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signee can be apprised of their arrival and a suffi- more than that. The average seems to have been cient time has elapsed for him to remove them. somewhat more than two dollars. But, we think, it Until 1865, that seems to have been the custom in was proper for the railway companies, whether the Chicago, where there were four or five cattle yards expense to the companies were a few cents more or near the principal railway stations. The record less, to adopt this amount an approximate does not show whether the consignee came there charge, and that their action in so doing should be and drove them away, or whether they were mar- sustained. keted and slaughtered there; but this is immaterial, so far as the duties of the railway company were

DEATH CAUSED BY WRONGFUL ACT. concerned. So, it is usual in the stock-raising portions of the country, to provide cattle pens for the

DISTRIBUTION OF Moneys RECOVERED. detention of cattle until they are laden on board the cars, and sometimes for their delivery by the

New York COURT OF APPEALS. railway company in those yards.

Decided October 2, 1900. While I do not think railway companies would be bound to furnish terminal facilities of this kind for In the Matter of the Petition of Thomas H. an occasional horse, or perhaps even for an occa

SNEDEKER, Respondent, v. Ada May SnedekER, sional and wholly exceptional carload of live stock,

as Administratrix, Etc., of CHARLES SNEDEKER, yet, if cattle became a substantial part of the traffic,

Deceased, Appellant. I have no doubt provision should be made for their Moneys recovered by the widow, as administrareception.

trix, for the negligent killing of her husband, are to In 1865, the Union Stock Yards were organized, be distributed, after deducting commissions and exa large area of lands purchased and separate tracks penses, as if they were unbequeathed assets of the laid by the stock yards company, connecting with deceased. practically all the railways running to Chicago. Where, therefore, the deceased left no children, From this time the demand for separate terminal but left a widow and father surviving, the father is facilities at each of these railways seems to have entitled to share with the widow in the moneys thus ceased and all cattle were consigned for delivery at recovered as provided by the statute for the disthe stock yards not for the purpose of being tribution of personal property. claimed there by the consignee, but for the purpose

Appeal from an order of the Appellate Division, of finding a market for them. Here all the cattle Second Department, affirming an order of the Surconsigned 10 Chicago are deposited for slaughter rogate's Court of Kings county. or for further shipment, and great slaughtering Charles M. Stafford, for appellant; A. T. Payne, houses have been erected in the vicinity of the yards for respondent. for the disposition of the cattle. Providing a market BARTLETT, J. - The appellant in this proceeding for cattle is certainly no part of the business of the brought an action under section 1902 of the Code of railway company; and, I think, therefore, any extra Civil Procedure against one George Malcolm to expense occasioned from the time the cars recover damages for the death of her husband, taining the cattle leave the tracks of the company, Charles Snedeker, caused by the negligent act of the and until they arrive at the stock yards and the defendant; she recovered a judgment, entered upon empty cars are returned, the company is entitled to the verdict of a jury for $5,000, aggregating make an additional terminal charge, equivalent to $5.771.95, damages and costs. the expense occasioned to it by providing these The deceased left no children. extra facilities.

The father of the deceased, Thomas H. Snedeker, Prior to June 1, 1894, the railway companies seem instituted this proceeding in the Surrogate's Court to have assumed this burden themselves, but at this of Kings county, by petition, to compel the widow, time a trackage was imposed by the stock yards of as administratrix, to render an account of her profrom forty to seventy-five cents each way upon every ceedings in respect to said judgment, and pay over car going and returning from the tracks of the rail- to him the distributive share thereof to which he way company to the stock yards. It is insisted that, claimed to be entitled. as this is the only extra expense then occasioned, After hearing the parties an order was entered in any charge beyond that was unreasonable and im- the Surrogate's Court, granting the prayer of the proper. I do not think that necessarily follows. petition, directing an accounting and a deduction of While the imposition of this trackage charge by the | the expenses of the action in which the judgment Union Stock Yards was doubtless the immediate was recovered, together with the commissions of the occasion for a reformation of its tariff, the railway administratrix. companies were then at liberty to adopt a The Appellate Division affirmed the order, and schedule with relation to these terminal facilities, appeal was taken to this court. The widow claims and charge what they actually cost them.

that the action in which the judgment was recovered The evidence is that it costs some railways a is statutory and unknown to the common law, the trifle less than two dollars, and some considerably I recovery no part of decedent's estate, and she is

