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23d day of April, 1889, Helen A. Berry, the widow of William Y. Berry, brought her action against the Kansas City, Ft. Scott & Memphis Railroad Company, alleging that her husband, William Y. Berry, was run over and killed by the negligent operation of the Kansas City, Ft. Scott & Gulf Railroad. The jury returned a general verdict for the plaintiff, Mrs. Helen A. Berry, and assessed the damages at $5,000. They also returned the following special findings: "Question 1. Was the plaintiff the wife of William Y. Berry? Answer. Yes. Q. 2. Was said William Y. Berry killed on December 24, 1887? A. Yes. Q. 3. Did the said William Y. Berry die without leaving any will? A. Yes. Q. 4. Were the plaintiff, Mrs. Berry, and her husband, on December 24, 1887, up to the time of his death, residents and citizens of the state of Missouri? A. Yes. Q. 5. What was the age and occupation of the said William Y. Berry at the time of his death? A. Age, 32 years; occu- | pation, locomotive engineer. Q. 6. What wages, as engineer, did said William Y. Berry receive, up to and prior to his death? A. At an average of $130 per month. Q. 7. Did the deceased, William Y. Berry, maintain his said wife and children before his said killing? A. Yes. Q. 8. Was any executor or administrator appointed, of the estate of William Y. Berry, deceased? A. No. Q. 9. What was the condition of the health of said William Y. Berry at the time of his death? A. Good. Q. 10. In what county and state did the death of William Y. Berry take place, on December 24, 1887? A. Bourbon county, Kan. Q. 11. Was the Kansas City, Ft. Scott & Gulf Railroad constructed and in operation in Bourbon county, Kan., on December 24, 1887? A. Yes. Q. 12. Did the Kansas City, Ft. Scott & Gulf Railroad Company consolidate with other railroad companies in April, 1888, and thereby form the Kansas City, Ft. Scott & Memphis Railroad Company? A. Yes. Q. 13. Was the Kansas City, Ft. Scott & Gulf Railroad Company operating the Kansas City, Ft. Scott & Gulf Railroad on December 24, 1887? A. Yes. Q. 14. If said William Y. Berry was killed by the negligence of the Kansas City, Ft. Scott & Gulf Railroad Company on December 24, 1887, in what did that negligence consist? A. (1) By not bringing their train to a full stop before reaching a crossing; (2) by running at too high rate of speed on approaching a grade crossing; (3) by the head brakeman not being at his post on approaching a crossing. Q. 15. If William Y. Berry was guilty of any contributory negligence, in what did it consist? A. He was not guilty of any contributory negligence."

To the reception of the general verdict, and the special questions and answers thereto, the defendant objected at the time. and the court declined to receive or record the same as a verdict, but permitted

the same to be filed, in order that the whole proceedings might appear on the record. Thereupon, the railroad company filed the following motion: "And now that the jury has brought in a general verdict for the plaintiff, together with answers to certain questions propounded by the plaintiff's counsel, the defendant asks the court to instruct and require the jury to bring in a general verdict in favor of the defendant, upon the unquestioned law of the case. Wallace Pratt, W. C. Perry, C. W. Blair, Defendant's Attorneys." To the presentation of said motion, and the hearing of the same, the plaintiff, by her attorneys, duly objected, which objection was overruled by the court, and the plaintiff excepted. Thereupon, the court sustained the motion, to the sustaining of which the plaintiff duly excepted, and thereupon the court ordered the jury to find for the defendant, and wrote out the following verdict, and called upon the foreman of the jury to sign the same, which he did, and thereupon the jury was discharged. A copy of said verdict is as follows: "We, the jury, find for the defendant. W. H. Gillett, Foreman." Subsequently, the plaintiff filed her petition to set aside the general verdict directed by the court, which was overruled. The plaintiff then asked the court to render judgment in her favor upon the special findings, and the general verdict rendered in her favor. This was also overruled. The court then overruled the motion for a new trial by the plaintiff. Thereupon, the court rendered judgment in favor of the railroad company, and against the plaintiff. The plaintiff, Mrs. Helen A. Berry, excepted, and brings the case here.

