gent in closing the train at a crossing prior to the passing of a passenger train on an adjoining track, by reason of which plaintiff's horse was killed after passing on the crossing and being unable to proceed.-Id.

$307 (Tex.Civ.App.) Where an ordinarily prudent person would have maintained a flagman or watchman at the railroad crossing where an injury occurred, a failure to keep such flagman or watchman was negligence. Texas Midland R. R. v. Wiggins, 161 S. W. 445.

$310 (Mo.App.) The degree of care required of railroads at public crossings depends on the circumstances of each particular case, and that a statute prescribes one precaution will not relieve the railroad company from adopting others dictated by common prudence.-Fife v. Chicago & A. R. Co., 161 S. W. 300.

§ 316 (Mo.App.) It is not negligence to run passenger trains at a high rate of speed over road crossings in the country.-Fife v. Chicago & A. R. Co., 161 S. W. 300.

§ 327 (Ark.) Traveler struck by a train which he could have seen except for a failure to look held negligent, even conceding that he had a right to pay greater attention to a freight train on another track.-St. Louis, I. M. & S. R. Co. v. Roddy, 161 S. W. 156.

§ 327 (Tex.Civ.App.) Persons about to cross a railroad track must look and listen for approaching trains, and a failure to do so bars recovery.-Texas Midland R. R. v. Wiggins, 161 S. W. 445.

§ 330 (Ark.) Failure of train approaching crossing to give signals and warning held to be considered on the question of contributory negligence only when there are circumstances excusing a traveler from performing the duty to look and listen.-St. Louis, I. M. & S. R. Co. v. Roddy, 161 S. W. 156.

§ 330 (Mo.App.) While a traveler approaching a railroad crossing in a city may assume that a train will not cross at an unlawful speed, he must nevertheless use his senses for his own protection, and be careful until out of danger.-Coby v. Quincy, O. & K. C. R. Co., 161 S. W. 290.

§ 333 (Mo.App.) Where plaintiff and the driver of an automobile, when they were only 60 or 70 feet from a railroad crossing, saw and heard a freight train about 400 feet away, which was obviously running at an excessive speed, but did not check the speed of the automobile, and attempted to cross ahead of the train, they were guilty of negligence.-Coby v. Quincy, O. & K. C. R. Co., 161 S. W. 290.

$337 (Ky.) In an action for killing a team at a crossing, it was not error to refuse to charge that defendant would not be liable if the proximate cause was the breaking of the lock chain on the wagon, where the evidence showed that, though the chain broke, the driver had the team under control before he attempted to cross.-Louisville, H. & St. L. Ry. Co. v. Wilson's Ex'x, 161 S. W. 513.

§ 338 (Ark.) In action for death in crossing accident prior to taking effect of Acts 1911, p. 275, instruction making defendant liable, notwithstanding contributory negligence, if its employés discovered plaintiff's peril, or by ordinary care could have discovered it in time to have avoided injuring him held erroneous.-St. Louis, I. M. & S. R. Co. v. Roddy, 161 S. W.

156.

§ 338 (Mo.App.) To make the last clear chance doctrine applicable to injuries at a railroad crossing, the traveler's peril must be apparent to the trainmen.-Coby v. Quincy, O. & K. C. R. Co., 161 S. W. 290.

§ 348 (Mo.App.) Evidence, in an action for injuries in a collision between an automobile in which plaintiff was riding and a freight train, held to show that the train was within sight and hearing when the automobile ap

proached the crossing and attempted to cross. -Coby v. Quincy, O. & K. C. R. Co., 161 S. W. 290.

Evidence held not to show that plaintiff's peril was known and apparent to the engineer in time to stop so as to avoid the collision.-Id.

§ 348 (Tex.Civ.App.) Evidence held sufficient to support a judgment for plaintiff.-International & G. N. Ry. Co. v. Walker, 161 S. W. 961.

$350 (Ark.) Evidence held to make a question for the jury as to whether engineer of train who saw a person on track should have slackened the speed of the train or given warning of its approach.-St. Louis, I. M. & S. R. Co. v. Roddy, 161 S. W. 156.

$350 (Ky.) In view of the evidence as to obstructions at a crossing, court held to have properly permitted the jury to determine whether the statutory crossing signals were sufficient, or whether the company should have used other reasonably effective means.-Southern Ry. Co. in Kentucky v. Thacker's Adm'x, 161 S. W. 236.