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entitled to the entire amount realized. The father In Oldfield v. N. Y. & Harlem R. R. (14 N. Y. of the deceased insists that as his son left no chil-310), in considering the law as then existing (Laws dren he is entitled to share with the widow the net 1847, chap. 450), this court said (p. 316): “ The proceeds of the judgment.

statute does not, as has been supposed by some, The adjustment of these conflicting claims de- only create a liability in those cases where the relapends on the construction to be given the sections tions of the persons to be indemnified to the person of the Code of Civil Procedure governing the action killed were such that the former had a legal right to instituted by the administratrix.

some pecuniary benefit which would result from a Section 1902 allows the action to be brought by continuance of the life of the latter, and which was “the executor or administrator of a decedent, who lost by the death. It is applicable to the case of has left, him or her surviving, a husband, wife or any person, where death ensues, who could himseli, next-of-kin."

if living, have maintained the action, and cannot Section 1903 reads as follows: "The damages justly be limited to the cases of a wife for the loss of recovered in an action brought as provided in the a husband or children of parents.” last section, are exclusively for the benefit of the It is then pointed out that the words “ husband decedent's husband, or wife, and next-of-kin; and or wife " are used to designate persons who would when they are collected they must be distributed not be included in the term next-of-kin." by the plaintiff as if they were unbequeathed assets, In Tilley v. Hudson River R. R. (24 N. Y. 474), left in his hands, after payment of all debts and ex- this court again construed the act: Next-oi-kin penses of administration. But the plaintiff may de- are embraced in its language as parties who may be duct therefrom the expenses of the action and his pecuniarily injured by the death of a person to commissions upon the residue, which must be al- whom they stand in that relation; and it is not relowed by the surrogate, upon notice given in such quired that the degree of kindred should be such as

manner and to such persons as the surrogate i to create the duty of sustenance, support or educadeems proper."

tion. It is well settled that the survivorship of a Section 1904 provides, in part, tha the damages wife is not essential to the maintenance of the awarded to the plaintiff may be such a sum as the action."

the court or the referee, deems to In Murphy v. N. Y. C. & H. R. R. R. (88 N. Y. be a fair and just compensation for the pecuniary 447), this court further expressed itself, as follows: injuries, resulting from the decedent's death, to the “ Under the statute of 1847, as amended, it matperson or persons for whose benefit the action is ters not that some of the next-of-kin for whom brought."

the action is prosecuted may suffer greater pecuSection 1905 provides: “The term “next-of-kin,' niary loss from the death than others. The sum to as used in the foregoing sections has the meaning be recovered by the personal representative represpecified in section 1870 of this act."

sents the entire pecuniary loss resulting from the Section 1870 reads: “The term 'next-of-kin,' as death to each and all the relatives mentioned in the used in this title, includes all those entitled, under statute.” the provisions of law relating to the distribution of It seems very clear that the legislature intended personal property, to share in the unbequeathed to create a new cause of action for the benefit of the assets of a decedent, after payment of debts and ex-husband or wife and next-of-kin of a decedent as a penses, other than a surviving husband or wife.” class, and the damages were supposed to cover the

The provisions of law relating to the distribution pecuniary losses suffered by every person constiof personal property as applicable to this case are tuting it. found in section 2732 of the Code of Civil Pro- In the case at bar the class consists of the widow cedure, subdivision 7. This subdivision, where i and father. there are no children, divides the surplus between It does not follow that the father has no pecuniary the widow and the father.

interest in the death of his son. It might have The action thus provided for is purely statutory, happened had the son survived thirty years that has existed in this State for many years substantially his wife would have died childless and he be left as now found in the Code, and has been repeatedly as the only support of an aged and penniless father; considered by the courts.

or, if no father was living, but several next-of-kin The general scheme of the action may be briefly of the same degree, it is within the range of possistated as follows: An executor or administrator bilities that the decedent might have accumulated can sue only where decedent leaves husband, wife or within his added years of life a considerable estate next-of-kin; when the action is brought it is for the and then died leaving it to them. The statute eviexclusive benefit of husband, or wife, and next-of-dently deals with remote and uncertain damages kin; the proceeds of the recovery are to be dis- not recoverable at common law. tributed among the class named, as if they were We are not insensible to the peculiar hardship of unbequeathed assets remaining after payment of this case where a widow, left without means of supdebts and expenses; the statute providing for the port, is compelled to divide the net amount of the distribution of personal property is to govern. judgment she has recovered, as administratrix, with

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a man of means, possessed of considerable real and except that it came from the building, and nothing personal property. We must, however, construe to identify the person who set it in motion, the the law as it is written, regardless of the seeming plaintiff had not made out a case to go to the jury. injustice inflicted in particular cases by the existing Herbert C. Smyth for appellants; J. Culbert rule.

