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care and diligence in regard to their relative coming train. In such cases, if an unslackduties." Pa. Co. v. Krick, 47 Ind. 368, 371;. ened speed is desirable, watchmen should be Indianapolis, etc., R. Co. v. McLin, 82 Ind. stationed at the crossing." Continental, etc., 435, 448; Chicago, etc., R. Co. v. Spilker, v. Stead, supra. The appellee was not a 134 Ind. 380, 400, 33 N. E. 280, 34 N. E. trespasser, and the case is thereby differen21.8; Lake Shore, etc., Co. V. McIntosh, tiated to that extent from those in which the Adm'r, 140 Ind. 261, 278, 38 N. E. 476; Ohio, injured person was where he had no right etc., R. Co. v. Walker, 113 Ind. 196, 197, 15 to be. “Willfulness," "wanton negligence," N. E. 234, 3 Am. St. Rep. 638; Continental "wantonness" are terms used in many states Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. without any clearly defined distinction, but 403. When a charge of willful injury is are, generally speaking, regarded as equisupported by evidence, which is claimed to valent and interchangeable, as will appear show recklessness in the operation of a rail- from reading the cases in which they are road train amounting to a constructive in- used. C., C., C. & St. L. R. Co. v. Cline, 111 tent, the question as to the existence of such Ill. App. 416, 422. The following language

. recklessness and intent, depending upon facts used by the Alabama Supreme Court is peculnever twice alike, is both by analogy to the iarly applicable to the case under considerarule in manslaughter cases and upon prin- | tion, on account of the similarity of facts preciple for the jury. Barr v. Chicago, etc., sented: “That the place where deceased was Co., 10 Ind. App. 439, 37 N. E. 814; Over- was a public crossing in the town of Madison, ton v. Indiana, etc., R. Co., 1 Ind. App. 439, having a population of about 500 people; that 27 N. E. 651; Memphis, etc., R. Co. v. Mar- this crossing was used more than any other tin, 117 Ala, 367, 383, 23 South. 231; Memph- | in the town, and that the average crossing is, etc., R. Co. v. Martin, 131 Ala. 279, 30 during the day was about one person in South. 827; Tenn., etc., R. Co. v. Hansford, every 10 minutes and according to some of 125 Ala. 365, 28 South. 45, 82 Am. St. Rep. the testimony, people crossed in great num241; L. S. & M. S. R. Co. v. Bodemer, 139 bers. A witness could be required on crossIll. 609, 29 N. E. 692, 32 Am. St. Rep. 218; examination to define what was intended by Southern R. Co. v. Emma D. Drake, Adm'x, the term 'frequently and great numbers.' 107 Ill. App. 12, 17, 19. Thus it was said The speed of the train at the time, accordby the Supreme Court of Illinois "that wheth

ing to the different witnesses, varied from er the defendant was guilty of willful or

8 miles to 30 miles an hour. Assuming that wanton conduct

was purely a the train was running at the speed of 30 question of fact for the jury to determine

miles an hour over a public crossing of the from all the evidence,

and it was track in a town of 500 inhabitants, and that not the province of the court to inform the there was an average of one person every jury that some particular fact of the case 10 minutes, or in great numbers, facts known was conclusive of that question.” C., B. & Q.

to the servants in charge of the train, does R. Co. v. Murowski, 179 Ill. 77, 80, 53 N. E.

the law declare that these facts do not con572; Ill. Cent. R. Co. v. Leiner, 202 Ill. 624, stitute wanton negligence, or is the question 629, 67 N. E. 398, 95 Am. St. Rep. 266; E. whether these facts constitute wanton negliJ. & E. R. R. Co. V. Duffy, 191 Ill. 489, 492, 61

gence one of law and fact referable to the N. E. 432; E. St. Le R. Co. v. O'Hara, 150 Ill. jury for its determination?

