1896.

Columbia in favor of defendants in an action, 82 U. S. 15 Wall. 524, 21 L. ed. 206; Button v. brought to recover damages for the death of plaintiff's intestate which was alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion.

Mr. Westel Willoughby for appellant. Messrs. Leslie Ryan and John P. Shepperd, for appellees:

The burden was on plaintiff to prove that the receivers were operating the train on the morning of September 21, 1892.

Negligence of defendants must be proved in an action like this.

Parrott v. Wells ("The Nitroglycerine Case”).

A person does not in going through a train in search of a seat take the risk of a collision with a locomotive engine on another train, so as to prevent his recovery in case the collision occurs and Dehe is injured while on the platform of a car. wire v. Boston & M. R. Co. 148 Mass. 346, 2 L. R. A.

166.

Obedience of instructions.

It is not negligence as matter of law for a passenger to follow the directions of an officer of the carrier and pass from one car to another of a train for the purpose of finding a seat while the train is in motion. McIntyre v. New York C. R. Co. 37 N. Y. 287, Affirming 43 Barb. 532.

If the conductor tells a passenger to go forward into another car to find a seat, he is not guilty of contributory negligence in attempting to obey so that he cannot recover for injuries received by being jostled off the platform by the brakeman. Louisville & N. R. Co. v. Kelly, 92 Ind. 371, 47 Am. Rep. 149.

It is not contributory negligence per se for a man accustomed to railway travel to attempt to pass from a passenger coach to a baggage car while the train is moving less than 4 miles an hour, if after signal for the station is given the conductor tells him that the train will not have time to stop, and directs him to hasten to the baggage car in order to get certain goods preparatory to getting off the train. Davis v. Louisville, N. O. & T. R. Co. 69 Miss. 136.

If a passenger on entering a train finds it full, and the conductor announces that another coach has been added in front into which passengers must go, and upon going to the door finds the coach there apparently ready for passengers, he is not guilty of negligence in attempting to step from one platform to the other, so that be cannot recover in case the cars are suddenly jerked apart and he falls between them. Hannibal & St. J. R. Co. v. Martin, 111 II. 219.

Where plaintiff upon taking defendant's train found all the seats full, whereupon the conductor announced that another car would be added to the train, which was done. and then the conductor called out, "All aboard," whereupon plaintiff attempted to pass from one car to another, and it was dark and the cars had failed to lock so that they had parted some distance after contact, and the plaintiff fell between them and was injured, the court held that the question of negligence and contributory negligence was for the jury. Lent v. New York C. & H. R. R. Co. 120 N. Y. 467, Affirming 22 Jones & S. 317.

Vestibuled trains.

Where a passenger in the rear car of a vestibule train, desiring to go forward into another car in the night, left the door open to guide him on his return, and in attempting to return mistook a light from a window for the light which he sup

|

Frink, 51 Conn. 342, 50 Am. Rep. 24; Delaware. L. & W. R. Co. v. Napheys, 90 Pa. 135; Mynning v. Detroit, L. & N. R. Co. 59 Mich. 257.

The estimate of a witness, especially of a nonexpert, of the rate of a moving railway train, is very unsatisfactory proof, and should be received with great caution. If the res gesta renders it impossible, or even highly improbable, that the estimate can be correct, it should be rejected.

Hoppe v. Chicago, M. & St. P. R. Co. 61 Wis. 357.

The mere fact that the accident occurred does not raise a presumption of negligence.

posed would shine from the door, and in going
toward it walked out of the outside door, which
had been negligently left open, and was injured,
the court held that it was error to sustain a de-
The court said the
murrer to the declaration.
defendant was under no obligation to provide ves-
tibuled trains for its passengers, but having done
so it was its duty to maintain them in a reasonably
safe condition. The presence of such an appliance
on the train is a proclamation by the carrier that it
has provided passengers a safe means of passing
from one car to another and an invitation for them
to use it as their convenience or necessity may re-
quire. Whether, having provided it, it was negli-
gence to leave it without light, and to leave the
outside door open without guard, was a question
for the jury. On the other hand, the act of the
passenger in leaving the door open to light him on
his return was an act of care and not negligence,
and the optical illusion of the light from the win-
dow, and not his negligence, caused the accident.
Bronson v. Oakes, 76 Fed. Rep. 734.

Negligence in fact.

