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(185 Ind. 315)
gate value of the property as it is assessed for HASKETT et al. v. TOWN OF SULPHUR taxation, exclusive of the improvements, and SPRINGS. (No. 22989.)
subject to be assessed, to pay for said proposed
improvement." (Supreme Court of Indiana. Nov. 9, 1916.)
This prohibition was carried into the MUNICIPAL CORPORATIONS 459 STREET
amendment of the section, in 1909, without IMPROVEMENTS-LIMIT OF COST-Towns.
The prohibition of Burns' Ann. St. 1914, s any change in language that is pertinent to 8710, against contract for street improvement in the question here involved.
Acts 1909, pp. a city of the first, second, or third classes, cost. 413, 414; Section 8710, Burns 1914. ing more than half the aggregate value of the
Section 265 of the original act (Acts 1905, property to be assessed, is not extended to towns by section 8959, providing that the provision of p. 404, 8 8959, Burns 1908) recited that: this act relating to improvement of streets in "The provisions of this act relating to * cities of the first, second, third, and fourth street
improvements in cities of the classes shall apply to improvements in cities of first, second, third and fourth classes shall apply the fifth class and incorporated cities; this re- to cities of the fifth class and to incorporated ferring only to method of procedure.
towns, and the duties of the board of public [Ed. Note.- For other cases, see Municipal works in relation to such matters shall be perCorporations, Cent. Dig. $ 1101; Dec. Dig.
formed, in cities of the fifth class, by the com459.)
mon council, and in towns by the board of
trustees; and the duties of the compAppeal from Circuit Court, Henry Coun- troller by the city or town clerk, as the case ty; Willis S. Ellis, Special Judge. Suit by Charles F. Haskett and others
This was followed by a specific method of against the Town of Sulphur Springs. procedure by councils and boards, relating From an adverse judgment, plaintiffs ap- to the adoption of improvement resolutions, peal. Affirmed.
notice, letting of contracts, etc. Further Forkner & Forkner, of New Castle, for ap- proceedings were expressly authorized acpellants. Barnard & Brown, of New Castle, cording to the provisions of sections 108 to for appellee.
120 of the act.
The 1909 amendment of section 265 conMORRIS, J. Appellants are the owners tinued the provision we have quoted above, of real estate abutting on Meridian street in but omitted the provision relating to method the town of Sulphur Springs. In March, of procedure by boards of trustees of towns, 1915, the board of trustees of the town and councils of cities of the fifth class. Acts adopted a resolution for the improvement of 1909, p. 412. The 1913 amendment of the the street that will cost more than half the section embodies the same quoted provision, aggregate value of abutting property. It is and omits any separate method of procecontended by appellants that such improve- dure as authorized by the original section, ment is prohibited by sections 107 and 265 but contains the following: of the municipal corporation act of 1905, as "And the provision of this act relating to the amended in 1909 and 1913. Acts 1905, p. improvement of streets and alleys in cities of
the first, second, third and fourth classes shall 286; Acts 1909, p. 412; Acts 1913, p. 12; $8 apply to the improvement of streets and alleys in 8710, 8959, Burns' Stat. 1908 and 1914. cities of the fifth class and incorporated towns,
The act of 1905 divided the cities of the by grading," etc. (Italics ours.) state into five classes, according to popula
Because of this, and because the 1909 and tion. Section 8643, Burns 1914. It provid- 1913 amendments of the section eliminate ed for the creation of a department of pub- the special procedure for towns and cities lic works in cities of the first, second, third, found in the section as originally enacted, and fourth classes. Section 8684, Burns 1914. In all cities of such classes, the board the legislative intent to make the prohibition
counsel for appellants contend that it was of public works was authorized to order and found in section 107 (section 8710, Burns contract for the repair and improvement of 1914) against improving streets where the streets. Section 8696, Burns 1914. In cities cost might exceed half the value of the abutof the ofth class, and incorporated towns, ting property, apply to towns and cities of which have no public works department, the the fifth class as well as to cities of the authority to order street improvements was first, second, and third classes. vested respectively in city councils and
We are of the opinion that such position boards of trustees. Section 8959, Burns
is untenable. The elimination from section 1914. Section 107 of the original act (sec. 265 of the procedural method for towns and tion 8710, Burns 1908) provides for a meth- cities of the fifth class was doubtless made od of procedure in street improvements by to secure a uniform method of procedure for boards of public works in all cities except street improvements, etc., in all municipal those of the fifth class. The section con- corporations. The language of the prohibi. tained three provisos, in the second of which tory clause in question, as originally enactis found the following inhibition :
ed, and found in section 8710, Burns 1908, “Nor shall any contract be let for the im: was plainly applicable only to cities of the provement of any street the first, second or third class, the total cost of first three classes, although the section of which shall exceed fifty per cent. of the aggre- the act (section 107) furnished the only pro
For (ther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
cedural method adapted to cities of the that such bill does not contain all the instruc fourth class.