E. F. Ware, for plaintiff in error. Wallace Pratt, C. W. Blair, and W. C. Perry, for defendant in error.

HORTON, C. J., (after stating the facts.) We are called upon to review the action of the trial court upon the case made. It is insisted by the counsel of the railroad company that the petition in error should be dismissed because the testimony produced upon the trial is not preserved in the record, and, therefore, that this court cannot deter. mine whether the trial court committed any error in directing a verdict for the com pany. The testimony is not before us, and. if the case made did not contain statements | explanatory of the rulings of the trial court, then, upon the authorities cited in behalf of the company, the motion to dismiss would have to be sustained. Section 547 of the Civil Code, however, specifically provides that "a party desiring to have any judgment or order of the district court, or a judge there. of, reversed by the supreme court, may make a case, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be neces

sary to present the errors complained of to the supreme court." In this case, the pleadings, the general verdicts, the special findings, the motions, and the judgment are all properly incorporated in the record; and, in addition thereto, a statement is contained of so much of the proceedings as is necessary to present the errors complained of. It appears from the case made that upon the trial the plaintiff introduced her testimony; that the railroad company demurred thereto; that the demurrer was overruled; that the railroad company then introduced its evidence; that the plaintiff introduced her evidence in rebuttal; and that, at the close of all the testimony, the trial judge stated "he had made up his mind the plaintiff could not re cover, under the law of the case, and that he should instruct the jury to find a verdict for the railroad company." The plaintiff's counsel then asked "the court that, to avoid another expensive trial, the jury be permitted to make special findings of fact in the case, in order that the whole facts of the case might go to the supreme court, to the end that, if the law and the testimony authorized the judgment in favor of the plaintiff, the supreme court could, upon such facts and the law, direct the judgment to be given." The court granted this request, "and directed such course to be pursued." Thereafter, the jury retired, and after agreeing upon a general verdict, and the answers to special questions, returned the same into court. When the jury returned their verdict and the answers to special questions, no motion was made to set the general verdict aside, or to set aside any of the special answers. The counsel of the railroad company requested the trial court, notwithstanding such general verdict and special findings, to direct a general ver dict in favor of the defendant, "upon the unquestioned law of the case." We must therefore assume, upon the record, that "the whole facts of the case" were presented in the court below, and are now presented to us, upon the special findings and the general verdict returned by the jury in the first instance. The trial court decided upon the facts, as presented by the jury, that the railroad company was entitled to a verdict in its favor, and acted accordingly. There fore, the only question upon the record for us to pass upon is, what judgment should be given upon the facts of the case, as found by the jury?

It is the contention of the plaintiff, under the provisions of sections 422, 422a, of the Civil Code, and from the obligation of the Kansas City, Ft. Scott & Memphis Railroad Company, as successor of the Kansas City, Ft. Scott & Gulf Railroad Company, one of the constituent corporations of which it is composed, that the trial court should have rendered judgment in favor of the plaintiff, and against the railroad company, upon the general verdict first returned by the jury,

and their special findings of fact. On the other hand, the railroad company insists that section 422a is unconstitutional, because it is an attempted amendment of section 422 of the Code, in violation of section 16, art. 2, of the constitution, which ordains that "no law shall be revised or amended unless the new act contains the entire act revised or the section or sections amended, and the section or sections amended shall be repealed," and that, if section 422a is con stitutional, it cannot affect this case, because there was no cause of action there under on the 24th of December, 1887, as that act was not passed until March 22, 1889,more than a year after the death of William Y. Berry. It is further claimed that the Kansas City, Ft. Scott & Memphis Railroad Company is not answerable for the debts, obligations, or torts of the Kansas City, Ft. Scott & Gulf Railroad Company, in the absence of any testimony tending to show that it assumed its debts, obligations, and torts. Section 422 reads: "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action there for against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased." Section 422a provides: "That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or where there is no widow. by the next of kin of such deceased."

Said section 422a, being section 1 of chapter 131, Sess. Laws 1889, is not subject to the constitutional objection urged against it, for it is not an amendment of section 422. That section is still in full force, and is not repealed, but stands as it did before the act of 1889 was passed. If a personal representative has been appointed, he may still maintain the action as provided in section 422, the same as if the act of 1889 had not been passed, and hence the act of 1889 does not violate any provision of the constitution. State v. Cross, 38 Kan. 696, 17 Pac. Rep. 190. Section 422 gives an action for the exclusive benefit of the widow and children, if any, or next of kin, of the deceased person. The action must be commenced within two years, and the damages cannot exceed $10,000. That section requires that the personal

hold that "obligations" and "liabilities" are limited to the state, only, would be to say that the legislature was guilty of a repetition of the same meaning in different words. On the other hand, if "obligations" and "liabilities" are both given their full force and effect, "obligations" may be construed as embracing all pecuniary duties, in the way of being answerable for debts, demands, torts, etc.; "liabilities" may mean the burdens imposed by the constitution and the statutes; that is, the responsibility or bounden duty to the state under the constitution and statutes. "Where a railroad company is consolidated with other railroad companies under a new name, it ceases to exist as a corporation, and an action brought by or against such railroad company before its consolidation cannot afterwards be prosecuted by or against it