Where the train is going 40 miles an hour, and the platforms are old-fashioned so that the cars are one moment close together and the next moment 2 or 3 feet apart, it is negligence for an inexperienced traveler to attempt of his own motion to pass from one car to another, but if he is directed to do so by the conductor the question of negligence is one for the jury. Cleveland, C. C. & I. R. Co. v. Manson, 30 Ohio St. 451.

A lame passenger who, while the train is standing still, attempts to cross from one car to another for the purpose of finding his seat, is guilty of negligence in stepping on the buffers, so that she cannot recover for the injury in case the train at that moment starts with a jerk and her foot slips between the buffers and is crushed. Snowden v. Boston & M. R. Co. 151 Mass. 220.

In State v. Maine C. R. Co. 81 Me. 84, where the action was for the death of a person found dead on the track, who when last seen was going through a car toward the end of the train, the court says: "We think it some evidence of carelessness on the part of the deceased that he was rambling through the cars on such an occasion, in a dark night when the train was running swiftly, on a road having frequent and sharp curves, unless there be some excuse or justification for it more than mere restlessness or curiosity."

A person on a train who goes to the engine to get water, and is injured by falling between the tender and the coach in attempting to return, is guilty of such negligence that he cannot recover for the injury, although his fall was caused by the sudden putting on of the air brakes, and the fact that a hand brake on the coach, which he relied on to aid his passage was loose and turned in his grasp so that he lost his balance. McDaniel v. Highland H. P. F. Ave. & B. R. Co. 90 Ala. 64.

46

State v. Baltimore & O. R. Co. 58 Md. 221; | wife procured a seat, and he went to the smok Holbrook v. Utica & S. R. Co. 12 N. Y. 236, 64 ing car. There he remained smoking and Am. Dec. 502; Barnard v. Philadelphia R. Co. talking to others until the train approached 60 Md. 555; Blanchette v. Border City Mfg. Co. the "Long Bridge.' He got up to leave the 143 Mass. 21; Huff v. Austin, 46 Ohio St. 386; smoking car, saying that he would go forward East Tennessee, V. & G. R. Co. v. Stewart, 13 to his wife before reaching the station, as she Lea, 432; Louisville & N. R. Co. v. Allen, 78 might otherwise become separated from him Ala. 494. in the crowd, which was great. When last seen he was on the platform with one hand holding his hat, and the other probably holding the knob of the car door. According to some of the witnesses, the train was running at a very high rate of speed; others estimating the speed at from 20 miles to 25 miles an hour.

The only exception to the rule that no neg. ligence is presumed from the mere fact of accident is, as said by the court in Briggs v. Oliver, 4 Hurlst. & C. 403, where the accident grows out of or arises by reason of some defect or accident to the thing itself, which is shown to be managed by the defendants, or an accident which would not have happened in the ordinary course of human events.

Byrne v. Boadle, 2 Hurist. & C. 722; Kearney v. London, B. & S. C. R. Co. L. R. 5Q. B. 411; Rose v. Stephens & C. Transp. Co. 20 Blatchf. 411.

No rate of speed is as a matter of law negligence per se.

As intestate reached the platform, the train turned a sharp curve and the lurch of the carthrew him therefrom with great violence. His body struck the ground 13 feet from the track, broke through a railing, and stopped rolling at a point 37 feet from the track. He was unconscious when the first witness reached him, and died very soon afterwards. passengers familiar with the road testified that the lurching or swaying of the train in turning the curve on that occasion was violent and extraordinary. There were exclamations of sur

Several

Stewart v. Boston & P. R. Co. 146 Mass. 605; Thompson v. Duncan, 76 Ala. 334; Wallace v. St. Louis, I. M. & S. R. Co. 74 Mo. 594. Passing from car to car while a train is mov-prise and alarm among the passengers in the ing rapidly is negligence per se. Hutchinson, Carr. 649.

In the discharge of his duty it is the province of the court, either before or after verdict, to decided whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor, not whether on all the evidence the proponderating weight is in his favor; that is for the jury. But, conceding to all the evidence, the greatest probative force to which, according to the law of evidence, it is justly entitled, is it sufficient to justify a verdict?

Pleasants v. Fant, 89 U. S. 22 Wall. 116, 22 L. ed. 780; Washington & G. R. Co. v. Tobriner ("Washington & G. R. Co. v. Harmon's Exr."), 147 U. S. 571, 37 L. ed. 284; Metropolitan R. Co. v. Snashall, 3 App. D. C. 420.

