Lion v. Baltimore City Pass. Ry. Co (N S) There was evidence tending to support the hypotheses which they set forth. If the facts alleged in the narr. make a good cause of action, as they undoubtedly do, then the prayers submitting the finding of those facts to the jury should have been granted. There was quite enough evidence from which the jury could well have determined that the injury to the house resulted from the negligent or unskillful construction of, or attention to, the sewer and vault. It is true, it was insisted in the argument that there was no evidence before the jury to show any relation between the construction of the sewer and vault and the injury to the house; and it was contended that, although these events were contiguous in time and place, there was nothing more than a coincidence in their occurrence, and that therefore it was a palpable fallacy to assume that the one was the cause of the other. It is sheer sophistry to assume that, because a given thing is posterior in occurrence to another, it is therefore the result of the anterior event. The plaintiff's contention, however, is, not simply that because before the sewer and vault were built there was no injury to the house, and because after they had been constructed there was an injury, therefore the injury was the result of their being built; but the facts tended to show that only when the sewer and vault were choked and overflowed, either by reason of the insufficiency of the outlet, or because of the company's inattention to their condition, did the cellar become flooded. The cause of the actual damage was traced to the overflowing vault, and the negligence or unskillfulness of the company occasioned those overflows. Between the alleged cause and its asserted result there was a direct connection,-in fact, a dependency of the one upon the other, as actually traced by one of the witnesses; and this is widely different from that fallacious reasoning in which that which is no cause at all is assumed to produce an alleged effect simply because the two are contiguous in time and place, while having no other relation to each other than sequence in the order of their occurrence. There was but one cause proved that produced the injury. There is nothing in the record to bring the case within the doctrine followed in Wise's Case. That doctrine, briefly stated, is: When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong. Commissioners v. Wise, 75 Md. 42, 23 Atl. 65. For the reasons we have assigned, the prayers of the plaintiff ought to have been granted, and the instruction which was given by the court ought to have been refused. Because of these errors the judgment must be reversed, and a new trial will be awarded. Judgment reversed, with costs above and below, and new trial awarded. R Cas VINCENT V. NORTON & T. Sr. Ry. Co. (two cases). (Supreme Judicial Court of Massachusetts, Bristol, Nov. 25, 1901.) [61 N. E. Rep. 822.] Action against Street Railway for Running Down Wagon-Presumption That Tracks Were in Public Highway. In an action against a street railway company for running down a wagon and throwing out and injuring one of its occupants, in the absence of special evidence that its tracks were laid over private land the jury would be warranted in presuming that they were laid in a public highway, and that, therefore, plaintiffs were not trespassers. Same-Evidence That Tracks Were in Public Highway. In an action against a street railway company for running down a wagon and throwing out and injuring one of its occupants, where the place of the injury was in a city, and was called "T. street," and was spoken of in defendant's bill of exceptions as a highway, an objection that there was no evidence that the place was a public highway was untenable. Same--Contributory Negligence Driving Covered Wagon along It is not negligence to drive a covered wagon in a public street containing street railway tracks, though the rear of the wagon is so closed with boxes and drawers that the driver cannot see out behind him through its interior. Same-Same-Same. It is not negligence to drive a wagon on and along street railway tracks, and such fact alone will not preclude a recovery for injuries due to the company's want of care. Same-Care Required of Driver of Vehicle. One who is driving along a street railway track in a covered wagon closed at the rear does his duty if he gets off the track when he knows of the approach of a car, and he is not bound to keep an impossible watch on the rear. Same-Willful Wrong. A street railway company which runs down a wagon being driven along its tracks, and plainly visible in