Palmer for respondent. The painstaking and able brief of the appellant's O'BRIEN, J.- The plaintiff's action for damages counsel contains excellent arguments calculated to resulting from personal injuries was dismissed at persuade the legislature that the statute should be so the trial, but the court below, on appeal, reversed amended as to prefer the widow and the fatherless, this judgment as to all the defendants, other than left without means of support, over the next-of-kin, the Tract Society, and these defendants have whose interest is, in such instances, speculative and appealed to this court from the judgment of remote.

reversal. The order of the Appellate Division should be The facts established at the trial, upon which the affirmed, with costs.

complaint was dismissed, briefly stated, were these: PARKER, Ch. J., O'BRIEN, HAIGHT, VANN, LAN- On the 25th of March, 1895, a large structural steel DON and CULLEN, JJ., concur.

building, twenty-three stories in height, was in Order affirmed.

progress of construction by the American Tract

Society near the corner of Nassau and Spruce NEGLIGENCE.

streets, in the city of New York. The society owned the building, and had contracted for its erec

i tion with various contractors who agreed to do each PERSONAL INJURY SUSTAINED THROUGH Falling

a special part of the work. It was shown that there BRICK BUILDING COURSE

| were nineteen independent contractors, employing ERECTION.

about 250 men in all. These contracts were made

directly with the Tract Society, and bound the conNEW YORK COURT OF APPEALS.

tractor in each case to do some particular part of Decided October 2, 1900.

the work, and in most, if not all of them, the conConrad Wolf, Respondent, v. TuE AMERICAN tractors was bound to use due care and to indemnify Tract SOCIETY, JOHN DOWNEY et al., Appellants. the owner of the building against any loss resưlting

A corporation, owning a lot, entered into a con- from injuries to others in the progress of the work. tract for the erection of a building thereon, by the The proof tended to show that on the day named terms of which one Downey agreed to “take entire the plaintiff was in the service of one of the concharge of all the work

to make all con- tractors for furnishing the steamfitting for the tracts for the various departments of work building, and was sent there with a load of pipe required

to see that the contracts entered upon a truck. The truck was stopped on the into

are honestly and faithfully kept,” to be Spruce street side of the building, which is a narrow "responsible for all loss or damage from accidents' street. While the plaintiff was on the truck attendduring the construction of the building,” to take ing to his duties, and without any negligence on his all proper precautions for the avoidance of such part, a brick fell from the building, which had then accidents. Through Downey

Downey the corporation reached the ninth story, and struck him upon the thereafter made a contract, containing similar cove- head inflicting a very serious injury. There were nants of indemnity, with sub-contractors named then in the building, it seems, not only masons and Weber for the mason work and scaffolding, and carpenters engaged in the work, but steamfitters with a large number of other contractors for all and plumbers putting in pipes in recesses in the the other work upon the building.

walls, elevator men, electric light people and variBefore the building had reached completion, and ous workers doing work around the building. while more than 250 workmen employed by various There was no proof whatever to show from what contractors were working about the building, and part of the building the brick came, or who dropped while the scaffolding was still up on two stories, a it, or set it in motion. There was no proof to truck driver, while unloading his truck in front of identify the person in or about the building as the the building, was struck and injured by a brick, immediate author of the wrong. Of all the numerwhich fell from the building in a slanting direction, ous persons engaged in or about the work the jury but from what part or from what cause was could not have imputed the accident to any one of unknown.

them more than another. In this state of the proof In an action brought by the truck driver against the trial judge dismissed the complaint. The the owner of the building and against Downey and learned Appellate Division sustained the trial judge the Webers to recover for the injury thus sustained, so far as affected the Tract Society, the owner of

Held, that, although the maxim res ipsa loquitor the building; but since it appeared that the defendapplied, and it must be assumed that the plaintiff ant, Downey, had charge of the carpenter work, suffered injury from the negligence of some one, and the defendants, the two Webers, had charge of as there was no proof where the brick came from, the mason work, and that neither of them had

