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of law. 38

give reasonable time to make said repairs. If 12. Burden of Proof. If the master is he is injured under these circumstances, the charged with negligence in keeping unfaithmaster is liable. If the danger is imminent, so ful employees, the burden is on the injured much so that no prudent employee would un- servant to prove it. 37 dertake to perform the work, the servant 13. Who Are Fellow-Servants is a Question must quit the employment without delay. 23 for the Jury.—Who are fellow-servants with

11. Contributory Negligence.--If the em- in the rule is a question of fact and not of law, ployer does not expressly promise to repair and is for the jury to decide. It is error for after notified, and the employee remains in the the court to instruct the jury as to who are service, the servant is then not relieved from fellow-servants under a given state of facts. the charge of contributory negligence in case Whether employees are operating in a line of of injury. 34

business and consociating as fellow-servants A railroad employee was sent on a wrecking is a question of fact for the jury, and not one train to assist in clearing the track. tered the locomotive and took a seat there, 14. Negligence. — The question of negliinstead of going into the car provided for the gence is a fact for the decision of the jury,ungang of workmen, which he knew was against der the instructions of the court. Whether the rules of the company. A collision oc- the defendant has been negligent to a degree curred and he was killed. Held, that he was to subject him to liability, or whether the guilty of such negligence in thus exposing plaintiff has been so negligent as to exempt himself to extra danger, and his representa- the defendant from liability, must be passed tive was barred the right to recovery, not

on by the jury, instructed by the court as to withstanding the regligence of the employee the principles pertaining thereto. Though in charge of the train. “A person who vol

in Connecticut it is held a question of fact for untarily and unnecessarily places himself in a

the jury exclusively, without the instruction well known place of danger to life and body,

of the court as to the law applicable to the but for which position he would not have

case. been injured, and he is injured or killed in

There is no relation of privity between the consequence of such exposure, even through railroad corporation and its employees. The gross negligence of the defendant, if the act

obligations of the railroad company to proof the latter is not wanton or willful, is guilty

vide its servants reasonably safe machinery of such contributory negligence as to pre

and instrumentalities, and to secure co-serclude any recovery by him or his personal re

vants who are careful and competent, are the presentative.”:35

first principles of the common law. If an employee in the faithful discharge of

Bloomington, I. D. H. PINGREY. his duty should be suddenly called upon by his master to do an act, and be told to “hurry up, ” it cannot be expected that he will re

37 Railroad Co. v. Burrough, 15 Conn. 133; Railroad

Co. v. Troesch, 68 II. 545; Railroad Co. v. Geary, member particular dangers that he previ

supra; Cook v. Trans. Co., 1 Denio, 91. ously knew of. It would not be reasonable to 88 Railroad Co. v. Moranda, supra; Railroad Co. expect the same amount of care that would

v. Morgenstern, 106 III. 216.

39 Bradley v. Railroad Co., 2 Cush. 543; Huyett v. be required of him if he had reasonable time

Railroad Co., 23 Pa. St. 373. for deliberation, and in his haste cannot be 40 Beers v. Railroad Co., 19 Conn. 566; Park v.

O'Brien, 23 Conn. 347. taken as concurrent negligence.36




33 Wharton & Redfield on Neg., § 96; Cooley on Torts, 559; Wharton Neg. 220; Patterson v. Railroad Co., supra; Hough v. Railroad Co., 100 U. S. 213; Conrad v. Iron Works, 62 Mo. 35; Clark v. Holmes, 7 H. & N. 348; Parody v. Railroad Co., 15 Fed. Rep. 205; Greene v. Railroad Co., 17 N. W. Rep. (Minn.) 378; Manufacturing Co. v. Morrissey, 40 Ohio St. 148.

34 Railroad Co. v. Drew, 59 Texas, 10; Simmons v. Railroad Co., 11 Brad. (Ill.) 147; Railroad Co. v. Lynch, 90 Ill. 334. 35 Abend v. Railroad Co., 111 Ill. 202.

