Co. . Sellers (Pa.), 372 n. Liability of railroad company for torts of lessee, 371 n. Ratification of lease voidable on account of fraud. Action to re- cover rent by stockholders of leased road. Complaint erro- neously dismissed. Barr . New York, L. E. & W. R. Co. (N. Y.), 329. Trackage rights.
Execution of contract held sufficient to bind lessor company, having been signed by officers and author- ized by stockholders. Chicago, R. I. & P. R. Co. v. United Pac. R. Co. (Neb.), 340.
Joint possession not interfer- ing with use of track by lessor; contract not ultra vires. Chica- go R. I. & P. R. Co. v. United Pac. R. Co. (Neb.), 340.
Specific performance not re- fused on ground that rental was inadequate or that disastrous competition would result. Chi- cago, R. I. & P. R. Co. v. United Pac. R. Co., (Neb.), 340.
Specific performance of con- tract for use of Union Pac. bridge by Rock Island railroad enforced. Chicago, R. I. & P. R Co. v. United Pac. R. Co. (Neb.), 340.
Tracks and terminals; construc-
tion of contract for use of. Chi- cago, R. I. & P. R. Co. v. Den- ver & R. G. R. Co. (C. C.), 358 n. Ultra Tires contract; lessee held
not entitled to alleged, in an- swer to bill for accounting and return of property. Manchester & L. R. Co. v. Concord R. Co. (N. H.), 359.
Licensee on train. See PAS-
LIMITATION OF ACTIONS.
Action to have damages assessed
for taking land held not an ac- tion of trespass, nor one on a liability created by a statute, within statute of limitations. Land v. Wilmington & W. R. Co. (N. Car.), 161. Eminent domain. Limitation of actions to recover compensation, 164 N.
Limitation of actions to re- cover damages to land not
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Filing map and profile held not a condition precedent to appoint- ment of commissioners to as- certain compensation. Wheel- ing B. & T. R. Co. v. Camden, C. O. Co. (W. Va.), 27. Legal location; engineer alone cannot make, so as to give com- pany title. Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co. (Pa.), 224.
Location of railroad; rights of rival railroad companies over located line, 228 n.
Location of road within city as directed by city council; power to condemn land outside of such location. Tudor v. Chicago & S. S. R. T. R. Co. (Ill.), 70 %. Pleading. When validity of lo-
cation is put in issue by one company to restain another company from locating its road over same land. Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co. (Pa.), 224. Preliminary survey which has never been adopted does not constitute legal location giving company priority over other companies. Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co. (Pa.), 224.
Title by location as against land- owner and in favor of company is only conditional. Williams- port & N. B. R. Co. v. Phila- delphia & E. R. Co. (Pa.), 224, Title by location as against third persons and rival corporation is complete. Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co. (Pa.), 224. MALICIOUS PROSECUTION. Theft of ties. Malicious prose-
cution by railroad company. Probable cause. Chicago, B. & Q. R. Co. v. Kriski (Neb.), 373 ".
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Independent contractor; employe of, working on bridge held not to be servant of railroad com- pany. Contractor alone liable for his injury. Bibb's Adm'r v. Norfolk & W. R. Co. (Va.), 651.
Passengers; injury to, through torts of servants. See PASSEN- GERS, Torts of servants. Street railway companies are not liable for wilful torts of servants outside scope of employment. Laffite v. New Orleans C. & L. R. Co. (La.), 645. MECHANIC'S LIEN.
Acquisition. Lien need not be ac- quired on every part of road. If statute is complied with lien is obtained. Farmers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.), 271.
Action to enforce decree held not to have been an interlocutory one, and the parties were bound thereby. Farmers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.), 271.
Affidavit held insufficient in stat- ing to and for whom labor and material were supplied. Flem- ing v. St. Paul C. R. Co. (Minn.), 290.
Claim of lien for articles not sub-
ject to lien. Court will permit necessary segregation. Gor- don H. Co. v. San Francisco & S. F. R. Co. (Cal.), 293. Description of property not suffi-
cient where it is stated to be a line of street railway owned by defendant. Fleming V. St.
MECHANIC'S LIEN-Continued.
Paul C. R. Co. (Minn.), 290. Distribution of insufficient fund among lien holders. Right of holder of general lien to com- plain. Farmers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.), 271. Enforcement of mechanic's lien by equitable proceedings. Amount awarded by decree. Damages.
St. John's & H. R. Co. v. Bar- tola (Fla.), 293 n.
Fund in court; mechanic awarded claim in full from, cannot com- plain because it was not made payable out of allowance made to another. Farmers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.), 271.
Lumber sold sub-contractor for erection of shanties not within statute granting lien. Stewart Chute L. Co. v. Mo. Pac. R. Co. (Neb.), 686. Materials supplied to contractors for the construction of railroads, 688 n. Mortgage; priority of mechanic's lien over, 286 n. Mortgage of road not yet built is junior to mechanic's lien, un- less bondholders had no notice and hold bona fide. Farmers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.), 271.