tions given. Nor is appellants' contention materially
[Ed. Note.-For other cases,
seé Criminal helped by the new provision found in the Law, Cent. Dig. 88 2767, 2901, 3032; Dec. Dig.
em1144(14).) 1913 amendment of section 265, heretofore quoted, for it does not purport to make ap
4. CRIMINAL LAW ww1144(14)-APPEAL-PRE
SUMPTIONS-INSTRUCTIONS—CURE BY OTHER plicable to towns and cities of the fifth class INSTRUCTIONS. any provision of the act not applicable to Where the bill of exceptions does not concities of the fourth class.
tain all the instructions given, the presumption In the case of Martindale v. Town of Roch- was embraced in the instructions given, and not
is that the substance of the instructions asked ester (1908) 171 Ind. 250, 86 N. E. 321, in-contained in the bill of exceptions, and that if volved the same question here presented. The any given instruction set out in the bill is ercase was decided previous to any amendment roneous, it was corrected or withdrawn by other
given instructions not set forth in the record. of either section of the act in controversy
[Ed. Note.-For other cases, see Criminal and held the prohibition not applicable to Law, Cent. Dig. 88 2767, 2901, 3032; Dec. Dig. towns. The 1909 re-enactment of the prohibi- Cw1144(14).] tory provisions, in the absence, as here, of 5. CRIMINAL LAW 1092(16)—APPEAL-BILL language to evince a contrary purpose, must OF EXCEPTIONS-EVIDENCE. be held as embodying this court's construc
Even though the trial judge signs a bill of tion of the original provision. State v. Ens- exceptions and directs it to be filed and made a
part of the record, the rule is that unless such ley, 177 Ind. 483, 97 N. E. 113, Ann. Cas. bill is thereafter actually filed with the clerk and 1914D, 1306. The case of Gardiner v. City the fact of filing affirmatively shown by the of Bluffton (1910) 173 Ind. 454, 89 N. E. record, the exceptions are not properly presented
for consideration. 853, 90 N. E. 898, Ann. Cas. 1912A, 713,
(Ed. Note.-For other cases, see Criminal held the probibitory provision in question Law, Cent. Dig. $ 2846; Dec. Dig. ew1092(16).] not applicable to cities of the fifth class, and the 1913 amendment of section 265 (section Appeal from Criminal Court, Marion Coun8959, Burns 1914) does not, in our opinion, ty ; James A. Collins, Judge. furnish sufficient basis to support appel Lorenzo D. King was convicted for an lants' contention. Unless the attempted im- illegal sale of cocaine, and he appeals. Afprovement was invalid, because of the stat- firmed. utory provision, the judgment should be af William N. Harding and Alfred R. Hovey, firmed. Whether considered alone, or in both of Indianapolis, for appellant. Evan B. the light of the two opinions of this court, Stotsenburg, Atty. Gen., Omer S. Jackson and hereinbefore cited, we are constrained to Wilbur T. Gruber, Asst. Attys. Gen., and hold that the statutory provision in ques. Alvah J. Rucker, of Indianapolis, for the tion is not applicable to towns.
State. Judgment affirmed.
SPENCER, J. [1, 2] Appellant, a retail (185 Ind. 312)
druggist, was tried and convicted on an inKING v. STATE. (No. 23020.)
dictment which charges him with an illegal
sale of cocaine. He has appealed from the (Supreme Court of Indiana. Nov. 9, 1916.)
judgment of conviction, and alleges, first, 1. DRUGGISTS 12-SALES OF COCAINE-IN- that the trial court erred in overruling his DICTMENT.