Pre580, 37 N. E. 917.

cautionary requirements increase in the ratio The Supreme Court of the United States,

that danger

danger becomes more threatening. speaking by Justice Bradley, outlined the

The duty of care and vigilance becharacter of the duty to be observed at high- comes proportionately increased according to way crossings as follows: "The train bas

the less or greater likelihood that there are the preference and right of way; but is

persons on the track at the time and place. bound to give due warning of its approach,

A train may be run under some cirso that the wagon may stop and allow it to cumstances over a public crossing in a poppass, and to use every exertion to stop if

ulous city at such speed as to amount to the wagon is inevitably in the way. Such that recklessness which is the equivalent warning must be reasonable and timely. wantonness and willfulness. But what is reasonable and timely warning Whether or not, therefore, the defendant was may depend on many circumstances. It can- guilty of wanton negligence, under the facts not be such if the speed of the train be so of the case, should have been referred to the great as to render it unavailing. The explo

The explo-jury for its determination.” Memphis, etc., sion of a cannon may be said to be a warn- R. Co. v. Martin (1897) 117 Ala. 367, 383, 23 ing of the coming shot; but the velocity of South. 231; Id. (1901) 131 Ala. 269, 279, 30 the latter generally outstrips the warning. South. 827; Ga. Pac. Ry. Co. v. Lee, 92 Ala. The speed of a train at a crossing should 262, 9 South. 230; Haley v. K. C., etc., R. Co. not be so great as to render unavailing the (1902) 113 Ala. 640, 21 South, 357 ; Southern warning of its whistle and bell, and this cau- R. Co. v. Crenshaw, 136 Ala. 573, 583, 34 tion is especially applicable when their sound South. 913. is obstructed by winds and other noises, and The doctrine of willfulness arises in two when intervening objects prevent those who aspects, the distinction between which has are approaching the railroad from seeing a been so clearly marked by the authorities



heretofore cited; the one involving the ac- which the jury found to have been, in view tual knowledge on the part of the wrongdoer of such conditions, recklessly excessive. The of actual peril in the particular instance, the charge of willfulness being made against apother involving facts from which a willing- pellant is supported not only by the evidence ness to inflict injury is implied from reck- detailing the acts and omissions of its servless indifference. Willful and intentional ants in charge of the engine, but by its own wrong that is a willingness to inflict injury deliberate and premeditated course. This cannot be attributed to one who is without leads to an affirmance of the judgment. consciousness that his act or omission will There are certain considerations, however, or may probably lead to wrong and injury.supposed to have weighed against the finding, Therefore, as a matter of pleading, willful- which, because of the insistence with which ness must be directly averred. It is entire- they are urged, deserve notice. The presence ly well settled, however, as a matter of evi- of a railroad track is in itself a warning of dence, that the knowledge of danger upon danger, and that fact is usually sufficient to which, in connection with the absence of convict a traveler of contributory negligence subsequent diligence to avoid its consequen- in failing to observe precautions thereby ces, a charge of willfulness may be main- suggested to him before undertaking to pass tained, need not be that which is presently over such track. In the case under considacquired through the physical senses. “The eration all questions of contributory negliparty charged need not, on the particular oc- gence are eliminated, and the effect of such casion, see or hear or through other sense warning, as it relates to the quality of appelbecome advised of the actual presence of ev

