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proached the crossing he looked both ways, but feet, but it was not stopped until it had passed the saw nothing to indicate its presence or any ap- crossing a distance of 775 feet. The team was proaching danger. The train came from the left across and the coach was nearly across the track of the highway, upon which side there were woods when the collision occurred. The engineer of the obscuring the plaintiff's view. The locomotive deiendant saw the horses as they came from bewas not using steam, and the sound of the train hind the woods, but they passed over a distance of was obstructed or interiered with by the woods. twenty-four feet after he saw them before he apThe track was wet from previous rain. A number plied the brakes or undertook to stop the train. oi witnesses testified that they were in a position He used no sand upon the track, but reversed the to have heard the sounding of the whistle or the engine, which locked the wheels so that they slid, ringing of the bell if it had been blown or rung, and the train did not stop as soon as it otherwise but that they did not hear either. Upon the other would. hand, the defendant's witnesses testified that the The plaintiff's associates, who made the contract engine whistled a number of times at different íor the team, selected the coach to be furnished stations and crossings within a few miles of the ior this excursion, and it was decorated with buntpoint where the accident occurred, and that it ing by thein. The young men who hired this whistled a quarter of a mile away. They also testi- equipage took a number of young women with fied that the engine bell was rung from that dis- them. No particular place had been selected tance to the crossing. One of the defendant's where their luncheon was to be eaten, and, previemployes, or rather a student fireman upon the ous to the time of the accident, they had been engine, testified that the whistle was not blown looking for a place. until the train was within 400 feet of the crossing, Having thus briefly stated the facts, so far as and that the fireman was lazily ringing the bell for necessary to a proper understanding of the quesabout eighty rods, but that he did not ring loudly, tions involved, we are brought to the consideration for the clapper just touched the sides with a slow of some of the exceptions taken upon the trial. motion. There was also proof that the automatic While we have examined them all, we find but few signal near the crossing could be heard for a dis- that require special consideration. tance of a quarter of a mile when it rang, but that The first and only serious question raised by the it did not ring on the approach of this train. exceptions of the defendant relates to the charge

The train was moving thirty-five miles an hour, of the learned trial judge. At the conclusion of or at the rate of over fifty-one feet per second. the principal charge the plaintiff requested the The coach was going from five to seven miles an court to charge as follows: If you find that the hour, or from about seven to ten feet per second. engineer oi the defendant's train, after seeing the As the coach approached, no one upon it discov- horses attached to the tally-ho in which plaintiff ered the crossing or the track until the horses were was seated, omitted to do any act which might within about ten feet of the rails. At that time have prevented the collision, or might have lesthe driver was within fifty feet of the track, the sened the danger to plaintiff, defendant was guilty plaintiff sixty-five feet away, and their view of the of negligence." The court so charged, and the approaching train was obstructed by the woods. dciendant excepted. The appellant now urges that No sound of its approach had been previously this was error, for which the judgment should be heard. At that time, however, one of the party, reversed. who stood upon the highest part of the coach, saw The engineer upon the defendant's train first the train, cried out, Here comes a train," and saw the leaders of the team attached to the tally-ho immediately jumped from the side of the coach to when the train was about 400 feet from the crossthe road. He struck the ground about thirty feet ilig. It was then running at the rate of thirty-five from the nearest rail. When the warning was miles an hour, and he did not attempt to stop it shouted by the young man who jumped off, the until he saw the team coming upon the track, leaders were over, the body team was just cross- when he applied the emergency brake and reversed ing, and the wheelers were upon the track. Upon the engine. At the rate of speed which the train discovering the situation, to save himself and his was running only about eight seconds elapsed passengers, the driver seized his whip and lashed after he first saw the horses when the collision the team into a jump. The train was late and did occurred. Thus, he was suddenly confronted with not slacken its speed until it struck the coach near an emergency, having but a few seconds in which the middle, demolishing it, throwing the passen- to take such precautions as were possible to pregers to the ground and killing or maiming most vent the accident or mitigate the injury. The acts of them. The plaintiff was thrown a distance of necessary to stop the train were described upon 124 feet and landed upon a sand pile. He sus- the trial, and the engineer testified as to what was tained a fracture of the shoulder blade and various done. The effect of this charge was to instruct bruises and contusions upon his head and other the jury that is the engineer omitted any one thing portions of his body. The defendant's engineer which might have prevented the collision or lestestified that he could stop the train within 500 sened the danger, the defendant was guilty of

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negligence. This, in effect, was an instruction many of the principles of the law of negligence that it it should find that any such act was omitted, which are thoroughly established by the decisions then, as a matter of law, the defendant was negli- of this court. It was clearly erroneous, and regent. This may have presented to the minds of quires a reversal of the judgment from which this the jury the situation as it existed under the proof appeal is taken. and subsequent to the time of the accident. The We might well leave the other questions in this jury could properly consider only the situation as case until the necessity for their determination it was found to have existed when the accident shall be subsequently presented, except for the occurred, and in the light of all the facts and cir- fact that there are many cases pending where the cumstances which surrounded the engineer at that same questions are involved, one of which is of time. No one fact or circumstance could be con- quite general importance, and was the basis upon sidered by it independently of the others which which this appeal was allowed. related to it.