28 Lee v. Woolsey, 16 Weekly Notes of Cases, (Phila.) 337; Whart. Neg., $ 219.

“ If I place a man in such a position that he must adopt a perilous alternative, I am responsible for the consequences." This is the rule laid down by Lord Ellenborough, in the

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leading English case of Jones v. Boyce, in a recent case,? Bramwell, L. J., objected where it appeared that the plaintiff had been with much force to such a phrase as “What on the top of a coach when, in consequence would a prudent man do?” saying that a of the horses becoming unruly and unman prudent man might jump out of a fast train, ageable, there was a real danger that the if he saw imminent danger to his wife or coach might be upset, and the plaintiff, there child ;8 and the phrase should be taken to fore, jumped off and was thereby injured. mean, “What would a prudent man do under And so, in the leading American case of ordinary circumstances?" The general rule, Stokes v. Salstonall,” where it appeared that a indeed, seems to be best formulated by Field, passenger had jumped from a stage-coach, J., thus: fearing that it would overturn, it was laid "If a person, by a negligent breach of duty, down that “it is sufficient, if he was placed, expose a person towards whom the duty is by the misconduct of the defendant, in such contracted to obvious peril, the act of the a situation as obliged him to adopt one alter latter, in endeavoring to escape peril, although native, leap or remain in peril." 5 We find it may be immediate cause of the injury, is Chief Baron Kelly laying down a like doc not the less to be regarded as the wrongful trine in Siner v. G. W. Ry. Co. ;: and so, in act of the wrong doer ;' and this doctrine has the Admiralty case of The Bywell Castle, 4 we think, been rightly extended in more recent where in a collision the libelled vessel changed time to a grave inconvenience' when the her course when “in her very agony,” as danger to which the passenger is exposed, is James, L. J., put it, it was held that, if a not in itself obvious.”10 ship, by wrong manæuvres, has placed an In such a case, said Lord Ellenborough in other ship in a posttion of extreme peril, that Jones v. Boyce, “the proprietor will be reother ship will not be held to blame, if in that sponsible, though the coach was not actually moment of extreme peril and difficulty she overturned.” But an able writer in the Ochappens to do something wrong, and is not tober number of the American Law Register manæuvred with perfect presence of mind. is perfectly justified in stating that the rule is accurate judgment and promptitude, “al subject to this limitation,—that it is necesthough,” observed Cotton, L.J., those before sary that the situation of peril in which the whom the case comes to be adjudicated, with plaintiff is placed, in order to make his act knowledge of all the facts, are able to see that while there an excusable error of judgment, the course adopted was in fact not the best.” must be the result of the negligence of the As it is put in the American case of Wesley defendant ;12 and where, therefore, the plaintCity Coal Company v. Healer, where a party iff has, by his own negligence, placed himhas given another reasonable cause for alarm, self in a position of known peril, or where the he cannot complain that the person so alarmed

act of the plaintiff causing his injury resulted has not exercised cool presence of mind, and from a rash apprehension of danger which thereby find protection from responsibility did not exist, then, although in the excitement resulting from the alarm. So, in Collins

and confusion he makes a mistake in his atv. Davidson, it was said by McCrary, J.

tempt to escape from impending peril, and is (Amer.): "In the case of sudden and un

exposed to greater danger, the consequences expected peril, endangering human life, and

of such mistake cannot be visited upon the causing unnecessary excitement, the law

defendant, for no degree of presence of mind makes allowances for the circumstance that

nor want of it has anything to do with the there is but little time for deliberation, and

case, as it was negligence to be there. On holds a party accountable only for such care

this subject no better illustration could be as an ordinarily prudent man would have ex

presented than the Irish case of Kearney v. ercised under similar circumstances.” But;

The Great Southern and Western Railway

11 Stark. 402.
2 13 Pet. 181.
3 L. R. 3 Ex. 150.
4 4 Pro. D. 219.
5 84 Ill. 126.
6 19 Fed. Rep. 83.

7 Lax v. Mayor of Darlington, 5 Ex. D. 28.
8 See Lloyd v. Hannibal, etc., Ry., 53 Mo. 509.
9 Jones v. Boyce, supra.

10 Robson v. The North Eastern Ry. Co., L. R. 10 Q. B. 271.

11 Jones v. Boyce, supra.
12 See the Elizabeth Jones, 112 U. S. 514, 526.

Co., decided in June last by the Queen's | plaintiff's dangerous act of jumping out of Bench Division.