Acts 1911, c. 27, made it unlawful to sell motion to quash said indictment "for the or give away any "cocaine, alpha or beta eu
reason that the same does not state facts sufcaine," or any other compounds of the same. ficient to constitute a public offense under Acts 1913, c. 118, amended the act including cer- the law." The offense charged is that appeltain other drugs in its scope, and contained an lant, at a time and place fixed, unlawfully error in punctuation in omitting a comma before alpha, which error was carried into Burns' Ann. sold to one Myrtle Ward “cocaine, and derivSt. 1914, $ 2494a. There is no such drug as “co- atives, salts and compounds of cocaine." caine alpha." Held, that an indictment under The contention of appellant is that under section 2494a was not subject to a motion to quash because not distinguishing between "co section 2494a, Burns 1914, an indictment, to caine alpha and beta eucaine."
be good as against a motion to quash, must (Ed. Note.- For other cases, see Druggists, distinguish between "cocaine alpha and beta Cent. Dig. § 11; Dec. Dig. ww12.)
cocaine." The statute in question was first 2. STATUTES 200 CONSTRUCTION enacted by the General Assembly of 1911 PUNCTUATION.
(Acts 1911, p. 45), and then made it unlawful An error in punctuation may not prevent a proper construction of the act in which it oc- "for any druggist or other person to retail,
sell, or barter or give away any cocaine, [Ed. Note.-For_other cases, see Statutes, alpha or beta eucaine, or any salt or any Cent. Dig. $ 278; Dec. Dig. Em 200.]
compound, or derivative of any of the fore3. CRIMINAL LAW Eww1144(14)-APPEAL-IN- going substances,” etc. In 1913 the act was STRUCTIONS-PRESUMPTION.
Where it is not affirmatively shown by the amended so as to include within its scope bill of exceptions that it contains all the given certain other drugs, and to regulate further instructions, the Supreme Court must presume the sale of all such drugs (Acts 1913, p. 306),
and, as so amended, it contains an error in punctuation which has been carried into the TOWN OF FRENCH LICK V. ALLEN. Compiled Statutes. Such an error, however,
(No. 9587. may not prevent a proper construction of the act in wbich it occurs. Collins v. State,
(Appellate Court of Indiana, Division No. 2.
Nov. 10, 1916.) 38 Ind. App. 625, 628, 78 N. E. 851; Maley v. Clark, 33 Ind. App. 149, 151, 70 N. E. 1005; APPEAL AND ERROR 761 BRIEFS ABAlbright v. Payne, 43 Ohio St. 8, 13, 1 N. STRACT PROPOSITIONS OF LAW. E. 16.
Where appellant's brief sets out a number There is no such drug as "cocaine alpha,” plication whatever to any specific error or ruling
of abstract propositions of law without any apbut the distinction which the statute .draws relied on for reversal, it presents no reviewable in fact is between cocaine and different question. grades of the chemical compound known as (Ed. Note. For other cases, see Appeal and eucaine. The offense here charged is an 11- Error, Cent. Dig. $ 3096; Dec. Dig. Ow761.) legal sale of cocaine, and the indictment properly follows the language of the act in ques
Appeal from Circuit Court, Washington tion.
County; Emmett C. Mitchell, Special Judge. [3, 4] Objection is next made to certain in
Action by Lillie Allen against the Town of structions given by the trial court to the French Lick. From judgment for plaintiff, jury. It does not appear, however, from the defendant appeals. Appeal dismissed. bill of exceptions containing these instruc Talbott & Roland, of French Lick, and tions, whether it includes all of the instruc- Wilber W. Hottel, of Salem, for appellant. tions given, and it is therefore incomplete. McCart & McCart, of Paoli, and Elliott & As said in State v. Winstandley, 151 Ind. Houston, of Salem, for appellee. 495, 496, 51 N. E. 1054:
“When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it IBACH, J. Appellant appeals from a judgcontains all the instructions given by the court ment in favor of appellee for damages. Apto the jury, this court must presume that such pellee moves this court to dismiss the appeal bill of exceptions does not contain all the in- for the reason that appellant has failed to structions given. Cooper V. State, 120 Ind. 377, 383, 384 [22 N. E. 320]. In such case the comply with the rules of this court in the presumption is that the substance of the instruc- preparation of its brief. A number of detions asked was embraced in the instructions ficiencies are pointed out and claimed by apgiven by the court, which are not contained in the bill of exceptions, and that, if any instruc- pellee, of which it is necessary to refer only tions given by the court, and set out in the bill to the following: of exceptions, are erroneous, they were corrected or withdrawn by other instructions given by the
“Appellant has failed to set out under sepacourt, and not set forth in the record."
rate heading of each error relied on, separately See, also, Lane v. State, 151 Ind. 511, 513,
numbered propositions or points relied on to
support them." 51 N. E. 1056; Musgrave v. State, 133 Ind. 297, 312, 32 N. E. 885.
