of its track, which runs along the side of a mountain, but which is
only graded a little more than necessary for the actual space occupied
by its roadbed; and another road, seeking the same objective point for
the purpose of hauling ore from mines on the mountain asks to have
condemned the adjacent portion of the right of way on the upper hill.
side, which is not used, and cannot be used, without heavy excavation
work; where, by the abrupt rise in the mountain, and its rocky char
acter, it is necessary for the one road to cross divers spurs of the other,
which necessity requires both roads to be on the same level, and which
can be obviated only by requiring the incoming road to go under the
other, which would be unreasonable and impracticable, or to construct
its road high enough to go overhead, which would require it to run into
the mountain, at enormous expense, and switch back, in order to reach
the objective points of the two roads; and where, by running higher
up the mountain, the route would materially interfere with the operation
of mines, while, by going upon the existing right of way, the incoming
road would merely widen the cuts existing, causing no material damage,
and leave a space of from seventeen to twenty-two feet between the cen
ters of the tracks. It is no tenable objection to such condemnation that
the occupancy of the incoming road would make it more difficult for the
existing road to throw out switches or sidetracks above it, or make it
more difficult for it to handle ties, there being a distance of twenty-two
feet between the centers of the tracks, enough room for another track,
and, if the elevation of the incoming road is too high to prevent the ex-
isting road from crossing it at right angles with such switches or side-
track, a spur can be run, at any distance, in order to attain the proper
elevation. Neither can it be successfully urged that the right of way
taken by the incoming road is necessary in case of future double tracks
or sidings, as these needs are mere future possibilities, not based on rea-
sonably apparent traffic needs. Nor, in view of the express provision of
the constitution giving one railroad the right to cross another, will the
fact that the existing road may be inconvenienced in the operation of
its trains at the various crossings proposed, constitute any objection to
the occupancy of the incoming road. (Butte etc. Ry. Co. v. Mon-
tana etc. Ry. Co., 508.)
4. EMINENT DOMAIN-RAILWAY CROSSINGS — DIFFER-
ENCE OF GRADES.-If one railroad seeks to cross another, there
being a slight difference of elevation of grades of the two roads at the
crossing of a spur of the existing road, and the only practicable way
of crossing is to raise the grade of the spur from the switch to the point
of intersection, the court will order the crossing to be so made, at the
expense of the incoming road. (Butte etc. Ry. Co. v. Montana etc.
Ry. Co., 508.)
5. EMINENT DOMAIN-RAILWAY CROSSINGS "HUMP.”—If
one railroad seeks to cross the spur of another railroad on a mountainside
without raising the grade of the latter's track, and finds it necessary to
construct a reverse grade, which makes a "hump," that is, an uphill
and a downhill grade, which may be dangerous and liable to obstruct the
track of the existing road with wreckage in case the trains of the incom-
ing road break in two at that point, the court will not, where the evi-
dence of skilled engineers as to the feasibility of the crossing is conflicting,
disturb the crossing as so constructed, as the court cannot determine the
probable effect of the "hump." (Butte etc. Ry. Co. v. Montana etc.
Ry. Co., 508.)
6. EMINENT DOMAIN-RAILWAY CROSSINGS-DAMAGES.
In condemnation proceedings by one railroad company to obtain parts
of the right of way of another, the question of damages for crossings is
properly referred to commissioners, where the statute authorizes
it. (Butte etc. Ry. Co. v. Montana etc. Ry. Co., 508.)
7. EMINENT DOMAIN-RAILWAY CROSSINGS-CONDITIONS.
If one railroad seeks to condemn a part of the right of way of another,
used for hauling ore from certain mines, and a spur of the existing
road, used for a particular mine, is on the north side of its track, while
the mine is on the south side, and the grade of the plaintiff's track is
above the grade of the spur at the point of crossing, the court will, if it
would be more convenient for the existing road to have the spur on the
south side of its main track, order the incoming road, at its own expense,
to rebuild the spur already constructed, upon the south side of the ex-
isting main track, and provide suitable approaches to it for teams.
(Butte etc. Ry. Co. v. Montana etc. Ry. Co., 508.)
