railroad company for losses occasioned by fires from its trains, especially in a case where the fire has occurred without any fault or negligence of the railroad company, -a purely accidental fire? In the present case the complaint does not allege that the railroad company was guilty of any negli gence in causing the fire which destroyed the cattle company's hay, nor does it allege that plaintiffs obtained the assignments of the cattle company's claim in consideration of their insurance and payment for the property destroyed, nor does it allege any other equitable matter to uphold a partial assignment. The evidence shows that the railroad company had, without notice of any insurance, payment, assignment, or subrogation on the part of plaintiffs, settled and paid the cattle company at least a part of the damages occasioned by the same fire which destroyed the hay. The defendant company had taken a receipt in full satisfaction of all claims and demands occasioned by the fire complained of. Such settlement was had with an agent of the cattle company who had full knowledge of all the facts and circumstances of the case, there was no evidence of mistake or fraud in the procurement of the receipt, and such settlement and payment appear to have taken place before the assignments to the insurance companies were executed. The objections to a recovery by plaintiffs, as contended for by counsel, may be summarized as follows: That a claim for unliquidated damages growing out of a single cause of action cannot be split up into two or more claims, so as to make a party liable to two or more actions, without his consent, unless some equitable consideration requires such a division of the damages, and that, in the absence of such consent or equitable consideration, the settlement and discharge of a portion of such a claim is a discharge of the whole; that the receipt given by the cattle company in discharge of its claims against the railroad company was in the nature of a contract, and operated as a release, and that parol evidence was not admissible to change or vary the terms of such instrument, except upon evidence showing that the same was procured by mistake or fraud, and that there was no evidence of mistake or fraud; that the receipt given by the cattle company to the railroad company was upon its face of such a nature that the cattle company could no longer have maintained any action

against the railroad company for the loss of the hay; that a party cannot by assignment acquire rights superior to those possessed by the assignor at the time of making the assignment; and that the same principle applies to subrogation,-in short, that the articles of assignment and subrogation were invalid, because at the time of their execution the cattle company no longer had any claim against the railroad company. Sheld. Subr, § 6; 1 Greenl. Ev. § 275; Gul

dager v. Rockwell, 14 Colo. 459, 24 Pac. Rep. 556; Coon v. Knap, 8 N. Y. 402; Trask v. Railroad Co., 2 Allen, 331; Brown v. Brooks, 7 Jones, (N. C.) 93; Railroad Co. v. Welch, 52 Ill. 183; Batdorf v. Albert, 59 Pa. St. 61. We do not decide that the receipt, considering its apparent connection with Exhibits 1 and 2, could not be explained so as to show that it was not intended to include the claim of damages for the hay, nor do we hold that a part of an entire demand for unliquidated damages growing out of a single act or transaction, such as was disclosed by the evidence, cannot, in equity, be transferred, so as to vest a right of action in the transferee. Our conclusion is, however, that the only relief to which plaintiffs in this action are entitled is, in its nature, equitable, and that, in order to recover, the facts showing such equities must have been pleaded, in substance, as equity pleading requires. See Bank v. Ford, and other cases above cited. Since the facts showing such equities were not in any manner pleaded, the evidence did not correspond to the allegations, and was not sufficient to sustain the issue on the part of plaintiffs. It follows that the decision of the trial court upon the law and the facts must be upheld. The judgment of the district court is accordingly affirmed.

WILLIAMS v. WILLIAMS. (Supreme Court of Colorado. Oct. 2, 1893.) APPEAL REQUIRING NEW Bond.

When it is made to appear that the surety upon an appeal bond has become insufficient, the court having jurisdiction of the appeal may order the giving of a new bond with sufficient surety as a condition to the maintenance of the appeal, and, in default of compliance with such order, may dismiss the appeal.

(Syllabus by the Court.)

Appeal from district court, Arapahoe county.

Action between Elizabeth M. Williams and Kate Williams. From the judgment rendered, Elizabeth M. Williams appealed. Appellee now moves for a new appeal bond, and, in default thereof, to dismiss the appeal. Motion granted.

*

*

The provision of the Code referred to in the opinion is as follows: "Sec. 388. Appeals to the supreme court from the district, county and superior courts shall be allowed, provided, the party praying for such appeal shall by himself, or agent, or attorney, give bond with a sufficient surety, to be approved by the court from which the appeal is taken (or the clerk thereof, when the order granting such appeal may so direct) and file in the office of the clerk of the court from which the appeal is taken within the time limited by the court, which bond shall be in a reasonable sum sufficient to cover the amount of the judgment appealed

from, and costs, conditioned for the payment of the judgment, cost, interest and damages, in case the judgment shall be affirmed, and also for the due prosecution of the appeal; and the obligee in such bond may, at any time, on a breach of the condition thereof, have and maintain an action at law, as on other bonds. The supreme court may in its discretion allow defective appeal bonds to be amended."

