care and diligence in regard to their relative duties." Pa. Co. v. Krick, 47 Ind. 368, 371;. Indianapolis, etc., R. Co. v. McLin, 82 Ind. 435, 448; Chicago, etc., R. Co. v. Spilker, 134 Ind. 380, 400, 33 N. E. 280, 34 N. E. 218; Lake Shore, etc., Co. v. McIntosh, Adm'r, 140 Ind. 261, 278, 38 N. E. 476; Ohio, etc., R. Co. v. Walker, 113 Ind. 196, 197, 15 N. E. 234, 3 Am. St. Rep. 638; Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403. When a charge of willful injury is supported by evidence, which is claimed to show recklessness in the operation of a railroad train amounting to a constructive intent, the question as to the existence of such recklessness and intent, depending upon facts never twice alike, is both by analogy to the rule in manslaughter cases and upon principle for the jury. Barr v. Chicago, etc., Co., 10 Ind. App. 439, 37 N. E. 814; Overton v. Indiana, etc., R. Co., 1 Ind. App. 439, 27 N. E. 651; Memphis, etc., R. Co. v. Martin, 117 Ala. 367, 383, 23 South. 231; Memphis, etc., R. Co. v. Martin, 131 Ala. 279, 30 South. 827; Tenn., etc., R. Co. v. Hansford, 125 Ala. 365, 28 South. 45, 82 Am. St. Rep. 241; L. S. & M. S. R. Co. v. Bodemer, 139 Ill. 609, 29 N. E. 692, 32 Am. St. Rep. 218; Southern R. Co. v. Emma D. Drake, Adm'x, 107 Ill. App. 12, 17, 19. Thus it was said by the Supreme Court of Illinois "that whether the defendant was guilty of willful or wanton conduct purely a question of fact for the jury to determine from all the evidence, and it was not the province of the court to inform the jury that some particular fact of the case was conclusive of that question." C., B. & Q. R. Co. v. Murowski, 179 Ill. 77, 80, 53 N. E 572; Ill. Cent. R. Co. v. Leiner, 202 Ill. 624, 629, 67 N. E. 398, 95 Am. St. Rep. 266; E. J. & E. R. R. Co. v. Duffy, 191 Ill. 489, 492, 61 N. E. 432; E. St. L. R. Co. v. O'Hara, 150 Ill. 580, 37 N. E. 917.

was

The Supreme Court of the United States, speaking by Justice Bradley, outlined the character of the duty to be observed at highway crossings as follows: "The train has the preference and right of way; but is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell, and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a

coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing." Continental, etc., v. Stead, supra. The appellee was not a trespasser, and the case is thereby differentiated to that extent from those in which the injured person was where he had no right to be. "Willfulness," "wanton negligence," "wantonness" are terms used in many states without any clearly defined distinction, but are, generally speaking, regarded as equivalent and interchangeable, as will appear from reading the cases in which they are used. C., C., C. & St. L. R. Co. v. Cline, 111 Ill. App. 416, 422. The following language used by the Alabama Supreme Court is peculiarly applicable to the case under consideration, on account of the similarity of facts presented: "That the place where deceased was was a public crossing in the town of Madison, having a population of about 500 people; that this crossing was used more than any other in the town, and that the average crossing during the day was about one person in every 10 minutes and according to some of the testimony, people crossed in great numbers. A witness could be required on crossexamination to define what was intended by the term 'frequently and great numbers.' The speed of the train at the time, according to the different witnesses, varied from 8 miles to 30 miles an hour. Assuming that the train was running at the speed of 30 miles an hour over a public crossing of the track in a town of 500 inhabitants, and that there was an average of one person every 10 minutes, or in great numbers, facts known to the servants in charge of the train, does the law declare that these facts do not constitute wanton negligence, or is the question whether these facts constitute wanton negligence one of law and fact referable to the jury for its determination? Precautionary requirements increase in the ratio that danger becomes more threatening.

The duty of care and vigilance becomes proportionately increased according to the less or greater likelihood that there are persons on the track at the time and place. A train may be run under some circumstances over a public crossing in a populous city at such speed as to amount to that recklessness which is the equivalent to wantonness and willfulness. Whether or not, therefore, the defendant was guilty of wanton negligence, under the facts of the case, should have been referred to the jury for its determination." Memphis, etc., R. Co. v. Martin (1897) 117 Ala. 367, 383, 23 South. 231; Id. (1901) 131 Ala. 269, 279, 30 South. 827; Ga. Pac. Ry. Co. v. Lee, 92 Ala. 262, 9 South. 230; Haley v. K. C., etc., R. Co. (1902) 113 Ala. 640, 21 South. 357; Southern R. Co. v. Crenshaw, 136 Ala. 573, 583, 34 South. 913.

