2. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEG-pany. Verdict for plaintiff, and defendant DANGER INCURRED IN SAVING excepts. Exceptions overruled.

3. APPEAL AND ERROR (§ 1078*)—ARGUMENT.horses reared, and plaintiff was trying to asA question not argued by appellant need not be considered on appeal.

sist Coombs in controlling the horses.

The first count charged defendant with a failure to use reasonable care. The second $count charged it with reckless and wanton negligence.

of the defendant or its servants should be shown, even though the plaintiff was himself free from all blame. Hirschman v. Dry Dock Railroad, 46 App. Div. 621, 61 N. Y. Supp. 304; De Mahy v. Morgan's Louisiana Co., 45 La. Ann. 1329, 14 South. 61; Spooner v.

115 N. Y. 22, 21 N. E. 696; Evansville & Crawfordsville Railroad v. Hiatt, 17 Ind. 102; Thomason v. Southern Railway, 113 Fed. 80, 51 C. C. A. 67. In such a case as this, however, it is enough to hold the defendant if there was negligence on its part towards either Coombs or the plaintiff. Maryland Steel Co. v. Marney, 88 Md. 482, 42 Atl. 60, 42 L. R. A. 842, 71 Am. St. Rep. 441; Saylor v. Parsons, 122 Iowa, 679, 98 N. W. 500, 64 L. R. A. 542, 101 Am. St. Rep 283; Donahoe v. Wabash, St. Louis & Pacific Railway, 83 Mo. 560, 53 Am. Rep. 594. Its negligence towards Coombs will be treated as directly inducing the attempt to rescue him and thereby causing the injury to the plaintiff. Such negligence could be found if the defendant was running its train in a manner likely to cause injury to any one properly in that vicinity. That was the only negligence that was shown in many of the cases already referred to. In our opinion there was such evidence here. This train was coming into the defendant's freightyard past an open space about 40 feet wide, arranged, paved and adapted by the defendant for use as a driveway by teams coming to the yard to unload cars standing upon the tracks that

proposition that it may not be negligence for one not acting rashly or recklessly to expose himself voluntarily to great danger, even to the risk of life and limb, in order to rescue another from a like peril, and that such a voluntary exposure is not to be regarded as rash or reckless if there appears to be a fair | Delaware, Lackawanna & Western Railroad, chance of success, whether the person in danger is or is not a child or an aged or decrepit person, and even though the person attempting the rescue knows that it involves great hazard to himself without a certainty of accomplishing the intended rescue. The leading case is Eckert v. Long Island Railroad, 43 N. Y. 502, 3 Am. Rep. 721, and 57 Barb. (N. Y.) 555, the doctrine of which has been generally followed. Pittsburg, Cincinnati, Chicago & St. Louis Railway v. Lynch, 69 Ohio St. 123, 68 N. E. 703, 63 L. R. A. 504, 100 Am. St. Rep. 658. Pennsylvania Co. v. Lagendorf, 48 Ohio St. 316, 28 N. E. 172, 13 L. R. A. 190, 29 Am. St. Rep. 553; Becker v. Louisville & Nashville Railroad, 110 Ky. 474, 61 S. W. 997, 53 L. R. A. 267, 96 Am. St. Rep. 459; Gibney v. State, 137 N. Y. 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690; Manzella v. Rochester Railway, 105 App. Div. 12, 93 N. Y. Supp. 457; Corbin v. Philadelphia, 195 Pa. 461, 45 Atl. 1070, 49 L. R. A. 715, 78 Am. St. Rep. 825; West Chicago Street Railway v. Liderman, 187 Ill. 463, 58 N. E. 367, 52 L. R. A. 655, 79 Am. St. Rep. 226; Donahoe v. Wabash, St. Louis & Pacific Railway, 83 Mo. 560, 53 Am. Rep. 594; Mobile & Ohio Railroad v. Ridley, 114 Tenn. 727, 86 S. W. 606; Louisville & Nashville Rail-bordered its sides. Coombs and the plaintiff, road v. Orr, 121 Ala. 489, 26 South. 35; Peyton v. Texas & Pacific Railway, 41 La. Ann. 861, 6 South. 690, 17 Am. St. Rep. 430; Condiff v. Kansas City, Ft. Scott & Gulf Railroad, 45 Kan. 256, 25 Pac. 562. Other cases are collected in 29 Cyc. 523, 524, in 7 Am. & Eng. Encyc. of Law (2d Ed.) 394, 395, and in the note to Mobile & Ohio Railroad v. Ridley (Tenn.) 4 Am. & Eng. Ann. Cas. 925, 928. | It follows that the defendant's first request for instructions was properly denied. It is true, as was held in Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692, and in many of the other cases above cited, that it is for the jury to say, upon all the circumstances, including the existing emergency and the need of immediate action under which they may find that the plaintiff acted, whether in fact his conduct was that of a reasonably prudent man; and it may be that the judge in his charge did not go far enough in requiring the jury, upon this issue, only to find whether the plaintiff "saw and as a reasonable man believed that Coombs was in imminent danger of his life," and "believed that he could rescue Coombs and at the same time avoid danger to himself." But it is not clear that this question was intended to be saved; it has not been argued by the defendant; and we need not consider it.