Morrison, De Soto & Macon, for appellant. Lipscomb & Hodges, for appellee.

ELLIOTT, J. Appellee moves for an order requiring appellant to give a new appeal bond, on the ground that the sole surety on the original bond has become insolvent, so that the bond is no longer adequate security for the judgment appealed from; and asks that in default of giving such further bond the appeal be dismissed. The motion is supported by affidavits setting forth facts showing that the surety has become insolvent since the original bond was accepted. The affidavits are not controverted. Counsel for appellant contend that this court is powerless to require a further bond as a condition to the maintenance of the appeal. The contention is that when an appeal has been perfected by the giving of an appeal bond in due form, and with sufficient and approved surety, the power of this court in respect to such bonds is exhausted. Section 388 of the Code requires as a condition to the allowance of an appeal that appellant or his representative shall "give bond with a sufficient surety." The sufficiency of the surety is to be determined by the trial court or its clerk in the first instance, but when the appeal is perfected the jurisdiction of the lower court ceases, and the appellate court is invested with the necessary jurisdiction to protect the rights of all parties to the appeal by allowing or requiring further appeal bonds. The purpose of the bond with sufficient surety is to indemnify appellee in case his judgment shall be affirmed. It is manifest that such purpose would fail if appellee were not permitted to insist upon the continuance of such security until the determination of the appeal. Hence when it is made to appear that the surety has become insufficient, the court having jurisdiction of the appeal may order the giving of a new bond with sufficient surety as a condition to the maintenance of the appeal, and, in default of compliance with such order, may dismiss the appeal. The statutory provision that "the supreme court may allow defective appeal bonds to be amended" was not intended to limit the power of the appellate court to mere defects of form. These views are in accordance with the current of authority and the uniform practice of this court. Elliott, App. Proc. §§ 366. 367; Jerome v. McCarter, 21 Wall. 17; Ruschaupt v. Carpenter, 63 Ind. 359. Appellant will

1. Failure to ring the bell or blow the whistle at a crossing, as required by law, does not render a railroad company liable for an accident at a crossing, unless that be the proximate cause of the injury, and there be no such negligence on the part of the person injured as to prevent his recovery.

2. Where the view of the track from the highway is obstructed, or the crossing is in other respects especially dangerous, it is the duty of a traveler, aware of such facts, to exercise a higher degree of care than when the view is unobstructed; and if he cannot otherwise satisfy himself that it is prudent to cross he must stop and listen before driving on the track.

3. Failure to give the statutory signals, or running the train at a too rapid rate of speed, does not excuse negligence on the part of one injured on a railroad crossing.

Error to district court, Arapahoe county. Action by Albert Crisman against the Chicago, Rock Island & Pacific Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

This suit was brought to recover damages for the destruction of plaintiff's wagon and the killing of his horses by being struck by an engine of a passenger train belonging to plaintiff in error while coming east on the Kansas Pacific Railroad at a point at or about the intersection of Market and Forty-Fourth streets, in Denver. A judgment was recovered in the district court of Arapahoe county for the value of the team and wagon.

William Harrison, A. E. Pattison, and Thomas H. Edsall, for plaintiff in error. Browne & Putnam, for defendant in error.

GODDARD, J. It appears from the record that at the point of collision there were four tracks. The one furthest from the city is designated "the transfer track." This departs from the main track at a point about 750 feet easterly from the crossing, and crosses the highway at a point 367 feet from where the accident occurred. The second track is a siding, which crosses the highway at a distance of 40 feet from the main track. The third track is also a siding, crossing the highway about 15 feet from the main At the time of the accident cars were track. standing on either side of the highway upon all of these tracks except the main track, and so obstructed the view of the main track

that it was difficult for a person driving on the highway to see a train approaching from the east after the transfer track had been passed, and while between the transfer track and the main track. The wagon, destroyed was a covered milk wagon, loaded with milk cans. On either side of the wagon there were sliding doors, with a window in front, which hung upon hinges, and could be opened and hooked up at the top of the cover. The doors and window were open at the time of the accident. One Nuney, the servant of defendant in error, who was driving the team at the time of the accident, had been driving over the road for four days previous to the accident, and had passed over the railroad crossing at least once each day during that time, at about the same hour the accident occurred. There is a serious conflict in the evidence as to whether the whistle was blown before, or the bell was being sounded at, the time of the accident; also as to the manner in which Nuney approached the crossing; and, the jury being the exclusive judges of the credibility of the witnesses and of the weight of the evidence introduced upon these questions of fact, their finding thereon cannot be disturbed unless error intervened in the instructions.