The doctrine of willfulness arises in two aspects, the distinction between which has been so clearly marked by the authorities

heretofore cited; the one involving the actual knowledge on the part of the wrongdoer of actual peril in the particular instance, the other involving facts from which a willingness to inflict injury is implied from reckless indifference. Willful and intentional wrong that is a willingness to inflict injury cannot be attributed to one who is without consciousness that his act or omission will or may probably lead to wrong and injury. | Therefore, as a matter of pleading, willfulness must be directly averred. It is entirely well settled, however, as a matter of evidence, that the knowledge of danger upon which, in connection with the absence of subsequent diligence to avoid its consequences, a charge of willfulness may be maintained, need not be that which is presently acquired through the physical senses. "The party charged need not, on the particular occasion, see or hear or through other sense become advised of the actual presence of every element necessary to constitute the danger that really exists. * ** If he knows of the crossing where people are wont to be in such numbers and with such frequency, a fact also known to him, as that to run a train along there with such great speed as not to be readily controlled, and which might not admit of the escape of persons crossing the track, his conduct, he having in mind that he was approaching such a place, would authorize the imputation of wantonness, willfulness, or reckless indifference to consequences, though in point of actual fact he did not in the particular instance know of the presence of persons in exposed conditions." Richmond & Danville R. Co. v. Greenwood, 99 Ala. 501, 513, 14 South. 495; Alabama Great Southern R. Co. v. Hall, Adm'x, 105 Ala. 599, 17 South. 176; Ga. Pac. Ry. Co. v. Lee, 92 Ala. 262, 9 South. 230; L. & N. R. Co. v. Webb, 97 Ala. 308, 12 South. 374; Highland Ave., etc., v. Robbins, 124 Ala. 113, 27 South. 422, 82 Am. St. Rep. 153; E. St. L. Co. v. Snow, 88 Ill. App. 660; E. St. Louis, etc., v. O'Hara, 150 Ill. 580, 37 N. E. 917; O'Conner v. Ill. Cent. R. Co., 77 Ill. App. 32. "It is not necessary to show an intention, either actual or constructive, to commit the particular injury which resulted. It is enough to show that some injury to another or others would naturally and probably result from the act complained of." Conner v. Citizens' St. R. Co., 146 Ind. 430, 436, 45 N. E. 662. The standard by which recklessness in the doing of a lawful act is judged is an external one of the conduct of a person of ordinary prudence in the same or similar or similar circumstances. circumstances. Commonwealth v. Pierce, supra. The act of the engineer in running the engine over the crossing in question, at the rate and under the circumstances enumerated, seems to have been done at the express instance of the appellant company, which made and required him to fill the schedule calling for the speed

which the jury found to have been, in view of such conditions, recklessly excessive. The charge of willfulness being made against appellant is supported not only by the evidence detailing the acts and omissions of its servants in charge of the engine, but by its own deliberate and premeditated course. This leads to an affirmance of the judgment.

There are certain considerations, however, supposed to have weighed against the finding, which, because of the insistence with which they are urged, deserve notice. The presence of a railroad track is in itself a warning of danger, and that fact is usually sufficient to convict a traveler of contributory negligence in failing to observe precautions thereby suggested to him before undertaking to pass over such track. In the case under consideration all questions of contributory negligence are eliminated, and the effect of such warning, as it relates to the quality of appellant's acts, is alone involved. The presumption that one upon a railroad track will step aside and allow the train to pass is a reasonable one, and is founded upon the known instinct of self-preservation. Nicholas v. B. & O. R. Co. (Ind. App.) 71 N. E. 170. In the case of one who drives along a highway the question is whether the warning given by the mere presence of a railroad track before him, his view along said track being cut off and obstructed, and the sound of approaching trains obscured, was certainly sufficient to arouse the instinct of self-preservation and prevent his entering, not into a place of known peril, but into a place the peril of which he does not know, so as to justify the other party in assuming that he has actual knowledge, and will, by virtue of the instinct of self-preservation, protect himself. The traveler is compelled to cross the tracks in proceeding along the highway, as he may lawfully do, and it is not dangerous to do so, except as an engine be driven over it at the precise time. Remembering that the question of contributory negligence is eliminated, and that the obligations of the railroad company require it, in the exercise of ordinary care, to take precautions of an equally high grade as those exacted from a traveler, where the issue is one as to his contributory negligence, and that the right of precedence is dependent upon the giving of adequate warning, can it be said that a presumption arose in the case at bar, in reliance on which the appellant might send its trains with cannon ball speed through the town and over the crossing without a possible imputation of negligence? A "presumption," as the term is here used, is where a fact, or set of facts, is considered sufficient evidence of another fact, in the absence of evidence to the contrary, and presumptions of this nature are necessarily overcome by facts. It has come to be a wellknown fact-so well-known as to be a matter of common knowledge that the warning conveyed by a railroad track, an unobstructed