The “propositions of law contained in ap Finally, it is insisted that the court pellant's brief are vague, general statements, erred in admitting certain items of evidence and no application is made in any one of over appellant's objection, but a considera-them to any error relied on." tion of these questions is precluded by the An examination of appellant's brief supfact that the evidence is not properly in the ports appellee's contention as to the deficienrecord. Even though it appears that the cies above set out. Three errors are relied trial judge has signed a bill of exceptions and on for reversal, one of which is the ruling directed that the same be filed and made a on the motion for a new trial containing part of the record in the case, it is well set- 13 specifications or grounds. Under “Propotled that unless such bill is thereafter actual-sitions of Law" in its brief appellant sets ly filed with the clerk, and the fact of such out a number of abstract propositions of filing is affirmatively shown by the record, law without any application whatever to any the exceptions are not properly presented for specific error or ruling relied on for reversal. consideration. Donovan v. State, 111 N. E. Under the construction placed upon the 433; Hahn v. State, 113 N. E. 725 (23073, rules by both courts of appeal of our 'state decided this term). And the filing cannot be no question is presented. Chicago, etc., R. shown by recitals in the bill or by the file Co. v. Dinius, 180 Ind. 596, 103 N. E. 652; mark of the clerk thereon. Harris v. State, Fish v. Hetherington & Berner, 112 N. E. 155 Ind. 15, 17, 56 N. E. 916, and cases cited. 391; Briles y, Briles, 112 N. E. 449. Judgment affirmed.
for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
t Superseded by opinion 115 N. E. 79.
(65 Ind. App. 38)
record on cross-examination of appellant at the PINKUS v. PITTSBURGH, C., C. & ST.
trial. L. RY. CO. et al. (No. 9090.) *
(Ed. Note.--For other cases, see Appeal and
Error, Cent. Dig. $ 4135; Dec. Dig. 1060 (Appellate Court of Indiana, Division No. 2. (1).] Nov. 9, 1916.)
8. APPEAL AND ERROB 1060(1)-HARMLESS
ERROR-LIMITING ARGUMENT BY COUNSEL. 1. APPEAL AND ERROR O 760(2), 761-BRIEF In action against sleeping car company for -REFERENCE TO RECORD,
loss of plaintiff's effects, it was not prejudicial A contention presented in appellant's brief to refuse plaintiff's counsel permission to com. by a mere abstract proposition of law, with no ment to the jury, on the invalidity of a proviattempt to apply it to the question sought to sion of defendant's passenger check that "propbe raised nor direction of the appellate court's erty taken into car will be entirely at owner's attention to evidence in its support, is thereby risk,” where he was informed that he could read waived.
the court's instructions to the jury as the law (Ed. Yote.-For other cases, see Appeal and of the case; such instructions having correctly Error, Cent. Dig. 88 3095, 3096; Dec. Dig.
stated defendant's responsibility for passenger's 760(2), 761.)
effects although not referring specifically to
the check. 2. APPEAL ERROR 901-REVIEW
[Ed. Note.-For other cases, see Appeal and PRESUMPTION,
Error, Cent. Dig. $ 4135; Dec. Dig. Om 1060 A trial court's ruling is presumed correct |(1).] in the absence of affirmative showing to the contrary,
Appeal from Circuit Court, Marion Coun[Ed. Note.-For other cases, see Appeal and ty; Charles Remster, Judge. Error, Cent. Dig. 88 1771, 3670; Dec. Dig. Om901.)
Action by Leah G. Pinkus against the Pitts3. APPEAL AND ERROR 1061(4)-REVIEW
burgh, Cincinnati, Chicago & St. Louis RallHARMLESS ERROR-DIRECTION OF VERDICT. way Company and another. From judgment
In action against a railway company and for defendants, plaintiff appeals. Affirmed. sleeping car company for loss of valuables through the sleeping car company's negligence,
L. E. Ritchey, of Franklin, for appellant. a directed verdict for the railway company was not prejudicial to plaintiff where the jury's verdict exonerated the sleeping car company from
MORAN, J. On February 1, 1913, appelnegligence.
lant and her husband took passage at Indian[Ed. Note.-For other cases, see Appeal and apolis on a Pullman car sleeper reserved for Error, Cent. Dig. § 4211; Dec. Dig. Om1061 Jacksonville, Fla., en route to the Panama (4).]
