Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Winterfield vs. Cream City Brewing Co.

Eng. Ency. of Law, 242; 2 Kent, Comm. 291; Ford v. Hill, 92 Wis. 189.

It is urged that to make such a contract of guaranty was not within the power of the corporation,- that the contract was ultra vires. The rule, no doubt, is that a corporation cannot bind itself to purposes which are foreign to those for which it was created. While this is true, the general rule, no doubt, is that, except as restrained by law, corporations have the implied power to make all such contracts as will further the objects of their creation, and their dealings in this regard may be like those of an individual seeking to accomplish the same ends. 4 Am. & Eng. Ency. of Law, 245. They are not limited in law to the use of such means as are usual or necessary to the objects contemplated by their organization, but, where not restricted by law, may choose such means as are convenient and adapted to the end, though they be neither the usual means, nor absolutely necessary. Madison, W. & M. Plank Road Co. v. Watertown & P. Plank Road Co. 5 Wis. 173; Clark v. Farrington, 11 Wis. 306-322; North Iludson Mut. B. & L. A880. v. First Nat. Bank, 79 Wis. 31. If the contract is within the general scope of the powers and purposes of the corporation, it will not be void, even if, in some particulars, it is in excess of those powers, unless, by reason of such excess, it is against public policy. Germantown F. M. Ins. Co. v. Dhein, 43 Wis. 420. The purpose of the defendant's organization was to manufacture and sell beer. Doubtless it was competent to make any contract, which was convenient and adapted to further that purpose, which was not against public policy. No doubt, it was within its competency to rent a place for the sale of its beer by its agents or servants. To rent a place where one of its customers should retail its beer would seem, in a similar manner, to further the purpose of its incorporation. At least, it is not clearly foreign to that purpose. The defendant owned the bar fixtures and furni

Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co.

ture which was used by Scheer in the business. It was the defendant's beer which was sold there. The whole purpose was a scheme to make a market for the defendant's beer. The defendant patronized and promoted other similar establishments, in a similar way, in aid of the same general purpose. The scheme was germane to the purpose of the corporation, and not foreign to it. It was not ultra vires.

The defendant failed entirely to show any conduct upon the part of the plaintiff which could operate to release it from the obligation of its guaranty. No change had been made in the terms of the lease, nor anything done to affect the strict terms of the obligation of the guaranty.

The report of the referee was right, both upon the facts and the law, and should have been confirmed as made. The judgment of the superior court is wrong, both upon the facts and the law. It must be reversed.

By the Court.- The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded with direction to confirm the report of the referee and to give judgment for the plaintiff according to its terms.

CONROY, Respondent, vs. CHICAGO, St. Paul, MINNEAPOLIS &

Omaha RailwAY COMPANY, Appellant.

96 243 96 174 96 243 f104 60

98 243 108 324 108 593

February 6 May 21, 1897.

Railroads: Injuries to passenger viewing wreck: Explosion of oil tank:

Contributory negligence: Inconsistent special verdict: Setting aside
findings: Judgment: Appeal.

96 243 110 2362

96 243 114 743 s38 LRA 419 57 LRA 890n

1. A passenger on a railway train which has been stopped by burning

tanks of oil on the track, who, from mere motives of curiosity and pleasure, leaves a place designated as a temporary station at a safe distance from the fire, and goes within eighty-five feet of the fire, and remains there for some time, thereby exposing himself to ob

Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co.

vious danger, is guilty of such contributory negligence as will prevent a recovery for injuries caused by an explosion of one of the

tanks. 2. Findings of the special verdict in such a case that if plaintiff had

remained at the temporary station he would not have been seriously injured; that he unnecessarily and from motives of curiosity and pleasure approached much nearer the burning cars; and that his injuries were caused by reason of his so going nearer thereto,are held to be inconsistent with other findings that the defendant in the exercise of ordinary prudence should have known of the plaintiff's position in time to warn him of the danger from the burning car; that it ought to have anticipated that plaintiff would go nearer the car and thus incur such danger; that the warning given plaintiff was negligently and insufficiently given; that plaintiff was not guilty of contributory negligence; that defendant did not exercise reasonable care and prudence in designating a place where plaintiff might take the train; and that its officers and agents were guilty of negligence which was the proximate cause of plaintiff's injuries. No judgment should therefore have been