lant's aots, is alone involved. The presumpery element necessary to constitute the dan- tion that one upon a railroad track will step ger that really exists. * * If he knows aside and allow the train to pass is a reasonof the crossing where people are wont to be able one, and is founded upon the known inin such numbers and with such frequency, a stinct of self-preservation. Nicholas v. B. fact also known to him, as that to run a train & O. R. Co. (Ind. App.) 71 N. E. 170. In the along there with such great speed as not to be case of one who drives along a highway the readily controlled, and which might not ad- question is whether the warning given by the mit of the escape of persons crossing the mere presence of a railroad track before him, track, his conduct, he having in mind that he his view along said track being cut off and was approaching such a place, would au- obstructed, and the sound of approaching thorize the imputation of wantonness, will- trains obscured, was certainly sufficient to fulness, or reckless indifference to conse- arouse the instinct of self-preservation and quences, though in point of actual fact he prevent his entering, not into a place of did not in the particular instance know of known peril, but into a place the peril of the presence of persons in exposed condi- which he does not know, so as to justify the tions." Richmond & Danville R. Co. v. other party in assuming that he has actual Greenwood, 99 Ala. 501, 513, 14 South. | knowledge, and will, by virtue of the instinct 495; Alabama Great Southern R. Co. v. Hall, of self-preservation, protect himself. The Adm'x, 105 Ala. 599, 17 South. 176; Ga. traveler is compelled to cross the tracks in Pac. Ry. Co. v. Lee, 92 Ala. 262, 9 South. proceeding along the highway, as he may 230; L. & N. R. Co. v. Webb, 97 Ala. 308, | lawfully do, and it is not dangerous to do so, 12 South. 374; Highland Ave., etc., v. Rob- except as an engine be driven over it at the bins, 124 Ala. 113, 27 South. 422, 82 Am. precise time. Remembering that the question St. Rep. 153; E. St. L. Co. v. Snow, 88 Ill. of contributory negligence is eliminated, and App. 660; E. St. Louis, etc., v. O'Hara, 150 that the obligations of the railroad company Ill. 580, 37 N. E. 917; O'Conner v. Ill. Cent. require it, in the exercise of ordinary care, R. Co., 77 Ill. App. 32. “It is not necessary to to take precautions of an equally high grade show an intention, either actual or construc- as those exacted from a traveler, where the tive, to commit the particular injury which issue is one as to his contributory negligence, resulted. It is enough to show that some and that the right of precedence is dependent injury to another or others would naturally upon the giving of adequate warning, can it and probably result from the act complained be said that a presumption arose in the case of." Conner v. Citizens' St. R. Co., 146 Ind. at bar, in reliance on which the appellant 430, 436, 45 N. E. 662. The standard by might send its trains with cannon ball speed which recklessness in the doing of a lawful through the town and over the crossing withact is judged is an external one of the con- out a possible imputation of negligence? A duct of a person of ordinary prudence in the "presumption," as the term is here used, is same or similar circumstances. Common- where a fact, or set of facts, is considered wealth v. Pierce, supra. The act of the en- sufficient evidence of another fact, in the abgineer in running the engine over the cross- sence of evidence to the contrary, and preing in question, at the rate and under the sümptions of this nature are necessarily circumstances enumerated, seems to have overcome by facts. It has come to be a wellbeen done at the express instance of the ap- known fact-so well-known as to be a matter pellant company, which made and required of common knowledge—that the warning conhim to fill the schedule calling for the speed l reyed by a railroad track, an unobstructed

view of it being cut off, is not in itself suffi- whether such negligence was of so reckless cient to arouse the instinct of self-preserva- a quality as to constitute willfulness, were tion, and that, in spite of such warning, a very alike questions for the jury. "No court iarge proportion of the traveling public come ought to say as a matter of law with respect into the danger zone, many of them suffering to a crossing located, as this one was, in the no injury whatever, because of the accidental heart of a city, or one of its thoroughfares, absence of juxtaposition between them and and with such surroundings as the evidence an engine, while many of them are killed or discloses, that a company maintaining such maimed by the collision occurring when a a crossing discharges its full duty to the pubtrain does happen to reach them before they lic, and is guilty of no negligence, although can escape, after actually discovering their it fails to provide a watchman or gates to peril. That such is the fact is disclosed by

warn persons traveling in vehicles of apthe records of the court, by the decisions of proaching trains." Chicago, etc., Co. v. Kowthis and the Supreme Court, by the records alski, 92 Fed. 310, 34 C. C. A. 1; Chicago, of the Interstate Commerce Commerce Commission,

etc., Co. v. Netolicky, 67 Fed. 605, 14 C. C. A. and by the great number of fatalities annual