view of it being cut off, is not in itself sufficient to arouse the instinct of self-preservation, and that, in spite of such warning, a very íarge proportion of the traveling public come into the danger zone, many of them suffering no injury whatever, because of the accidental absence of juxtaposition between them and an engine, while many of them are killed or maimed by the collision occurring when a train does happen to reach them before they can escape, after actually discovering their peril. That such is the fact is disclosed by the records of the court, by the decisions of this and the Supreme Court, by the records of the Interstate Commerce Commission, and by the great number of fatalities annually occurring and chronicled in the public press. Hardly a newspaper is printed that does not contain an account of some circumstance or casualty tending to emphasize the fact that to send a train of cars at such speed, over such a crossing as the one described, may be done only by one willing to injure or kill the unfortunates who do not get out of the way. It is true that every one who attempts to travel the street is not injured. Neither did the man in the cart run over every one traveling on the street. It was the killing of the drunken man, who could not escape, which constituted manslaughter. Consequences must be probable. That is exactly what they must be. It is not necessary that they be certain. The meaning of the term in the connection is that the reasonably prudent, conscientious, and careful man would feel inclined to believe that some one would be in a place of danger and yet have room for hopeful doubt. The very doubt which lodged in the heart of the engineer made it possible for him to drive his engine and fill the schedule. The verdict says that such probability of injury did exist. This court takes the verdict as it is and is bound by it. The negligent performance of a duty and the negligent omission to perform a duty, where they result in death, are equally the basis upon which a conviction for manslaughter may depend. Monographic note, 61 L. R. A. 277, 299, subd. x.

Whether the failure of the defendant to provide a watchman, gates, or other adequate protection was negligent, or whether in their absence the running of a train in the manner and at the rate at which it is shown to have been done was negligent, in view of all the circumstances, and, if so,

whether such negligence was of so reckless a quality as to constitute willfulness, were alike questions for the jury. "No court ought to say as a matter of law with respect to a crossing located, as this one was, in the heart of a city, or one of its thoroughfares, and with such surroundings as the evidence discloses, that a company maintaining such a crossing discharges its full duty to the public, and is guilty of no negligence, although it fails to provide a watchman or gates to warn persons traveling in vehicles of approaching trains." Chicago, etc., Co. v. Kowalski, 92 Fed. 310, 34 C. C. A. 1; Chicago, etc., Co. v. Netolicky, 67 Fed. 665, 14 C. C. A. 615; Grand Trunk v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; English v. S. Pac. R. Co. (Utah) 45 Pac. 47, 35 L. R. A. 155, 57 Am. St. Rep. 772. "The convenience of commerce" cannot be invoked to justify either manslaughter or willfulness. "The value of human life cannot be overbalanced by any pecuniary or public interest. Our duty is simply to declare the law." Memphis, etc., Co. v. Martin, 117 Ala. 385, 23

South. 231.

It is not lawful to take life to subserve the convenience of an individual. Neither is it lawful to take life for the convenience of a number of persons. If the convenience of commerce requires the operation of defendant's trains through Whiteland at 60 miles an hour, it may lawfully and properly so schedule and run them without liability to persons thereby injured or killed along the way, after, and only after, it has

adequately guarded against collision and injury. An exemption from liability thus pro

cured is one which can be enforced without anæsthetizing the conscience of either jury or judge. To exonerate from all liability a corporation which runs a railroad train over the streets and through the town at a rate so swift that its employés can only catch a glimpse of the white face of a sober traveler, who is whirled through the air as the engine passes, and at the same time hold a nearsighted man, driving a cart along a village street at eight miles an hour, guilty of manslaughter in running over a drunkard, whom he did not see, evidences an acrobatic intellectual performance devoid of humanity and inconsistent with the instinct of civilization.

The judgment should be affirmed.

