a passenger over their tracks, a demurrer for mis-
joinder was properly overruled, as they are jointly liable for
a failure to discharge the duty undertaken in a joint opera-
tion and use of their property in the exercise of their fran-
chise. Ibid.
In an action for damages growing out of an attachment of plain-
tiff's cars, alleging malice and want of probable cause and
that the attachment of ten cars was excessive and an abuse
of process of the Court, evidence of profits which the plaintiff
might have made from hiring its cars was properly excluded
as speculative damages. Railroad Co. v. Hardware Co., 54.
The true measure of damages in such a case is the interest upon
the value of the cars, increased or diminished, as the case
might be, by the difference between the deterioration of the
cars if in daily use, and their deterioration while wrongfully
tied up, provided plaintiff could not have avoided injury from
the attachment by giving bond and retaining possession of its
cars. Ibid.
In an action for damages for alleged wrongful and malicious
attachment of plaintiff's cars, the Court erred in refusing to
admit the testimony of the agent of the company, which was
surety on the prosecution bond in this action, that for the
payment of $10 it would have signed a replevy bond to secure
release of the cars attached. Ibid.
Where certain townships by extra taxation procured the building
through their territory of a railroad, the Legislature has the
power to direct the County Commissioners to expend ex-
clusively in those townships the county taxes derived from
such railroad property in said townships "in repairing roads,
building bridges, extending schools, or such other purposes as
the Commissioners may deem best," until the amount so
used in said townships shall fully reimburse them for the
amount paid out to aid in building said railroad. Jones v.
Commissioners, 59.
In an action against a railroad for damages for personal injuries,
an instruction that "if the jury found that the rule which
was offered by the defendant was habitually violated to the
knowledge of the defendant or of those who stood toward
the plaintiff in the position of vice-principals, or if they found
that the rule was so frequently and openly violated for such
a length of time that the defendant could, by the exercise of
ordinary care, have ascertained that it was being violated,
the rule is considered in law as being abrogated, and would
have no effect upon the acts of the plaintiff," was correct.
Biles v. Railroad, 78.
In an action for negligence against a railroad company operating
in this State, the defense of working on in the presence of a
defective appliance or machine, usually dealt with under the
head of assumption of risk, has been eliminated by the Fellow-
servant Act; but if, apart from the element of assumption of
risk, the plaintiff in his own conduct has been careless in a
manner which amounts to contributory negligence, his action
fails, except in extraordinary and imminent cases like those
of Greenlee and Troxler. Ibid.
In an action for injuries received at a railroad crossing, where
there was evidence tending to prove that the railroad com-
pany kept a flagman stationed at this crossing for the pur-
pose of warning passers-by, and that plaintiff knew of this
custom, and that when he got near the crossing he looked
for the watchman, but saw none, the Court did not err in
refusing to charge at plaintiff's request that he had a right
to cross the track under the circumstances, and was absolved
from the usual duty of looking and listening. Hodgin v.
Railroad, 93.
When a watchman is stationed at a crossing to give warning, the
traveler who sees the watchman in his place has the right to
rely on him for protection, but when he discovers that the
watchman is absent from his post of duty he is put on his
guard at once, and must exercise ordinary care to protect him-
self from injury. He should then look and listen for passing
trains. Ibid.
In an action for injuries to a passenger on a caboose car, an
instruction that "plaintiff admits that he asked the conduc-
tor if he could ride on his train, and was told by him that he
could, but to wait until he got through his work and he
would pull the caboose up to the station," was erroneous
where there was evidence from which the jury might find that
the plaintiff admitted only that while the conductor did tell
him to wait a few minutes and he would pull the caboose up
to the station, he regarded it merely as a favor offered to him
by an obliging conductor and not as a denial to him of the
right to enter the car, or even as a warning to him not to do
So. Miller v. Railroad, 115.
In an action by a freight conductor for personal injuries, where
the evidence shows that he was going with a lighted lantern
from the freight office to take charge of his train; that the
night was dark and stormy and that the wind blew his lan-
tern out and he did not return to light it. but continued
along the platform, feeling his way with his feet, and fell
down the steps which were cut into the platform about three
feet, and which he knew were there; that there was no light
on the platform nor railing around the steps: Held, that
the Court did not err in refusing to hold as a matter of
law that the plaintiff was guilty of contributory negligence.
Beard v. Railroad, 136.
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