representative of the deceased must bring the | sibility, accountableness, bounden duty." To action, but it is not for his benefit, nor for the estate for which he acts. Section 422a is supplemental. The prior section grants a remedy to the families of persons killed by the wrongful act or omission of another; and section 422a merely provides how that action may be enforced for the benefit of families of persons so killed, when the residence of the deceased person, at the time of his death, is in another state, or when no personal representative has been appointed. It is an act to carry into force the cause of action created by section 422. It does not create a new cause of action. No amount of damages, or any limitation, is stated therein. It is simply a change of remedy. Its purpose is that the new cause of action given by section 422 shall not lapse or be abortive by reason of the nonresidence of the deceased, or the nonappointment of a personal rep-in its original name." Railway Co. v. Smith, resentative. Under both sections, the damages must inure to the exclusive benefit of the widow and children, if any, or next of kin, of the deceased. If section 422 had given the personal representative or administrator a cause of action for his own benefit, or for the benefit of the estate for which he acts, there would be much force in the argument that section 422a does not affect this case. Therefore, although William Y. Berry was killed on December 24, 1887, his widow, under the provisions of section 422a, can maintain this action; in other words, can enforce the cause of action given by section 422 for the benefit of herself and children. Commissioners v. Bunker, 16 Kan. 498; Wade, Retro. Law, §§ 24, 83, 214; Cooley, Const. Lim. *361, *371, *373, *581.

Paragraph 1268, Gen. St. 1889, provides, among other things, that "any two or more railroad companies in this state are hereby authorized to consolidate and form one company

with all the rights, powers, privileges, and immunities, and subject to all the obligations and liabilities to the state which belonged to or rested upon either of the companies making such consolidation." It would not be a strained construction to hold that "all obligations," as used in the statute, compel the consolidated or new company to pay all claims, debts, or other pecuniary demands of each of the original companies. If obligations to the state, only, were intended, it would not have been necessary to have added the word "liabilities" to the state, because "liability" is defined as "the state of being liable; as, the liability of an insurer; liability to the law; responsibility, accountableness, accountability, bounden duty;" and "obligation" is also defined as "that which obligates or constrains; the binding power of a promise, or a contract; a bond with a condition annexed, and a penalty for nonfulfillment. In a larger sense, it is an acknowledgment of a duty to pay a certain sum, or do a certain thing. Respon

40 Kan. 192, 19 Pac. Rep. 636. The legislature could not have intended that a railroad company, by consolidating with other railroad companies, could thereby relieve itself of all of its debts, demands, and torts, and yet, if the theory of the railroad company is true, a railroad company, by becoming consolidated with another company, is discharged of its debts and obligations. At least, an action cannot be maintained against the old company, as it ceased to exist as a corporation after its consolidation; and, if the consolidated or new company is not answerable to creditors and others for the debts and other obligations of the old company, there is no corporation in existence against which an action can be maintained.

But, even if the statute is not construed as indicated, yet, under the authorities, where two or more railroad companies are consolidated under the statutes of the state, the new or consolidated company is answerable for the obligations of the old or constituent companies, including torts, in the absence of all evidence or stipulations to the contrary. Field on Corporations states: "The general rule is that the rights of creditors against the old companies revive against the new one, created by the consolidation, as we have just noticed, and that it becomes substituted for the former ones. Provision is perhaps generally made by statute, or by articles of agreement, as provided by law, for the payment of the creditors and the satisfaction of the obligations of the consolidating companies; and sometimes these provide that such companies shall continue for the purpose of adjusting their outstanding obligations, including their torts. But even where no such provision is made, but the consolidation is lawfully consummated, the new company has been held liable to all obligations of the former ones, from the very necessity of the case, and to prevent the failure of justice." Section 435. In Thompson v. Abbot, 61 Mo. 176, it was decided that "where one corpora

