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evidence, cannot be decided on motion to strike close a mortgage and recover the debt, was the amendment.-Hynds v. Hynds, 161 S. W. waived by defendant by not objecting on that 812.

ground, the mortgage having been made an es. § 367 (Ark.) A motion to make the complaint hibit and read in evidence and considered with more specific held properly denied.—Loewer v.

the complaint.-Felker v. Rice, 161 S. W. 162. Lonoke Rice Milling Co., 161 S. W. 1042. § 424 (Mo.App.) A defendant may waive his

§ 367 (Ark.) Where the substantial facts con- right to insist upon the filing of an account, in stituting a cause of action are stated in the com

accordance with Rev. St. 1909, § 1832, in an acplaint, though imperfectly alleged, the proper tion begun in the circuit court.- Barton Lummode of correcting the defect is by motion to

ber Co. v. Gibson, 161 S. W. 357. make more definite and certain.-Wood § 428 (Mo.App.) An objection to the petition, Drainage Dist. No. 2 of Conway County, 161 first made by an objection to evidence, can preS. W. 1057.

vail only when the petition wholly fails to state 8 367 (Mo.App.) The failure of the petition any cause of action, construed most favorably in an action for money bad and received to set to plaintiff.-Price v. City of Maryville, 161 forth the relation of the parties, the contract, S. W. 295. or the wrong out of which the cause of action 8 433 (Mo.App.) The omission of an essential arose, could have been reached by motion to averment from a petition is not wholly waived make it more definite and certain, if not by by answer to the merits; but a failure to demur demurrer.-St. Louis Sanitary Co. v. Reed, 161 brings into play the rule of liberal construction, S. W. 315.

and, if the omitted fact can be found to be § 369 (Ky.) Where a petition, in an action for alleged by inference, the petition will not be death of a railroad employé charged that he held bad after verdict.-Coulter v. Coulter, 161 was engaged either in interstate or intrastate S. W. 281. commerce at the time of the accident, it was A petition, in an action by a wife for sepnot sustainable under Civ. Code Prac. g 113, arate maintenance, under Rev. St. 1909, $ 8295, subd. 4, authorizing alternative allegations, and held good, though not in terms alleging that the defendant was entitled to compel plaintiff to

husband's abandonment without just elect on which she would proceed.-Louisville cause, when not challenged until after verdict. & N. R. Co. v. Strange's Adm'x, 161 S. W. 239. -Id. In negligence cases, a cause of action for

PLEDGES. physical pain and mental anguish during the period between the accident and death of the See Insurance, $ 240. person injured cannot be joined with a cause of action for death, but the plaintiff must elect be- which produce stored with it was pledged' for

$ 29 (Mo.App.) A cold storage company, to tween them.-Id.

A motion to compel plaintiff to elect whether advances, refusing arbitrarily to sell to cusshe would proceed under the state law or under cient to pay it, and afterwards selling it for an

tomers produced by the pledgor at prices suffithe federal Employers' Liability Act to recover insufficient amount, is liable for loss.-Union for the death of her intestate, made before pro-Cold Storage & Warehouse Co. v. Pitts, 161 ceeding to trial, was in time.-Id.

S. W. 1182. $ 369 (Ky.) Where an injured servant attempted to rely on both the common law and the

PLURAL. federal Employers' Liability Act, the defend. See Statutes, $ 188. ant's motion to require an election must be sustained.-Louisville & N. R. Co. v. Moore, 161 S. W. 1129.

POLICE. 8 369 (Mo.) Where the same cause of action See False Personation, $ 2; Municipal Corpowas set out in separate counts to meet possible rations, 8 180. variations in the proof, plaintiff was not required to elect on which he would proceed.-Schroe

POLICE POWER. der v. Turpin, 161 S. W. 716.

See Constitutional Law, $ 60; Municipal CorpoXIII. DEFECTS AND OBJECTIONS, rations, 88 591-623; Railroads, & 99. WAIVER, AND AIDER BY VERDICT OR JUDGMENT.

POSSESSION. $ 403 (Mo.) Failure of plaintiffs' petition to See Adverse Possession; Ejectment, & 16; Forallege defendant's incorporation was cured by cible Entry and Detainer, $ 9; Larceny, $ 64; an answer expressly admitting that defendant

Replevin, § 8; Trover and Conversion, $ 11. was a corporation.-Davidson v. Laclede Land & Improvement Co., 161 S. W. 686.