the carriage. And after citing Jones v. The plaintiff there was a passenger on the Boycel and Robson v. North Rastern Ry.,14 he defendants' railway from Lismore. At six

aid: “In the present case there was not, o'clock, when the train was approaching in my opinion, evidence of peril or grave inCastletownroche station, the plaintiff felt a

convenience within these authorities which shock, and some pebbles struck the windows ought to have gone to the jury. The coupof the carriage, and the carriage, as the ling-rod of the engine broke; one end pierced plaintiff thought, became filled with smoke. the boiler ; steam escaped thence, and smoke A man in the same compartment as the from the furnace; the train yielded at once plaintiff looked out of the window, and cried to the action of the vacuum brake-was out that the train was on fire. The train was slowly and shortly came to a standstill. It moving very slowly at the time; the plaintiff does not appear how the engine-driver and was greatly frightened, and jumped out of stoker came by the serious injuries they susthe carriage, and was in consequence in tained; but no passenger in the train was injured. It appeared that the coupling rod of jured, or (except the plaintiff and the girl the engine had broken, which caused water O'Connor) even alarmed. These two seem and steam to issue from the engine, which, it to have been terrified by the cry—a statewould seem, the plaintiff mistook for smoke. ment of some men being passengers in the In fact, the carriage was not on fire, nor was same compartment — that the train was on the plaintiff, in fact, in any danger, when the fire. The defendants are not responsible accident happened. A brake was put on,

for this cry or statement; it was mnfounded, and the train had nearly stopped when the in fact; but the plaintiff, in panic, jumped plaintiff jumped out. O'Brien J., who tried through the carriage door, which the girl the case, was of opinion that there was no O'Connor had opened, and she was injured. evidence that the injury to the plaintiff was The injuries, however, were, in my opinion, caused by any negligence or default of the the result of unfortunate rashness, and not defendants, and directed a verdict and judg- of the defendants' negligence. On this ment to be entered for the defendants. The ground, therefore, I think the plaintiff, thereupon, moved to set aside this rightly withdrawn from the jury.”The verdict and judgment, and the question for Irish Law Times. the Court was, whether the judge was right in the direction he gave. May, C. J., and

14 Supra. O'Brien, J., held that the injury to the plaintiff was not the result of any negligence by the defendants, and that the direction of the trial judge was right; though, of course,


RIER-INTER-STATE COMMERCE-STATE regards the negligence of the defendants, the

CONTROL OF CARRIER’S CHARGES. case would have assumed a different aspect had the railway carriage been in fact over

WABASH, ETC. CO. V. STATE OF ILLINOIS. turned in consequence of the defect in the machinery, or the plaintiff injured by the di

Supreme Court of the United States, October 25, 1886. rect consequence of that defect, instead of by reason of rashly jumping out, without in

1. It is competent for a State to prescribe rates of quiry, immediately on hearing the cry of charges by common carriers, and to prohibit discrimi"fire." Johnson, J., agreed in the decision,

nation in such charges between different places within

the State. but without deciding whether there was evidence of negligence on the defendants' part 2. A State having enacted a law of this character, for the jury. But, on the question whether,

and the supreme court of that State having held that

such law was applicable to contracts for carriage of assuming negligence on the defendants' part,

goods, to be performed partly within the State and in it was by reason thereof the plaintiff sus part in other States, such construction of the statute

must be accepted by the Supreme Court of the United tained the injuries, he thought there was not

States as correct and that construction confers upon evidence for the jury of a peril justifying the

the Supreme Court of the United States jurisdiction

case was

13 Supra.


to inquire and determine whether that statute, so con- And it is alleged that the car-load transported for strued, is in conflict with that clause of the constitu

Elder & McKinney was carried eighty-six miles tion of the United States which confides to congress

further in the State of Illinois than the other carthe regulation of commerce among the States.

load of the same weight. This freight, being of 3. Such a statute, haying been enacted by the State

the same class in both instances, and carried over of Illinois, and so construed by its supreme court, it is the same road, except as to the difference in the held that transportation of goods from points within distance, it is obvious that a discrimination the State of Illinois to the city of New York, is com- against Bailey & Swannell was made in the merce among the States, and as such is subject only charges against them, as compared with those to the regulation of congress, under the clause of the

against Eider & McKinney; and this is true, constitution of the United States, wbich confers on

whether we regard the charge for the whole disthat body exclusive authority to regulate commerce

tance from the terminal points in Illinois to New among the States.

