portant factor in the application of legal principles to the conduct of a person; as, for example, where the rule was known to him, and he governed, or had a right to govern, his conduct accordingly. Such was the case of Smithson v. Chicago Great Western, 71 Minn. 216. In that case the rule was known to, and obligatory upon, both the party injured and the party guilty of the alleged negligent act. Each was bound to know that the other might and could regulate his own conduct on the assumption that he would obey the rule. Some of the cases cited by counsel come within this class, and hence have no application here. Others were cases of servants against their masters, in which the gist of the action was the failure of the master to perform his absolute duty to his servants to make and promulgate rules which, if observed, would give reasonable protection to his employés. These cases are equally inapplicable. Some are cases of municipal ordinances, which, for reasons already given, are not in point.

There are a few cases which support plaintiff's contention, but in 450 none of them is the question considered or discussed at any length, and in some of them no reason whatever is given for the decision. The only reason assigned in any of them why such evidence is admissible is that it is in the nature of an admission by the party promulgating the rule that reasonable care required the exercise of all the precautions therein prescribed: Georgia R. R. Co. v. Williams, 74 Ga. 723; Lake Shore etc. Ry. Co. v. Ward, 135 Ill. 511. The fallaciousness and unfairness of any such doctrine ought to be apparent on a moment's reflection. The effect of it is, that the more cautious and careful a man is in the adoption of rules in the management of his business in order to protect others, the worse he is off, and the higher the degree of care he is bound to exercise. A person may, out of abundant caution, adopt rules requiring of his employés a much higher degree of care than the law imposes. This is a practice that ought to be encouraged, and not discouraged. But, if the adoption of such a course is to be used against him as an admission, he would naturally find it to his interest not to adopt any rules at all.

To treat the adoption of such rules as an admission against the party would involve the same principle as treating repairs or improvements made after an accident as an admission of prior defects--a doctrine long since repudiated by this court, and now repudiated by most of the courts of the country: Morse v. Minneapolis etc. Ry. Co., 30 Minn. 465. If we could hold, as a matter of law, that these rules required nothing more than was required

in the exercise of reasonable care, their admission would be error without prejudice; but an examination of them satisfies us that we cannot so hold.

4. The court instructed the jury, in substance, that the plaintiff might recover, notwithstanding that he might have negligently placed himself in a place of danger, if they found that the conduct of the motorman in running him down was wanton and willful, or if, after discovering the plaintiff in a place of danger in time to have prevented the injury by the exercise of reasonable care, he failed to do so. Counsel do not dispute the correctness of this instruction as an abstract proposition of law, but contend that there was no evidence to justify the court in submitting any such 451 question to the jury. In this, we think, they are right. The jury might have been justified in finding that the motorman was grossly negligent, under the circumstances, in running his car at so high a rate of speed, and also in failing to keep a proper lookout to discover people on the track; but we do not think that there was any evidence that would have justified them in finding that he wantonly and willfully injured the plaintiff, or that he discovered him in a place of danger in time to have avoded the accident.

Counsel for plaintiff contend that it was not necessary, in order to make the instructions applicable, that the motorman should have actually seen the plaintiff in a place of danger in time to have avoided the injury; that it was sufficient if, in the exercise of due care, he ought to have discovered him. Any such rule in cases of concurrent negligence proximately contributing to the injury would practically do away with the doctrine of contributory negligence altogether.

It is sometimes said that the plaintiff may be entitled to recover if the defendant might, by the exercise of care, have avoided the consequences of the plaintiff's negligence. But this doctrine is only applicable to cases in which the plaintiff's negligence preceded that of the defendant. But when the negligence of the two persons is contemporaneous, and the fault of each operates directly to cause the injury, neither can recover from the other: Bigelow on Torts, 311.