An intimation, or even direction, to a pass enger to occupy a position of danger will not render the railroad company liable for injuries resulting therefrom if the danger was so obvious that a reasonable man would not have obeyed or accepted the invitation.

car when it occurred. Passengers sitting on seats were almost thrown from them, and others who sat on the arms of seats, because there were no others, owing to the crowded condition of the car, were thrown violently across the aisle.

Another witness testified that about six days before the accident he had noticed, in passing over this curve a depression in the track caused as he thought by a "floating tie." He said: "A tie was loose, or two or more ties were loose, and as the train passed over them, it caused the ties to sink and the train and carsto sway at that point." This evidence was admitted without objection at the time, but it is now insisted that it ought not to be considered because its introduction is not warranted by the allegations of negligence in the declaration. Into that point it is unnecessary now to inquire. If the declaration is in fact insufficient, or if there is any doubt on that point, it can and ought to be amended before another trial. Had this objection been made at the trial, the defect of allegation, if it exists, might have been cured in time to prevent injury. As the

Baltimore & P. R. Co. v. Jones, 95 U. S. 439, 24 L. ed. 506; Hazard v. Chicago, B. & Q. R. Co. 1 Biss. 503: Chicago & A. R. Co. v. Ran-case was decided upon the equivalent of a dedolph, 53 Ill. 510, 5 Am. Rep. 60; Southwestern R. Co. v. Singleton, 67 Ga. 307; South & North Ala. R. Co. v. Schaufler, 75 Ala. 136.

Shepard, J., delivered the opinion of the

court:

Tried by the rule laid down in Adams v. Washington & G. R. Co. (D. C. App.) 24 Wash. L. Rep. 364, the judgment appealed from in this case must be reversed for error in the instruction to the jury to return a verdict for the defendant.

murrer to the plaintiff's evidence as a whole, it would be unjust and unreasonable now to deprive the appellant of the benefit of this evidence in the consideration of the case as it stands.

We have heretofore held that merely riding upon the platform of a horse or cable car is not negligence per se. Metropolitan R. Co. v. Snashall, 3 App. D. C. 420, 423; Adams v. Washington & G. R. Co, supra.

Whether riding upon the platform of a car or steam railway would or would not, under The appellant's intestate was not riding on any circumstances, amount to negligence in the platform of a cable car, as Adams was; but law, is a question that we need not now dewas passing from one car to another on decide. The intestate was not riding upon the fendants' road in a train propelled by steam. He had purchased his ticket and entered the car with his wife, at his home station in Vir ginia, on his way to Washington. There was no vacant seat for him in the car in which his

platform of the car. He was in the act of crossing the platform on his way from the smoking car to that in which his wife was seated. His motive is not material. There was no rule of the defendant prohibiting such

PENNSYLVANIA SUPREME COURT.

NOTE. For the effect of circumstances to put | Mut. Warehouse & S. Co. (N. Y.) 5 L. R. A. 673; also a purchaser of negotiable paper upon inquiry, see Canajoharie Nat. Bank v. Diefendorf (N. Y.) 10 L. also National Park Bank v. German-American R. A. 676, and other cases in note.

Ibid.; Miller v. Consolidation Bank, 48 Pa. 514, 88 Am. Dec. 475.

In Haldeman v. Bank of Middletown the court said that the draft was discounted upon the request of Haldeman and the proceeds paid to him is entirely immaterial.

Ex parte Bonbonus, 8 Ves. Jr. 542; Tanner v. Hall, 1 Pa. 417.

Where an executor pledges the stock of his estate for a loan which he alleges is for the benefit of his estate, but the proceeds of which are placed by the bank to his individual credit and appropriated by him to his own use, the estate could not recover the stock from the bank.

1 Cook, Stock & Stockholders, 442; Goodwin v. American Nat. Bank, 48 Conn. 550.

The form of the note is not such that bad faith is applied upon the part of the plaintiff. Moorehead v. Gilmore, 77 Pa. 118, 18 Am. Rep. 435; Potts v. Taylor, 140 Pa. 601.