Canal. The car was owned and in charge 4. CARRIERS 413(1) - PASSENGER'S EF of the servants of appellee the Pullman ComFECTS-DELIVERY TO CARRIER.
Where a passenger had not turned her valu. pany, to be transported over appellee Pitts. ables over to the carrier's servants, but merely burgh, Cincinnati, Chicago & St. Louis Rail. placed them in an upper berth above her own way Company's line of railroad. Upon reachberth, the carrier was not liable in conversion ing Louisville, Ky., in the course of her jourfor their loss.
[Ed. Note:--For other cases, see Carriers, ney, appellant discovered that a small box Cent. Dig. 88 1583, 1585, 1588; Dec. Dig. Om
and its contents consisting of four rings and 413(1).]
a lavaliere, all set with diamonds, which ap5. CARRIERS 401-PASSENGER'S EFFECTS— pellant carried with her as a part of her
IN PASSENGER'S POSSESSION-DUTY OF luggage, and of the probable value of $5,000, CARRIER.
were missing. This action was instituted to As to a passenger's ordinary personal ef
recover the value thereof. The complaint fects retained in his possession, a carrier is not an insurer, but is liable only for loss or injury as filed was in three paragraphs; the first thereto resulting from its failure to exercise was upon the theory that appellant purchasreasonable care and caution to protect the same. ed transportation and Pullman accommoda[Ed. Note. For other cases, see Carriers,
tions for a direct and continuous trip from Cent. Dig. $ 1529; Dec. Dig. Ow401.)
Indianapolis, Ind., to Jacksonville, Fla., in 6. CARRIERS 401–PASSENGER'S EFFECTS— the Pullman car; and on account of the negPROPERTY OF EXCEPTIONAL VALUE.
When a passenger without the carrier's ligence of appellees, appellant and her husknowledge has in his possession and control band were compelled to hastily leave the large sums of money or other property, of ex- train and Pullman car at Louisville, Ky., ceptional value, the carrier is not liable for and by reason of the negligence of appellees loss or injury thereto from its negligence, since such articles form no part of the passenger's in not carrying appellant to her destination, ordinary luggage or personal effects.
as agreed, appellant was compelled under (Ed. Note.-For other cases, see Carriers, stress of haste and excitement to leave the Cent. Dig. § 1529; Dec. Dig. Om 401.)
car and prevented from removing her jewelry 7. APPEAL AND ERROB 1060(1)-HARMLESS therefrom. The theory of the second paraERROR-ARGUMENT_READING FROM PAPER graph is that the jewelry was removed and NOT IN EVIDENCE.
That counsel in argument, over appellant's stolen from an upper berth in the car, where objections, read questions to and answers by it was placed with the assistance and knowlappellant on cross-examination out of court be- edge of the porter of the Pullman car, fore trial, and commented upon the same, was through the negligence of the servants in not prejudicial to appellant, although the examination was not in evidence, where the identi- charge of the car in failing to keep the propcal questions and answers had gone into the er watch and to exercise due care of appelFor other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
lant's property. The third paragraph charg. , 200; Nelson y. Illinois Central R. Co., 99 Miss. es appellees with the conversion of the jew-295; 53 South. 619, 31 L. R. A. (N. S.) 689;
Louisville, etc., R. 'R. Co. v. Katzenberger, 16 elry.
Lea (Tenn.) 380, 1 S. W. 44, 57 Am. Rep. An issue of fact was joined as to each par- 232; Calder v. Southern Ry. Co., 89 S. Č. 287, agraph of complaint by an answer of general 71 S. E. 841, Ann. Cas. 1913A, 894. denial being addressed thereto, and upon sub
In Pennsylvania, etc., Co. v. Roy, 102 U. S. mission of the issues, thus joined, to a jury 451, 26 L. Ed. 141, în speaking of the relation for trial, a verdict was returned for appellee that the conductor and porter of a Pullman the Pullman Company. From a judgment on car bore to the railroad company, Justice the verdict, appellant seeks a review thereof, Harlan said: assigning as error the overruling of her mo
"Their negligence, or the negligence of eition for a new trial.
ther of them, as to any matters involving the The court on its own motion, after the safety or security of passengers while being close of the argument of counsel, and by an conveyed, is the negligence of the railroad com
pany.' instruction, withdrew from the consideration
And further it is said in 5 R. C. L. supra: of the jury the first paragraph of complaint,
“In cases where an injury occurs on a sleepand directed a verdict in favor of appel- ing car the railroad and the sleeping car comlee the Pittsburgh, Cincinnati, Chicago & St. pany are held to be jointly and severally liaLouis Railway Company.