The true question in all cases is whether there was negligence on part of the plaintiff contributing directly as a proximate cause to the injury. If there was, he cannot recover. Where the defendant's acts are willful and intentional, the negligence of the plaintiff, if any, is no longer deemed in law a proximate cause of the injury. In such cases the willful and intentional acts of the defendant are deemed the sole proximate cause, and the neg

ligence of the plaintiff only the remote cause, or, more properly speaking, the mere occasion, of the injury. The same is true where, after discovery of plaintiff's negligence in time to avoid injury to him, the defendant neglects to exercise due care to do so. Some confusion of ideas has arisen from the fact that courts, especially in the older decisions, have frequently used the word "gross" as if synonymous with "willful" and "wanton," thereby conveying the impression that 452 a plaintiff may recover, notwithstanding his own contributory negligence, provided the negligence of the defendant was gross. This would be to adopt the doctrine of comparative negligence, which has never been recognized by this court.

5. The defendant did not call its motorman as a witness, although it appeared that during the trial he was seen on one occasion in conversation with its counsel, and on another at its car barn in the city of St. Paul. In view of this fact, the court instructed the jury that: 1. "If either party to this action has failed to adduce evidence within its control which is reasonably calculated to throw light upon the conduct and responsibility of either party, such failure may be considered by the jury as tending to militate against the contention of such party with reference to the issue regarding which such evidence would have been pertinent."

This is assigned as error. The presumption, arising from the spoliation or suppression of evidence, that it would, if produced, be unfavorable to the party destroying or suppressing it, obtains with most force to the case of documentary evidence in the exclusive possession and control of the party. But the presumption is not necessarily limited to such cases. It is true that no unfavorable inference arises in ordinary cases from the mere failure to call as a witness one whom the other party had the same opportunity of calling or one whose testimony would be merely cumulative. There is also great danger of such a presumption being allowed to supersede the necessity of other evidence, instead of being used merely as a means of weighing the effect of the evidence actually produced applicable to the subject in dispute. But here the motorman was presumably the person, of all others, who could have fully and accurately informed the jury just how he operated the car, and explained what he did and what he saw. Instead of calling him, the defendant contented itself with calling bystanders, passengers, and others whose knowledge on the subject in dispute was presumably much less full and accurate. It is true, the plaintiff might have procured his attendance by subpoena, and thus ob

tained his testimony; but he was not bound to do so. This would have amounted substantially to going "into the enemy's camp" for evidence, and 453 calling the very man charged with the negligence which caused the injury.

Under the circumstances, we think the omission of the defendant to call him as a witness would have been a legitimate subject of comment to the jury by plaintiff's counsel, and that there would have been no error in the court's instructing the jury that, in weighing the evidence introduced, they would be at liberty to indulge in the presumption that the testimony of the motorman, if introduced, would not have been favorable to defendant's cause: See 1 Jones on Evidence, sec. 16 et seq., and cases cited.

But, for the errors already referred to, the order appealed from must be reversed, and a new trial granted.

So ordered.

RAILROAD COMPANIES-EVIDENCE-HABITS OF CONDUCTOR.-Evidence of the habits and competency of a conductor in the employ of a railroad company is admissible: Pennsylvania R. R. Co. v. Books, 57 Pa. St. 339, 98 Am. Dec. 229. But see Gahagan v. Boston etc. R. R. Co., 1 Allen, 187, 79 Am. Dec. 724, and note.

RAILROAD COMPANIES.-BREACH OF RULES of a railroad company by its employés does not necessarily raise an inference of negligence: Philadelphia etc. R. R. Co. v. Spearen, 47 Pa. St. 300, 86 Am. Dec. 544.

CONTRIBUTORY

STREET RAILWAYS NEGLIGENCE WILLFUL CONDUCT OF EMPLOYE.-Although a person with a wagon drives incautiously upon a street railway track at a public crossing, the company cannot recklessly run him down, and then shield itself from liability on the ground that such person was negligent in the first instance: Hall v. Ogden City etc. Ry. Co., 13 Utah, 243, 57 Am. St. Rep. 726.