Green, J., delivered the opinion of the

court:

The

The fact that the note and the indorsement; his own note as security for his own debt, which are all in the handwriting of the defendant, he could not do. 1 Pa. 417." This is precisely Webb Evans, is not such an indication of bad what was done by Webb Evans. He gave his faith as appellants seem to think as would own note to his firm for the amount of the make it the duty of the bank discounting it to note. He then indorsed the firm name on the inquire into his authority for his act. note, and therefore pledged the liability of the firm for his own debt, and this he could not do. The proper thing for him to do, in ordinary commercial usage, would have been to deposit the note, or its proceeds if dis counted, to the credit of the firm. When he did not do that, he departed from the usual course, in requesting the bank to place the proceeds to the credit of his private account, and thereby made a manifest misappropriation of the firm's money to his own use. responsibility of the bank, in such circumstances, is thus shown in the opinion of Lowrie, J., in the case just cited. He says: "The plaintiff says he is a bona fide holder without notice of the character of the paper. Is he without notice? He is not if the proper inquiries usually made by a prudent man would have led him to the knowledge of the fact that the acceptor or principal debtor had himself drawn the bill, or, in other words, made the contract that is intended to pledge the partnership as security for himself. Common prudence demanded that the authenticity of the signature of the drawers should be ascerIn this case the undisputed facts were that tained and this led directly to the fact that it Webb Evans was the maker of the note in his was made by Fleming himself, and common own name, made it payable to the order of his sense would indicate that Fleming had no firm, Davis & Evans, indorsed the name of the right to bind his partner as his surety. It is firm on the note, and requested the plaintiff to urged that, in borrowing money, copartners place the proceeds of the discount to his per- may give to their negotiable paper what form sonal credit on the books of the bank. As they please, and that therefore they ought to between Webb Evans and the firm of Davis & be liable here notwithstanding the form. The Evans, on the face of the paper, disregarding premise is true, but the conclusion needs, for the forged indorsement of Joshua Davis, the its support, the proof that the copartners did proceeds of the discount should have been borrow the money. If they did, then Flemplaced to the credit of Davis & Evans. That ing is an accommodation acceptor, and the firm, as well as Webb Evans, had an account drawers are bound as the real debtors. Withon the books of the bank, and, in ordinary out this proof we must take the apparent transcourse, should have had credit for the pro-action to be the true one, and regard Fleming ceeds. Had Webb Evans indorsed the note in his own name after the indorsement of Davis & Evans, then the face of the paper would have presented an apparent title in Webb Evans, and in its ordinary commercial aspect the paper, with the personal request of Webb Evans to have the proceeds placed to his credit, would not have been out of the usual course. But, with the apparent title to the note being in Davis & Evans, a request by the maker to have the proceeds placed to his individual credit was out of the usual course; and we think, under the authorities, the bank became subject to a duty of inquiry. It seems to us that these facts bring the case within the ruling in Cooper v. McClurkan, 22 Pa. 80, and Tanner v. Hall, 1 Pa. 417, and distinguish it from the other cases cited for the appellee. In Cooper v. McClurkan the facts are briefly stated in the opinion thus: "McClurkan & Fleming were partners in trade, and Fleming drew a bill of exchange in the partnership on himself, and negotiated it to the plaintiff and now, in a suit upon it, McClurkan defends on the ground that it was not a partnership transaction. This appears to be well taken, for the case, without other evidence, stands just as if Fleming had given the indorsement of his partnership on

as borrowing money for himself, and attempting to pledge his partner as his surety; that is, we must decide the case according to the evidence." Every word of this is directly applicable to the case at bar, only with increased force, because here the paper was the direct obligation of Webb Evans alone to his firm, and was palpable notice to the bank that it was his private debt to his firm. When he indorsed the firm's name, and asked the banker nevertheless to place the proceeds to his individual credit, it was a direct and immediate application, with the knowledge and consent of the banker, of the firm's money to the personal use of the maker.

Tanner v. Hall, 1 Pa. 417, is in the same line. We held there that an indorsement by a partner of his separate accommodation note with the name of his firm is a sufficient indication of the nature of the transaction to make it the duty of the bank which discounts it to inquire into his authority to use the firm name for the occasion, unless there are circumstances from which the authority can be implied. Gibson, Ch. J., stating the facts, said: "Hall drew the note in question in favor of H. Cochran & Co., procured their indorsement of it, indorsed it with the name of his own firm, had