given upon the verdict. 3. The relation of carrier and passenger is held not to have ceased to

exist, although the actual transit had been interrupted for the time being by the wreck on the track and plaintiff had voluntarily left the temporary station, to which he had been transferred to await another train, for the purpose of obtaining a nearer view of

the wreck, 4. The danger of an explosion of the burning tank of oil was not hid

den or concealed so as to render the railroad company liable for injuries occasioned thereby to an adult who had approached the wreck from motives of curiosity, without an invitation, express or

implied. 5. The railroad company and its agents were not bound to restrain by

physical force a passenger of ordinary intelligence in order to keep

him out of such a danger, which was as obvious to him as to them. 6. The railroad company in such case was bound to the exercise of

only ordinary care and prudence to protect the plaintiff from dan. ger, in view of the situation and existing circumstances. It was therefore erroneous to instruct the jury "that it is the duty of the carrier to exercise extraordinary vigilance, aided by the highest skill, and to exercise the highest degree of care, to prevent the interposition of any obstacle to expose the plaintiff to danger while waiting for the train to arrive;" and the error was not cured by a subsequent correct statement of the degree of care required.

Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co.

7. The objection that certain findings of a special verdict should have

been set aside as contrary to the undisputed evidence, and judgment given on the other findings and such evidence, is not available on appeal unless a motion to that effect was first made in the trial court.

APPEAL from a judgment of the circuit court for Pierce county: E. B. Bundy, Circuit Judge. Reversed.

This action was brought for the recovery of damages sus'tained by the plaintiff while a passenger on its easterly bound train of cars from Ellsworth to Marshfield, Wisconsin, by reason of the alleged negligence of the defendant.

A part of the western bound freight train of the defendant, consisting of a car load of coke, three metal tanks, two of which were filled with naphtha, and one with kerosene oil, and the caboose in the rear, had been separated from the rest of the train, and had been wrecked early in the morning, and the said cars were on fire and in a dangerous condition on the defendant's track between said places, about three miles east of the station called Roberts, and west of Hammond. The defendant carried the plaintiff on its passenger train to Roberts, where the fact that such wreck had occurred was made known to the plaintiff and other passengers. When the passenger train arrived within about 400 feet of the wreck, the passengers were directed to retain their places in the cars until such time as a train might arrive to carry them on their journey, and to which they would be transferred on the east side of the wreck. The forward tank, containing naphtha, exploded soon after the wreck, and everything in the rear of it, as well as the coke car in front, caught fire. This was quite a violent explosion, and portions of the tank were thrown a considerable distance, and the tank containing naphtha next to it was so broken as to permit much of the contents to run out. The kerosene tank in the rear was thus set on fire, and continued to burn from that time until nearly 11 o'clock, a considerable part

Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co.

of the time with great violence, and producing a loud, roaring noise, with flames shooting up. A wrecking train and car had arrived at about 8 o'clock in the morning, and were operating upon the wreck, and had hitched to the tank of kerosene oil, and attempted to draw it out, scatter the burning coke, and thus clear up the track. Attempts to remove it opened the seams in the tank, and it began to burn more violently.

The wreck occurred in a farming country, and the right of way was 100 feet wide, extending through cultivated fields on either side. A gap was opened in the right of way fence on the south side, 257 feet west of the tank, and another in the wire fence, running through the fields at right angles with the road, at a point ninety-five feet south of the right of way, but 147 feet from the burning tank, and the third gap was opened in the right of way fence 256 feet east of the burning tank, in order to transfer the baggage, express matter, and mails. Efforts were unavailing to keep the passengers in the cars. A large number of them had got out, and thereupon it was concluded to transfer them, through the gaps, around the wreck, to a point east of the east gap, where they were to take the other train, and they were transferred accordingly, as well as the baggage, mail, and express matter; the latter being deposited about opposite the east gap, and the passengers occupied, in groups, a considerable space east from the east gap, along the right of way, for a distance of over 100 feet. The plaintiff, with other passengers, walked around said wreck, through said gaps, to the place where the eastern gap was opened, and said mail matter, baggage, etc., had been deposited, to wait for a train to continue his journey.

The injury complained of occurred about an hour after the passenger train arrived at the scene of the wreck, and when the plaintiff had approached to, and was standing, about eighty-five feet east of the burning tank, or one third

« ΠροηγούμενηΣυνέχεια »