$350 (Ky.) Evidence held sufficient to take to the jury the question of defendant's negligence in failing to give the alarm for the crossing.Louisville, H. & St. L. Ry. Co. v. Wilson's Ex'x, 161 S. W. 513.

$350 (Tex.Civ.App.) The question whether plaintiff looked and listened is one for the jury, whenever the evidence is conflicting.-Texas Midland R. R. v. Wiggins, 161 S. W. 445.

The question of the railroad company's negligence in failing to keep a watchman at the crossing held for the jury.-Id.

$350 (Tex.Civ.App.) Failure of one to stop, look, and listen before going upon a crossing will not render_ him guilty of negligence as a matter of law.-International & G. N. Ry. Co. v. Walker, 161 S. W. 961.

$ 351 (Ark.) Where there were no circumstances justifying deceased's total failure to look, instructions as to duty to ring bell or sound whistle held erroneous because the jury might have understood that they could consider this on the question of contributory negligence.— St. Louis, I. M. & S. R. Co. v. Roddy, 161 S. W. 156.

In action for death in crossing accident, instruction as to obstruction of crossing by freight train held erroneous because the jury might have understood that a partial obstruction of the crossing rendered the company liable, whereas such obstruction was not the proximate cause of the injury.—Id.

§ 351 (Tex.Civ.App.) Instruction to find railroad company not liable if the engineer was not negligent held properly refused where there was evidence that driver's view of crossing was obstructed by the company's cars on a siding.Texas Midland R. R. v. Nelson, 161 S. W. 1088. (G) Injuries

to

Persons on or near Tracks.

$356 (Mo.App.) Railroad company, permit. ting public to use its property for travel or recreation, with knowledge thereof, held bound to exercise reasonable care to avoid injuring such users.-Featherstone v. Kansas City Terminal Ry. Co., 161 S. W. 284.

§ 358 (Mo.App.) Child playing upon side track held not to lose status of licensee by going under a car to procure coal for a woman picking up coal.-Featherstone v. Kansas City Terminal Ry. Co., 161 S. W. 284.

Railroad company held to owe to children accustomed to play on side track the duty of warning them before backing other cars thereon.-Id.

§ 359 (Mo.App.) Where a child is a trespasser on railroad property, and is injured in a place where the company has no reason to anticipate its presence, the company is not liable. -Featherstone v. Kansas City Terminal Ry. Co., 161 S. W. 284.

§ 364 (Tex.Civ.App.) A railroad company was bound to operate its train so as not to interfere with plaintiff's enjoyment of his premises near the right of way by casting missiles from the train and injuring plaintiff.-Trinity & B. V. Ry. Co. v. Blackshear, 161 S. W. 395.

$ 381 (Mo.) A person walking along a railroad track in a public street along which the tracks extended was bound, after he saw a train approaching, to use the care that an ordinarily prudent person would have, under the circumstances, used to get off the track. Lueders v. St. Louis & S. F. R. Co., 161 S. W. 1159.

§ 383 (Ky.) The doctrine of "stop, look, and listen" on approaching and crossing a railroad track has not been adopted in Kentucky.Cincinnati, N. O. & T. P. Ry. Co. v. Winningham's Adm'r, 161 S. W. 506.

§ 385 (Mo.) A traveler in a public street along which a railroad extended had the right to rely upon the observance by the railroad of an ordinance limiting its speed to five miles per hour.-Lueders v. St. Louis & S. F. R. Co., 161

S. W. 1159.

§ 396 (Tex. Civ.App.) The res ipsa loquitur doctrine will raise a presumption of negligence by defendant railroad company, where plaintiff while plowing in his field about 50 feet from the track was struck by a spike "picked up" by a passing freight train and thrown with great force into plaintiff's field.-Trinity & B. V. Ry. Co. v. Blackshear, 161 S. W. 395.

§ 398 (Mo.) Evidence, in an action for the death of plaintiff's intestate run over by a train in a public street along which tracks extended, held to justify a finding that the speed of the train was excessive in view of an ordinance limiting the speed to five miles per hour, and that the excessive speed was the proximate cause of the accident.-Lueders v. St. Louis & S. F. R. Co., 161 S. W. 1159.

§ 400 (Mo.) The question whether plaintiff's intestate, after he saw the train, used reasonable efforts to get off the track, was properly submitted to the jury.-Lueders v. St. Louis & S. F. R. Co., 161 S. W. 1159.

