Robinson v. The New York Central & Hudson River Railroad Company. whose charge it was, although it could not be said that the child exercised any volition in the selection of its grandmother for its companion. If, then, the rule laid down by PARKE, B., in Bridge v. The Grand Junction Railway Company, 3 M. & W. 244, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequence of the defendants' negligence, he is entitled to recover; if, by ordinary care, he might have avoided it, he is the author of his own wrong,' be adhered to, it seems to me that no hardship follows, inasmuch as the plaintiff is only in the same position as the donkey in the case of Davies v. Mann, 10 M. & W. 546, and, notwithstanding the carelessness of the driver of the train he was traveling by, he would be entitled to recover against the defendants, supposing that their negligence was of a similar character to that of the defendant in Davies v. Mann. It may be said, why should he not have a right of action against both companies? The answer to that question is that a man may have an action against two tort-feasors for any act causing the injury; but there is no hardship in saying that, if two independent persons are in a position somewhat hostile to each other, then the right to maintain a separate action against one may be an answer to an action against the other, for the plaintiff must show that the negligence of the one whom he sues was the proximate cause of the accident. Therefore, I think that the defendants are entitled to our judgment."

It is to be observed that in Armstrong v. Lancashire, etc., Railway Co., the plaintiff was a servant to the company in whose train he was traveling and was thus precluded from suing them for the injury which arose from the negligence of their servants.

In connection with these cases, as involving to some extent similar principles, should be noticed the case of Waite v. North-Eastern Railway Company, 7 W. R. 311; F. B. & E. 719, 728. A child of five years old was under the care of his grandmother at a station of the defendants' railway. She purchased a ticket for herself and one for him, and while crossing the line to be ready for the train they were knocked down and injured by another train. The jury found that the accident was partly owing to the company's negligence and partly to such negligence on the part of the grandmother as would disentitle her to recover damages from the company for the injury. Upon these facts it was held that the child was so identified with his grandmother that, by reason of her negligence, an action in his name could not be maintained against the defendants. The ground of the decision is stated by COCKBURN, C. J., in his judgment in the Exchequer Chamber, to be that "when a child of tender and imbecile age is brought to a railway station or to any conveyance for the purpose of being conveyed, and is wholly unable to take care of itself, the contract of conveyance is on the implied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in charge." Although this was a case against the contracting company, but from the opinions it may be inferred that the same conclusion would have been reached against another company.

The prevailing rule in this country seems, however, to be different. Shearman & Redfield on Negligence, § 46; Wharton on Negligence, § 395. In Chapman v. The New Haven Railroad Co., 19 N. Y. 341, the Court of Appeals of New York held that a passenger by railroad is not so identified with the proprietors of the train conveying him, or their servants, as to be responsible for negligence on their part, and could recover for personal injuries from a collision through negligence of the defendant, although there was such negligence contributing to

Robinson v. The New York Central & Hudson River Railroad Company.

the collision on the part of the train conveying him, as would have defeated an action by its owners. And in Colegrove v. N. Y. & N. H. R. R Co., 20 N. Y. 492, it was held that the injured passenger could maintain his action against the proprietors of both, on the ground of their concurring negligence. These cases were followed and approved in Webster v. Hudson River Railroad Co., 38 N. Y. 260.

So in Metcalf v. Baker, 1 Abb. (N. S.) 431, the Superior Court of New York, at General Term, held as in the principal case, that one riding on invitation with the owner of a private vehicle, was not chargeable with his negligence contributing to an injury, occasioned by the negligence of the defendant, to the plaintiff, and to the same effect are Robinson v. N. Y. C., etc., R. R. Co., 65 Barb. 146; Sheridan v. Brooklyn City R. R. Co., 36 N. Y. 39; Knapp v. Dagg, 18 How. Pr. 165.

But in Payne v. The Chicago, Rock Island & Pacific R. R. Co., 39 Iowa, 523, where the plaintiff was injured at a railroad crossing, by a collision between the wagon in which he was riding and defendant's train, the court decided, without discussing the question, that the negligence of the one who was driving, defeated plaintiff's right to recover, citing therefor Artz v. C., R. I. & P. Railway Co., 34 Iowa, 153. But the case is like that of Beck v. East River Ferry Co., 6 Rob. 82, cited in the principal case, where the plaintiff and the one guilty of negligence were engaged in a joint enterprise. In the Iowa case, three neighbors, one of whom was plaintiff's intestate, were traveling for a common purpose in a wagon belonging to none of them, but procured for the purpose. They drove by turns. The case was correctly decided, and is not an authority against the doctrine of the principal case.

In Bennett v. The New Jersey Railroad Co., 7 Vroom, 225; S. C., 13 Am. Rep. 435, it was held that where a passenger in a horse car is injured by the carelessness of the engineer of a railroad company, in the management of his locomotive, it is no defense to show contributory negligence in the driver of the horse car.

In Lockhart v. Lichtenthaler, 46 Penn. St. 151, this question was considered at great length. The action was brought to recover damages under a statute by the widow and children of one killed by a collision between a train of cars and oil barrels owned by the defendant, and placed too near the track by his servants. The deceased was a brakeman on a car belonging to a coal company but which was drawn by a locomotive belonging to the railroad and coutrolled by its servants. The court held that the deceased was not a servant of the railroad company, but that he "must be considered in the light of a passenger in charge of property being conveyed with himself by the railroad company for his employers," and that if the negligence of the railroad directly contributed to the accident the defendant would not be liable. After a review of the authorities, THOMPSON, J., who delivered the judgment of the court, said: "If in this case there was no contributory negligence chargeable to those conducting the train, by which the cars in charge of the deceased were with himself being conveyed; in other words, if their negligence did not directly contribute to the disaster, although they may have been negligent in a general sense the defendants will be answerable, if the act of their servants or agents was the proximate cause of it. The negligence on the part of the train which would be a defense must be directly involved in that result; it must by itself, or concurring with the defendant's, be the proximate cause of the death. For instance, running too rapidly on a road in bad repair, driving instead of drawing the train, would not abstractly be such negligence as would be a defense. To be such

Evertson v. The National Bank of Newport.

the consequences of these acts, or some of them, must have directly entered into and become active agents in the very disaster itself. This must be the rule of all such cases."