front of the car, is guilty of negligence or willful wrong, in the absence of any special circumstances. Same Notice of Claim Statute. A street railway company which runs down a wagon and throws out and injures one of the occupants is not within St. 1898, c. 578, % 11, requiring notice to be given such companies of injuries "suffered by any person in the management and use of its [the railway's] car tracks," and no notice to the company of the injury is necessary. Exceptions from superior court, Bristol county; Edgar J. Sherman, Judge. Action by Ozias Vincent, per pro. ami, and by Joseph Vincent, against the Norton & Taunton Street Railway Company. Judgments for plaintiffs in each case, and defendant brings exceptions. Overruled. *As to whether it is contributory negligence to drive vehicle along street railway tracks, see note, 10 Am. & Eng. R. Cas., N. S., 834 et seq.; 23 Am. & Eng. Enc. Law (2d Ed.) 1028 et seq.; 7 Rap. & Mack's Dig. 427 et seq. Vincent v. Norton, etc., Ry. Co Milton Bruce, for plaintiffs. (N S) HOLMES, C. J. These are actions for running down a wagon and throwing out and injuring one of the persons who were riding in it. The case is here on exceptions to a refusal to take the cases from the jury. It is suggested that there was no evidence that the place where the accident happened was a public way. This suggestion plainly is a mere afterthought, and discredits the defendant's whole case. We assume that tracks might be laid over private land belonging to the company so that it would be a trespass for others to drive upon them (Farnum v. Railway Co., 178 Mass. 300, 59 N. E. 755), but of course such a case is very unusual, and in the absence of special evidence a jury would be warranted in presuming and finding that street railway tracks were laid in a public street. In this case the place was called Tremont St. in the city of Taunton, and it is spoken of as a highway in the bill of exceptions. The wagon was a covered baker's wagon, and the rear of it was closed with drawers and boxes. It was not negligence to drive such a wagon in the public streets, even those containing street railway tracks. It was not negligent or unlawful to drive upon the tracks. The fact that the horse was walking makes the plaintiff's case no worse. As against a car coming up behind him the driver would have done his duty by getting off the track when he knew of its approach. Com. v. Temple, 14 Gray, 69, 78. But the driver did not know of it. If the bell was rung those in the wagon testified that they did not hear it. They were not bound to keep an impossible watch upon the rear. See Benjamin v. Railway Co., 160 Mass. 3, 4, 35 N. E. 95. The defendant could not run them down from behind under any ordinary circumstances without negligence or willful wrong, and this they may be supposed to have known. There were no special circumstances in this The wagon was plainly visible in front of the car. There was sufficient evidence of the defendant's negligence and of the plaintiffs' due care. See Tashjian v. Railway Co., 177 Mass. 75, 81, 58 N. E. 281; Le Blanc v. Railway Co., 170 Mass. 564, 49 N. E. 927; White v. Railway, 167 Mass. 43, 44 N. E. 1052. case. This case is not one of "injury suffered by any person in the management and use of its [the railway's] tracks" within St. 1898, c. 578, § 11. The action is not brought under that section but at common law, and no notice to the company of the injury was necessary. Exceptions overruled. R Cas CROWLEY V. CINCINNATI, N. O. & T. P. Ry. Co. (two cases). (Supreme Court of Tennessee, Nov. 9, 1901.) [65 S. W. Rep. 411.] Railroad Companies-Injuries to Persons on Track-Pleading.* A declaration alleging that on a particular day, and near a particular place, defendant railroad wrongfully and negligently ran one of its engines and cars upon plaintiff, is sufficient, and on motion therefor need not be made more specific by setting forth the hour at which the wrong occurred, the direction in which the train was moving, or which one of defendant's cars caused the injury. Appeal from circuit court, Hamilton county; Floyd Estill, Judge. Separate action by Charlie Crowley, by next friend, etc., and Robert Crowley against the Cincinnati, New Orleans & Texas Pacific Railway Company. From judgments dismissing their suits, plaintiffs appeal. Reversed. Murray & Murray, for appellants. Head & Anderson, for appellee. CALDWELL, J. The declaration in this case is as follows: "The plaintiff, Charles Crowley, a minor under the age of twenty-one years, by his next friend, Robert Crowley, sues the defendant, the Cincinnati, New Orleans & Texas Pacific Railway