(H) Injuries to Animals on or near Tracks. § 407 (Mo.App.) Engineer of train standing near overhead crossing while waiting for clear track held not negligent in blowing the customary blasts of the whistle as a signal to the rear brakeman who had gone back to warn other trains, though the horse of a person waiting for the train to move before crossing the bridge was thereby frightened.-Pontius v. Chicago, R. I. & P. Ry. Co., 161 S. W. 292.

$ 411 (Mo.App.) Under Rev. St. 1909, $$ 3145, 3146, statutory remedy for failure to fence railroad held not available, where horse went on track and fell into trestle bridge without being injured, frightened, or run by a locomotive or train.-McClaskey v. Quincy, O. & K. C. R. Co., 161 S. W. 277.

Under Rev. St. 1909, §§ 3145, 3146, owner of horse which went on railroad track because of absence of fence and cattle guards, though not injured, frightened, or run by a locomotive or train, held entitled to recover for injuries caused by falling into a bridge; the statutory remedies not being exclusive.-Id.

Under Rev. St. 1909, § 3145, proprietor of railroad crossed by private road held to owe to the owner of a horse living at some distance the duty of providing a lawful barrier to prevent the horse straying from a public road to the railroad by the way of the private road. -Id.

§ 411 (Tex.Civ.App.) Railroad company held not bound to maintain a fence extending from its track to the right of way fence after moving the right of way fence closer to the track, and not liable to the owner of a cow which

escaped from its pasture through such fence and fell into a hole.-Missouri, K. & T. Ry. Co. of Texas v. Meyer, 161 S. W. 12.

Railroad company, which made excavation on its right of way into which surface water flowed and washed a deep hole, held not bound to guard such hole to prevent persons or animals falling therein.-Id.

8414 (Tex.Civ.App.) Railroad company held under no duty to keep a deep hole on its right of way inclosed to prevent live stock falling therein, and not liable for the death of a cow which fell therein after it had moved its right of way fence so as not to inclose such hole.Missouri, K. & T. Ry. Co. of Texas v. Meyer, 161 S. W. 12.

$415 (Mo.App.) Where an animal killed was on a public railroad crossing, the statutory duty to ring the bell of an approaching engine was mandatory, regardless whether the trainmen saw or could have seen the animal, while if the animal was not at a public crossing the liability for killing it rested on the common-law duty of the company to avoid injury, if reasonably possible after discovering the danger.Martin v. Butler County R. Co., 161 S. W. 631.

$419 (Mo.App.) Where the engineer or fireman saw or could have seen an animal on the track or coming onto it in time to have avoided killing the animal by either scaring it from the track by an alarm, or by stopping the train, the railroad company was liable for killing it.Martin v. Butler County R. Co., 161 S. W. 631.

$425 (Tex.Civ.App.) The negligence of a railroad company in obstructing a private crossing does not render it liable for the death of a horse without any showing connecting the negli gence with the death.-San Antonio & A. P. Ry. Co. v. Schendel, 161 S. W. 376.

§ 439 (Mo.App.) Plaintiff's right to recover for injuries to a horse under an allegation that railroad company failed to maintain a lawful fence held not affected by the inclusion of another allegation of negligence of the company's servants not sustained by the evidence.McClaskey v. Quincy, O. & K. C. R. Co., 161 S. W. 277.

$ 441 (Mo.App.) In an action for negligently blowing locomotive whistle, frightening horse, burden of pleading and proving a negligent breach of duty held to be with plaintiff to the end of the case.-Pontius v. Chicago, R. I. & P. Ry. Co., 161 S. W. 292.

a finding that the horse killed entered on the § 443 (Tex.Civ.App.) Evidence held to sustain track at a point where railroad employés putting in a new crossing negligently left an opening in the fence.-Texas & N. O. R. Co. v. Cunniff, 161 S. W. 396.

$ 446 (Ky.) In an action for value of a horse struck by a train, a peremptory instruction for defendant held properly refused, though those in charge of the train testified that they used care to avoid the accident; the burden placed upon defendant by Ky. St. § 809, to disprove negligence not being overcome.-Chesapeake & O. Ry. Co. v. Burton, 161 S. W. 1116.

$ 447 (Mo.App.) An instruction, in an action against a railroad company for the killing of an animal, held defective for failing to state what facts, if found, constituted actionable negligence.-Martin v. Butler County R. Co., 161 S. W. 631.