Notice in county where mater- ial was furnished or work done; filing of, creates lien on entire road. Farmers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.),
Railroad constructed by individ- uals owning it as a co-partner- ship; lien may exist upon. Brown v. Buck (Ark.), 295 n. "Railroad or any other struc- ture," in statute, held not to in- clude street railway. Front Street C. R. Co. v. Johnson (Wash.), 287.
Road as entirety; contractor's lien is upon, under Ga. statute. Lien cannot be enforced against part of railroad. Farmers' L. & T. Co. v. Candler (Ga.), 296. mechanic's lien attaches to, 286 n.
Sale of road. Railroad must be sold as entirety to enforce lien. Farmers' L. & T. Co. v. Canada
MECHANIC'S LIEN-Continued. & St. L. R. Co. (Ind.), 271. Sale of road and transfer of lien to fund derived from sale. Farmers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.), 271. Statute making railroads subject to lien held not unconstitution- | al on account of title and sub- ject of act. Kansas City & O. R. Co. v. Frey (Neb.), 295 n. Street railway; lien for labor up- on, not maintainable under stat- ute. Front Street C. R. Co. v. Johnson (Wash.), 287. -mechanic's lien upon, 290 n. Sub-contractor; laborer or mater- ial man delivering ties is not, within meaning of law. Farm- ers' L. & T. Co. v. Canada & St. L. R. Co. (Ind.), 271. Sub-contractor's lien. Fact that materials were delivered out- side of state held immaterial. Thompson v. St. Paul C. R. Co. (Minn.), 286 n. Time of filing mechanic's lien, 295 ".
Claim filed within proper time where obligation of con- tractor was not extinguished. What is proper to count as part of the work. Gordon H. Co. v. San Francisco & S. F. R. Co. (Cal.), 293. Verdict describing road held not to set up a lien on whole rail- road, but upon part only. Farm- ers' L. & T. Co. v. Candler (Ga.), 296. Verdict and judgment; sufficiency of. Lien on specified part of railroad. Farmers' L. & T. Co. v. Candler (Ga.), 296. MINES AND MINERALS. Condemnation of "prospect" in mineral lands; opinion evidence as to value. See EMINENT Do- MAIN, Evidence. Condemnation of right of way across mining lands. Damages. See EMINENT DOMAIN, Damages. MISTAKE. See EQUITY. MORTGAGE.
Mechanic's lien; priority of. See MECHANIC'S LIENS. MUNICIPAL CORPORATIONS. Condemnation of railroad track for city street. See STREETS
Electrical street railways. Laying!
owning majority of stock, cannot contract for construction of road. Alle mong v. Simmons (Ind.), 400.
Election of directors. Defendant company held subject to law allowing stockholders to cumu- late their votes. Right of stock- holders enforced by mandamus. Cross v. West Virginia C. & P. R. Co. (W. Va.), 381. Residence of railroad company. Absence of president from state. Residence of vice president. Harper v. Newport News & N. V. R. Co. (Ky.), 373 n. Service of process. See that title. PARENT AND CHILD.
Action by parent to recover dam- ages for injury to child. Con- tributory negligence of parents in permitting child to go in dangerous position. Avey r. Galveston, H. & S. A. R. Co. (Tex.), 565 n.
PASSENGERS. See BAGGAGE; SLEEP- | PASSENGERS. ING CARS; TICKETS AND FARES.
Employes of company borrowing car and engine and meeting with accident, held not to have been passengers. Davis v. Chicago, St. P. M. & O. R. Co. (C. C.), 457 n.
Express messenger is a passen- ger. Effect of stipulation lim- iting carrier's liability between express company and railroad company. Brewer v. New York, L. E. & W. R. Co. (N. Y.), 485.
on railroad train; stands in relation to passenger, 489 n. Fraud; person inducing conduct- or to carry him without charge, is guiity of, and cannot claim rights of passenger. McVeety v. St. Paul, M. & M. R. Co. (Minn.), 471.
Man walking towards station with intention of buying ticket is not a passenger. June v. Boston & A. R. Co. (Mass.), 533 ". Old employes accepting conduct-
or's invitation to ride on freight train without payment of fare. Liability of company for injury. Powers v. Boston & M. R. Co. (Mass.), 472 n.
Postal clerk. United States mail clerk in postal car, is a passen- ger so far as company's duty to carry him is concerned. Mellor
v. Missouri P. R. Co. (Mo.), 450.
in U. S. mail car, is entitled to recover for injuries received. Gulf C. & S. F. R. Co. v. Wil- son (Tex.), 491 n.
occupies the position of pas- senger. Statutory penalty may be required for his death. Mc- Goffin v. Missouri P. R. Co. (Mo.), 489. Traveler taking seat in freight caboose without buying ticket. Declaration held not to show relation of passenger and car- rier. Powell v. East Tenn., V. & G. R. Co. (Miss.), 457 n. Duty to Carry.
Damages; $50 held excessive, for
failure to carry passenger as agreed. Eddy v. Harris (Tex.), 473.