York city, or the proportionate charge for the

haul within the State of Illinois. 4. The transportation of goods under the contract in question from points within a State to points be- The language of the statute which is supposed yond its limits, being commerce among the States in the to be violated by this transaction is to be found strictest sense, an enactment controlling it is not one in chapter 114 of the Revised Statutes of Illinois, of that class of commercial regulations which a State

$ 112. It is there enacted, that if any railroad may establish and keep in operation until congress

corporation shall charge, collect, or receive, for shall have exercised its power on that subject.

the transportation of any passenger or freight of

any description upon its railroad, for any distance Writ of error to the Supreme Court of the State

within the State, the same or a greater amount of of Illinois.

toll or compensation than is at the same time MILLER, J., delivered the opinion of the court:

charged, collected, or received for the transportaThis is a writ of error to the Supreme Court of tion in the same direction of any passenger or Nlinois. It was argued here at the last term of

like quantity of freight of the same class over a this court. The case was tried in the court of

greater distance of the same road, all such disoriginal jurisdiction on an agreed statement of

criminating rates, charges, coilections, or receipts, facts. This agreement is short, and is here in

whether made directly or by means of rebate, serted in full: “For the purposes of the trial of

drawback, or other shift or evasion, shall be said cause, and to save the making of proof

deemed and taken against any such railroad cortherein, it is hereby agreed on the part of the de

poration as prima facie evidence of unjust disfendant that the allegations in the first count of

crimination prohibited by the provisions of this the declaration are true, except that part of said

act. The statute further provides a penalty of not count which avers that the same proportionate

over $5,000 for that offense, and also that the discrimination was made in the transportation of

party aggrieved shall have a right to recover three said property-oil-cake and eorn-in the State of

times thə amount of damages sustained, with Nlinois that was made between Peoria and the

costs and attorney's fees. city of New York, and Gilman and New York

To this declaration the railroad company decity, which averment is not admitted, because de

murred. The demurrer was sustained by the fendant claims that it is an inference, from the

lower court in Illinois, and judgment rendered fact that the rates charged in each case of said

for the defendant. This, however, was reversed transportation of oil-cake and corn were through

by the supreme court of that State, and on the rates, but it is admitted that said averment is a

case being remanded the demurrer was over

ruled, and the defendant pleaded, among other The first count in the declaration, which is re

things, that the rates of toll charged in the ferred to in this memorandum of agreement, declaration were charged and collected for serycharged that the Wabash, St. Louis & Pacific ices rendered under an agreement and underRailway Company had, in violation of a statute taking to transport freight from Gilman, in the of the State of Illinois, been guilty of an unjust State of Ilinois, to New York city, in the State of discrimination in its rates or charges of toll and New York, and that in such undertaking and compensation for the transportation of freight. agreement the portion of the services rendered, The specific allegation is that the railroad com- or to be rendered, within the State of Illinois, was pany charged Elder & McKinney for transporting not apportioned separate from such entire service; 26,000 pounds of goods and chattels from Peoria, that the action is founded solely upon the supin the State of Illinois, to New York city, the posed authority of an act of the legislature of the sum of $39, being at the rate of fifteen cents per State of Ilinois, approved April 7, 1871; and that hundred pounds for said car-load; and that on said act does not control or affect or relate to the same day they agreed to carry and transport undertakings to transport freight from the State for Isaac Bailey and F. 0. Swannell another car- of Illinois to the State of New York, which falls load of goods and chattels from Gilman, in the within the operation, and is wholly controlled by State of Ilinois, to said city of New York, for the terms of the third clause of section 8 of which they charged the sum of $65, being at the article 1 of the constitution of the United States, rate of twenty-five cents per hundred pounds. which the defendant sets up and relies upon as a

proper one."

complete defense and protection in said action. Rep. 334, 388, 1191; Gloucester Ferry Co. v. Penn