615; Grand Trunk v. Ives, 144 U. S. 408, 12 ly occurring and chronicled in the public Sup. Ct. 679, 36 L. Ed. 483; English v. S. press. Hardly a newspaper is printed that Pac. R. Co. (Utah) 45 Pac. 47, 35 L. R. A. does not contain an account of some circum- 155, 57 Am. St. Rep. 772. "The convenience stance or casualty tending to emphasize the of commerce" cannot be invoked to justify fact that to send a train of cars at such speed,

either manslaughter or willfulness. "The over such a crossing as the one described, may

value of human life cannot be overbalanced be done only by one willing to injure or kill

by any pecuniary or public interest. Our the unfortunates who do not get out of the

duty is simply to declare the law.” Memway. It is true that every one who attempts | phis, etc., Co. v. Martin, 117 Ala. 383, 23 to travel the street is not injured. Neither

South. 231. did the man in the cart run over every one

It is not lawful to take life to subserve traveling on the street. It was the killing of

the convenience of an individual. Neither the drunken man, who could not escape,

is it lawful to take life for the convenwhich constituted manslaughter. Consequen

ience of a number of persons. If the conces must be probable. That is exactly what

venience of commerce requires the operation they must be. It is not necessary that they

of defendant's trains through Whiteland at be certain. The meaning of the term in the

60 miles an hour, it may lawfully and propconnection is that the reasonably prudent,

erly so schedule and run them without liaconscientious, and careful man would feel inclined to believe that some one would be in

bility to persons thereby injured or killed

along the way, after, and only after, it has a place of danger and yet have room for

adequately guarded against collision and inhopeful doubt. The very doubt which lodged in the heart of the engineer made it possible jury. An exemption from liability thus pro

cured is one which can be enforced without for him to drive his engine and fill the schedule. The verdict says that such probability

anæsthetizing the conscience of either jury of injury did exist. This court takes the ver

or judge. To exonerate from all liability a dict as it is and is bound by it. The neg

corporation which runs a railroad train over ligent performance of a duty and the neg

the streets and through the town at a rate ligent omission to perform a duty, where they

so swift that its employés can only catch result in death, are equally the basis upon

a glimpse of the white face of a sober travelwhich a conviction for manslaughter may de

er, who is whirled through the air as the enpend. Monographic note, 61 L. R. A. 277,

gine passes, and at the same time hold a 299, subd. x.

nearsighted man, driving a cart along a Whether the failure of the defendant to

village street at eight miles an hour, guilty provide a watchman, gates, or other ad

of manslaughter in running over a drunkard,

whom he did not see, evidences an acrobatic equate protection was negligent, or whether in their absence the running of a train in

intellectual performance devoid of humanity the manner and at the rate at which it is

and inconsistent with the instinct of civilizashown to have been done was negligent, in

tion. view of all the circumstances, and, if so, The judgment should be affirmed.

(193 Mass. 161)

CAREY Y. MILFORD & U. ST. RY. CO. (Supreme Judicial Court of Massachusetts.



In an action against a street railway company for killing a horse in a collision with a car, evidence examined, and held, that the question of the contributory negligence of the driver in momentarily leaving the horse in a public street unattended was for the jury.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, $255.] 2. SAME NEGLIGENCE OF COMPANY EVIDENCE-QUESTION FOR JURY.

In an action against a street railway company for killing a horse in a collision with a car, evidence examined, and held, that the question of the actionable negligence of the company, due to the failure of the conductor, who knew that the horse was on the street unattended, to notify the motorman thereof, was for the jury.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, Š 253.]

Exceptions from Superior Court, Worcester County; Edward P. Pierce, Judge.

Action by James F. Carey against the Milford & Uxbridge Street Railway Company to recover damages for the killing of plaintiff's horse and injury to his wagon and harness and the contents of the wagon, caused by a collision with a car. There was judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

John B. Ratigan, John E. Swift, and Jere miah J. Moynihan, Jr., for plaintiffs. Wendell Williams, J. C. F. Wheelock, G. B. Williams, and Shelley D. Vincent, for defendant.

while goods were being delivered. She was not at all afraid of electric cars. The driver testified that he was absent only about a minute before he came out from the house and found the horse and wagon gone. The case is like Southworth v. Old Colony & Newport Railway Co., 105 Mass. 342-344, 7 Am. Rep. 528, in which a similar question was held to have been rightly left to the jury. It is different from Stacey V. Haverbill, G. & D. Street Railway Co., 191 Mass. 326, 77 N. 'E. 714, in which it appeared that the horse was sometimes fastened with a weight, but on this occasion was left alone ten minutes, in a place where there was a temptation to graze, and wandered away to indulge his natural propensity.

