CONTRIBUTORY AND COMPARATIVE NEGLIGENCE.
3. It is the duty of a person about to go upon a railroad track, to do
so cautiously, and ascertain whether there is danger; and especially
does this duty devolve upon a person who, from long employment upon
the road at the particular place, is familiar with its peculiar dangers,
from the numerous tracks there, and their constant use in the switch-
ing of cars. Chicago & Northwestern Railway Co. v. Sweeney, Admx. 325.
4. In an action to recover damages, under the statute, for the death
of a person, alleged to have been occasioned by the negligence of a rail-
road company, it appeared the deceased was a track repairer in the
service of another company, with whose road the defendants' track
connected at the place where the accident occurred, and with which
the deceased was very familiar, having worked about it, or near it, for
several years. It was a point where the tracks were numerous, and
engines constantly in motion in great numbers. While cars were being
pushed by an engine, the deceased stepped upon the track in front of
the moving cars, with his back to them, and his cap drawn closely over
his ears, not looking about to see if there was danger, which he could
easily have discovered, and of which he should have been aware from
his long familiarity with the place. The cars overtook him, and he
was struck and killed. He was held to have been guilty of such gross
negligence, and even recklessness, that there could be no recovery,
unless a greater degree of negligence on the part of the company could
be shown. Ibid. 325.
5. There seemed to have been no negligence on the part of the com-
pany. The switchman walked along the track about sixty feet in
advance of the moving train and saw the track was clear. While doing
so, the deceased stepped on the track between him and the train, with
his back to the train, without noticing its approach, although it was in
plain view. So soon as he was seen by the switchman, he shouted to
him, but he gave no heed to the warning. The train was moving very
slow, and had the usual complement of men about it, who attended to
their duties, and the engine bell was ringing continuously. Ibid. 325.
6. There was no watch upon the forward car to give warning, but
there was an engineer and fireman, and a switchman and his assistant
who was in a favorable position along side of the train to receive sig-
nals from the switchman on the track and communicate them to the
engineer. But even if a man stationed on the forward car would have
been more serviceable in giving warning, his not being there was slight
negligence compared with the recklessness of deceased. Ibid. 325.
7. In an action against à railroad company to recover damages for
the death of a person, caused by the alleged negligence of the company
while the deceased was engaged in unloading a coal car, it was deemed
the central question whether the deceased used proper care and caution
CONTRIBUTORY AND COMPARATIVE NEGLIGENCE.
in entering upon the car under the circumstances then existing, the
company's employees being at the time engaged in switching upon
the track where the coal car was standing, in making up a train; for
however discreet and careful the deceased may have been when on the
car, the question remained, and to be submitted to the jury, was he
justified in being there at that time, and under the circumstances? Illi-
nois Central Railroad Co. v. Weldon, Admr. 290.
NEGLIGENCE IN A RAILROAD.
8. In an action against a railroad company for personal injury
received by the plaintiff, by reason of the train in which he was a pas-
senger having struck a cow which suddenly run upon the track, and
the cars thrown from the rails, it appeared that cattle were in the habit
of resorting to the station where the accident happened, being attracted
there by the corn liable to be scattered upon the ground, and that a
few days before this accident, a train had run over a cow at that sta-
tion. There was no watchman there to keep the track clear, and the
train was passing the station with more than ordinary speed. With
the known liability to such accidents at that place, this was inexcusable
negligence. Chicago, Rock Island & Pacific Railroad Co. v. McAra, 296.
9. Liability of railroad companies for injury to their servants, occa-
sioned by dangerous structures. See MASTER AND SERVANT, 2
to 6.
10. And for injuries to servants from negligence of their fellow ser-
vants. Same title, 7, 8.
INJURY FROM DEFECTIVE SIDEWALKS.
11. Liability of cities and individuals. See HIGHWAYS, 4.
1. By a re-organized railroad corporation. Where the property and
franchises of a railroad corporation have been sold and conveyed under
a deed of trust given to secure a debt of the company, and the purcha-
sers re-organize, to prove a new promise by the re-organized company
to pay a debt owing by the company as originally organized, there
must be shown some action on the part of the directors of the former
from which the promise can be clearly inferred. The mere certificate
of their secretary, that the amount was due on specified items, would
be insufficient to prove a new promise, or to bind the company, unless
it appeared he had been empowered to adjust the claim. American
Central Railway Co. v. Miles, 174.
2. Sufficiency of a new promise, to take the case out of the statute. See
LIMITATIONS, 8 to 11.
1. In an action against a railroad company to recover damages for
injuries received by the plaintiff by reason of the negligence of the
company, it appeared the plaintiff had no bones broken. He stated at
the time of the accident that he was not much hurt. On the trial, he
stated that he was severely bruised on his left side. His physicians said
it was merely a muscular injury. He kept his bed nearly all the time
for a month, getting up, however, and walking about the house every
day, and claimed to be still lame at the trial, which was about ten
months after the accident, though there was some reason for supposing
his recovery would have been more rapid if he had had no claim for
damages. A verdict for $5000 was considered excessive, and the judg
ment was reversed for that cause. Chicago, Rock Island & Pacific Rail-
road Co. v. McAra, 297.