Error is assigned upon the giving of instruction No. 3, wherein the court attempts to define the duty of a railway company in approaching a crossing, and is as follows: "The jury are instructed that if you find from the evidence that the view of the railroad track over which the defendant's train was approaching at the time of the alleged accident was obstructed by box freight cars on the side tracks described in the evidence, so as to make the view of the approaching train impossible or difficult, then the omission of the company to give signals of its approaching train, if you find such omission from the evidence, was negligence on the part of the defendant so as to make it liable." This instruction is erroneous in declaring the company liable upon failure to give such signals, regardless of the fact whether such failure was the

proximate cause of the accident. The jury might, under this declaration of law, if they found the signals were not given, find against the company, whether the accident was in any measure caused by such failure or not; and also in disregard of any question of contributory negligence on the part of the plaintiff. "Failure to ring bell or blow whistle at crossing, though required by law, will not render the company liable unless that be the proximate cause of the injury, and there be no such negligence by the plaintiff as will prevent his recovery." Beyel v. Railway Co., 34 W. Va. 538, 12 S. E. Rep. 532; Artz v. Railroad Co., 34 Iowa, 153; Railway Co. v. Jones, 76 Ill. 311.

Further error is predicated upon the re

fusal of the court to give the following instruction, as prayed for: "If Nuney's view of the railroad track, in the direction from which the train was approaching, was obstructed to such an extent as to prevent him from seeing the approaching train from the wagon, then he was bound to use greater care than would have been required if the view had been unobstructed, and should, if necessary, have stopped the team and listened for approaching trains before driving on the crossing;" and in giving it with the following modification: "Provided you find the defendants were not guilty of gross negligence, such as failing to ring the bell or give any notice of their approach, or running their train at the rate of twenty or thirty miles per hour." The degree of care to be used by a traveler in crossing a railroad is measured by the conditions surrounding the place of crossing; and where, by reason of obstructions, his view of the railway track is shut off, it is his duty to exercise a higher degree of care than if the track is open to view, and the precautions to be taken must be such as are calculated to inform him of the fact whether a train is approaching or not. In Patterson on Railway Accident Law the rule is stated as follows: "Sec. 177. Where the view of the line from the highway is obstructed, or the crossing is in other respects specially dangerous, it is the duty of the traveler to exercise a higher degree of care; and if he cannot, by looking and listening, satisfy himself that it is prudent to cross the line, he must stop, or he must adopt such other precautions as ought to be taken under the particular circumstances of the case." The supreme court of Wisconsin, in the case of Seefeld v. Railway Co., 70 Wis. 216, 35 N. W. Rep. 278,-very similar in its facts to the one at bar,-said: "The cases cited on behalf of the defendant to show that plaintiff should have stopped his team and listened for the expected train seem to us to come nearer this case in their facts than those cited to sustain the opposite view." And, after referring to a number of cases, announced the rule as follows: "The rule to be deduced from these cases is this: If the view of a traveler on the highway approaching a railroad crossing is so obstructed that he cannot see an approaching train in time to stop his team before colliding with it, if he knows that a train is due at such crossing at or about such time, and if he is unable to hear the approaching train when his team is in motion, whether by reason of the force and direction of the wind or of noises in the vicinity, whether made by his own wagon or by other causes, ordinary care requires him to stop his team while he may do so, and listen for the train." In the case of Railway Co. v. Stommel, (Ind. Sup.) 25 N. E. Rep. 863, it is said: "Where one approaching a railroad crossing neglects to avail himself of every opportunity to look and listen, and carelessly ven.