POST OFFICE. 8 403 (Tex.Civ.App.) The defects in the pleadings of one party may be cured by averments in See Carriers, 88 241, 280, 320. the pleadings of the other.-Childress v. Robinson, 161 S. W. 78.

POWERS. The failure of defendant's answer to show that plaintiff, the wife of the possessor of land See Wills, 8 693. against whom a judgment had been recovered, was a party to that action so as to be bound by II. CONSTRUCTION AND EXECUTION. the judgment, is cured where plaintiff's petition showed that the property was the com- by the donee of a power and the conveyance

$ 34 (Mo.) Whenever there is a conveyance munity estate of herself and her husband.-Id. cannot be given full effect without its being

$ 406 (Mo.) Where a defect in parties or a construed as an execution of the power, it will misjoinder of causes of action are not taken be held to be such execution, even though there advantage of either by demurrer or answer, it is is no reference to the power.-Armor v. Frey. waived.-Norton v. Reed, 161 S. W. 842. 161 S. W. 829.

8 418 (Mo.) Under Rev. St. 1909, 88 1800, 841 (Mo.) Where an owner of land devised it 1804, a defendant who pleads over by taking is to his children for life with the power of apsue on the facts after the overruling of a de pointment by will in favor of their children, the murrer to the petition on the grounds of multi-execution by a child of the power in favor of fariousness and misjoinder of parties thereby his son is not a devise of property, rendering waives the objection.-Wolz v. Venard, 161 S. the son liable on the father's covenant of warW. 760.

ranty made in the conveyance of land; the son $ 423 (Ark.) The failure to make a note an taking from the original owner.-Armor y. Frey, exhibit to the complaint, in an action to fore- | 161 S. W. 829.


Where third persons agreed with defendants

to pay their note due a bank, and the bank not For practice in particular actions and proceed-only accepted the promise of the third persons, ings, see the various specific topics.

but induced them to assume payment of the

debt, granting an extension of time without notiPRAYER.

fying defendants, the bank must be held to have

elected to accept the third persons as principals, See Pleading, $ 193.

and can look to defendants erely as sureties.


Where defendants, primarily liable on a note,
See Courts, 88 89–96.

became sureties owing to a subsequent agree

ment by third persons to pay it, their liability PREMIUMS.

was unaffected by the Negotiable Instruments

Law.--Id. See Insurance, 88 755, 818.

$ 46 (Mo.App.) The extension of time of pay

ment of a note by a bank, where defendants, PRESCRIPTION.

the makers, had already agreed with others that See Adverse Possession; Limitation of Actions. they should discharge it, held not to work an

estoppel on the bank to hold the makers; there PRESENTMENT.

having been no change of position by them.

Citizens' Bank of Senath v. Douglass, 161 S.
See Bills and Notes, $ 397.

W. 601.

See Appeal and Error, $$ 901-934; Criminal

$ 104 (Mo.App.) The extension of the time of Law, $8 308, 1144, 1163; Evidence, $8 65–83. payment of a note due a bank held to relieve

the makers of liability; their liability having PRINCIPAL AND ACCESSORY.

become that of sureties by reason of a subse

quent agreement with third parties for the paySee Criminal Law, 88 81, 792.

ment of the note.-Citizens Bank of Senath

v. Douglass, 161 S. W. 601. PRINCIPAL AND AGENT.

$ 108 (Mo.App.) For an extension of time of

payment to discharge a surety on a note, such See Appeal and Error, $ 1027: Attorney and extension must be supported by a valid conClient: Banks and Banking, S: 54, 105–116, sideration and be binding upon the creditor, this 253; Brokers; Carriers, $ 194; Corporations, also being the rule of Negotiable Instruments 88 308-361, 413, 432; Drains, $ 17; Evidence, Law.-Citizens' Bank of Senath v. Douglass, ŠŠ 242, 243, 441; Husband and Wife, 8$ 25, 161 S. W. 601. 138; Injunction, $ 114; Intoxicating Liquors, 8 169; Municipal Corporations, $ 292; Wit- IV. REMEDIES OF CREDITORS. nesses, 8 144.