But it is necessary in this case, as in all

like all other teamsters having occasion to come to this yard to receive freight for their employers, were invited by the defendant to come to this space with their horses and wagons, and there take their goods from the cars which the defendant thus treated as its temporary freighthouses. Ladd v. New York, New Haven & Hartford Railroad, 193 Mass. 359, 79 N. E. 742, 9 L. R. A. (N. S.) 874. Apparently the open space was in almost constant, certainly in frequent, use for this purpose. It was the duty of the defendant's servants in charge of trains coming upon adjacent tracks to run them with this fact in mind, so as to avoid the risk of accidents. But there was evidence that this train came in upon track No. 3, with more than usual noise of puffing through the smokestack, much louder, both Coombs and the plaintiff testified, than they had heard before in that vicinity, in a manner which was likely to frighten and did actually frighten the horses. The jury could find also that the engineer and the fireman ought, by keeping a proper lookout as they approached this driveway, to have seen that a frightened horse had broken away from its wagon and was struggling with Coombs upon the track, in a position which threatened grievous injury to him. If so, it could be found that they were negligent in failing to see this, or if they saw it,

requiring every railroad company to erect and maintain suitable fences ca both sides of its quire a railroad company to maintain fences track, except at public crossings, etc., is to resufficient to prevent the intrusion of cattle on the road; and a person, who, while at work from a pile of lumber and over a wall onto the on premises adjacent to a track, was thrown

tained, on the ground that, if the company had fenced its right of way, the fence would have prevented his fall.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1246; Dec. Dig. § 361.*]

Appeal from Superior Court, Essex County. ton & Maine Railroad. There was a judgAction by John H. Menut against the Bosment for defendant, and plaintiff appeals. Affirmed.

avoid the accident. Besides this, there was evidence that the train had come either to a full stop or almost to a stop before the plaintiff went across the track to the assistance of Coombs, at so small a distance that proper watchfulness by the engineer or the fireman would at once have disclosed the sit-right of way, could not recover for injuries susuation to them, and that it then had started up without any notice or warning and struck upon the plaintiff. There was evidence also that only one man, the engineer, was in the cab of the engine. Under these circumstances we are of opinion that the defendant's second and third requests were rightly refused. And we do not find that any request was made or that any exception was saved by the defendant which raises the question what duty, if any, it owed to the plaintiff if, although he had gone upon its track for the purpose of rescuing Coombs from deadly peril and so was not a mere trespasser or necessarily negligent, yet his presence there was, without fault on their part, unknown to its servants who were in charge of the train. This is of course a different question from that of his right to go or to be upon the track at all; and the latter point is all that seems to have been saved or that has been argued by the defendant's counsel as to this part of the case.

It has been earnestly contended that there was no evidence that the plaintiff's injury was due to any reckless or wanton conduct of its servants. But the parties had agreed that a verdict on the second count for the plaintiff included a like verdict on the first count. There was no hardship to the defendant in this agreement, because the judge, evidently with the consent of the plaintiff, ruled that he could not recover upon the second count without proof of his own due care. Of course this ruling could not have been given unqualifiedly without the plaintiff's con

sent.