tures upon the track, and is injured, such conduct is of itself sufficient to defeat a recovery. If a railroad crossing is particularly dangerous, and requires extraordinary effort to ascertain whether it is safe to attempt to pass over it, one familiar with the locality and danger must use care proportioned to the probable danger." To the same effect are: Haas v. Railroad Co., 47 Mich. 401, 11 N. W. Rep. 216; Railroad Co. v. Beale, 73 Pa. St. 504; Whalen v. Railway Co., (Sup.) 12 N. Y. Supp. 527; Merkle v. Railroad Co., 49 N. J. Law, 473, 9 Atl. Rep. 680; Railroad Co. v. Miller, 25 Mich. 274; Greenwood v. Railroad Co., 124 Pa. St. 572, 17 Atl. Rep. 188. We think that in the case at bar the plaintiff in error was entitled to the instruction as asked, and that the same as modified was clearly erroneous. The question of contributory negligence does not depend upon what the defendant company did or did not do, but upon what Nuney did under the circumstances. As stated in 2 Rorer on Railroads, 1019: "Except in the courts of Georgia and Illinois, and possibly Kansas, the doctrine of what is called 'contributory negligence' is holden in the courts' of all the American states; also in the federal courts, and in England. The principle upon which it rests is that if the plaintiff suing for an injury has in any manner, by his own wrong, negligence, or want of ordinary and reasonable care, directly-that is, proximately-contributed to the injury complained of, he cannot recover. As has been said by that eminent jurist Lord Ellenborough, 'One person being in fault will not dispense with another's using ordinary care for himself.' "Failure of employes of a railroad company in charge of a train approaching a crossing to sound the whistle and ring the bell, as required by statute, does not excuse want of care by one crossing the track, and does not enter into the question of contributory negligence on his part." Railway Co. v. Stommel, supra. See, also, Schaefert v. Railway Co., 62 Iowa, 624, 17 N. W. Rep. 893; Railroad Co. v. Houston, 95 U. S. 697; Butterfield v. Railroad Corp., 92 Mass. 532; Havens v. Railway Co., 41 N. Y. 296; Flemming v. Railroad Co., 49 Cal. 253; Ernst v. Railroad Co., 39 N. Y. 61.

A careful examination of the adjudicated cases on this subject satisfies us that the law is settled beyond dispute that negligence on the part of a railroad company will not excuse a traveler approaching a crossing from using proper care on his part to avoid danger, and that there can be no recovery if he fails to do so, if such failure contributes to the injury. A qualification of this rule pertains only in cases where the railroad company has notice of the dangerous situation of the party injured in time to avoid a collision by the exercise of ordinary care, and is "guilty of such conduct as will imply an intent or willingness to cause the injury." Railway Co. v. Hunter, 33 Ind. 335;

Railway Co. v. Cranmer, 4 Colo. 524. No such state of facts exists in this case. The uncontradicted evidence shows that the engineer could not have seen the team in time to avoid the collision, and it is not contemplated by this instruction that such was the fact; but the gross negligence referred to was in the failure to give the signals, and in running the train at a rapid rate of speed. The instruction as modified is a misapplication of this principle upon the facts in this case, and was clearly error prejudicial to plaintiff in error. The judgment is reversed. and cause remanded for a new trial.

CHICAGO, R. I. & P. R. CO. v. NUNEY. (Supreme Court of Colorado. Oct. 2, 1893.) RAILWAY COMPANIES -ACCIDENTS AT CROSSINGSCONTRIBUTORY NEGLIGENCE--EFFECT.

Gross negligence on the part of the railroad company does not excuse negligence on the part of one injured at a railroad crossing.

Error to district court, Arapahoe county. Action by Edward Nuney against the Chicago, Rock Island & Pacific Railroad Company for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed.

Plaintiff's claim is based upon the same facts shown in case No. 2,730, Railway Co. v. Crisman, 34 Pac. Rep. 286.

William Harrison, A. E. Pattison, and Thomas H. Edsall, for plaintiff in error. Browne & Putnam, for defendant in error.

GODDARD, J. Error is specially predicated upon the refusal of the court to give the following instruction as prayed for: "Before the plaintiff can recover he must show (1) that the defendant was guilty of negligence; (2) that Nuney was not guilty of negligence, and could not have avoided the collision by the use of ordinary care on his part, for, if he could have avoided the ac cident by the use of ordinary care, then it is immaterial whether defendant was guilty of negligence or not, and in such case plaintiff cannot recover." The court gave it with these words inserted: "Unless such negligence was gross." The instruction is objectionable in so far as it cast the burden of proof upon Nuney to show that he was not guilty of contributory negligence, but in other respects correctly expressed the law. It was not refused, however, on that ground, but given as modified. This modification was clearly erroneous, as applied to the facts of the case. As was said in the Case of Crisman, infra, that "negligence on the part of a railroad company will not excuse a traveler approaching a crossing from using proper care on his part to avoid danger, and that there can be no recovery if he fails to do so, if such failure contributes to the injury. A qualification of this rule pertains only in cases where the railroad company