Company, a corporation under the laws of the state of Ohio, duly in court by summons, for the sum of two thousand dollars ($2,000.00) damages, upon the following state of facts: Upon the 22d day of June, 1900, the defendant was a railroad corporation, had been prior thereto, and still is such, operating a line of railway from Cincinnati, Ohio, to New Orleans, Louisiana, a portion of which line of railway is located in Hamilton county, Tennessee, upon which line of railway it operated divers and many engines and cars, having in its service divers and many employees; when on the day and year aforesaid the defendant, upon the line of railway, near Harrison Pike, in Hamilton county, Tennessee, did wrongfully and negligently run one of its engines and cars upon, against, and over said Charles Crowley, who was without fault on his part, bruising, injuring, and wounding him, causing him to suffer great pain of body and mental anguish, to pay out large sums of money for medicine and doctor's bill, and to be permanently injured to his damage as aforesaid.” Defendant moved the court "to require the plaintiff to be more specific in the charge in the declaration as to the train, engine, or car which was run against him, and to set forth the particulars thereof." The court sustained the motion, and "ordered that the declaration set forth the time of day or night the accident occurred, the direction the train was moving or *See generally, 14 Enc. Pl. & Pr. 340 et seq.; 6 Rap. & Mack's Dig. 118 et seq. 23 (N S) A & E R Cas-35 Crowley v. Cincinnati, etc., Ry. Co (N S) otherwise, and what train, and such other particulars as to enable the defendant to prepare its defense. In response to that order the next friend filed an affidavit, in which he stated that he was not present when the injury was inflicted; that the plaintiff was under eight years of age, and could give him no definite information about it; and that for these reasons he was "wholly unable to make any statement with reference to what train did the injury, or the direction it was traveling"; that he was informed that "the injury occurred on the afternoon of the day mentioned in the declaration," but did not know that his information was correct. Thereupon the plaintiff moved the court to vacate the order requiring amendment of the declaration. That motion was overruled, and, because of plaintiff's failure to comply with the order to amend, the declaration was stricken out, and the suit dismissed. The plaintiff appealed in error, and here seeks a reversal of the lower court's action. The learned judge was in error. No rule of pleading requires that a plaintiff suing a railway company for personal injuries received in a collision with one of its trains shall declare the hour of the day in which the alleged wrong was done, or the direction in which the train was moving at the time, or which one of the defendant's trains caused the injuries. It is sufficient for the plaintiff to aver, as was done in this case, that on a particular day, and near a particular place, "the defendant did wrongfully and negligently run one of its engines and cars upon, against, and over" the plaintiff, who was without fault, "bruising, injuring, and wounding him," etc. Railroad Co. v. Pratt, 85 Tenn. 9, 1 S. W. 618; Railroad Co. v. Davis, 104 Tenn. 442, 58 S. W. 296; Transit Co. v. Walton, 105 Tenn. 415, 58 S. W. 737. The reports of these cases show that in the first of them the plaintiff averred that on a certain day, and in a certain county, without stating the hour or the particular place, the defendant wrongfully and negligently ran its engine and cars upon and against the plaintiff, without stating the direction or kind of train; and that in the other two cases it was averred that the defendant wrongfully and negligently ran its engine and cars upon and against, etc., without stating what particular train it was, or the direction of its movement. Caruthers gives the following form of declaration for damages for running a carriage of defendant against a carriage of plaintiff, namely: "The plaintiff sues the defendant for one thousand dollars as damages for forcibly, on the 1st day of June, 1859, driving a carriage against the plaintiff's carriage, in which he was riding along the public highway, whereby the plaintiff's carriage was broken, and the plaintiff was thrown out of it and wounded, and suffered therefrom great pain, and was disabled from attending to his business for a month, and was at great expense in endeavoring to be cured, and also in having the carriage repaired." History of Lawsuit, § 159. In that form, it will be observed, |