RAILROAD COMPANIES – NEGLIGENCE – WHERE BOTH PARTIES ARE NEGLIGENT.-If both parties are negligent, the true rule is, that the party who last has a clear opportunity to avoid an accident, notwithstanding the negligence of his opponent, is considered solely responsible for it: Thompson v. Salt Lake Rapid Transit Co.. 16 Utah, 281, 67 Am. St. Rep. 621; Keefe v. Chicago etc. Ry. Co., 92 Iowa, 182, 54 Am. St. Rep. 542.

NEGLIGENCE-COMPARATIVE.-The doctrine of comparative negligence has never been recognized in Missouri: Hurt v. St. Louis etc. Ry. Co., 94 Mo. 255, 4 Am. St. Rep. 374.

WITNESSES-FAILURE TO CALL.-It is the defendant's duty, in an action for negligence, to call and examine a witness whose fault caused the injury, and, if he fails to do so, all legal presump*ions are unfavorable to his testimony: Barnes v. Shreveport City L. R. Co.. 47 La. Ann. 1218, 49 Am. St. Rep. 400.

MERCANTILE NATIONAL BANK V. MACFARLANE.

[71 MINNESOTA, 497.]

INSOLVENCY-CREDITOR--COLLATERAL

SECURITY.— The rule that a creditor of an insolvent, having collateral sufficient to satisfy a part only of his debt, is entitled to prove the whole of his claim, and cannot be required to allow credit for any collections made after the date of the insolvency, does not apply where the insolvent's liability is that of indorser upon negotiable notes, which it discounted to a third party, his liability becoming fixed subsequent to the insolvency, and where there is no indebtedness independent of the notes.

NEGOTIABLE INSTRUMENTS - RELATION OF INDORSER AND HOLDER.-The relation of an indorser and a holder of negotiable paper is analogous to that of a principal and surety.

INSOLVENCY - NEGOTIABLE INSTRUMENTS – CLAIM OF HOLDER AGAINST INSOLVENT INDORSER.-Where the holder of a bill or note applies to prove his debt against the estate of an insolvent surety, any sum actually received in payment from another party to the obligation must be deducted from the amount to be proved. The sum actually remaining unpaid must be the basis upon which the dividend is to be computed.

INSOLVENCY-NEGOTIABLE

INSTRUMENTS-RIGHTS

OF HOLDER AGAINST INSOLVENT INDORSER.-The holder of a note or bill indorsed by an insolvent need not enforce its collection, as against parties primarily liable, before he can make a claim upon the insolvent estate. Nor is he required to surrender up the obligation as a condition to participating in dividends. In the absence of statute he may proceed against the insolvent estate, and also against the other parties to the obligation, until his debt is fully collected.

SUBROGATION-INSOLVENCY-RIGHT OF ACTION OF RECEIVER.-The receiver of an insolvent indorser has a right of action against the original obligors upon the paper, upon the payment of a dividend to the creditor holder; and upon full payment, the estate of the insolvent is subrogated to all of the creditors' rights as against prior parties.

INSOLVENCY-ATTACHMENT-EFFECT ON RIGHTS OF CREDITOR.-A proceeding in attachment, unnecessary to protect the creditor as to money of an insolvent debtor in the creditor's hands, will not affect the creditor's right to prove the balance of his claim, and to share in the distribution of the insolvent's estate.

William C. White, for the plaintiff.

Billson, Congdon & Dickinson, for the defendant.

498 COLLINS, J. Macfarlane became the duly appointed and legally qualified receiver of the Security Bank of Duluth, an insolvent, August 16, 1896, under the provisions of the Laws of 1895, chapter 145. On that day, the claimant, a banking institution in New York City, held commercial paper and notes previously discounted and indorsed by the insolvent, and not yet due, to the amount of $62,600. The insolvent also had on deposit with claimant, in New York, a sum exceeding $19,000.