Banks v. Braman, 188 Mass. 367, 74 N. E. 594, and 192 Mass. 162, note; Aiken v. Holyoke Street Railway, 180 Mass. 8, 61 N. E. 557, and 184 Mass. 269, 68 N. E. 238; Yancey v. Boston Elevated Railway, 205 Mass. 162, 169, 91 N. E. 202, 26 L. R. A. (N. S.) 1217. It follows that the plaintiff is at least entitled to a judgment upon the first count, and we need not consider whether there was evidence to sustain the finding that the injury to him was done recklessly, wantonly and with gross disregard of his safety. Exceptions overruled.

MENUT v. BOSTON & M. R. R.
(Supreme Judicial Court of Massachusetts.
Essex. Nov. 22, 1910.)
RAILROADS (§ 361*)-FENCING RIGHT OF WAY

-STATUTES-OBLIGATION.

The purpose of Rev. Laws. c. 111, § 120, re-enacted in Laws 1906, c. 463, pt. 2, § 103,

Plaintiff alleged that, while at work on premises adjoining defendant's railway, he was thrown from a pile of lumber and over a wall onto the right of way of defendant. Plaintiff contended that, had defendant fenced its right of way at that point, the fence would have prevented his fall and injury.

E. M. Schwarzenberg and E. F. Schwarzenberg, for appellant. H. F. Hurlburt and Damon E. Hall, for appellee.

BRALEY, J. The plaintiff, having no cause of action at common law, seeks to hold the defendant in damages for personal injuries caused by a failure to comply with Rev. Laws, c. 111, § 120, now Acts 1906, c. 463, pt. 2, § 103, that "every railroad corporation shall erect and maintain suitable fences, with convenient bars, gates or openings therein, upon both sides of the entire length of its railroad, except at the crossings of a public way or in places where the convenient use of the road would be thereby obstructed, and except at places where, and so long as, it is expressly exempted from the duty of so doing by the board of county commissioners. The corporation shall also construct and maintain sufficient barriers, where it is necessary and practicable to do so, to prevent the entrance of cattle upon the road. A corporation which unreasonably neglects to comply with the provisions of this * section shall, for every such neglect, forfeit not more than two hundred dollars for every month during which the neglect continues, and the supreme judicial court shall have jurisdiction in equity to compel the corporation to comply with such provisions, and, upon such neglect, to restrain and prohibit it from crossing a highway or town way, or from using any land, until such provisions have been complied with." Rust v. Low, 6 Mass. 90, 93; Thayer v. Arnold, 4 Metc. 589; Eames v. Salem & Lowell R. R., 98 Mass. 560, 96 Am. Dec. 676; Baxter v. Boston & Worcester R. R., 102 Mass. 383; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335. It is not sufficient for the plaintiff to prove that the defendant failed to fence, and if this

had been done he would not have been in-drains, culverts, walls, fences, or other struc jured, but he must go further and show that the requirement of the statute was enacted for his benefit. The inquiry, therefore, is whether it was the defendant's duty to erect and maintain at the place of the accident a fence sufficient to have intercepted the plaintiff's fall, and prevented his injuries. If this is established the further averments of its negligence are admitted by the demurrer. The language imposing the duty does not define its scope, and to ascertain the proper construction, the statute must be read with the provisions of the original enactments from which it has been derived. The earlier acts of incorporation contain some provisions for adapting the railroad at the expense of the corporation to the grade of intersecting highways which must be raised or lowered to meet the change in level, and St. 1833, c. 187; 1834, c. 137, and St. 1835, c. 148, provided for the assessment of damages if the location was acquired by eminent domain, and that at grade crossings certain precautions should be taken for the safety of travelers on highways. But no attempt at a general system of statutory law for the construction and operation of railroads appears until the Rev. St. 1836, c. 39; Sp. Laws Mass. 1829, cc. 93, 94, 95; St. 1830, c. 4; St. 1831, cc. 55, 56, 57, 72; St. 1832, cc. 49, 80, 97; St. 1883, cc. 109, 116, 118; St. 1835, cc. 95, 111; St. 1836, cc. 187, 221, 236, 249, 267. The revision, however, did not require either party to fence, although under the general powers of the county commissioners, by whom damages were assessed, they could direct that, instead of an award in money to the landowner for the cost as in the taking of land for a highway, the corporation should provide and maintain the necessary fences. First Parish in North Bridgewater v. Plymouth, 8 Cush. 475; Morss v. Boston & Maine R. R., 2 Cush. 536; Boston & Worcester R. R. v. Old Colony R. R., 12 Cush. 605, 608, 609; Baxter v. Boston & Worcester R. R., 102 Mass. 383. If money damages were awarded, and the land remained unfenced, besides incurring the danger of injury to his cattle, for which he would have no remedy, the landowner also might be held liable to suit if passing to the track they caused the derailment of trains. Lyons v. Merrick, 105 Mass. 71, 76; Lovett v. South Danvers R. R., 9 Allen, 557, 562. But if either party was dissatisfied, and applied for a jury, the order was vacated, and as the verdict might not require the erection of fences the corporation could not be compelled to act, and the landowner must provide them.