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shown conclusively that the brick was not set in : sible to identify the master responsible for his act. motion by the act of some of their workmen, it was It follows that either the plaintiff's action must fail held that there was a case for the jury to find that for want of proof, or we must hold, as the court besome one of them, or all of them together, were low did, that any or all the contractors together may chargeable with negligence and so responsible to be held responsible for the injury. I am quite sure the plaintiff for the injury.

that such a proposition cannot be deiended upon We agree with the court below that this is a case ' principle, and I am not aware of any authority that where the maxim res ipsa loquitor applies. There can possibly lend any support to it. is a presumption that the plaintiff's injury was the Cases must occasionally happen where the person result of negligence (Mullen v. St. John, 57 N. Y. really responsible for a personal injury cannot be 567; Hogan v. Manhattan R. R., 149 N. Y. 23; identified or pointed out by proof, as in this case, Kearney v. London, etc., R. R., L. R. 5 Q. B. 411; and then it is far better and more consistent with Volkmar v. Manhattan R. R., 134 N. Y. 418). But reason and law that the injury should go without that presumption did not complete the proof which redress than that innocent persons should be held it was incumbent upon the plaintiff to make before responsible upon some strained construction of the the case could be submitted to the jury. In a case law developed for the occasion. The idea suggested like this, where the building in process of construc- in this case, that all or any of the nineteen contion is in charge of numerous contractors and their tractors may be held since the plaintiff is unable, workmen, each independent of the other, and none by proof, to identify the real author of the wrong, of them subject to the control or direction of the is born of necessity, but embodies a principle so other, some proof must be given to enable the jury far-reaching and dangerous that it cannot receive to point out or identify the author of the wrong. the sanction of the courts. There is no principle that I am aware of that would The liability of the owner to the plaintiff upon make all of the contractors, or all the workmen the facts presented by the record in this case is not engaged in erecting this building, liable in solido. a practical question upon this appeal, since the And yet there is just as much reason for that as plaintiff has not appealed from that part of the there is for holding two of these contractors for no order of the court below which discharged the othes reason than that one of them had charge of Tract Society from liability absolutely. the carpenter work and the other of the mason The sole question now before us is whether there work. The plaintiff, we must assume, suffered was any case made out against the two contractors injury from the negligence of someone; but I am who were originally joined as defendants with the not aware of any ground, in reason or law, for owner of the building, and we are of opinion that imputing the wrong to the two contractors who are there was not. defendants, or for selecting them from all the The judgment appealed from should be reversed others as responsible to the plaintiff, unless they as to them, and that of the trial court affirmed, with can conclusively show that they are not.

When costs. there is no proof where the brick came from, except that it came from the building, and nothing to identify the person who set it in motion, it cannot

WAR CLAIMS AGAINST THE UNITED be said that the plaintiff has made out a case for

STATES ARISING FROM THE CAPTURE the jury. The presumption does not go far enough

OF ILOILO. since the party chargeable with the act from which the injury resulted has not been identified, but that The city of Iloilo was captured by the military important fact is left entirely to conjecture. There and naval forces of the United States on the uth is no principle of law that will permit the plaintiff of February, 1899; about one-half of the city was to proceed upon the theory that anyone in any way destroyed by fire, such destruction being caused by connected with the work, or any one or more of act of the insurgents, who had made preparations them that he chooses to select, must respond to him to burn the place preceding the American attack. in damages for the injury. If the plaintiff was | The loss of property was large; for a portion thus unable to give proof pointing to the party respon- destroyed, however, no demand is likely to be sible for the injury, that is no reason why the inno- made on the government, it belonging to the incencent and the guilty should be held in a body upon diaries who set the torch to the city. A large a presumption that some or all were negligent. proportion belonged to non-residents, who have

Each of the nineteen contractors was responsible submitted claims against the government for only for the negligence of his own servants or compensation. employes. He was not responsible for the negli- The consideration of these claims presents novel gence of the servants of the other contractors. The and interesting points of international law. The men employed in and about the building, in the salient facts of the cases are as follows: The expeaggregate, were the servants of nineteen different dition against Iloilo, set out from Manila, on the masters. As the person who caused the injury was evening of December 26, 1898, arriving before the not identified by the proof, it was, of course, impos- city two days later, where the American forces remained for forty-five days, engaged, in what proved as it was well known that the Spanish governor, to be fruitless negotiation with the insurgent lead- Gen. Rios, had orders from Spain, instructing him ers, for the peaceable surrender of the place. to evacuate the city with the least possible delay.