has notice of the dangerous situation of the party injured in time to avoid a collision by the exercise of ordinary care, and is 'guilty of such conduct as will imply an intent or willingness to cause the injury.' No such state of facts exists in this case." We think the court also erred in refusing the following instruction, asked by plaintiff in error: "If Nuney's view of the railroad track, in the direction from which the train was approaching, was obstructed to such an extent as to prevent him from seeing the approaching train from the wagon, then he was bound to use greater care than would have been required if the view had been unobstructed, and should, if necessary, have stopped the team, and listened for approaching trains, before driving on the crossing." Railway Co. v. Crisman, 34 Pac. Rep. 286. In that case we held that this instruction as asked should have been given, and that, as given therein, as modified, was erroneous. Under the law as therein declared, this judgment must be reversed, and cause remanded for a new trial.

1. Where a person, believing he has a right to do so, rides on a freight train with the consent of the conductor in charge, and, while so riding, is injured through the negligence of the trainmen, the company is liable to him as a passenger, though such train be one which, by the rules of the company, was not allowed to carry passengers.

2. Where plaintiff was injured through the gross negligence of defendant's trainmen, who had knowledge that he was on the train, defendant is liable for the injury, even if the plaintiff was a trespasser.

Appeal from district court, Salt Lake county; C. S. Zane, Justice.

Action for personal injuries by George Everett against the Oregon Short Line & Utah Northern Railway Company. Plaintiff had judgment, and defendant appeals. Affirmed. Williams & Van Cott, for appellant. Barlow Ferguson, for respondent.

BARTCH, J. The plaintiff in this case claims damages for personal injuries, alleged to have been received while a passenger on defendant's train at North Salt Lake. The jury rendered a verdict in his favor for the sum of $4,500, and, upon judgment being entered for that amount, the defendant appealed to this court. The evidence shows substantially that the plaintiff had been in the employ of the defendant, as section hand and section foreman, for a period of about eight years, and on the day of the accident was so in its employ, as section foreman, at the city of Ogden, Utah;

Rehearing denied.

v.341.no.3-19

that on that day he received word from his family, who resided at Salt Lake City, that several of his children were sick with diphtheria, and were quarantined; that, after he quit work in the evening, it being about dark, and, being too late for defendant's passenger train, he went to a freight train, where he saw a man with a lantern, who told him that he was the conductor; that, after giving this man a dollar to be allowed to ride on the train to Salt Lake City, he assisted plaintiff into a box car, partially filled with brick, claiming that the caboose was full; that in this car he rode to North Salt Lake, where the same man helped him out and into the caboose; that after he was in the caboose the conductor and two other employes came in, but made no objections to his being there; that, shortly after the conductor and employes went out of the caboose, the switch engine ran freight cars against it, without giving any signal, and with such force as to produce a violent shock, which caused the injuries complained of; that, after the collision, the employes re-entered the caboose, and found the plaintiff lying on the floor, stunned and seriously injured; that it had been the custom of defendant to carry passengers on freight trains, except on extra freight trains, and on these passengers could be permitted to ride by the train dispatcher, but plaintiff did not know he was on an extra train; that the fare on passenger trains from Ogden to Salt Lake City was $1.75, but plaintiff claims he did not know the fare on freight trains. It was admitted on the trial that the engineer of the switch engine and the other employes in the train, if present, would testify "that they were negligent in causing the train in question to strike against the caboose as violently as it did." In view of the facts and circumstances thus proved on the trial, the court, in the course of its charge, instructed the jury as follows: "If you believe, from a preponderance of the evidence that the plaintiff was in the car, commonly called the 'caboose,' of the defendant, at North Salt Lake, and that he was there in good faith, and under circumstances authorizing him to believe that he was there lawfully, and that he had a right to ride in the caboose, and that he was without fault, and that the defendant Was guilty of negligence, which caused the injury to him, then you should find a verdict for the plaintiff. On the contrary, if you find that the plaintiff's negligence in any degree contributed to the injury, then you should find a verdict for the defendant."

Counsel for appellant insist that the material question in this case is as to whether plaintiff was a passenger, and that this instruction, to the effect that if he was in the caboose in good faith, and believed he was lawfully there, and had a right to ride there, etc., was erroneous, and presented an immaterial issue to the jury. If it were conceded