$ !60 (Tex.Civ.App.) In an action on a bond III. RIGHTS AND LIABILITIES AS TO

to indemnify against the default of a

tractor and to indemnify plaintiff, who made THIRD PERSONS.

a deposit to assist the contractor, evidence that (A) Powers of Agent.

plaintiff was not an owner of the house, but 8 103 (Ark.) A traveling salesman, in the merely advanced the money, was admissible to absence of proof of special authority, had no establish plaintiff's interest.–Fidelity & Depospower to accept an order for goods taken by it Co. v. Bankers' Trust Co., 161 S. W. 45. him on bebalf of his principal, so as to ef- $ 162 (Mo.App.) Where defendants, who had fectuate a binding contract between the buyer executed a note, but who were liable only as and seller.-Outcault Advertising Co. v. Young sureties, owing to a subsequent agreement by Hardware Co., 161 S. W. 142.

third persons to pay it, claimed that they had § 123 (Tex.Civ.App.) In an action for broker's been discharged by the principal's extension of commissions, evidence held to warrant a finding time, the question was for the jury, where the that defendants' agent, with whom plaintiff evidence conflicting.--Citizens' Bank of conducted the transactions in question, had au- Senath v. Douglass, 161 S. W. 601. thority to act.-E. R. & D. C. Kolp v. Brazer, $ 163 (Tex.Civ.App.) Where in an action on 161 S. W. 899.

a bond, judgment was rendered against both the 㤠136 (Tex.Civ.App.) An agent is not person- surety and contractor with execution first ally responsible upon a contract made for a

against the contractor and judgment for the known principal.—Chicago, R. I. & G. Ry. Co. surety over against him, it was immaterial v. Floyd, 161 S. W. 954.

whether the contractor was solvent as to the

surety's liability to reimburse plaintiff.-FideliPRINCIPAL AND SURETY. ty & Deposit Co. v. Bankers' Trust Co., 161

S. W. 45.
See Appeal and Error, $ 467; Bills and Notes,

88 237, 434; Guaranty; Injunction, $ 241; PRIVILEGED COMMUNICATIONS.
Judgment, § 910; Malicious Prosecution, 8
58; Mortgages, 8 283.

See Witnesses, $ 193.

(A) Between Individuals.

See Wills, $8 229–329.
8 14 (Mo.App.) Where third persons agreed
with defendants, for a valuable consideration,

PROBATE COURTS. to assume a debt defendants owed a bank, the relation of principal and surety was created be- | See Courts, $ 20042. tween the parties, even though the bank was not a party to the agreement.--Citizens' Bank

PROCESS. of Senath v. Douglass, 161 S. W. 601.

Where a creditor accepts a promise of third See Appeal and Error, $ 880; Attachment; Corparties made to the debtor to discharge the lat- porations, $ 668; Limitation of Actions, $ 119; ter's obligation, the creditor is bound to respect Mandamus; Searches and Seizures; Sequesthe contract of suretyship between them.-Id. tration.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (9) NUMBER

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I. NATURE, ISSUANCE, REQUISITES, 1 yond a reasonable doubt.-Currington v. State, AND VALIDITY.

161 S. W. 478. $31_(Ky.) Under Ky. St. 2524, and Civ. the burden of proof was on the state.-Id.

In a prosecution under Acts 32d Leg. c. 23, Code Prac. $ 39, declaring an action to be begun by summons, filing a petition, etc., the summons to be valid must name the defendants to be sum

PROVINCE OF COURT AND JURY. moned.-Casey v. Newport Rolling Mill Co., 161 See Criminal Law, 88 736–764; Trial, $f 191, S. W. 528.


PROVOCATION. (A) Personal Service in General.

See Homicide, $ 295. 8 66 (Tex.Civ.App.) Under Rev. Civ. St. 1911, art. 1869, referring to service upon nonresidents, held, that the service of an amended petition is

PROXIMATE CAUSE. not authorized where the notice does not men- See Negligence, 88 58, 59. tion the amendment.-Baker v. Hahn, 161 S. W. 443.