2. Although there is no fixed criterion for assessing the damages in
an action for a personal tort, yet they should be so assessed as to pre-
clude the idea that passion or prejudice controlled the jury, or their
sensibilities were worked upon by unworthy appliances. Walker v.
Martin, 347.
3. In an action for malicious prosecution, it appeared the defendant
had caused the arrest of the plaintiff on a charge of larceny, the latter
being confined in jail for a period of nine days, when he was dis-
charged. The prosecution was malicious and wholly unjustifiable.
The defendant was a man of large wealth, while the plaintiff was a
poor man, who obtained his living by his labor. On the first trial, the
weight of the evidence was, that the plaintiff's character was bad. A
verdict of $20,000 was considered excessive, and the judgment was
reversed. On a second trial, the evidence in regard to the character of
the plaintiff was conflicting, yet, while the greater number of wit-
nesses testified to his good character, the impression was made that he
was not in such position, in society or among business men, as to be
greatly injured by the wrongful prosecution. On the second trial, a
verdict was returned for $25,000, and a remittitur being entered for
$5000, a judgment was rendered for $20,000, which was reversed upon
the sole ground that the damages were outrageously excessive. Ibid.
347.
4. In an action against a railroad company, for injuries to the plain-
tiff, caused by the alleged negligence of defendants' servants in blow-
ing the whistle on an engine, at a time and place, however, when and
where it was customary to blow it, while too near a team of mules
attached to a wagon in which the plaintiff was riding, it was held, that
compensatory damages only should be given. And the only injury sus-
tained by the plaintiff being a sprained ankle, from which, with proper
care, he would have recovered in five or six weeks, a verdict for $1525
NEW TRIALS. EXCESSIVE DAMAGES. Continued.
was regarded as excessive. Chicago, Burlington & Quincy Railroad
Co. v. Dunn, 451.
5. In a case sounding in damages, unless the verdict is manifestly so
high as to produce the conviction that the jury were actuated by im-
proper motives, it will not be disturbed on the ground of being exces
sive. Chicago, Rock Island & Pacific Railroad Co. v. Otto, 416
6. In an action by a brakeman upon a railroad, against the company,
for injuries received through the negligence of the defendants, in con-
structing an awning so near the track that when the plaintiff ascended
a freight car in obedience to a signal for brakes, he was thrown from
the car by coming in collision with the awning, it appeared his left arm
was broken and had to be amputated, and his head was bruised with a
scalp wound. He was treated by physicians about two months. His
wages had been $40 per month. A verdict for $10,000 was considered
excessive, there being no foundation for vindictive damages. Illinois
Central Railroad Co. v. Welch, 184.
7. In an action under the statute, for the death of a person-chat dama-
ges were regarded excessive. See MEASURE OF DAMAGES, 6.
NOTICE OF SUIT TO DEFENDANT.
1. Necessity thereof. A decree rendered upon the default of a party
who had no notice of the suit, either actual or constructive, is void as
to such party. Clark et al. v. Hogle et al. 427.
ON ADJOURNMENT OF TRUSTEE'S SALES.
2. Of the notice required. It has been held that a trustee in a deed
of trust may adjourn a sale in his discretion, but when he does so, he
must give a new notice for the same length of time required in the first
instance. Griffin et al. v. Marine Co. of Chicago et al. 130.
3. Nor is this rule in regard to the notice, affected by the fact that
the deed contains a clause authorizing an adjournment; such a clause
is not material, as the power exists without it. Ibid. 130.
Necessity and requisites of the notice to be given by a tax purchaser. See
TAXES AND TAX TITLES, 2, 3.
NOTICE OF SALE IN PARTITION.
Whether proof thereof must be preserved in the record. See PARTI-
TION, 4, 5.
PROOF OF NOTICE OF SALE UNDER TRUST DEED.
Obviated by recitals in the deed given by the trustee. See SALES, 6.
38-52ND ILL.
1. Construction thereof. A city ordinance, requiring that all fresh
water fish in packages, brought into the city for sale, shall, before being
sold, be inspected and branded, and imposing a penalty for its violation,
does not render a person liable to the penalty for selling such fish in
packages not inspected and branded, when the same are made up from
other packages that have been duly inspected and branded.
Chicago v. Hobson et al. 482.
What constitutes an ouster of one tenant in common by another. See
LIMITATIONS, 16
OF INHUMAN TREATMENT OF A CHILD BY A PARENT.
It is punishable by law. See CRIMINAL LAW, 3, 4.
IN ACTIONS AT LAW, GENERALLY.
1. In a suit against the members of an association for services ren-
dered, the name of a person which was signed to the articles of associ-
ation without authority, may properly be omitted as a defendant. Boyd
v. Merriell, 151.
TO RECOVER INDEBTEDNESS DUE A FIRM.
2. In all cases of indebtedness to a partnership firm, the action must
be brought by the members of the firm,-one of the members can not
sue alone, and recover at law for what his co-partners may agree to be
his portion of a debt due the firm. American Central Railway Co. v.
IN SUIT AGAINST SEVERAL TORT FEASORS.
3. They may be sued severally. A plaintiff may maintain several
actions against a number of persons who commit a trespass or other
tort jointly, and may recover several judgments, though he can have
but one satisfaction. Severin et al. v. Eddy, 189.
4. Where the board of supervisors of a county entered into a contract
to convey the swamp and overflowed lands belonging to the county, for
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