The plaintiff, therefore, in this case, if it was found that the ticket he held was not good by reason of former use and cancelment, should have paid his fare when it was demanded, and looked afterwards to the railroad company for the refunding of the money, and for compensation for any trouble he might be put to in obtaining it. And it would have been very prudent and proper for him to adopt this course, even though there was nothing on the face of the ticket to apprise him of the invalidity. If the conductor, who was manager of the train, informed him that for any reason the ticket was one he could not receive, a contest with him over it must generally be very profitless, and therefore unadvisable. But we are all of opinion that if the plaintiff's ticket was apparently good, he had a right to refuse to leave the car.

The following cases support Frederick v. Marquette &c. R. R. Co., and some of them in their facts closely resemble the one before us: Townsend v. N. Y. C. & H. R. R. Co. 56 N. Y. 295: s. c. 15 Am. Rep. 419; Chicago &c. R. R. Co. v. Griffin 68 Ill. 499; McClure v. Philadelphia &c. R. R. Co. 34 Md. 532: s. o. 6 Am. Rep. 345; Shelton v. Lake Shore &c. R. R. Co. 29 Ohio St. 214; Downs v. N. Y. & N. H. R. R. Co. 36 Conn. 287: s. c. 4 Am. Rep. 77; Petrie v. Pennsylvania R. R. Co. 42 N. J. Law 449; Yorton v. Milwaukee &c. R. R. Co. 54 Wis. 234: s. c. 41 Am. Rep. 23, and 6 Am. & Eng. R. R. Cas. 322. Whether the ticket the plaintiff held was fair upon its face was a disputed question in the case, and must depend for its solution upon the view taken by the jury of the credibility of the witnesses who testified respecting it..

The medical evidence which was given in the case, respecting the effect of the alleged assault upon the plaintiff's health, seems to call for some comment. As the assault was a battery only in a technical sense, and there was no pretense of injury except such as might come from mere wordsfrom the mere expression on the part of the conductor, of a determination to put the plaintiff off the car unless he paid his fare-the proposition that it was proper to call expert

witnesses to show the possibility of injurious consequences from such words, to the plaintiff's health, is suggestive of possibilities in the trial of causes which the trial judge may well contemplate with some solicitude. If expert evidence of the sort were admissible in this case, it is difficult to conceive of a case of assault and battery or of any other case in which vexing or provoking words are made use of, where the expert witness may not become an important factor in determining the result. But the field for his operations could by no means be restricted to cases in which disturbing words had been made use of; nearly every case of tort is accompanied by some circumstance which is calculated to annoy and vex the party entitled to sue for it; and if the possible effects upon the mind, and through the mind upon the health, are to be the subject of expert investigation and testimony in a case like this, they must be so at the discretion of the parties in all cases, and the medical witness may become as much an incident to the session of a trial court as the jury itself. Should this ever come to be the case, the parties, in putting their questions to the expert witnesses, should at least be required to take into account-when considering possible consequences-such contemporaneous or nearly contemporaneous facts as may also conduce to the disturbance of health; such, for example, as some which appeared in this case and have been mentioned above.

The judge, in his instructions, evidently attached importance to this expert testimony, and it no doubt conduced to swell the damages awarded.

The case should go back for a new trial.

SHERWOOD and CAMPBELL, JJ. concurred. CHAMPLIN, J. did not sit in this case.

DANIEL F. COMSTOCK ET AL. v. JOHN B. MCCRACKEN ET AL.

Lien not lost by re-statement of account.

A lien is not lost by merely re-stating the account and deducting certain items.

Error to Muskegon. (Russell, J.) Feb. 5.-Mar. 6.

REPLEVIN. Plaintiffs bring error.

Frank Dumon for appellants.

Affirmed.

Smith, Nims, Hoyt & Erwin for appellees.

CHAMPLIN, J. The defendants operated a saw-mill at Muskegon, and under a contract with plaintiffs manufac tured their logs into lumber for a specified price per thousand feet. No time of payment was agreed upon, but payments were made from time to time as the sawing progressed. The plaintiffs were permitted to ship the lumber manufactured away from time to time as they chose, in case no objection was made by defendants. The sawing extended through the season of 1881, and the lumber in dispute was left in the mill-yard of defendants, where it had been manufactured and cross-piled under their contract with plaintiffs. The defendants claimed a lien on this lumber for the balance unpaid of their saw bill, and rendered a statement of account therefor, and requested payment. The plaintiffs did not pay, and no reason is shown for their refusal. They demanded the lumber, and defendants refused to deliver it until their account was paid; and plaintiffs brought replevin. The defendants pleaded the general issue, and gave notice of their lien for sawing, and claimed a special property in the lumber to the extent of such lien.

On the trial the defendants introduced and proved their account against the plaintiffs, which contained three small items, amounting in the aggregate to $13, which were not

for sawing and piling lumber, and these the defendants asked leave and were permitted to withdraw from the case. The amount due defendants for sawing was shown to be $953.57.

After the testimony was in, the plaintiff's counsel stated to the court that there was no dispute about the facts to go to the jury at all. We extract from the record:

"Court - Gentlemen, I think you had better submit this case to the jury.

Mr. Campbell-We object to submitting the case to the jury, and we ask the court, as a question of law one way or the other, to instruct the jury whether there was a lien by defendants on this lumber at the time this suit was brought, or not. If they did have a lien, they are entitled to a judgment; if they had no lien, and even if they were owing defendants that amount, they would not have any lien. I submit that the case cannot be argued upon any other hypothesis than this, and we ask the court to instruct the jury either that there was a lien or that there was not."

The court then inquired of counsel for the defendant if he wished to say anything to the jury, and he replied that he did not.

The counsel for the plaintiff requested the court to instruct the jury that the defendants having re-stated their account, and having deducted certain items, that thereby the accounts were in such a condition that there could be no lien, and that the jury should find for the plaintiffs.

The court then asked plaintiffs' counsel this question:

"Then I understand it is admitted that if there was a lien on this property defendants would be entitled to a judgment of $953.57. And on the part of the plaintiffs it is claimed that this question of lien and the question of waiver is a pure question of law, and should be determined by the court."

Mr. Campbell-"Yes, your honor; and that the jury should be instructed one way or the other-either that there was a lien on this property by the defendants on the day this suit was brought, or that there was not."

The plaintiff's counsel made some further requests to charge, but in none of them were any facts submitted to the

jury to pass upon. The court instructed the jury that in his opinion the defendants had a lien upon the lumber, and directed a verdict for the defendants.

We find no error in the record. The testimony did not show a waiver of the lien, and

Liabilities of consolidated railway companies-Injury to employees-Side

tracks.

1. The "debts, liabilities and duties" of a railroad company, including their liability for injuries, attach to any company in which they are merged by consolidation. How. Stat. § 3344.

2. The responsibility of a railroad company to its employees for the condition of its road is less strict than it would be to strangers; and an accident to an employee, involving no liability, might, if it happened to another person cause an actionable injury.

3. Railroad employees are presumed to be aware and to take the risk of dangers from such conditions and defects in the construction of a side track as would be open to observation; and they are also expected to use reasonable care in examining their surroundings.

Error to Ingham. (Gridley, J.) Feb. 6.-March 6.

CASE.

Defendant brings error. Reversed.

M.V. Montgomery for appellant.

Conely, Maybury & Lucking for appellee.

CAMPBELL, J. This action was brought by a brakeman who had been employed by the Northwestern & Grand Trunk Railroad Company from November, 1879, till Janu