tion goes entirely out of éxistence, by being annexed to or merged in another, and no arrangements are made respecting the property and liabilities of the corporation that ceases to exist, the subsisting corporation will be entitled to all the property, and answerable for all the liabilities." See, also, 3 Wood, Ry. Law, p. 1680, § 486; Mor. Priv. Corp. §§ 809, 955, 956; Railroad Co. v. Moffitt, 75 Ill. 524. The case of Whipple v. Railway Co., 28 Kan. 474, is cited to the effect that the new or consolidated company cannot be held for the obligations of either of the constituent companies, "only by and to the extent of an expressed stipulation." That language was used in the opinion of Mr. Justice Brewer, speaking for the court, upon the facts disclosed in that case. The Kansas Pacific Railway Company was guilty of the wrong alleged in that case, and there was a sort of amalgamation or consolidation, afterwards, with the Union Pacific Railway Company, under an act of congress, but not under the statutes of Kansas. In that case, it was shown upon the trial that the Kansas Pacific Railway Company did not cease to exist after its consolidation with the Union Pacific; that the old company "had not attempted to assume a new name, to change its old, or permit itself to be known by a new name;" and that in the written agreement executed by the Union Pacific and the Kansas Pacific Railway Companies it was expressly provided, "The new company hereby formed does not herein assume any separate or individual liability for the outstanding debts, obligations, and liabilities of the respective constituent companies, whose several and separate existence, as to third parties, shall, as respects such debts, obligations, and liabilities, of every kind and nature, still continue, notwithstanding these articles of union and consolidation." The Whipple Case, therefore, does not decide, as claimed, that, when two or more companies are consolidated under the statutes of this state, the new company is not liable for the obligations of the former ones, unless an expressed stipulation assuming such obligations is shown to exist. That case was decided upon the facts disclosed, and not upon the absence of an agreement of the assumption of obligations. It was disposed of rightly upon the facts established, and we fully approve the decision.

Upon the whole record, our conclusion is that the law of the case in the court below, and in this court, was and is with the plaintiff. Therefore the trial court committed error in refusing to receive the general verdict and the special findings of the jury, and in directing another verdict, and in rendering the judgment thereon. The judgment of the district court will be reversed, and, upon the special findings and the general verdict, judgment will be directed for the plaintiff, Mrs. Helen A. Berry, and against the railroad company. All the justices concurring.

(3 Idaho [Hasb.] 692)

CITY OF LEWISTON ▾. BOÚTH et al. (Supreme Court of Idaho. Nov. 28, 1893.) HIGHWAYS-OBSTRUCTIONS.

1. When a private person or corporation constructs a ditch or canal across a public highway, this gives them no right to destroy it as a thoroughfare, but they are bound both by the common law and the statute to restore or unite the highway at their own expense, by some reasonably safe and convenient means of passage, and keep the same in good repair. This obligation is the same whether the canal or ditch cuts the highway or street within or without the limits of a city or village.

2. A private party or corporation constructing a ditch or canal across a public highway or street in such way as to render the highway or street of a town or city unsafe or inconvenient for public travel, and maintaining such a ditch without a bridge or other safe and convenient way of crossing, would be guilty of maintaining a nuisance. Section 3620, Rev. St. Idaho.

3. No lapse of time can give a prescriptive right to maintain a nuisance. Section 3630. (Syllabus by the Court.)

Appeal from district court, Nez Perces county; W. G. Piper, Judge.

Action by the city of Lewiston against E. A. H. Booth and B. Booth. There was judgment for plaintiff, and from an order denying a new trial defendants appeal. Affirmed. The other facts fully appear in the following statement by MORGAN, J.:

This suit is brought by the plaintiff against the defendants to recover the sum of $89.30, alleged to have been expended by the plaintiff in building a bridge across E street, in said city, near the eastern boundary of the same, and at or near the residence of one S. C. Thompson, and on and over a water ditch belonging to and in the possession of the defendants. The facts, as found by the court, are as follows: That the city of Lewiston, in Nez Perces county, in the state of Idaho, is a municipal corporation. That in the year 1874 the plaintiff granted a franchise to the Lewiston Water Ditch & Milling Company to construct a water ditch across the streets of said city, by an ordinance duly passed by the city council, which said ordinance required said water ditch and milling company, as a condition of said permission, to construct good and sufficient crossings where said ditch crosses any of the streets or lanes of said city, and to keep the same in repair. That said water ditch was thereupon constructed by said company by virtue of said permission. That afterwards the said ditch was sold and transferred by the then owners to the defendants herein, who are now, at the date of this action, the owners and in possession thereof. That at the time of the construction of said ditch the point of its crossing E street, where the bridge which is the subject of this action is, was not within the then limits of the city; but that said E street, where said bridge was erected, was then, and for a long time prior thereto, a county road, and in the control and under the direction of the supervisor of highways. That at the time said ditch was con

