as to properly drain the country south of Taylor's bayou into Sabine lake and pass,-in that the jury was not thereby confined to the sources and character of overflow alleged in plaintiff's petition, and the charge imposes upon the defendant, as a duty, the construction of its roadbed and embankment so as properly to "drain the country" south of Taylor's. bayou "into Sabine lake and pass," whereas the duty of defendant was to so construct its roadbed and embankment as not to impede the natural drainage of said section of country. O'Brien & John for appellant. Tom F. Russell for appellee.

Case stated.

HENRY, J.-This suit was brought by appellee to recover of appellant damages. Plaintiff claims that defendant sonegligently constructed its railroad bed, all the way from Taylor's bayou to the town of Sabine Pass, that when, in January, 1885, there came heavy rains, such as are usual to that region, the water overflowed the south bank of the bayou, and was obstructed in its natural flow toward Sabine lake by said railroad bed, and dammed up, and caused to accumulate and stand at a great depth upon plaintiff's land for several months, destroying the grass, and causing the death of plaintiff's horses and cattle then being pastured upon said land. There was a verdict for plaintiff.

testimony.

Appellant's first assignment of error is that the court erred in making comments upon the testimony of defendant's first witness during said trial, in the presence and hearing of the jury, to the effect following, to wit: "The Comments on last half-hour, he thought, had been unnecessarily consumed, and was not calculated to enlighten court or jury." It appears that these remarks were not excepted to at the time they were made, nor until after the court had adjourned for the day. When the remarks are considered in connection. with the evidence of the witness, and the subsequent charge. of the court, by which the jury were told that they were the judges of the weight to be attached to the testímony, and that it was not the province of the court to pass on that question, or to express an opinion as to the value of the testimony admitted, but they were to be controlled by their own views, we do not think the jury could have been improperly influenced by the remarks. The proper time to have taken the exception was when the remarks were made, and in the presence of the jury. If the objection had been made, an opportunity would have been furnished the court to have removed any improper effect that they were likely to produce by proper explanations to the jury. Not having been then taken, the objection ought not to be considered now.

The remaining assignments of error relate to charges given and refused by the court, and to the sufficiency of the evidence to support the verdict. The charge of the Instructions. court furnished the jury with a full, clear, and correct exposition of the law applicable to the issues made by the pleadings and evidence; and the findings of the jury are sufficiently supported by the evidence. The case was once before this court, and was reversed and remanded. 34 Am. & Eng. R. Cas. 199. The trial from which this appeal is taken appears to have been conducted in accordance with the opinion then expressed. The judgment is affirmed.

KERIGAN

ข.

SOUTHERN PACIFIC R. Co. et al.

(California Supreme Court, November 22, 1889.)

Passengers-Connecting Lines-Liability for Injury. Where a person has purchased and accepted a coupon return ticket containing a notice that the company selling it acts only for itself over its own line and as agent for the other lines specified on the coupons but assumes no responsibility beyond its own line, and the purchaser travels upon such ticket to his destination and back again, the company selling the ticket is not responsible for injuries sustained upon a connecting railroad.

APPEAL from Superior Court, City and County of San Francisco.

W. H. L. Barnes for appellant.

B. McKinne and George B. Gillen for respondents.

PER CURIAM.-Action for damages for bodily injuries received by plaintiff through the alleged negligence of de

fendants while carrying plaintiff as a passenger on Case stated. a stage-coach from Gilroy Hot Springs to Gilroy. Both defendants answered, but at the trial the defendant corporation only appeared, and, after the plaintiff closed his case, it moved for and obtained a nonsuit as to itself. The case was then given to the jury, who returned a verdict for plaintiff against defendant Paine. From the judgment of nonsuit plaintiff appeals.

The facts are as follows: On the several dates hereinafter mentioned, the respondent corporation owned and was operating a steam railroad for the carriage of passengers and baggage between San Jose and Gilroy in either direction, and the defendant Paine was the

Facts.

*

*

In con

owner of and operating a stage line between Gilroy and Gilroy Hot Springs for the carriage of passengers and baggage in either direction. On the 23d of June, 1885, the plaintiff purchased of the respondent a round-trip special excursion ticket from San Jose to Gilroy Hot Springs and return to San Jose, entitling him to transportation over the railway and stage line above mentioned. The ticket was in the form of a coupon ticket, and had three coupons attached to it. The first provided for one continuous passage from San Jose to Gilroy; the second, for one passage from Gilroy to Gilroy Hot Springs; the third, for one passage from Gilroy Hot Springs to Gilroy; and the main ticket, for one continuous passage from Gilroy to San Jose. Among other matters not material here, the ticket contained on its face the following: "Issued by the Southern Pacific Railroad Company, acting for itself over its own line, and as agent for the line named in the accompanying checks, but assuming no responsibility beyond its own line. * sideration of this ticket being sold at a reduced price from the regular first-class rate, it is hereby understood and agreed upon by the purchaser that it will not be good for passage after October 31st of the year indicated by agent's punch mark in the margin, that it is not transferable, and no stop-over privileges will be granted." These conditions were referred to in each of the coupons. On the 27th day of June, 1885, when the appellant was returning from Gilroy Hot Springs to Gilroy, upon said ticket, as a passenger, on a stage-coach of the stage line belonging to the defendant Paine, the stage-coach, while descending a steep grade on the road, and making a sharp turn around a bank on one side, was upset against the bank, solely through the negligence of the driver, and the appellant was crushed between the bank and stage-coach and severely injured. The claim of appellant is that the respondent, by selling him the ticket from San Jose to Gilroy Hot Springs, via Gilroy, and return to the first place, undertook, as principal, to transport him over the connecting stage line from Gilroy to Gilroy Hot Springs and back to Gilroy, and is liable as such principal for the default of the owner of the stage line.