PUBLICATION. (E) Return and Proof of Service. § 142 (Ky.) In a collateral attack on a judg. See Municipal Corporations, $ 110. ment, the sheriff's return is, under Ky. St. S 3760, conclusive, unless attacked on the ground

PUBLIC DEBT. of fraud or mistake.-S. B. Reese Lumber Co. See Municipal Corporations, $8 863, S67; v. Licking Coal & Lumber Co., 101 S. W. 1124.

Schools and School Districts, $97-107;

States, & 137.
See Mortgages, $ 199.


See Municipal Corporations, $8 266-586.
See Bills and Notes.


See Adverse Possession, $ 73.

III. DISPOSAL OF LANDS OF THE See Logs and Logging; Mines and Minerals;

STATES. Partnership, § 246.

$ 176 (Tex.Civ.App.) Where the state of TexPROPERTY TAX.

as placed grants made by a former sovereign

on the same footing as those made by the state, See Taxation, § 117.

any grant by the state of a part of lands em

braced in a grant of a former sovereign was PROPOSITIONS.

void.-Campbell v. Gibbs, 161 S. W. 430. See Appeal and Error, 8 742.


See Nuisance, & 72.
See Criminal Law, S 371.

PUBLIC POLICY. $ ! (Ark.) The statute prohibiting pandering punishes one procuring any female, whether vir. See Cemeteries, $ 3. tuous or not, to enter a place for prostitution. - Boyle v. State, 161 S. W. 1049.

PUBLIC PURPOSE. To warrant a conviction of pandering, the See Taxation, $ 38. proof must show that men and women resorted to the house to which prosecutrix was brought for immoral purposes, and was a place in which

PUBLIC SCHOOLS. prostitution was allowed, and that she was tak- See Schools and School Districts. en there for that purpose.--Id.

81 (Tex.Cr. App.) Acts 32d Leg. c. 23, held PUBLIC SERVICE COMMISSION. intended to cover all acts, conduct, devices, etc., to induce any female to submit her body to oth| See Electricity, § 1. er men for the purpose of prostitution, whether they succeeded in inducing her to do so or not,

PUBLIC SERVICE CORPORATIONS. and that whether she was virtuous or not prior See Carriers; Electricity; Railroads; Street thereto was immaterial.-Currington v. State, Railroads; Telegraphs and Telephones. 161 S. W. 478. 84 (Ark.) Evidence held to justify a convic

PUBLIC WATER SUPPLY. tion of pandering, punishable by the act of 1913. - Boyle v. State, 161 S. W. 1019.

See Waters and Water Courses, $ 183. On a trial for pandering, the testimony of witnesses living at the house that up to the time

PUPILS. prosecutrix was taken to it it was not used as a disorderly house held relevant to contradict tes See Schools and School Districts, $ 169. timony that the house had been and was then used as a disorderly house.-Id.

QUANTUM MERUIT. Where the state proved that accused was en

See Work and Labor. gaged only in the business of maintaining a disorderly house, to which prosecutrix was brought,

QUASHING. evidence that accused, at the time of the alleged offense, was engaged in the business of secur- See Execution, § 161. ing patents was admissible.--Id. Evidence of defendant's manner toward fe

QUESTIONS OF LAW AND FACT. males on the street corners was admissible on the issue whether he was in the practice of See Criminal Law, $8 736-742; Trial, $$ 136procuring females to enter a disorderly house. 141, 370. -Id. $ 4 (Tex.Cr. App.) In

QUIETING TITLE. prosecution under Acts 32d Leg. c. 23, offense must be shown be- I See Judgment, $$ 251, 490; Remainders, $ 17.


I. RIGHT OF ACTION AND DE- the north side of the right of way, where the FENSES.

lateral ditch on the south side of the roadbed $ 19 (Mo.) Statutes for quieting title are

was proper and properly constructed.-Poncot enabling acts and not penal or restrictive. : St. Louis, I. M. & S. Ry. Co., 161 S. W.