structed a good and sufficient bridge was, by, the predecessors in interest of these defendants, constructed across said street or road and along said ditch, and said bridge had been repaired from time to time by the owners of said water ditch in the succeeding years. That in the year 1881 the limits of the city were, by an act of the legislature of the state of Idaho, extended so as to bring the point of the crossing of the ditch on E street within the city limits. That on or about January 5, 1891, the bridge at said crossing was out of repair, and unsafe for travel. That the city council of said city ordered that a bridge should be built at said point over said ditch the full width of the street. That by direction of said city council the defendants were notified, both in writing and verbally, by the street commissioner of the said city, to rebuild said bridge, as above specified, the full width of the street. That said defendants, after having had a sufficient time, neglected and refused to build the said bridge, whereupon the bridge was constructed by the city of Lewiston, under direction of said commissioner, at a cost of $89.30. It appears also that the main travel into the city from the easterly part of the town and from the country adjoining is over this bridge. That the old bridge was but 20 feet wide, and that 40 feet of the road was open ditch, and for this reason it was inconvenient for teams to pass this point. That the defendants were notified of the amount expended in rebuilding said bridge, and were requested to repay the same, which they neglected and refused to do. Upon this claim suit was brought in the probate court of Nez Perces county, and transferred to the district court of said county, whereupon a trial was had in said district court before the judge thereof, a jury having been waived, which resulted in a judgment in favor of the plaintiff and against the defendants, E. A. H. Booth and E. Booth, for $89.30, and costs incurred in the action, amounting to $26.45. Judgment placed on file July 16, 1892. From this judgment an appeal was taken on the 22d day of July, 1892. That thereafter, on the 15th day of March, 1893, a statement on motion for new trial was settled and approved by the district judge, and thereupon a motion for new trial was interposed by the defendants, which motion was denied by the court, and from this order overruling the motion for new trial an appeal was taken on the 3d day of March, 1893.

Eugene O'Neill, for appellants. James E. Babb, for respondent.

MORGAN, J., (after stating the facts.) At the time this ditch was constructed, E street, at the point of this crossing, was a county road. No one of the inhabitants could lawfully obstruct it, or render it dangerous to travel. The common law is, and was at that time, that where a person or corpora

tion builds a ditch or canal across a public highway, this gives them no right to destroy it as a thoroughfare, but they are bound to restore or unite the highway at their own expense by some reasonably safe and convenient means of passage. This duty is founded on the principle that it was the act done in pursuit of their own advantage that rendered this necessary, and therefore they, and not the public, should be burdened with its expense. See City of Minneapolis v. St. Paul, M. & M. Ry. Co., (Minn.) 28 N. W. 4, and cases there cited. In Dygert v. Schenck, 23 Wend. 446, the defendant, being the owner of the ranch through which the highway passed, cut a mill race across the road for his own use, and built a bridge across the same. In 1837, the bridge being out of repair, the plaintiff's mare was injured, and he brought suit against the owner of the ditch for damages. The court says: "The public could require that he should make and keep the road as good as it was before he dug the ditch. This he accomplished by building a bridge, which finally got out of order. In suffering this the defendant came short of his obligations, and he was held liable for the injury done the mare of the plaintiff." In Heacock v. Sherman, 14 Wend. 58, the court declared, after looking into the facts, that the duty of repair rests upon the company, and that they could not escape damages for any mischief occasioned by it. The very necessity of the erection of the bridge arose out of a nuisance which was the work of the defendant himself. The whole object of the bridge was to protect himself, the land, the mill, the water, the profits; and therefore the bridge was for him. The public could derive nothing but mischief. In Eyler v. Commissioners, 33 Amer. Rep. 251, the appellant brought an action against the county commissioner of Allegany county to recover damages sustained by reason of the defective condition of the bridge across the Chesapeake & Ohio Canal, over which he was riding. The court says: "It is clear the canal company were authorized to cross and sever all existing highways throughout the route prescribed by its charter, but in thus cutting its canal across highways the company was bound to unite for the public accommodation any highways so divided by a reasonably convenient thoroughfare over or under its canal." The statute also requires the defendants and their grantors to construct and keep in repair suitable bridges, causeways, and embankments, so that no water shall flow on such road or roads to injure the same. See section 1 of "An act to protect public roads and highways from injury," approved January 10, 1866, (3d Sess. Laws, p. 178.) This law was enforced until 1875, and does not seem to have been then repealed, but, in addition thereto, section 13 of the act of January 12, 1875, (8th Sess. Laws, p. 681,) was enacted, which added to

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