The defendant contends that there was no evidence of negligence on the part of either of its servants. The accident happened at about 7 o'clock in the evening of December Sth. The night was rather dark, and the motorman had no reason to expect the approach of a stray horse and wagon on the track. But if we assume, in favor of the defendant, that the jury would not have been warranted in finding the motorman negligent, it was proved beyond dispute that, quickly after the plaintiff's driver got upon the car, he made the conductor understand that his horse and wagon were astray, and that there might be danger of encountering them. The conductor testified that "he thought it his duty to notify the motorman, and had started in just as the accident occurred.” The car was only 40 feet long, and he testified that he thought he could walk the length of the car in half a minute if he had a clear aisle, and that he had a clear aisle that night. In one part of his testimony he said that it was about a minute and a half after he was told before the horse was struck, and there was other testimony that the car went about a quarter of a mile after the driver got on, before the accident. The evidence tended to show that the conductor was informed of the stray horse and should have understood that there was danger of a collision as soon as the driver got upon the car.

We are of opinion that it was a question of fact for the jury, whether the conductor exercised due care to inform the motorman of the danger promptly after he was told of it himself.

Exceptions overruled.

KNOWLTON, C. J. This case may be divided into two parts, the first relating to the conduct of the plaintiff's driver in leaving his horse unfastened while he went into a house to deliver groceries, and the second to the conduct of the defendant's conductor in failing to inform the motorman that there was a horse and wagon astray upon the street, with which there might be danger of collision.

We cannot say, as a matter of law, that the driver was negligent in momentarily leaving the horse unbitched while he went into the house to deliver groceries. Ordinarily it is negligent to leave a horse and wagon unhitched and unattended upon a public street. But there are some horses which can be so left for a short time, under some conditions, without negligence. The horse in this case was a large, slow animal, of quiet disposition, which had been used by the plaintiff four or five months in delivering groceries from house to house. It had been the custom to leave her without fastening her or using a weight, and both the plaintiff and his driver testified that they had never known her to go away alone before. The house where she was left on this occasion was one at which she had been accustomed to stand

(186 N. Y. 263) PEOPLE ex rel. QUINN V. VOORHIS et

al. COM'RS.

(Court of Appeals of New York. Oct. 26, 1906.) 1. APPEAL-REVIEW-DECISIONS OF INTERMEDIATE COURTS.

On an appeal from an order of the Appellate Division, dismissing an order granting à writ of peremptory mandamus the Court of

Appeals will not determine whether the man- gether (People ex rel. Hurlbut v. Bingham, damus was properly granted.

as Police Commissioner of the City of New [Ed. Note.-For cases in point, see vol. 3,

York, 186 N. Y. - 78 N. E. 1098, PeoCent. Dig. Appeal and Error, $$ 4312-4320.]

ple ex rel. Reardon V. Same, 186 N. Y. 2 MANDAMUS—DISMISSAL-GROUNDS. Where a writ of mandamus to a board of

- 79 N. E. - and People ex rel. Kenny elections imposes duties which are continuous, V. Same, Id., decided October 2, 1906), where and cannot be completed until election day, the

we denied relators' motions to dismiss the compliance of the board with the writ by performing some of the acts commanded is no

appeals from orders of the Appellate Diviground for dismissal of an apneal from the or

sion in the second department, which affirmed der before election day.

orders granting relators' motions for writs Appeal from Supreme Court, Appellate of peremptory mandamus, directing their Division, First Department.

restoration to the police force, on the ground Mandamus proceedings by the people on

that the commissioner had complied with the relation of Thomas C. Quinn against

the orders, and the questions were, therefore, John R. Voorhis and others, commissioners,

academic. In denying these motions, we composing the board of elections of the city

held that tbe commissioner had a right to of New York. From an order of the Appel

appeal, as the effect of the writs was to late Division (100 N. Y. Supp. 717), dis

continue the relators in office. missing an appeal from an order at Special

The order appealed from should be revergTerm, granting a writ of peremptory man

ed, without costs, and the proceedings redamus, defendants appeal. Reversed and re

mitted to

to the Appellate Division. First manded.

question certified answered as stated herein.