8. RAILROADS - CROSSINGS-LONGITUDINAL TAKING. -
Under a statute providing that all rights of way shall be subject to be
conuected with, crossed, or intersected by any right of way, and that
they shall also be subject to a limited use in common with the owner
thereof when necessary, it seems that the right of a railroad to condemn
a portion of the right of way of another railroad, not in actual use, is
not limited to crossings or intersections only, but extends to a longi-
tudinal taking. (Butte etc. Ry. Co. v. Montana etc. Ry. Co., 508.)
9. EMINENT DOMAIN-CROSSINGS-WATCHMEN.-If the em-
ployment of a watchman is rendered necessary by one railroad crossing
another, the former should be allowed to select the watchman, but should
be required to bear his expense. (Butte etc. Ry. Co. v. Montana
etc. Ry. Co., 508.)
CORPORATIONS—AGREEMENT TO GIVE
TRAFFIC TO, AND NOT TO AID COMPETING LINES. - An
agreement between parties to a contract, one being a mining, and the
other a railway, corporation, that the former will give the latter all its
traffic, and will not aid or encourage in any manner in the construction
of competitive lines of railway, will be enforced in equity so far as it
relates to the traffic, but in other respects, neither the mining corpora-
tion, nor its stockholders or managers, will be denied the right to pro-
mote, or otherwise encourage, competing lines of railway. (Bald
Eagle Valley R. R. Co. v. Nittany Valley R. R. Co., 807.)
11. RAILWAY CORPORATIONS, AGREEMENT TO GIVE EX-
CLUSIVE BUSINESS TO.-An agreement, upon a valuable consider-
ation, that a mining corporation will give all traffic to and from its mines
and furnaces to a railway corporation, is not against public policy, and
may be enforced in equity, where the railway, on its part, agrees to
carry such traffic for fair and reasonable charges, and, in the event of
any disagreement as to what charges are reasonable, to submit that
question to arbitration. (Bald Eagle Valley R. R. Co. v. Nittany
Valley R. R. Co., 807.)
12. RAILWAY, CONSIDERATION OF A CONTRACT TO GIVE
BUSINESS TO.-If, in consideration that a railway corporation shall
subscribe for a specified amount of the bonds of a mining corporation,
the latter agrees that it will give to the railway corporation all the
traffic to and from its ore land and furnaces, which traffic the railway
corporation agrees to carry for fair and reasonable charges, such agree
ment, upon the part of the mining corporation, is supported_by_valu
able and sufficient consideration. (Bald Eagle Valley R. R. Co. v.
Nittany Valley R. R. Co., 807.)
13. CARRIERS-TERMINATION OF LIABILITY.-A railway
corporation, leaving a portable package in one of its cars, instead
of putting it in the freightroom, is answerable for the loss thereof
by theft, though, had the consignee called for it, it would have been
delivered to him two days previous to its loss. In the case of
portable packages, a carrier cannot terminate its liability without
removing them from the car to its freighthouse. (Kirk v. Chicago
etc. Ry. Co., 397.)
14. CARRIERS-FAILURE TO FURNISH TRANSPORTATION-
ASSIGNMENT OF CLAIM FOR DAMAGES.—A claim for damages
against a railroad company, arising under a statute requiring it to
furnish sufficient accommodations for the transportation of all prop-
erty offered to it for transportation, may be assigned. (Chicago
etc. R. R. Co. v. Wolcott, 320.)
15. WHEN A RAILROAD COMPANY HOLDS ITSELF OUT AS
A CARRIER OF LIVESTOCK, the law imposes upon it the duty to
provide suitable and safe facilities, such as yards or pens, both at the
place of shipment and the place of destination, for receiving and dis-
charging the livestock offered it for shipment over its road. (Nor
folk etc. R. R. Co. v. Harman, 855.)
16. A CARRIER OF LIVESTOCK is not exempt from liability for
injuries suffered by its failing to furnish and maintain suitable facilities
for receiving such stock, by a provision in the contract of shipment de-
claring that it is nɔt to be liable for any injury of the stock until it is
loaded on the car, and the car duly fastened and secured by the conduc-
tor. It cannot, by contract, exempt itself from liability for negligence.
(Norfolk etc. R. R. Co. v. Harman, 855.)
17. RAILROADS-RULES AND REGULATIONS.-While a rall-
road company may adopt reasonable rules and regulations in the dis-
patch of its business in carrying passengers, and insist upon a com-
pliance therewith upon the part of all who seek transportation, it is
bound to afford reasonable facilities to enable a passenger to comply
with its rules and regulations. (Chicago etc. R. R. Co. v. Graham,
256.)