This question of whether the statute of Illinois, sylvania, 114 U. S. 204; s. C., 5 Sup. Ct. Rep. 826; as applied to the case in hand, is in violation of Pickard v. Pullman Southern Car Co., 117 U.S. the constitution of the United States, as set forth 34; 8. C., 6 Sup. Ct. Rep. 635); and the question in the plea, was also raised on the trial by a re how far such regulations, made by the States and quest of the defendant, the railroad company, under State authority, are valid or void, as they that the court should hold certain propositions of may affect the transportation of goods through law on the same subject, wbich propositions are more than one State, in one voyage, is not enas follows: “The court holds as law that, as the tirely new here. The Supreme Court of Illinois, tolls or rates of compensation charged and col in the case now before us, conceding that each of lected by the defendant in the instance in ques these contracts was in itself a unit, and that the tion were for transportation service rendered in pay received by the Illinois railroad company was transporting freight from a point in the State of the compensation for the entire transportation Illinois to a point in the State of New York, un from the point of departure in the State of Illider an entire contract or undertaking to transport nois to the city of New York, holds that, while such freight the whole distance between such the statute of Minois is inoperative upon that points, that the act of the general assembly of the part of the contract which has reference to the State of Ilinois, approved May 2, 1873, entitled transportation outside of the State, it is binding •An act to prevent extortion and unjust discrimi and effectual as to so much of the transportation nation in the rates charged for the transportation as was within the limits of the State of Illinois of passengers and freight on railroads in this

(People v. Wabash, etc. R. Co., 104 Ill. 476), and, State, and to punish the same, and prescribe a undertaking for itself to apportion the rates mode of procedure and rules of evidence in rela charged over the whole route, decides that the tion thereto, and to repeal an act entitled 'An act contract and the receipt of the money, for so much to prevent unjust discrimination and extortion in of it as was performed within the State of Illithe rates to be charged by the different railroads nois, violate the statute of the State on that in the State for the transportation of freight on subject. said roads,' approved April 7, 1871,” does not If the Illinois statute could be construed to apply to or control such tolls and charges, nor can apply exclusively to contracts for a carriage the defendant be held liable in this aɔtion for the which begins and ends within the State, disconpenalties prescribed by said act. The court fur nected from a continuous transportation through ther holds as law that said act in relation to ex or into other States, there does not seem to be tortion and unjust discrimination cannot apply to any difficulty in holding it to be valid. For intransportation service rendered partly without stance, a contract might be made to carry goods the State, and consisting of the transportation of for a certain price from Cairo to Chicago, or from freight from within the State of Illinois to the Chicago to Alton. The charges for these might State of New York, and that said act cannot op be within the competency of the Illinois legislaerate beyond the limits of the State of Illinois. ture to regulate. The reason for this is that both The court further holds as a matter of law that the charge and the actual transportation in such the transportation in question falls within the cases are exclusively confined to the limits of the proper description of “commerce

among the

territory of the State, and is not commerce among States,' and as such can only be regulated by the the States, or inter-State commerce, but is exclucongress of the United States, under the terms of sively commerce within the State. So far, therethe third clause of section 8 of article 1 of the fore, as this class of transportation, as an element constitution of the United States."

of commerce, is affected by the statute under conAll of these propositions were denied by the sideration, it is not subject to the constitutional court and judgment rendered against the defend provision concerning commerce among the States. ant, which judgment was affirmed by the supreme It has often been held in this court, and there court on appeal.

can be no doubt about it, that there is a commerce The matter thus presented as to the controlling wholly within the State which is not subject to influence of the constitution of the United States the constitutional provision; and the distinction over this legislation of the State of Illinois raises between commerce among the States and the the question which confers jurisdiction on this other class of commerce between the citizens of court. Although the precise point presented by a single State, and conducted within its limits exthis case may not have been heretofore decided clusively, is one which has been fully recognized by this court, the general subject of the power of in this court, although it may not be always easy, the State legislatures to regulate taxes, fares, and where the lines of these classes approach each tolls for passengers and transportation of freight other, to distinguish between the one and the over railroads within their limits has been very other. The Daniel Ball, 10 Wall. 557; Hall v. much considered recently (State Freight Tax De Cuir, 95 U. S. 485; Telegraph Co. v, Texas, Case, 15 Wall. 232; Muon v. Illinois, 94 U. S. 105 U. S. 460. 133; Chicago, etc. R. CO. y. Iowa, Id. 155; Peik It might admit of question whether the statute v. Chicago, etc. R. Co., Id. 164; Stone v. Farmers' of Ilinois now under consideration was designed Loan & Trust Co., 116 U. S. 307; s. C., 6 Sup. Ct. by its framers to affect any other class of trans

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