(I) Fires.

§ 481 (Tex.Civ.App.) In an action for burning plaintiff's goods, where its witnesses testified that the engines were equipped with the best spark arresters, plaintiff can show that the engines threw sparks and started fires.-St. Louis Southwestern Ry. Co. of Texas v. Benjamin, 161 S. W. 379.

RAPE.

that by inadvertence there was a misdescription in the real estate intended to be conveyed by

I. OFFENSES AND RESPONSIBILITY THEREFOR.

§ 14 (Ark.) Failure to resist or make outcry because of fear held not to prevent crime constituting rape, and instruction requiring prosecutrix to use only such means to prevent accused accomplishing his purpose as was consistent with her safety was proper.-Threet v. State, 161 S. W. 139.

II. PROSECUTION AND PUNISHMENT. (C) Trial and Review.

$59 (Ark.) Where prosecutrix made no disclosure for about 60 days, and, in the meantime, voluntarily had sexual intercourse with accused and others, refusal of instructions that this might be considered in determining whether the act charged was against her will held error.-Threet v. State, 161 S. W. 139.

III. CIVIL LIABILITY.

§ 66 (Mo.App.) Where the petition stated a cause of action for damages for an assault with intent to rape, and the evidence merely 'tended to establish a simple assault, the variance was immaterial.—Marts v. Powell, 161 S. W. 871.

there was a mutual mistake of the parties justifying reformation.-Id.

§ 23 (Ark.) Where defendants purchased land from a railroad company and relied upon the railroad company's agent to insert the description in their application for the purchase, defendants are not estopped from securing a reformation of their deed because they did not examine the description and ascertain that it failed to include the land they sought to buy.St. Louis, I. M. & S. Ry. Co. v. McConnell, 161 S. W. 496.

§ 25 (Ark.) Where defendants purchased land from plaintiff and went into possession, erecting structures thereon, they will not be denied a reformation of their deed to include the land purchased, on the ground that the parties cannot be placed in statu quo.-St. Louis, I. M. & S. Ry. Co. v. McConnell, 161 S. W. 496.

II. PROCEEDINGS AND RELIEF. 836 (Mo.) A petition for the reformation of an instrument on the ground of mutual mistake need only set forth the substantive facts necessarily showing mutuality of mistake.-Wolz v. Venard, 161 S. W. 760.

A petition for the reformation of a deed of trust by correcting the misdescription of land, which alleges that the grantor agreed to convey by deed of trust two tracts, that pursuant to the agreement a deed was executed, wherein the land was misdescribed, because the draftsman inserted the wrong description, states, when liberally construed, as required by Rev. St. 1909, § 1831, a cause of action based on mutual mistake.-Id.

$45 (Ark.) Before a written instrument will be reformed for mutual mistake, the evidence of the mistake must be clear and convincing.-St. Louis, I. M. & S. Ry. Co. v. McConnell, 161 S. W. 496.

Where defendants filed a cross-complaint seeking a reformation of their deed, evidence held sufficient to support a decree of reformation. -Id.

REFRESHING MEMORY.

See Witnesses, § 257.

I. REQUISITES AND VALIDITY. §17 (Ark.) One who signed a release of a

OF REFERENCE.

§ 8 (Ky.) An account was peculiarly one for

reference to a commissioner where there were 433 issues of fact involving charges for services and countercharges.-Garvey v. Garvey, 161 S. W. 526.

REFORMATION OF INSTRUMENTS. I. RIGHT OF ACTION AND DEFENSES. § 19 (Mo.) The mistake which constitutes a ground for the reformation of an instrument must be mutual, and, where the parties agree to accomplish a particular object by an instrument to be executed, and the instrument does not do so, a court of equity may reform the instrument.-Wolz v. Venard, 161 S. W. 760.

Where the parties to a deed of trust admitted

§17 (Tex.Civ.App.) Where the release of a claim for a personal injury was obtained on the representation that only a railroad company was released, a telegraph company could not rely on the release which in fact discharged all companies because of the failure of the person injured and her husband to read the release before signing. Western Union Telegraph Co. V. Walck, 161 S. W. 902.

III. PLEADING, EVIDENCE, TRIAL, AND REVIEW.

$57 (Ark.) Evidence, in a passenger's action against a railroad company for personal injuries, held to sustain a finding that plaintiff's signature to a release of her claim against de