[1,2] Appellant in her brief under points The evidence discloses that appellant and authorities seeks to question the action throughout her journey from Indianapolis to of the court in withdrawing from the con- Louisville was under the care of the servants sideration of the jury the first paragraph of of appellee the Pullman Company, and so complaint, in the following manner:
far as the duties to be performed within the "Where there is some evidence in support of car where appellant and her husband were one or more paragraphs of complaint, an in- being transported were concerned, the evistruction given to the jury as above is errone- dence does not disclose that the servants of ous."
appellee railroad company proper had anyThis as an abstract proposition of law
thing to do in this connection whatever. In may be well conceded, but there is no at- Pullman Palace Car Co. v. Pollock, 69 Tex. tempt to apply it to the question sought to be 120, 5 S. W. 814, 5 Am. St. Rep. 31, which raised, nor has our attention been directed is cited with approval in Voss v. Wagner to any evidence in support of the same. It is Palace Car Co., 16 Ind. App. 271, 279, 43 therefore walved. Further, it must be pre- N. E. 20, 44 N. E. 1010, it was held that sumed that there was no evidence supporting the issue Joined as to the first paragraph of failed to exercise reasonable care in protect
a sleeping car company was liable if it complaint, as the ruling of the trial court ing the baggage of a passenger where the must be regarded as correct until it affirmatively appears to the contrary. Elliott on the car was attached belonged to another
same was stolen, although the train to which Appellate Proc. $ 710. As to the giving of the instruction direct- in, 93 Tenn. 53, 23 . W. 70, 21 L R. A.
company. See, also, Pullman Car Co. v. Gav. Ing a verdict in favor of appellee, the Pitts- 298, 42 Am. St. Rep. 902. burgh, Cincinnati, Chicago & St. Louis Rail.
 Although the parties in charge of the way Company, appellant presents the same for our consideration under her motion for ed as the servants of appellee railroad com
sleeping car in the case before us be regarda new trial, having properly excepted to the
pany, under the law (Dwinelle v. N. Y., etc., giving thereof.
R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. The complaint alleges that both appellees 224, 17 Am. St. Rep. 611; Railroad Co. v. are separate corporations, and upon trial of Ray, 101 Tenn. 1, 46 s. W. 554), they would the cause it was agreed by the parties that have to be guilty of the negligence charged appellee Pullman Company was the owner of in order to sustain a verdict under the secthe car upon which appellant took passage, ond paragraph of complaint as against apand that the car was in charge of the em- pellee railroad company. And the jury havployés of this company. It has been held upon good authority that: servants from negligence by its verdict, ap
ing exonerated the Pullman Company and its “A railroad company is not relieved from liability for the loss of the baggage
of a passenger pellant was not harmed by the court directupon its train by the fact that, at the time of ing a verdict in favor of the appellee Pittsloss, he occupied space in the sleeping car, burgh, Cincinnati, Chicago & St. Louis Railwhich belonged to another company, if the car way Company. That is, if the Pullman Comwas in fact a part of the train, and was employed by it in performing its contract of trans- pany was the servant of the railroad comportation, for the agents and servants of the pany, and was free from negligence as found sleeping car company are regarded by the law by the verdict of the jury, then the railas agents of the railroad company for the por: road company, if it be treated as the master, pose of the contract for transportation, and the law will not permit a railroad company through could not have been found guilty of negliany device or arrangement with the sleeping gence, had it remained as a party defendant car company, whose cars constitute a part of throughout the entire proceedings, considerits train, to escape the liability incurred by its contract." 5 R. C. L. 183 ; Kinsley v. Lake ing, of course, that the jury was properly Shore, etc., Co., 125 Mass. 54, 28 Am. Rep. | instructed, as to this issue, and no other er