On the trial the defendant requested the court It is oiten the case that after a transaction has to charge: “ It is negligence as matter of law to occurred the most careful can discover that a dif- drive on to a steam railroad track where the view ierent course of action might have prevented a is obstructed without stopping, looking and listencilamity, or, at least, mitigated the injury. Still, ing. The court: I will not charge it in those when an emergency presents itself and a person words. Mr. Kelly: I except to your honor's reis under great excitement from the presence of an fusal to charge as requested. The court: I will impending peril, he may not act with that perfect charge as follows: It is negligence as matter of judgment that he would under other and different law to drive on to a steam railroad track where the circumstances and still not be negligent. " Rail- view is obstructed without looking and listening. ways are not liable for a mistaken exercise of Mr. Kelly: I except to your honor's refusal to judginent upon the part of their servants

charge as requested. The court: I would say fur10 act with the utmost possible promptitude when ther that whether it is the duty of the traveler to the circumstances are such as to afford no time stop depends upon the circumstances of the case, for deliberation” (Paiterson's Railway Accident the surrounding conditions and the nature of the Law, p. III). Where an employe of a railroad vehicle which he is using. I do not say, as matter company is coníronted with a sudden emergency of law, it is his duty to stop every time; I say there the failure on his part to exercise the best judg- might be conditions under which he ought to stop ment the case renders possible does not establish in the exercise of ordinary care. Whether it was lack of care and skill upon his part which renders the duty of the plaintiff here to have stopped is the company liable (Wynn v. Cent. P., N. & E. R. for the jury to say, under all the circumstances R. R., 133 N. Y. 575). It is not responsible even surrounding this case. Considering the condition for his error of judgment (Bittner v. Crosstown of the crossing, the obstructions, if any, its situaR’y, 153 N. Y. 76; Stabenau v. At. Ave. R. R., 155 tion and the surroundings and the nature of the

vehicle which was being used by him. Gen. The charge was in direct conflict with the prin- Tracy: And the defendant excepts to your honor's ciple of these authorities. Under the instruction charge to that effect.” We find no error in this given the jury may have understood that negli- charge, and think the defendant's exceptions were gence on the part of the defendant might be based not well taken. This question has been recently upon the omission of the engineer to do any act before us, and it was held that a person approachwhich it at the time of the trial believed would ing a railroad crossing is not required, as a matter have prevented the collision or lessened the in- of law, to stop before attempting to cross the jury, thus practically ignoring the situation at the track, but liis omission to do so is a fact for the time of the accident. The short period of time in consideration of the jury (Judson v. Central Verwhich he was obliged to act, the impending danger mont R. R., 158 N. Y. 597). to his train, to himself, to his passengers and to The defendant likewise asked the court to charge others, with the consequent excitement attending that no negligence can be imputed to the defendsuch a situation, the various acts required to stop ant by reason of the size or shape of the danger or lessen the speed of the train, and all the other signal, or the language of the warning, or the circumstances surrounding him at the time, should length of the letters." This the court declined to have been presented to the jury and considered by charge and the defendant excepted. It is obvious it before it could properly find the defendant negli- that by this request it sought an instruction to the gent by reason of the acts of its engineer. By the effect that a disregard of the statute by it as to portion of the charge under consideration the jury signboards across streets or highways at its crosswas permitted to find the defendant negligentings could not be made a basis of negligence, without regard to these facts and circumstances, As we have already seen, the statute requires and to hold it liable for any mistaken exercise of every railroad corporation to cause boards to be judgment upon the part of the engineer. This placed, supported and maintained across each pubcharge cannot be upheld without disregarding lic road or street, where the same is crossed by a

N. Y. 511).

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railroad at grade. It also describes in detail their traveier, where you say to the jury that a traveler height, the manner in which tiey shall be con- is bound to exercise ordinary care to avoid the structed and maintained, the words which shall be happenmg oi an accident at a steam railroad crosspainted thereon, the character oi the ietters em- ing

1 except lo that, and ask your honor to piuyed and their length and width. That the sign change the jury that a traveler is bound to use erected at the crossing where this accident oc- extraoruinary care to avoid accidents at a steam curred did not comply with the statute there is no Tauroad crossing, and to use ali liis faculties to doubt. It is equally clear that the one prescribe (ittermme whether a tram is approaching and to by the statute wouid be more readily seen and

The court declined to so charge, bewould more efiectually notiiy an approaching cause of the use oi the word “extraordinary,” and traveler oi the existence or situation oi the rail- Said that aside from that it charged as requested. road than the one used.