Failure to stop at station. The
fact that there was no more room on train will not excuse company, if it could have pro- vided more accommodations. Purcell v. Richmond & D. R. Co. (N. Car.), 457. Failure to stop at station for pas- senger waiting for regular train. Company liable for punitive damages. Purcell 7. Rich- mond & D. R. Co. (N. Car.), 457.
to take on passengers. Ac- tion for tort. Sufficiency of complaint. Purcell v. Rich- mond & D. R. Co. (N. Car.), 460 n.
Passenger left owing to failure of train to start from platform of station. Special regulations. Connell v. Mobile & O. R. Co. (Miss.), 461 n. Presumption of Negligence. Collision; case of prima facie neg- ligence arises in case of, where passenger is injured. If pre- sumption is not rebutted, pas- senger may recover. McGoffin v. Missouri P. R. Co. (Mo.), 489.
Instruction of court as to pre- sumption of negligence from unusual occurrence, held erro- neous as being on the weight of the evidence. Texas C. R. Co. v. Burnett (Tex.), 492 n. Derailment; evidence that pas- senger was injured by, entitles him to recover unless company shows due care. Montgomery E. R. Co. v. Mallette (Ala.), 499 n.
in case of, prima facie case of negligence is made out and burden of proof is on company. Southern Kan. R. Co. v. Walsh (Kan.), 493.
Presumption of negligence arises from proof of accident. Alabama G. S. R. Co. v. Hill (Ala.), 501. Freight train ;
passenger in, thrown down by concussion of cars. Presumption of negli gence held to arise. Georgia P. R. Co. v. Love, 492 n. Landslide; where passenger is injured owing to, presumption of negligence arises. Gleeson
Presumption of Negligence- Continued.
v. Virginia M. R. Co. (U. S.), ; 513.
Prima facie case may be rebutted
by showing inevitable accident or impossibility of foreseeing: it. Southern Kan. R. Co. v. Walsh (Kan.), 493.
Defective Track and Roadbed. Break in track caused by fall of water during rain. Conflicting evidence as to whether rain was unusual, Texas & P. R. Co. v. Barron (Tex.), 520 n. Degree of care. Company owes to passengers more than ordi- nary care in construction and maintenance of track. It must exercise best precaution known to practical use. Southern Kan. R. Co. v. Walsh (Kan.), 493. Evidence.
Admissions and re- marks by president of construc- tion company to newspaper re- porter several hours after acci- dent. Chattanooga R. & C. R. Co. v. Liddell (Ga.), 521 n.
Condition of track over which train had to pass to reach place of accident, may be shown. Evidence as to condition of track six months after accident. Jacksonville & S. E. R. Co. v. Southworth (Ill.), 513 n.
Exclusion of question as to whether there was subsequent accident at same switch, held harmless error. Grant 2. Ral- eigh & G. R. Co. (N. Car.), 513 n.
as to chock block, where train ran off of one track and ran into cars on another track. Stouter. Manhattan R. Co. (N. Y.), 521 n.
as to condition of cross ties. Statement of witness according to his best recollection, held properly received. Alabama G. S. R. Co. v. Hill (Ala.), 501
as to condition of track in vicinity of accident where in- jury was caused by derailment, owing to breaking of rail and defective ties. Alabama G. S. R. Co. v. Hill (Ala.), 501.
in reference to defective track and roadbed, 513 n.
Defective Track and Roadbed- Continued.
Evidence of condition of track at other places than place of ac- cident. Grant v. Raleigh & G. R. Co. (N. Car.), 513 2.
of defects in track that may have caused accident, held ad- missible under the complaint. Richmond & D. R. Co. v. Vance (Ala.), 513 ". Exemplary damages for injuries to passenger caused by defect- ive track, 512 n.
for injury caused by derail- ment, not confined to cases where there is entire want of care. Alabama G. S. R. Co. v. Hill (Ala.), 501.
may be recovered, where in- jury was caused by rotten ties and old rails, showing gross negligence. Alabama G. S. R. Co. v. Hill (Ala.), 501. —not recoverable for injury caused by defective track, un- less defendant was probably conscious that accident was likely. Richmond & D. R. Co. v. Vance (Ala.), 512 . Fences. Derailment caused by collision with calf. Negligence in failing to fence track. Gulf C. & S. F. R. Co. v. Wilson (Tex.). 522 n. Landslide, Company must so construct the banks of its cuts, that they will not slide from or- dinary causes. Failure to do so is negligence. Gleeson v. Virginia M. R. Co. (U. S.), 513. caused by ordinary rain, not "act of God" exempting company from liability. Glee- son v. Virginia M. R. Co. (U. S.), 513.
New roadbed. Road not open for regular passenger trains. As- sumption of risk by passenger. San Antonio & A. P. R. Co. v. Robinson (Tex.), 521 #. "Spring rail"; accident caused by break of. Expert testimony that rail appeared to be sound, not necessary. Crawford . Georgia P. R. Co. (Ga.), 520 #1. Train leaving one track and run- ning into cars on another track. Leaving freight cars on side track, not negligence. Grant v.
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