Doubtless, a railway company may so issue tickets to places beyond its own line, and so control the transportation of its passengers as to be held to have contracted for the entire distance, and, in consequence, be Liability for answerable in damages for negligence occurring on any one of the connecting lines. Such is the effect of the following cases, cited by appellant, viz.: Great Western R. Co. v. Blake, 7 Hurl & N. 987; Buxton v.

injury on connecting line.

North Eastern R. Co., L. R. 3 Q. B. 549; Ward v. Vanderbilt, 4 Abb. Dec. (N. Y.), 521; Williams v. Vanderbilt, 28 N. Y. 217; Van Buskirk v. Roberts, 31 N. Y. 671; Quimby v. Vanderbilt, 17 N. Y. 307; McElroy v. Nashua & L. R. Co., 4 Cush. (Mass.) 400; Schopman v. Boston & W. R. Co., 9 Cush. (Mass.) 24; McLean v. Burbank, 11 Minn. 277; Carter v. Peck, 4 Sneed (Tenn.), 203; Wheeler v. San Francisco & A. R. Co., 31 Cal. 46. But we understand the rule to be that where there are several connecting lines, the plaintiff seeks, as in the present case, to recover of one for an injury received upon another of the connecting lines, he must establish a contract with the line he endeavors to hold, or that it had some interest in, or control over, the transportation of passengers by the line in default. Wylde v. Northern R. Co., 53 N. Y. 156; Pennsylvania Cent. R. Co. v. Schwarzenberger, 45 Pa. St. 208; Pennsylvania R. Co. v. Connell, 18 Am. & Eng. R. Cas. 339; Hartan v. Eastern R. Co., 114 Mass. 44; Brooke v. Grand Trunk R. Co. 15 Mich. 332; Knight v. Portland, S. & P. R. Co., 56 Me. 234; 2 Redf. R. R. (6th Ed.) 313, 314. Do the facts in the present case show a contract between the appellant and respondent whereby the latter undertook to carry the former to Gilroy Hot Springs and back again to San Jose? The only evidence upon this point is that the appellant purchased, paid for, and accepted the ticket containing the notice and conditions above set forth, and that he rode upon it from one of the termini to the other and back again. There is not a word to show that the respondent undertook differently from what appears upon the face of the ticket. The sections of the Civil Code cited by appellant refer only to contracts of railroad companies for carriage over their own lines. The nonsuit was properly granted, and the judgment is affirmed.

Passengers-Responsibility of Contracting Company for Accident Happening upon Connecting Line.-See Washington v. Raleigh & G. R. Co. (N. Car.), 37 Am. & Eng. R. Cas. 25, note 32; Chollette v. Omaha & R. V. R. Co. (Neb.), 37 Id. 16.

REESE

V.

PENNSYLVANIA R. Co.

(Pennsylvania Supreme Court, January 6, 1890.)

Passengers-Failure to Procure Ticket-Additional Charge. A regulation which requires passengers who fail to procure tickets before entering the train, to pay an additional charge of 10 cents which they should be entitled to have refunded upon presentation at any ticket office of a check delivered to them by the conductor, is not unreasonable or oppressive, or needlessly inconvenient to the traveler.

Same Fare-Statutory Limit.-Such additional charge is not "a charge for transportation" within the meaning of a statute limiting the rate of fare which may be charged for the carriage of passengers.

Same--Validity of Regulation-Partiality. Such a regulation is not unfair and partial in its operation because it provides that passengers entering the train at stations where there is no ticket office and passengers traveling on trains where, on account of the excessive rush of business, it is impossible to issue the refunding checks, shall not be required to pay the additional charge.

ERROR to the Court of Common Pleas, Allegheny County. Trespass by L. B. D. Reese against the Pennsylvania R. Co. for damages for the unlawful expulsion of the plaintiff from defendant's train. The plaintiff took passage from East Liberty in the city of Pittsburgh, but as he did not arrive at the station in time to procure a ticket, he got upon the train without having any, though the ticket office was open at the time of the departure of the train. Plaintiff's destination was the Union depot in Pittsburgh, a distance of four and a half miles, and the regular fare for that distance was 14 cents, being three cents per mile. By one of defendant's regulations, passengers who did not obtain tickets at the ticket office were required to pay an additional charge of 10 cents in addition to the regular fare. In exchange for the charge so made "duplex tickets were given to passengers which were redeemable at 10 cents on presentation at any ticket office of the company. Plaintiff when asked for a ticket, tendered the conductor the regular fare of 14 cents. The conductor demanded 24 cents, and upon the plaintiff declining absolutely to pay more than 14 cents, he was requested to leave the train and did so. The court refused to grant the defendant's first request to charge, which was in the following terms: "Under the uncontradicted evidence in this case, the regulation of the defendant was a reasonable one and the plaintiff, who was insisting on riding in violation