Mr. Kelly: Your honor charges that it was the While the omission to comply with the statute duty oi the traveier to exercise all his iacuities to in this respect might not constitute actionable avoid danger? The court: Yes, I have done that negiigence, where a person was injured who was already. Gen. Tracy: We except to the refusal of familiar with the crossing, and had it in mind at your honor to charge as requested, including the the time, as in such a case the omission would not use oi the word 'extraordinary.'” We find no contribute to his injury, still, where one is injured error in this ruling. The degree of care which a who is not familiar with the crossing, but is a traveler must observe in approaching a railroad Stranger, wholly ignorant of its existence or oi the crossing has been recently under consideration by presence oi any signboard, such an omission might this court, and it was there held that a person constitute negligence which would justify a recov- approaching such a crossing is not bound to exertry. Although this precise question has not, to cise the greatest diligence, but only such as a our knowiedge, been passed upon by this court, prudent man approaching such a place would ordiyet, in discussing a somewhat similar question in marily exercise under the circumstances (Judson l'almer v. A. Y. C. & al. K. R. R. (112 N. Y. v. Cent. Vi. R. R., 158 N. Y. 597). 234, 244), Juuge Daniorth said: I do not think The only other question that need be specially the court can say, as matter of law, that the stat- considered arises upon the defendant's exception utes which require signals and precautions can be Lo the refusal oi the court to charge that the reladisregarded by the defendant, and it be allowed to uon vi master and servant existed between the claim that the traveler should not be influenced by plaintifi and his associates and the driver and these omissions." Again he says: “ Effect must hciper; that the former were responsible for their be given to these wise regulations concerning competency, and that their negligence, if there measures to be adopted by a railroad company ior was any, was imputable to the plaintiff and his the safety of the traveler." We think the same associates. In order to establish the liability of principle should be applied to the omission of a one person for an injury caused by the negligence railroad company to comply with the statute re- oi another, it is not enough to show that the latter quiring signboards at railroad crossings where no was, at the time, acting under an employment by Such precaution is taken or where it is obvious the former; it must be shown in addition that the that the precaution provided by the company is employment created the relation of master and less efficient than that required by the statute. We servant (Hexamer v. Webb, 101 N. Y. 377; King are of the opinion that proof of the omission of a v. N. Y. C. & H. R. R. R., 06 N. Y. 184; Butler v. railroad company to comply with this statute is Townsend, 126 N. Y. 105).

In the latter case admissible upon the question, and may constitute Judge l'incli said that the relation of master and actionable negligence and justify a recovery where servant exists where the employer selects the the injury was caused by a disregard of it. This workman, may remove or discharge him for misconciusion is sustained by several text writers and conduct, and may not only order what work shall by decisions in other jurisdictions where the ques- be done, but the manner and mode of performtion has arisen (Thomas on Negligence, p. 409; Patterson's Railway Accident Law, p. 162; Shaber The plaintiff in the case at bar did not fire or v. St. P., M. & M. R'y, 28 Minn. 103; R. R. Co. v. pay the driver or attendant, and had no voice in Whitacre, 35 Ohio St. 627; Eikins v. Boston & A. their selection, which was an important element R. R., 115 Mass. 190, 201; Winstanley v. C., M. & in determining the relation between them. The St. P. R. R., 72 Wis. 375, 380; Heddles v. Chicago fact that the driver may have received from the & N. W. R. R., 77 Wis. 228, 232; Haas v. Grand plaintiff or his associates orders when to go forR. & I. R. R., 47 Mich. 401). It follows that the ward and stop, did not make the driver the servant court properly refused to charge upon this subject of the plaintiff (Johnson v. N. A. S. N. Co., 132 as requested by the defendant.