(193 Mass. 161)

CAREY V. MILFORD & U. ST. RY. CO. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 19, 1906.)

1. STREET RAILROADS-COLLISION WITH HORSE -NEGLIGENCE OF DRIVER-EVIDENCE-QUESTION FOR JURY.

In an action against a street railway company for killing a horse in a collision with a car, evidence examined, and held, that the question of the contributory negligence of the driver in momentarily leaving the horse in a public street unattended was for the jury.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 255.] 2. SAME

NEGLIGENCE OF COMPANY DENCE-QUESTION FOR JURY.

-

EVI

In an action against a street railway company for killing a horse in a collision with a car, evidence examined, and held, that the question of the actionable negligence of the company, due to the failure of the conductor, who knew that the horse was on the street unattended, to notify the motorman thereof, was for the jury.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 253.]

Exceptions from Superior Court, Worcester County; Edward P. Pierce, Judge.

Action by James F. Carey against the Milford & Uxbridge Street Railway Company to recover damages for the killing of plaintiff's horse and injury to his wagon and harness and the contents of the wagon, caused by a collision with a car. There was judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

John B. Ratigan, John E. Swift, and Jeremiah J. Moynihan, Jr., for plaintiffs. Wendell Williams, J. C. F. Wheelock, G. B. Williams, and Shelley D. Vincent, for defendant.

KNOWLTON, C. J. This case may be divided into two parts, the first relating to the conduct of the plaintiff's driver in leaving his horse unfastened while he went into a house to deliver groceries, and the second to the conduct of the defendant's conductor in failing to inform the motorman that there was a horse and wagon astray upon the street, with which there might be danger of collision.

We cannot say, as a matter of law, that the driver was negligent in momentarily leaving the horse unhitched while he went into the house to deliver groceries. Ordinarily it is negligent to leave a horse and wagon unhitched and unattended upon a public street. But there are some horses which can be so left for a short time, under some conditions, without negligence. The horse in this case was a large, slow animal, of quiet disposition, which had been used by the plaintiff four or five months in delivering groceries from house to house. It had been the custom to leave her without fastening her or using a weight, and both the plaintiff and his driver testified that they had never known her to go away alone before. The house where she was left on this occasion was one at which she had been accustomed to stand

while goods were being delivered. She was not at all afraid of electric cars. The driver testified that he was absent only about a minute before he came out from the house and found the horse and wagon gone. The case is like Southworth v. Old Colony & Newport Railway Co., 105 Mass. 342-344, 7 Am. Rep. 528, in which a similar question was held to have been rightly left to the jury. It is different from Stacey v. Haverhill, G. & D. Street Railway Co., 191 Mass. 326, 77 N. E. 714, in which it appeared that the horse was sometimes fastened with a weight, but on this occasion was left alone ten minutes, in a place where there was a temptation to graze, and wandered away to indulge his natural propensity.

The defendant contends that there was no evidence of negligence on the part of either of its servants. The accident happened at about 7 o'clock in the evening of December 8th. The night was rather dark, and the motorman had no reason to expect the approach of a stray horse and wagon on the track. But if we assume, in favor of the defendant, that the jury would not have been warranted in finding the motorman negligent, it was proved beyond dispute that, quickly after the plaintiff's driver got upon the car, he made the conductor understand that his horse and wagon were astray, and that there might be danger of encountering them. The conductor testified that "he thought it his duty to notify the motorman, and had started in just as the accident occurred." The car was only 40 feet long, and he testified that he thought he could walk the length of the car in half a minute if he had a clear aisle, and that he had a clear aisle that night. In one part of his testimony he said that it was about a minute and a half after he was told before the horse was struck, and there was other testimony that the car went about a quarter of a mile after the driver got on, before the accident. The evidence tended to show that the conductor was informed of the stray horse and should have understood that there was danger of a collision as soon as the driver got upon the car.

We are of opinion that it was a question of fact for the jury, whether the conductor exercised due care to inform the motorman of the danger promptly after he was told of it himself.

Exceptions overruled.

(186 N. Y. 263) PEOPLE ex rel. QUINN v. VOORHIS et al. COM'RS. (Court of Appeals of New York. Oct. 26, 1906.) 1. APPEAL-REVIEW-DECISIONS OF INTERMEDIATE COURTS.

On an appeal from an order of the Appellate Division, dismissing an order granting a writ of peremptory mandamus the Court of

Appeals will not determine whether the mandamus was properly granted.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4312-4320.] 2. MANDAMUS-DISMISSAL-GROUNDS.