1190. Armor v. Frey, 161 S. W. 829.

A suit to quiet title brought under the stat- $113 (Ky.) That the L. & I. Ry. Co. had the ute is a proceeding by one claimant of an in- same general offices and was under the same terest in property against another claimant ask- control as the L. Ry. Co. would not make the ing the court to ascertain and determine the one liable for the wrong of the other.-Louistitle, but a recovery of the possession of the ville Ry. Co. v. Wigginton, 161 s. W. 209. real estate is not essential; this being so even

A former owner of a railroad right of way though the amendment of 1909 was intended to would not be responsible for injury to adjagive full affirmative relief in case the suit was

cent land in grading the right of way by its changed from one of quiet title to one to quiet grantee by, dumping earth on such land; the title and give possession.-Id.

grantee, who committed the wrong, only being

responsible therefor.-Id. II. PROCEEDINGS AND RELIEF. $ 114 (Ky.) Complaint held not to allege that $ 34 (Mo.) Where, in a suit to quiet title, defendant railroad company wrongfully throwthe petition did not disclose that defendant ing dirt on plaintiff's land cast more water upclaimed alone through a fatally defective tax

on plaintiff's land than the natural flow. record, the suit will not be dismissed on the Louisville Ry. Co. v. Wigginton, 161 S. W. ground that, the tax deed being void, there was

209. no cause of action.-Davidson v. Leclede Land

X. OPERATION. & Improvement Co., 161 S. W. 686.

(B) Statutory, Municipal, and Oicial § 39 (Mo.) A cross-bill undertaking to state

Regulations. a cause of action to quiet title under Rev. St. 8 236 (Mo.) A municipality granting to a rail1909, § 2535, held sufficient.-Hynds v. Hynds, road company the right to lay its tracks in 161 s. w. 812.

public street, may afterwards pass a speed ordi$ 43 (Mo.) Where, in an action to quiet ti-nance and make other regulations as to the use. tle, the petition alleged title generally in plain-1-Lueders v. St. Louis & S. F. R. Co., 161 S. tiff and asked that the title of the parties be W. 1159. defined and adjudicated, and the answer was 8 255 (Ark.) An indictment for violating Acts a general denial and special plea asserting title 1907, p. 353, $$ 1, 2, requiring railroad compaand praying that title be adjudged in defenda nies at junctions where trains connect to have the whole title was in issue. -Mahaffey v. Leb- a crier on duty, held defective for not alleging anon Cemetery Ass'n, 161 S. W. 701.

that the station was a junction where trains $ 50 (Mo.) Where a party brings a suit to es- connect.-State v. Chicago, R. I. & P. Ry. Co., tablish an equitable interest in land, he may in 161 S. W. 1066. the same suit have partition, but the rule is otherwise where the plaintiff counts solely on (D) Injuries to Licensees or Trespassers his legal title.-Armor v. Frey, 161 S. W. 829.

in General.

8 275 (Ky.) A railroad held bound to give RAILROADS.

warning of the approach of a train, in antici

pation of the presence of persons working on See Agriculture, $ 8; Appeal and Error, $8 882, the track.-Cincinnati, N. 0. & T. P. Ry. Co.

1048, 1050, 1060, 1064; Commerce; Consti- v. Winningbam's Adm'r, 161 S. W. 506. tutional Law, $ 115; Eminent Domain; Jus- If a railroad company was charged with notices of the Peace, &$ 91, 100; Limitation of tice that a coal tipple was being constructed at Actions, $ 55; Master and Servant; Pleading, a certain point near the track, so that it was 88 237, 369; Statutes, $ 253; Street Rail bound to anticipate the presence of workmen roads; Trial, 84, 191, 194, 234, 242, 250, on the track, it was not excused for failure to 252, 296.

give warning of a train's approach because the

engineer did not in fact know the tipple was V. RIGHT OF WAY AND OTHER IN- being constructed.-Id. TERESTS IN LAND.

$ 282 (Ky.) If a railroad company was bound $ 72 (Ky.) A railway company which accept- to warn of the approach of a train to a point ed a right of way deed containing covenants to

at which a coal tipple was being constructed maintain a sufficient right of way fence could over the track, one engaged in the work could not exempt itself from such obligation by con

assume that a warning would be given, and veying the property to another company.

was not conclusively negligent in not looking Louisville Ry. Co. v. Wiggington, 161 S. w. in crossing the track in his work.-Cincinnati, 209.

