law does not necessarily make the company liable, if the bell was rung or whistle sounded for such a distance from the crossing as to give the deceased timely and sufficient warning of the approaching train to prevent him from trying to cross the track: Cook v. N. Y. Cent. R. R. Co., 5 Lans. 401. But see Robinson v. W. P. R. R. Co., 48 Cal. 410.

The plaintiff complains, and alleges:

I. That at the time hereinafter mentioned, the defendants were common carriers of passengers for hire, between ., and were the proprietors of

... and .....

a steamboat, named the

employed by them in

fendants received the plaintiff and his wife and daughter into said boat, for the purpose of safely conveying them therein as passengers, from

to

...., for

dollars, paid to them by the plaintiff therefor. III. That the defendants so negligently and unskillfully conducted themselves, and so misbehaved in the management of said boat, that, through the negligence and unskillfulness of themselves and their servants, the steam escaped from the boiler and engine, and burned and scalded [or otherwise state injury, according to the facts,] the plaintiff, and his wife and daughter.

IV. That in consequence thereof the plaintiff and his said wife and daughter became, and for a long time remained ill; the plaintiff was deprived, and for a long time to come. will be deprived, of the assistances and services of his wife and daughter, and was compelled to, and did expend .... .... dollars in attempting to cure himself and his wife and daughter, and was for........ months prevented from pursuing his business, and was otherwise greatly injured to his damage. dollars.

[Demand of Judgment.]

23. Condition of Boiler. The certificate of an inspector does not discharge the liability of the owner of a boiler to the party injured by its bursting: Swarthout v. New Jersey Steamboat Co., 46 Barb. 222.

24. Master and Servant.-The owner of water craft is not liable for the injury willfully committed by the master or pilot running her: Turnpike Co. v. Vanderbilt, 1 Hill, 480.

25. Negligent Delay.-As to liability of a transportation company to passenger for injury occasioned by negligent delay, see Van Buskirk v. Roberts, 31 N. Y. 661.

26. Negligence in Navigating Water Craft. The plaintiff in an action for damages for injuries caused by negligence in sailing water craft, must show that he used ordinary care: Barnes v. Cole, 21 Wend. 188; 4 McLean, 286; Rathburn v. Payne, 19 Wend. 399; United States v. Mayor, 5 Mo. 230; Simpson v. Hand, 6 Whart. 311; Logan v. S. B. Clipper, 18 Ohio, 375.

27. Rule of Damages. -Where the collision occurs without negligence of either party, each must bear his own loss: Stainback v. Rae, 14 How. U. S. 532; Williamson v. Barrett, 13 Id. 101; Halderman v. Beckwith, 4 McLean, 286; Barrett v. Williamson, Id. 589; 4 Harring. Rep. 228; 1 Tex. 30.

28. Rules of Navigation.-Steam vessels are bound to keep clear of sailing vessels; they are treated as having wind in their favor: St. John v. Paine, 10 How. U. S. 583; Newton v. Stebbins, 10 Id. 586; The "Europa,” 2 Id. 557; "Western Belle" v. Wayner, 11 Mo. 30.

No. 361.

vii. For Injuries to Engineer of a Railroad Company, Caused by a Collision. [TITLE.]

The plaintiff complains, and alleges: I. That on the ...... day of 187., the defendant was a corporation, duly incorporated under and pursuant to the laws of the State of California, and was owner of a certain railroad known as. . . . . . . . Railroad, together with the track, cars and locomotives thereto belonging. II. That one of said locomotives, and the train thereto attached, ran from.... to..... and back again, each day; and another thereof ran from. . . . . . . . to said........, and back again, each day; which said locomotives, with their respective trains, were used and accustomed to meet, and safely pass each other, at.

III. That the said plaintiff was employed by the said defendant as an engineer upon one of said locomotives, at and for a certain hire and reward agreed upon by the parties in that behalf, and was accustomed to stop the said last mentioned locomotive at..... .. . . aforesaid, under the instruction by him received from the said defendant, and there to pass the said other locomotive as aforesaid.

IV. That by reason of the premises it became the duty of the said defendant to give the said plaintiff due notice of any change in the place of meeting and passing of the said locomotives and their respective trains, yet the said defendant, not regarding its said duty, did, on the....day

of....... .., 187., change the place of meeting and passing of said locomotives, with their respective trains, from said to said.. and did direct said change to be carried into effect on the....day of........, 187..

.....

.........

V. That the said defendant wholly neglected and failed to give the said plaintiff notice of the said change in the place for the passing of said locomotives with their respective trains, and whilst the said plaintiff was proceeding, in his capacity of engineer as aforesaid, on one of said locomotives, with the train thereto belonging, according to the directions before that time given to the said plaintiff by the said defendant, between and ....

aforesaid, the other locomotive with its train, coming from ran against it, and violently crushed

the same.

of .... sum of

to

VI. That by reason thereof the plaintiff was severely scalded, bruised, burnt and wounded, and became sick, sore, lame and disordered, and so remained for the space months, and was compelled to expend the .... dollars for medical attendance; and was prevented from attending to his ordinary business, and lost all the wages he otherwise would have earned, to wit, the sum of dollars, to his damage [Demand of Judgment.]

dollars.

29. Company, when not Liable. The fact that a railroad company's servant was of a higher grade than another servant of said company, injured through his negligence, does not make the company liable: Shauck v. Northern Central R. R. Co., 25 Md. 462; Cumberland Coal and Iron Co. v. Scally, 27 Md. 589; McLean v. Blue Point Gravel Min. Co., 51 Cal. 255.