Where a writ of mandamus to a board of elections imposes duties which are continuous, and cannot be completed until election day, the compliance of the board with the writ by performing some of the acts commanded is no ground for dismissal of an apneal from the order before election day.

Appeal from Supreme Court, Appellate Division, First Department.

Mandamus proceedings by the people on the relation of Thomas C. Quinn against John R. Voorhis and others, commissioners, composing the board of elections of the city of New York. From an order of the Appellate Division (100 N. Y. Supp. 717), dismissing an appeal from an order at Special Term, granting a writ of peremptory mandamus, defendants appeal. Reversed and remanded.

After the appeal had been taken to the Appellate Division, the relator made a motion to dismiss it, on the ground that the board of elections had, at the time of taking the appeal, already complied with the provisions of the writ of peremptory mandamus. This motion was granted by a divided court. Arthur C. Butts, for appellants. Otto C. Hess, for respondent.

PER CURIAM. Two questions are certified to us as follows: "(1) Was it error to dismiss an appeal to the Appellate Division from a final order, granting a peremptory mandamus where the defendants have obeyed the writ by completely performing the acts which they were commanded to perform? (2) If it was error to dismiss such appeal, was the mandamus properly granted upon the papers presented to the Special Term?" We decline to consider the second question, as the merits of this controversy are not before us.

We are of opinion that it was error on the part of the Appellate Division to dismiss the appeal from the final order, granting a writ of peremptory mandamus, even though the defendants had obeyed the writ in part by performing some of the acts which they were commanded to perform. We do not answer the first question as framed, where it states that "the defendants have obeyed the writ by completely performing the acts," etc., as the duty imposed upon the board of elections under the statute is continuous, and will not be completed until election day, for the board is required to cause to be published notices of the election on various days, some of which are still future. It is a well-recognized principle that a party affected by an order commanding him to do an act retains the right to appeal therefrom so long as in the future the effect of the order may be to constrain his action. The principle has recently been decided in this court in the cases of three policemen, argued to

gether (People ex rel. Hurlbut v. Bingham, as Police Commissioner of the City of New York, 186 N. Y., 78 N. E. 1098, People ex rel. Reardon v. Same, 186 N. Y.

79 N. E., and People ex rel. Kenny v. Same, Id., decided October 2, 1906), where we denied relators' motions to dismiss the appeals from orders of the Appellate Division in the second department, which affirmed orders granting relators' motions for writs of peremptory mandamus, directing their restoration to the police force, on the ground that the commissioner had complied with the orders, and the questions were, therefore, academic. In denying these motions, we held that the commissioner had a right to appeal, as the effect of the writs was to continue the relators in office.

The order appealed from should be reversed, without costs, and the proceedings remitted to to the Appellate Division. First question certified answered as stated herein. Second question not answered.

CULLEN, C. J., and EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur. GRAY, J., absent.

Order reversed, etc.

(186 N. Y. 259)

BUTLER v. WRIGHT. (Court of Appeals of New York. Oct. 26, 1906.) 1. APPEAL DECISION OF INTERMEDIATE COURTS-REVIEW-PRESUMPTIONS.

Where an order of the Appellate Division, reversing a judgment entered on the report of a referee, does not specify the ground of reversal, the Court of Appeals must, under Code Civ. Proc. 1338, presume that the judgment was not reversed on a question of fact.

2. SPECIFIC PERFORMANCE-CONTRACTS-ADEQUATE REMEDY AT LAW.

A party in a contract pertaining to personalty is confined to an action for damages for a breach thereof, unless he is entitled to the thing contracted for in specie, which to him has some special value, and which he cannot readily obtain in the market, or in cases where it is apparent that compensation in damages would not furnish a complete and adequate remedy.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Specific Performance, § 5.] 3. SAME-DISCRETION OF COURT.

The question whether equity will take jurisdiction and grant relief for a breach of contract pertaining to personalty by decreeing specific performance of the same rests in the sound discretion of the court, and such relief cannot be demanded, as a matter of right.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 17, 18.] 4. APPEAL REVIEW REVERSAL ON QUESTIONS OF LAW.

Under Code Civ. Proc. § 1338, requiring the Court of Appeals to presume that the Appellate Division does not reverse on the facts when it does not specify the grounds of reversal, when it so reverses a judgment, which has some evidence to sustain it, its judgment will be reversed on appeal to the Court of Appeals. Werner, J., dissenting.

Appeal from Supreme Court, Appellate Di vision, First Department.