N. 0. & T. P. Ry. Co. v. Winningbam's Adm'r,

161 S. W. 506. $ 76 (Mo.) When a railroad company is per- In an action for the death of one engaged in mitted by a municipality to use a public street, the extent of its right in the street is measured constructing a coal tipple near a railroad track by the permission, together with such ordinanc- by being, struck by a train whether decedent es as define and regulate its use. - Lueders v. St. looking on crossing the track in his work held

was guilty of contributory negligence in not Louis & S. F. R. Co., 161 S. W. 1159.


Where all of the facts were admitted, the AND EQUIPMENT.

question of whether a railroad company was

bound to give warning on approaching a point $99 (Tenn.) Acts 1907, c. 149, $ 25, empow where a coal tipple was being constructed over ering a city to require, by ordinance, a rail. the track was one for the court.-Id. road company to build and maintain bridges over its tracks at street ossings, is within the

(F) Accidents at Crossings. police power.-City of Chattanooga v. Southern 8 304 (Mo. App.) While under Laws 1911, p. Ry. Co., 161 S. W. 1000.

153, the obstruction of a road crossing for Under the common law a city could require a longer than five minutes is negligence per se, railroad to construct and maintain at its ex- the statute allows trainmen a reasonable exerpense a proper bridge at a street crossing overcise of the obstruction privilege, but does not its tracks.-Id.

affect the common-law duty of train operatives $ 108 (Mo.App.) Under Rev. St. 1909, 3150, to exercise reasonable care at crossings.-Fife a railroad company held not liable because V. Chicago & A. R. Co., 161 S. W. 300. ditch through roadbed overflowed the land on Operatives of a freight train held not negli

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (3) NUMBER


gent in closing the train at a crossing prior to proached the crossing and attempted to cross. the passing of a passenger train on an adjoin- -Coby v. Quincy, O. & K. C. R. Co., 161 S. ing track, by reason of which plaintiff's horse W. 290. was killed after passing on the crossing and Evidence held not to show that plaintiff's peril being unable to proceed.-Id.

was known and apparent to the engineer in time $ 307 (Tex.Civ.App.) Where ordinarily to stop so as to avoid the collision.-Id. prudent person would have maintained a flag- $ 348 (Tex.Civ.App.) Evidence held sufficient man or watchman at the railroad crossing to support a judgment for plaintiff.-Interna. where an injury occurred, a failure to keep tional & G. N. Ry. Co. v. Walker, 161 S. W. such flagman or watchman was negligence.- 961. Texus Midland R. R. v. Wiggins, 161 S. W. $ 350 (Ark.) Evidence held to make a ques. 445.

tion for the jury as to whether engineer of train $ 310 (Mo.App.) The degree of care required who saw a person on track should have slackof railroads at public crossings depends on the ened the speed of the train or given warning of circumstances of each particular case, and that its approach. St. Louis, I. M. & S. R. Co. v. a statute prescribes one precaution will not Roddy, 161 S. W. 156. relieve the railroad company from adopting $ 350 (Ky.) In view of the evidence as to obothers dictated by common prudence.-Fife v. structions at a crossing, court held to have Chicago & A. R. Co., 161 S. W. 300.

properly permitted the jury to determine wheth8 316 (Mo.App.) It is not negligence to run er the statutory crossing signals were sufficient, passenger trains at a high rate of speed over or whether the company should have used other road crossings in the country.-Fife v. Chicago reasonably effective means.-Southern Ry. Co. & A. R. Co., 161 S. W. 300.

in Kentucky v. Thacker's Adm'x, 161 S. W. $ 327 (Ark.) Traveler struck by a train which 236. he could have seen except for a failure to look $ 350 (Ky.) Evidence held sufficient to take to held negligent, even conceding that he had a the jury the question of defendant's negligence right to pay greater attention to a freight train in failing to give the alarm for the crossing.-on another track.--St. Louis, I. M. & S. R. Co. Louisville, H. & St, L. Ry. Co. v. Wilson's v. Roddy, 161 S. W. 156.

Ex'x, 161'S. W. 513. $ 327 (Tex.Civ.App.) Persons about to cross $ 350 (Tex.Ciy.App.) The question whether a railroad track must look and listen for ap- plaintiff looked and listened is one for the jury, proaching trains, and a failure to do so bars whenever the evidence is conflicting.- Texas recovery.-Texas Midland R. R. v. Wiggins, Midland R. R. V. Wiggins, 161 S. W. 445. 161 S. W. 445.