N. Y. 576). No farther discussion of the question The defendant also took the following exception is necessary at this time, as we have recently had to the main charge: “I except to your honor's this subject under consideration (Murray v. statement of the obligation on the part of the Dwight, 161 N. Y. 301). It is manifest that under


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the principles established by the decisions of this The complaint of Jack Cade was that of the court the relation of master and servant did not common folk in his days: Is not this a lamentexist between the plaintiff and the driver or helper, | able thing, that of the skin of an innocent lamb or either of them.

should be made parchment?” His first command, After carefully and studiously examining the as Shakespeare has represented it, was: “Now go great number oi perplexing and difficult questions some and pull down the Inns of Court.” And so determined during the heat and excitement of a effectually did his followers execute this behest sharp and protracted trial, we can but admire and that they burnt the Temple with its libraries and commend the scrupulous and intelligent care and practiced the last solemn rites of the law upon all ability evinced by the trial judge, and the almost students and“ practicers " they could meet with. unerring correctness of his rulings. When the Two legal knots: number and variety of the questions raised are If 'tis to marry when the knot is tied, considered, we are surprised, not that a single Why then they marry who at Tyburn ride; error was committed, but that there were not many And if that knot till death is loosed by none, more.

Why then to marry and be hanged's all one." The judgment and order should be reversed and

Laws are like grapes,• that being too much a new trial ordered, with costs to abide the event.

pressed yield a hard and unwholesome wine. PARKER, Ch. J.; GRAY, O'BRIEN, BARTLETT,

^ Lawyer and His New Office Boy. – A lawyer Haight and VANN, JJ., concur.

took in a new boy the other day, and, as he had Judgment and order reversed, &c.

suffered to some extent from the depredations of

the former one, he determined to try the new loy's LEGAL WIT AND HUMOR.

honesty at once. He therefore placed a five

round note under a weight on his desk, and ORD ERSKINE once declared at a large walked out without a word. Upon his return party at which Lady Erskine was present

half an hour later the note was gone, and hali-athat a

wife was only a tin canister tied to one's crown in silver had taken its place. Boy! when tail,” whereupon the following lines were written: I went out I left £5 under this weight.” · Yes, " Lord Erskine, at woman presuming to rail,

sir; but you hadn't been gone five minutes when Calls a wife a tin canister tied to one's tail;

a man came in with a bill against you for £4 175. And fair Lady Anne, while the subject he car

6d. I guess the change is correct?” “ You paid a bill?”

Yes, sir; there it is all receipted. The Seems hurt at his lordship's degrading com

man said it had slipped your mind for the last four parison.

years, and so He did not get any further

before he made a rush for the door. That boy is * But wherefore degrading? Considered aright, not in the law business any more.

A canister's polished, and useful, and bright; Lord Chief Justice Willes was a man of so little And should dirt its original purity hide,

personal decorum that he was perpetually offendThat's the fault of the puppy to whom it is tied!” | ing against the respect due to his office. He

An attorney, on the marriage of his son, gave would play cards at the public rooms at watering him £500, and handed him over a Chancery suit, places, and one night, when so engaged, was exwith some common-law actions. About two years tremely annoyed by a young barrister, who, feignaiterwards the son asked his father for more busi- | ing to be intoxicated, stood by the table, looking ness. Why, I gave you that capital Chancery over his cards, and was so troublesome that at last suit," replied the father, “and then you have got Willes spoke sharply to him: Sir," said he, prea great many new clients; what more can you tending to stagger, “I — beg pardon; but I wanted want?” Yes, sir," replied the son, “but I have to improve in playing whist; so - SO I came to wound up the Chancery suit, and given my client | look over you; for if -- if — I-I am not misgreat satisfaction, and he is in possession of the taken, sir you are a judge.” estate.” What, you improvident fool,” rejoined Some years ago men used to walk about openly the father indignantly, “that suit was in my fam- in Westminster Hall with a piece of straw in their ily for twenty-five years, and would have continued boot. By this sign attorneys knew that such perso as much longer if I had kept it. I shall not sons were in want of employment as false witencourage such a fellow."

nesses, and would give any evidence required for One chief justice was hanged at Tyburn in 1389 money. For instance, if an advocate wanted an by the barons, who were at variance with his lord- obliging witness, he would go to one of these men ship's legal views.

and show him a fee, which, if not sufficient, the Chief Justice Saunders was corpulent in his per- witness would not take any notice. The fee was son, drinking at times beer on the bench, and then increased until its weight recalled the power occasionally brusque to every one who sat near of memory to a sufficient extent. By this they hin. His constant abode was with an old tailor derived their name, “Men of Straw.” near Temple Bar. He left the tailor his executor. A question was asked, Which were the greatest

ries on,

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wonders in the world? 'Twas answered: Women's When the first man was drawn up the rope gave and lawyers' tongues, for that they did lye, yet way; he fell into the stream, and escaped by swimnever lye still.