18. BUYING TICKETS ABOARD THE TRAIN.-A railroad com-
pany may charge one who pays his fare on the train a higher rate of
fare than one who buys a ticket before getting on the cars, if it ex-
tends ample facilities to all travelers who desire to procure tick-
ets. (Chicago etc. R. R. Co. v. Graham, 256.)
19. EJECTING PASSENGER ON SUNDAY.-The fact that a pas-
senger traveling on a Sunday excursion train is wrongfully ejected
on that day from the train, does not bar his right to recover dam-
ages for injuries sustained thereby. (Chicago etc. R. R. Co. v. Gra-
ham, 256.)
20. EXCURSION TRAINS AT REDUCED RATES.-A railroad
company may run an excursion train at reduced rates, require pas-
sengers to purchase tickets as a condition to obtaining the benefit of
such rates, and enforce the rule against all who, by their own fault,
fail to comply with it. (Chicago etc. R. R. Co. v. Graham, 256.)
21. RIGHT TO PAY EXCURSION TICKET FARE ON
TRAIN.-If a passenger on a railroad excursion train, through the
fault of the company, has been unable to procure a ticket before en-
tering the train, he may ride on such train, and, upon a tender of the
excursion ticket fare, he is entitled to all the rights and privileges
that a ticket would afford to him. (Chicago etc. R. R. Co. v.
Graham, 256.)
22. PAYMENT OF EXCESSIVE FARE ON EXCURSION
TRAIN.-One is under no obligation to purchase, even for a trifle,
what is already his own. Therefore, a passenger on an excursion
train, running at reduced rates, who has, through the fault of the
company, been unable to secure an excursion ticket, is under no obli-
gation to pay the full or excessive rate of fare demanded by the con-
ductor on the train, in order to prevent his being ejected from the
train and thus lessen his damages. (Chicago etc. R. R. Co. v.
Graham, 256.)
23. EJECTING PASSENGER-ACTION FOR VIOLATION OF
PERSONAL RIGHT.-A cause of action for ejecting a passenger
from an excursion train after tender of the excursion rate is not for
a breach of the contract to carry, but for the violation of a personal
right assured by the law. (Chicago etc. R. R. Co. v. Graham, 256.)
24. EXCURSION TRAIN – LIABILITY FOR EJECTING PAS-
SENGER UNABLE TO PROCURE A TICKET.-When a railroad
company invites the public to take passage upon a special train at a
certain station, at excursion rates, passengers have a right to expect
that reasonable accommodations will be furnished there, or on the
train, to obtain tickets: and if the company has no ticket office, or
agent, to sell tickets at that station, it cannot insist that all who
board the train shall first purchase excursion tickets. Under such
circumstances, if it ejects a passenger who tenders the excursion rate
on the train, it is liable in tort for the damages inflicted. (Chicago
etc. R.R. Co. v. Graham, 256.)
25. RAILROADS.-A FOREMAN OF A GANG OF MEN em-
ployed by a railroad company in unloading dirt from cars, who is
under the immediate and direct control of a division roadmaster, is
only a fellow-servant with each of the other members of the gang,
whether he is authorized to hire and discharge or not. Therefore,
none of them can recover of the common master for the foreman's
negligence. (Schroeder v. Flint etc. R. R. Co., 354.)
26. RAILROADS-DUTY TO FURNISH SURGEON AND LIA-
BILITY FOR HIS ACTS.-A railroad company is under no legal
obligation to provide surgical aid for its injured employees. If it
does so, voluntarily and gratuitously, its liability cannot be extended
beyond its negligence, if any, in the selection of a surgeon. (Pitts-
burgh etc. R. R. Co. v. Sullivan, 313.)
27. RAILROADS-LIABILITY FOR SURGEON'S NEGLIGENCE.
A railroad, voluntarily assuming to employ medical aid for its in-
jured employés, is bound only to exercise reasonable care and dili-
gence to employ a competent physician or surgeon, but is not required
to select one of the highest skill or longest experience. If it exercises
this required care and diligence, its duty terminates; and it is not
liable for the subsequent malpractice or wrongs of such physician
or surgeon, committed in or about the treatment of the servant.
(Pittsburgh etc. R. R. Co. v. Sullivan, 313.)