The question of the railroad company's neg§ 330 (Ark.) Failure of train approaching ligence in failing to keep a watchman at the crossing to give signals and warning held to be crossing held for the jury.--Id. considered on the question of contributory neg. $ 350 (Tex.Civ.App.) Failure of one to stop, ligence only when there are circumstances exlook, and listen before going upon a crossing cusing a traveler from performing the duty to will not render him guilty of negligence as a look and listen.-St. Louis, I. M. & S. R. Co. matter of law.-International & G. N. Ry, Co. v. v. Roddy, 161 S. W. 156.

Walker, 161 S. W. 961. 8 330 (Mo.App.) While a traveler approach- $ 351 (Ark.) Where there were no circuming a railroad crossing in a city may assume stances justifying deceased's total failure to that a train will not cross at an unlawful look, instructions as to duty to ring bell or speed, he must nevertheless use his senses for sound whistle held erroneous because the jury his own protection, and be careful until out might have understood that they could consider of danger. ---Coby v.'Quincy, O. & K. C. R. Co., this on the question of contributory negligence.161 S. W. 290.

St. Louis, I. M. & S. R. Co. v. Roddy, 161 S. $ 333 (Mo.App.) Where plaintiff and the driv-W, 156. er of an automobile, when they were only 60

In action for death in crossing accident, inor 70 feet from a railroad crossing, saw and struction as to obstruction of crossing. by heard a freight train about 400 feet away, freight train held erroneous because the jury which was obviously running at an excessive might have understood that a partial obstrucspeed, but did not check the speed of the au- tion of the crossing rendered the company liatomobile, and attempted to cross ahead of the ble, whereas such obstruction was not the proxtrain, they were guilty of negligence.-Coby v. imate cause of the injury.-Id. Quincy, O. & K. C. R. Co., 161 S. W. 290. $ 351 (Tex.Civ.App.) Instruction to find rail

$ 337 (Ky.) In an action for killing a team road company not liable if the engineer was not at a crossing, it was not error to refuse to negligent held properly refused where there was charge that defendant would not be liable if evidence that driver's view of crossing was obthe proximate cause was the breaking of the structed by the company's cars on a siding.lock chain on the wagon, where the evidence Texas Midland R. R. v. Nelson, 161 S. W. 1088. showed that, though the chain broke, the driver

(G) Injuries Persons had the team under control before he attempt.

Tracks. ed to cross.-Louisville, H. & St. L. Ry. Co. v. Wilson's Ex'x, 161 S. W. 513.

$ 356 (Mo.App.) Railroad company, permit. $ 338 (Ark.) In action for death in crossing recreation, with knowledge thereof, held bound

ting public to use its property for travel or accident prior to taking effect of Acts 1911, p. 275, instruction making defendant liable, not- such users.-Featherstone v. Kansas City Ter

to exercise reasonable care to avoid injuring withstanding contributory negligence, if its em- mival Ry. Co., 161 S. W. 284. ployés discovered plaintiff's peril, or by ordinary care could have discovered it in time to

$ 358 (Mo.App.) Child playing upon

side have avoided injuring him held erroneous.-St. track held not to lose status of licensee by goLouis, I. M. & S. R. Co. v. Roddy, 161 S. w. ing under a car to procure coal for a woman 156.

picking up coal.-Featherstone v. Kansas City

Terminal Ry. Co., 161 S. W. 281. $ 338 (Mo.App.) To make the last clear

Railroad company held to owe to children acchance doctrine applicable to injuries at a rail-customed to play on side track the duty of road crossing, the traveler's peril must be ap- warning them before backing other cars thereparent to the trainmen.-Coby y. Quincy, O. & on.-Id. K. C. R. Co., 161 S. W. 290.

8 359 (Mo.App.) Where a child is a trespass$ 348 (Mo.App.) Evidence, in an action for eron railroad property, and is injured in a injuries in a collision between an automobile place where the company has no reason to anin which plaintiff was riding and a freight ticipate its presence, the company is not liable. train, held to show that the train was within -Featherstone v. Kansas City Terminal Ry. sight and hearing when the automobile ap-1 Co., 161 S. W. 284.





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