It was to guard against such results in the future, as well as to furnish a remedy "to any owner of land heretofore taken," that St. 1841, c. 125, was passed. The corporation, in addition to the pecuniary damages assessed upon it, was now required "to con

tures as said commissioners shall judge reasonable for the security and benefit of such landowners. And in their order therefor the commissioners shall prescribe the time within which, and the manner how such structure shall be made or repaired, which order it shall not be competent for a jury to alter or reverse." Boston & Providence R. R. v. Doherty, 154 Mass. 314, 28 N. E. 277. By section 4, the commissioners were authorized, on "the application of any owner of land heretofore taken" or of the selectmen of the town through which the railroad passed, to require suitable fences to be made and maintained by the corporation, "as well for the benefit and security of such landowner as of travelers on such railroad," unless the landowner already had received in the assessment of damages full compensation, or had agreed to make and maintain such fence, yet no right is conferred upon the corporation or the commissioners to compel him to fence, although compensated for the outlay, or where the land having been obtained by purchase the price paid was presumed to include the cost of fencing by the grantor. Morss v. Boston & Maine R. R., 2 Cush. 536; Stearns v. Old Colony & Fall River R. R., 1 Allen, 493. But as the corporation was not required to act unless ordered by the commissioners, and the landowner, content with the compensation received, could remain quiescent, while passengers might be exposed to great peril during transportation on a partially or wholly unfenced track, St. 1846, c. 271, § 3, to do away with this serious danger, directed, under a penalty provided by section 4, that "every railroad corporation shall erect and maintain suitable fences with convenient bars, gates or openings therein, at such places as may reasonably be required upon both sides of the entire length of any railroad which they may hereafter construct, except at the crossings of any turnpike, highway or other way, or in places where the convenient use of the railroad would be ob structed thereby, and shall also construct and maintain sufficient barriers at such places as may be necessary where it is practical to do so to prevent the entrance of cattle upon the railroad." See Boston & Worcester R. R. v. Old Colony R. R., 12 Cush. 605, 609. The duty thus imposed was subsequently made enforceable in equity by this court under St. 1855, c. 350, and these statutes having been consolidated in Gen. St. 1860, c. 63, §§ 40 to 43, and Acts 1874, c. 372, §§ 83, 84, have been uniformily construed, where the road was built prior to April 17, 1841, as requiring the owner to fence if his damages, or the price paid to him where the acquisition was by purchase, included the cost of fencing, and where the road was constructed after May 16, 1846, the corporation fenced the entire length of the railroad on both sides except in places where a fence

railroad, or at crossings where the general | brought in our courts. See Isbell v. N. Y. & public had a right of way. Morss v. Bos- New Haven R. R., 27 Conn. 393, 71 Am. Dec. ton & Maine R. R., 2 Cush. 536; Stearns v. Old Colony R. R., 1 Allen, 493; Boston & Albany R. R. v. Briggs, 132 Mass. 24. The exemption, however, was repealed by St. 1879, c. 205, which finally put upon the corporation the absolute and sole duty of maintaining the fence, and where by either law or contract this burden before had been placed on the adjoining landowner, the cor-modate the public ways, or a place which by poration was required thereafter to erect such fences, or to keep them in repair if they had been erected, and could recover the reasonable cost in an action of contract, or by a lien upon the land for the labor and ma