Second question not answered. After the appeal had been taken to the Appellate Division, the relator made a mo- CULLEN, C. J., and EDWARD T. BARTtion to dismiss it, on the ground that the LETT, WERNER, WILLARD BARTLETT, board of elections had, at the time of taking HISCOCK, and CHASE, JJ., concur. GRAY, the appeal, already complied with the provi- J., absent. sions of the writ of peremptory mandamus. This motion was granted by a divided court. Order reversed, etc.

Arthur C. Butts, for appellants. Otto C. Hess, for respondent.

(186 N. Y. 259)

BUTLER v. WRIGHT. PER CURIAM. Two questions are certified to us as follows: "(1) Was it error to dis

(Court of Appeals of New York. Oct. 26, 1906.) miss an appeal to the Appellate Division


COURTS-REVIEW-PRESUMPTIONS. from a final order, granting a peremptory

Where an order of the Appellate Division, mandamus where the defendants have obeyed reversing a judgment entered on the report of the writ by completely performing the acts a referee, does not specify the ground of reverwhich they were commanded to perform?

sal, the Court of Appeals must, under Code Civ.

Proc. & 1338, presume that the judgment was (2) If it was error to dismiss such appeal,

not reversed on a question of fact. was the mandamus properly granted upon 2. SPECIFIC PERFORMANCE-CONTRACTS-ADEthe papers presented to the Special Term ?QUATE REMEDY AT LAW. We decline to consider the second question,

A party in a contract pertaining to person

alty is confined to an action for damages for a as the merits of this controversy are not be

breach thereof, unless he is entitled to the thing fore us.

contracted for in specie, which to him has some We are of opinion that it was error on the special value, and which he cannot readily obpart of the Appellate Division to dismiss the

tain in the market, or in cases where it is ap

parent that compensation in damages would appeal from the final order, granting a

not furnish a complete and adequate remedy. writ of peremptory mandamus, even though [Ed. Note.-For cases in point, see vol. 44, the defendants had obeyed the writ in part Cent. Dig. Specific Performance, $ 5.] by performing some of the acts which they 3. SAME-DISCRETION OP COURT. were commanded to perform. We do not

The question whether equity will take jurisanswer the first question as framed, where

diction and grant relief for a breach of con

tract pertaining to personalty by decreeing speit states that "the defendants have obeyed

cific performance of the same rests in the sound the writ by completely performing the acts,” discretion of the court, and such relief cannot etc., as the duty imposed upon the board of

be demanded, as a matter of right. elections under the statute is continuous,

[Ed. Note. For cases in point, see vol. 44,

Cent. Dig. Specific Performance, sf 17, 18.] and will not be completed until election day,

4. APPEAL REVIEW REVERSAL ON QUESfor the board is required to cause to be pub

TIONS OF LAW. lished notices of the election on various days, Under Code Civ. Proc. & 1338, requiring some of which are still future. It is a the Court of Appeals to presume that the Apwell-recognized principle that a party at

pellate Division does not reverse on the facts

when it does not specify the grounds of reversal, fected by an order commanding him to do an

when it so reverses a judgment, which has some act retains the right to appeal therefrom so evidence to sustain it, its judgment will be relong as in the future the effect of the order versed on appeal to the Court of Appeals. may be to constrain his action. The prin- Werner, J., dissenting. ciple has recently been decided in this court

Appeal from Supreme Court, Appellate Di. in the cases of three policemen, argued to / vision, First Department

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