28. RAILROAD COMPANIES-IMPLIED INVITATION.-Work-
men who, for the purposes of their employment, use a planked
railroad crossing, which has been maintained for years for the use
of a manufacturing company having shops extending along either
side of the railroad track, are not mere licensees, but are there upon
the implied invitation of the railroad company. (Pomponio v. New
York etc. R. R. Co., 124.)
29. RAILROAD COMPANIES LICENSEES AND PERSONS
INVITED.-A railroad company, which has for years maintained a
planked crossing upon its tracks for the use of a manufacturing
company having shops extending along either side of the railroad,
is liable for its negligent act in switching its cars at the cross-
ing, whereby a person, going to his work at one of the shops, after
the noon intermission, is, without fault upon his part, struck and
killed, whether he is upon the crossing as a licensee, or by implied
invitation. (Pomponio v. New York etc. R. R. Co., 124.)
30. RAILROADS - FENCING AT STATIONS.-A railroad com-
pany is not required to fence its track at any of its stations.
(Stewart v. Pennsylvania Co., 231.)
31. RAILROADS-FENCING AT STATIONS-DEATH OF ANI-
MAL.-A railroad company is not liable for killing an animal which
wanders upon the track at a station. (Stewart v. Pennsylvania
Co., 231.)
32. NEGLIGENCE-PROXIMATE CAUSE. — In an action to re-
cover for personal injury sustained while alighting from a street-car,
and alleged to have been caused by the negligence of the defendant
in suddenly starting the car while the injured passenger was stand-
ing on the steps, and in permitting a hook to hang near the steps
of the car, thereby catching and dragging such passenger, the de-
fendant can exonerate himself from liability only by proof of the
absence of negligence on his part, and that the hook being recently
displaced by another passenger was the sole and proximate cause
of the accident. (Bowdle v. Detroit etc. R. R. Co., 366.)
See Agency, 1; Appeal, 6; Penalties, 3; Specific Performance.
RATIFICATION.
See Municipal Corporations, 4, 5.
1. A NAKED POSSIBILITY OF REVERTER is incapable of
alienation or devise, but descends to the heirs. Therefore, if real
property is conveyed to a corporation whose charter subsequently
expires or is forfeited, although the property reverts to the grantor
and his heirs, such reverter cannot operate to the advantage of his
assignees or devisees. (Presbyterian Church v. Venable, 159.)
2. REAL PROPERTY-LICENSEES AND PERSONS INVITED.
With respect to the safety of the premises of a landowner, he owes
a more limited duty to a mere licensee than he does to a person
who s there by invitation, either express or implied; but he owes
to both the equal duty of not injuring either by his own active neg.
ligence, and is liable if he does so. (Pomponio v. New York etc. R. R.
Co., 124.)
3. REAL PROPERTY-INVITATION-LICENSE.-A case of
invitation to go upon premises exists where the privilege of user is
for the common interest or mutual advantage of both parties,
but if such privilege exists for the mere pleasure and benefit of the
party exercising it, there is simply a case of license. (Pomponio v.
New York etc. R. R. Co., 124.)
4. NEGLIGENCE SETTING OUT FIRE.—An owner has a right
to kindle a fire upon his premises for the purpose of reducing his
land to cultivation, providing he does so at a proper time, under ordi-
narily favorable circumstances, and in a reasonable prudent manner.
In such case, he is not liable to an adjoining owner for injury aris-
ing from the spread of the fire, unless he is guilty of negligence in
not using proper care to prevent its spread. (Brummit v. Furness,
215.)
5. NEGLIGENCE-SETTING OUT FIRE.-One who negligently
sets or negligently manages a fire set on his own property is liable
to his immediate neighbor for damage caused to him by the spread
of the fire onto such neighbor's property, whether the fire is com-
municated through the air or along or under the ground. The gist
of the action is negligence. If that exists, either in setting or caring
for the fire, and injury to another happens therefrom, liability at-
taches. It is immaterial whether such negligence is gross or only
ordinary. (Brummit v. Furness, 215.)
6. SETTING OUT FIRE.-One who sets a fire on his own prem-
ises, immediately surrounded by highly combustible and inflamma-
ble material up to the very border of the adjoining owner's land,
and from there on indefinitely, is guilty of negligence under any
circumstances, and liable for the injury to his neighbor's property,
|