Previously, and up to the 24th of December, the “ The American troops and naval forces did not city of Iloilo had been in possession of the Spanish arrive to that port until the morning of the 28th forces under command of Gen. Rios, who, by order of December, 1898, four days after the Spaniards of his government, evacuated the same on the date had left and the troops remained on board the mentioned. Had the Americans reached Iloilo transports at anchor in the Iloilo bay, without before its evacuation, a conflict would have been action, for forty-five days. avoided, as Gen. Rios was ready to deliver the city At last the commanding general of the United to the Americans.

States forces sent an ultimatum notice to the insurThe attack was commenced by the navy, the gun- gent leaders that occupied the city of Iloilo, on the boat Petrel, opening fire on the morning of Decem- 10th of February, 1899, intimating them to peaceably ber 10; such action on part of the navy was pre- give up the place, otherwise it would be taken by mature, it being several hours earlier than the time force. Almost at the same time notice was given designated in a notice previously served on the to the various consuls in the city, stating that such people and vice-consuls by the commander of the would happen should the natives give a negative American forces. This premature attack is specially reply, and that the attack would commence at 5 relied on by the claimants as a ground of recovery. o'clock on Sunday, 12th of February, 1899, in the

Ynchausti & Co., an Iloilo firm, present a claim morning. against the government, illustrative of the nature “ The bombardment commenced about at 8.30 oi the claims and manner of pleading. After stat- A. M., on Saturday, some twenty hours before the ing that they are a co-partnership, and giving the expiration of the notice sent to the consuls in the age, place of residence and nationality of each mem-city, and in consequence of such an unexpected ber of the firm, the petition proceeds to state that attack, no steps whatever could be taken to save on the uth of February, 1899, through the bom- or protect property, it having been a very risky task bardment and capture of the city of Iloilo by the for the Europeans and peaceful inhabitants, who United States military and naval forces, and in Aled in a desperate way to save their lives. consequence thereof, claimants suffered the loss We further beg to state that although the bomand injury of the following-described personal bardment commenced at 8.30 a. M., and the Ameriproperty, setting forth the items of property and cans could not fail to see that the insurgents were the value thereof. The aggregate value in this case engaged in firing the city, it being well-known to being $114,202.55, less $9,872.88 goods saved in a the American authorities that such would happen, damaged condition, leaving a net claim against the as the natives had threatened to do so, as soon as United States of $104,329.67, Mexican money, or the attack should commence. It was not till about one-half that sum in gold.

II o'clock A. M. that the first small landing parties The petitioner then proceeds to state the grounds were disembarked from the U. S. S. Boston and of his recovery as follows: In accordance with the Petrel, and about half an hour later ere the military circular letter No. 4, of the United States military forces were landed, although the men-of-war and governor in the Philippine Islands, dated at Manila, military transports were anchored within about a P. I., April 26, 1899, these claimants beg to state mile from the shore. the facts and circumstances attending their loss and “No opposition was made to landing the troops injury, out of which this claim arises, the principles and the sea was perfectly calm; no attempt was made and causes which lie at the foundation of the same, to send armed pinnaces into the river from any and from which the liability of the United States vessel, until late in the afternoon, the river not is to be deduced. The Spanish governor, General being defended in any way by the insurgents, and Rios, commander of the military forces occupying pinnaces could have reached the center of the city the city of Iloilo and suburbs, abandoned the city within half an hour from any vessel. with his troops on the 24th of December, 1898, “We consider, therefore, that our property, which about at three o'clock in the afternoon; forty-eight was amongst the last set on fire, and a large portion hours after Gen. Rios had left, the natives took pos- | of the city could have been saved, had the troops session of the city of Iloilo. It is known that been landed within a reasonable time, and, if they early in December, 1898, a circular letter was had been landed immediately after their arrival handed to Major-General Otis, the military gover- at Iloilo bay, it is almost certain that very

little nor of the Philippine Islands, signed by merchants damage would have been caused, as the natives of Manila who had branches in Iloilo of their firms, would not have had time to prepare themselves for in which his attention was drawn to the danger that firing the city. would inevitably result to life and property in “We might further state, that it was known to Iioilo if the American government did not at once most people, that on the day of the bombardment, send an armed force to Iloilo to take possession there were not over 300 to 400 imperfectly armed of the city from the Spaniards before they left, I insurgents in the place, who could have hardly

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