30. Employer, when Liable.-If injury to the employee results from fault or negligence on the part of the employer, the employer is liable: Ryan v. Fowler, 24 N. Y. 410; Connolly v. Poillon, 41 Barb. 366. But if such injury results from defects in machinery, etc., notice of such defect must be brought home to the employer: Kunz v. Stewart, 1 Daly, 431; Loonam v. Brockway, 28 How. Pr. 472. An allegation that defendant "negligently provided" such machinery held sufficient averment of knowledge: Knaresbor ough v. Belcher S. Min. Co., 3 Sawyer, 446.

31. Joinder of Parties.-Master and servant may be joined as defendants in an action to recover for the negligence of the servant: Montford v. Hughes, 3 E. D. Smith, 591.

32. Mutual Negligence. The rule that the plaintiff cannot recover if his own wrong as well as that of the defendant conduced to the injury, is confined to cases where his wrong or negligence has immediately or approximately contributed to the result: Kline v. C. P. R. R. Co., 37 Cal. 400; cit

ing Needham v. San Francisco and S. J. R. R. Co., 37 Cal. 409. A slight want of care on the part of the plaintiff will not excuse gross negligence by the defendant: Bequette v. People's Trans. Co., 2 Or. 200.

33. That Plaintiff did not Contribute to Injury. In an action against a railroad company by one of its servants to recover for injuries received through the negligence of another servant, the complaint must allege, either expressly, or by stating facts from which it clearly appears, that the plaintiff did not by his own fault or negligence contribute to the injury: Evansville R. R. Co. v. Dexter, 24 Ind. 411.

34. Want of Ordinary Care.-It is not necessary for the plaintiff to allege in his complaint that the injury happened without any want of ordinary care on his part; except where the facts alleged are such as to raise a presumption of such fault in him: Johnson v. Hudson River R. R. Co., 5 Duer, 21; 20 N. Y. 65; Wolfe v. Supervisors of Richmond, 11 Abb. Pr. 270; S. C., 19 How. Pr. 370; Burdick v. Worral, 4 Barb. 596; Holt v. Whatley, 51 Ala. 569; Texas & P. R. W. Co. v. Murphy, 46 Texas, 356; Robinson v. W. P. R. R. Co., 48 Cal. 409; contra, Louisville, etc., R. Co. v. Boland, 53 Ind. 398; see, also, Chicago & N. W. R. Co. v. Coss, 73 Ill. 394.

No. 362.

viii. For Injuries to Engineer of a Railroad Company-Said Company having Used a Condemned Locomotive.

[TITLE.]

.........

187., the defend

The plaintiff complains, and alleges: I. That on the....... day of ... ant was a corporation, duly incorporated under and pursuant to the laws of the State of... ..., and was the owner of a certain railroad, and of a locomotive propelled by steam on said railroad, and by said defendant used and employed in carrying and conveying passengers and goods [or hauling trains of cars containing passengers and goods], upon and over the said railroad of the said defendant, from.... to...

II. That the said plaintiff on the day and year aforesaid, at. . . . . . . . aforesaid, and at the time of the committing of said grievances, was in the employ of the said defendant, as engineer upon said locomotive, so moved and propelled by steam as aforesaid; and that it then and there became and was the duty of the said defendant, to procure a good, safe, and secure locomotive, with good, safe, and secure machinery and apparatus, to move and propel the same as aforesaid.

III. That the said defendant conducted itself so carelessly, negligently and unskillfully, that, by and through the carelessness, negligence and default of the said defend

ant and its servants, it provided, used, and suffered to be used, an unsafe, defective, and insufficient locomotive, of all which it had notice.

IV. That for want of due care and attention to its duty in that behalf, on the said........day of........, 187., at . aforesaid, and whilst the said locomotive was in the use and service of the said defendant, upon said railroad, and whilst the said plaintiff was on the same, in the capacity aforesaid, for the said defendant, the boiler connected with the engine of the said locomotive, by reason of the unsafeness, defectiveness, and insecurity thereof, exploded; whereby large quantities of steam and water escaped therefrom, and fell upon the said plaintiff, by which he was greatly scalded, burnt, and wounded, and became sick, sore, and disordered, and so remained for the space of.... months, and was compelled to expend the sum of.

dollars for medical attendance, and was prevented from attending to his ordinary business, and lost all his wages he otherwise would have earned, to wit, the sum of...... dollars, to his damage........ dollars.

[Demand of Judgment.]

35. Company Liable for Acts of Servants.—It has also been held in a case where men are in the employ of a manufacturing company, that where an injury is suffered through the gross carelessness of the agent of the company, the company is not liable in damages; where both the injured party and the agent, through whose neglect the injury was caused, were engaged in their respective duties: Albro v. Agawam Canal Co., 6 Cush. 75. It has been the opinion in a large number of cases very similar to those above referred to, that the inquiry should be made, “Did the accident happen through the fault of the company, or the fault of its servants;" and if through the fault of the servants, and without any fault on the part of the company, then it would not be liable. In the case of Keegan v. Western Railroad Corporation, 4 Seld. Rep. 175, it was held that the defendant was liable, on the ground that the neglect was that of the corporation, and not of its servants, and so did not come within the principle established in Coon v. S. & U. R. R. Co., 1 Seld. Rep. 492. The locomotive in this case had been reported as insufficient by the engineers, but the corporation continued to use it; hence it was the fault of the corporation, and not of its servants. Where the injury was alleged to have been caused by the negligence of an engineer who was employed by a superintendent who had full authority and control of the work, and employed and discharged the workmen, the complaint must also allege that the defendants were negligent in the selection of their superintendent, or it does not state a cause of action against them: Collier v. Steinhart, 51 Cal. 116.

36. Form.-The above form is partially taken from Nash's Pleadings and