ming. The remaining culprit, looking at the exeGen. Hawley, who drew up his own will be- cutioner, said with genuine native simplicity, and cause of the hatred and suspicion with which he an earnestness that evinced his sincerity: “Do, regarded all lawyers, left £ 100 to his servant, good Mr. Ketch, if you please, tie me up tight, for Elizabeth Buskett, because she had proved herself if the rope breaks I am sure to be drowned, for a useful and agreeable handmaid. The rest of his I can't swim a stroke." belongings he bequeathed to his adopted son, but Dymond once wrote as follows respecting barprovided that, if he married the said Elizabeth, risters: “When a barrister arrives at an assize neither were to inherit a farthing. He desired his town on the circuit, and tacitly publishes that he executors to consign his carcass to any place they is willing to take the brief of any client; that he is pleased, and if the parish priest should claim a ready to employ his abilities, his ingenuity, that burial fee they were to let the puppy have it. any given cause is good, or that it is bad, and

Marriage is a kind of legal traffic carried on be- when, having gone before a jury, he urges the side tween the two sexes, in which each is constantly on which he happens to be employed with all the endeavoring to cheat the other, and both are com- earnestness of seeming integrity and truth, and monly losers in the end.

devotes the faculties God has given him in promoThe will of a jilted bachelor left a handsome tion of its success — when we see all this, and legacy to a lady who had, twenty years before, remember that it was the toss of a die whether he refused to marry him, in order to express his should have done exactly the contrary, I think gratitude to her for her forbearance, and his ad- that no expression characterizes the procedure, miration for her sagacity in leaving him to a happy but that of intellectual and moral prostitution.” bachelor life of independence and freedom.

A Dakota schoolmistress sued three young men The will of John George, of Lambeth, who died for breach of promise. Counsel for one of the in London in June, 1791, contained the following defendants moved for a nonsuit, on the ground words: “Seeing that I have had the misfortune to that she was too promiscuous. The court seemed be married to the aforesaid Elizabeth, who ever disposed to grant the motion, whereupon the since our union has tormented me in every pos- plaintiff asked: “ Judge, did you ever go out duck sible way; that, not content with making game of shooting?" His honor's eyes lit up with pride of all my remonstrances, she has done all she could a sportsman as he answered: “Well, I should say to render my life miserable; that heaven seems to so; and many's the time that I've brought down have sent her into the world solely to drive me a dozen at a shot." "I knew it,” eagerly added out of it; that the strength of Sanison, the genius the fair plaintiff; that's just the case with me, of Homer, the prudence of Augustus, the skill of judge. A flock of these fellows besieged me, and Pyrrhus, the patience of Job, the philosophy of I winged three of them.” The motion for a nonSocrates, the subtlety of Hannibal, the vigilance suit was denied. of Hermogenes, would not suffice to subdue the A Scotch judge who, after pronouncing sentence perversity of her character; that no power on earth of death upon a former companion, whom he can change her, seeing we have lived apart during iound it difficult to beat at chess, added: And the last eight years, and that the only result has now, Donald, my man, I've checkmated you for been the ruin of my son, whom she has corrupted cnce.” and estranged from me; weighing maturely and The following satirical epitaphs were written on seriously all these considerations, I bequeath to lawyers: my said wife Elizabeth the sum of one shilling, to Here lies what's left of Lawyer Jesson, be paid unto her within six months after my

Who taught mankind this useful lesson death."

That when they'd spent their last in law, In the course of a trial in the Court of Common

He'd cease to wag his nether jaw. Pleas, one of the witnesses stated to Mr. Sergeant

Under this stone Vaughan, who was cross-examining him, that he (the witness) was a twine-spinner and mat manu

Lies Lawyer Bone; facturer, and dealt in flax and hemp. Mr. Sergeant

He lying lived, and lying died, Vaughan: “I am sorry to hear, sir, that you deal

For, dying or living, he always lied. in hemp (a laugh).” Witness: “I dare say you Death brought an action, he could not defend it, are, sir, for I make ropes to hang lawyers " (great He surrendered his body, thus hoping to end it. laughter). Mr. Sergeant Vaughan: I hope, sir, His mistake he found out, for what could be you will keep a little for your own use, for you plainer? are very likely to want it." Witness: “I shall Against his poor soul Satan lodg'd a detainer. save enough for you, sir, at all events.”

In limbo le lies in most anxious expectment, Two Irishmen being about to be hanged, the That the judge will release him by way of ejectgallows were erected over the margin of a river. ment;

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