it discounted at the Lumberman's Bank, and claimed to rule in this case. But a very slight had the proceeds put to the credit of his sepa- examination of the facts in that case shows it rate account. But that Hall had drawn to be radically different from this. The draft ostensibly for his separate accommodation, was drawn in the firm name, in favor of Haldesufficiently indicated that his firm's indorse- man, who was one of the partners. Ostensibly, ment was also for his separate accommodation, therefore, and on the face of the paper, it purand made it the duty of the bank to inquire ported to be the obligation of the firm to one into his authority for the act, as it would have of its own members. Upon such paper the been bound to do had he indorsed the name of payee was apparently the owner of the paper, the firm on the note of a stranger. The bank and, in regular course of business, would be then, and the present holder, are affected with entitled to have the proceeds of the draft. knowledge that the transaction was a separate There was nothing to give notice to the bank one; and we have the naked case of a note that the transaction was out of the usual course, indorsed with the name of a firm, in a trans- or was, or was intended to be, a fraud upon the action out of the line of its business; from firm. It was upon these grounds that the case which the conclusion is unavoidable, that it was ruled. Said Knox, J., in delivering the was discounted on the faith of an indorsement opinion: "The case depends upon the question which was void for want of previous authority whether the bank was bound to inquire as to the or subsequent confirmation." The present case authority of Haldeman to draw the draft in the is stronger than this, because there was no firm names. It is not pretended that the bank intervening third party, outside of the firm, had actual notice that the discount was for who had made a genuine indorsement for the Haldeman's separate use; but it is alleged that accommodation of the maker. Here the trans- the form of the draft was sufficient to put the action was direct. The partner made his own bank upon inquiry. The draft was made paynote to his own firm, and then indorsed the able to Peter Haldeman's order. Was this an firm name, and, with the knowledge and par- indication that it was not drawn by the firm in ticipation of the bank, took the proceeds to his the usual course of its business? Certainly it own use. It was affirmatively testified by the was not; for although it may not be the ordiother partner that he knew nothing of the trans-nary form in which bills are drawn, it is by no action; that the firm got no part of the pro- means an unusual transaction, when the object ceeds, directly or indirectly; and it was not of drawing a draft is to raise money for a shown that there was any course of dealing by firm that it should be made payable to the which indorsements of the firm name by Webb order and indorsed by one of the members of Evans on paper such as this was ever sanctioned the firm. . . Where a draft or bill drawn or approved by the firm. The nature of the in the name of the firm by one of the partners transaction directly informed the bank that is offered for discount, the presumption is that the firm indorsement was made by Evans for drawing the draft was a partnership transaction, his private use, and that knowledge put them even although it was made payable to the upon inquiry. In the case of Miller v. Consoli- order of one of the members of the firm. dation Bank, 48 Pa. 514, 88 Am. Dec. 475, Actual knowledge that a bill or note purportAgnew, J., in commenting on Tanner v. Hall, ing to be drawn or made by a firm was given 1 Pa. 417, and pointing out the difference without the consent of some of the partners, is between the two cases, said: "The case of a good defense as to the nonconsenting partTanner v. Hall differs widely from this. There ners, but the presumption that the paper is Hall drew his separate note for his own accom- what it purports to be, cannot be overthrown modation to the order of another firm who upon a mere matter of form in inserting the indorsed it. Then he indorsed the name of name of one of the members of a partnership his own firm, and procured it to be discounted. as payee." The case of Ihmsen v. Negley, 25 It was held that the form of the note and the Pa. 297, is also of the same character, as is circumstances sufficiently indicated to the bank fully explained in the opinion in the last case that the note was for his individual accommo-cited. We think the assignments of error are dation, and thus put the bank upon notice."

all sustained.

The case of Haldeman v. Bank of Middle- Judgment reversed, and cenire de novo town, 28 Pa. 440, 70 Am. Dec. 142, is cited for awarded. the appellee with much confidence, and is

TENNESSEE SUPREME COURT.

REELFOOT LAKE LEVEE DISTRICT 2. A tax on land alone in a certain

levee district, but excepting land under water, violates Const, art. 2, § 28, requiring all property, real, personal, or mixed, to be taxed.

3- A special tax on land in a levee district, which is especially benefited by a levee for which the tax is made, is a tax within Const. art. 2, § 28, requiring taxes to be levied on all property, real, personal, and mixed, and levied according to value.

sessments, see Re Madera Irrig. Dist. Bonds (Cal.) 14 L. R. A. 755, and note; and Oregon & C. R. Co. v. Portland (Or.) 22 L. R. A. 713.