Smith v. Smith, 2 Pick. 621, is frequently cited as an authority in support of the rule of Thorogood v. Bryan, but all that was decided in that case was that one who is injured by an obstruction placed unlawfully in a highway, cannot maintain an action for damages if it appears that he did not use ordinary care by which the obstruction might have been avoided. This rule is well established and is, we take it, not in conflict with the principal case. See Stiles v. Geesey, 71 Penu. St. 439; Cleveland, Columbus and Cincinnati R. R. Co. v. Terry, 8 Ohio St. 570; Williams v. Mich. Cent. R. R. Co., 2 Mich. 259; Murphy v. Deune, 3 Am. Rep. 390.

In Puterbaugh v. Reasor, 9 Ohio St. 484, the plaintiff put R. in charge of his team. R. and the defendant engaged in a fight which frightened the team and it ran away, and one horse was killed. The defendant was held not liable because the plaintiff, having placed R. in charge of the team, was responsible for his negligence. Shearman and Redfield cite this case as well as that of Cleveland, etc., v. Terry, and Smith v. Smith, ante, as authorities for the rule of Thorogood v. Bryan, but they are obviously not so as to the question of privity in negligence. See, also, Thomas v. The Rhymney Railway Co., L. R., 6 Q. B. 266; Wright v. The Midland Railway Co., L. R., 8 Exch. 137; McElroy v. R. R. Co., 4 Cush. 400. As to the liability of one for the negligence of his servant with whom he is riding, see Holmes v. Mather (Eng. Ct. Exch.), 16 Am. Rep. 384. As to the imputability of the negligence of the parent to the child, see Lynch v. Smith, 6 Am. Rep. 188; Ihl v. Forty-second St. R. R. Co., 7 id. 450; Kay v. Penn. R. R. Co., 3 id. 628; McGary v. Loomis, 20 id. 510 and note.

EVERTSON V. THE NATIONAL BANK Of Newport.

(66 N. Y. 14.)

Coupons-ichen negotiable - Title of purchaser of negotiable coupons.

The coupons to negotiable bonds are themselves negotiable instruments when detached, provided they are negotiable in form, and they are governed by the same rule as other negotiable instruments.

The purchaser of negotiable coupons before maturity, in the usual course of business and in good faith acquires a good title thereto although they have been stolen.

Negotiable coupons are entitled to days of grace, and one who purchases them before the expiration of the last day of grace is a purchaser before maturity.

Interest coupons and warrants not negotiable in form are not negotiable in struments when separated from the bonds although the latter are themselves negotiable, and the purchaser of these detached instruments takes them subject to all defects in the title of the transferor (See note, p. 15.)

Vol. XXIII.-2

A

Evertson v. The National Bank of Newport.

CTION to recover the amount of certain coupons and interest warrants purchased by the plaintiff.

The coupons were in the following form:

"$35 THE INDIANAPOLIS, BLOOMINGTON AND WESTERN $35 RAILWAY COMPANY

will pay the bearer, at its agency in the city of New York, thirtyfive dollars, in gold coin, on the first day of April, 1871, for semiannual interest on bond No.

upon bond No. — of the Danville, Urbana, Bloomington and Pekin Railroad Company. Payable in gold coin at the office of the Farmers' Loan and Trust Company in the city of New York, April 1,

1871.

"W. J. ERMENTROUT,

"Secretary."

The action was brought against the railroad company, but the National Bank of Newport, having made claim to the instruments and the interest due thereon, was, by an order of interpleader, substituted as defendant.

In each coupon and warrant the blank for No. was filled with the number of the bond to which it was attached. The bonds, with the coupons and warrants attached, were owned by defendant. The coupons and warrants were detached and sent to New York by express March 31, 1871, for presentation and payment, and on that day they were stolen from the express office, and were purchased by plaintiff at Albany, April 3, 1871.

The referee found that plaintiff was entitled to judgment for the whole amount claimed, and judgment was perfected accordingly. This judgment was affirmed by the General Term of the Supreme Court in the Third Department (4 Hun, 692), and defendant appealed.

Samuel Hand, for appellant.

N. C. Moak, for respondent.

Evertson v. The National Bank of Newport.

ALLEN, J. But two questions are presented upon this appeal: First, whether the instruments which are the subjects of the controversy are negotiable promises for the payment of money, and therefore subject to the same rules as bank bills or other negotiable instruments, so that one who acquires title in the usual course of business and in good faith, although from one who has obtained them feloniously, may withhold them from the true owner; and secondly, whether they were dishonored at the time of the purchase of them by the plaintiff.

The rule of caveat emptor does not apply to negotiable instruments payable in money and to the bearer; and a purchaser in good faith from one who has stolen them acquires a valid title. Spooner v. Holmes, 102 Mass. 503; S. C., 3 Am. Rep. 491; Birdsall v. Russell, 29 N. Y. 220.

The coupons of the Indianapolis, Bloomington and Western Railway Company are, in terms, distinct promises to pay the bearer the amount specified therein at a day and place named, and are, within the authorities, promissory notes for the payment of money to the holder, and transferable by delivery, although detached from the bonds to which they refer. The fact that they are declared to be for interest upon bonds specified by their numbers does not destroy their negotiability when separated from the bond, or impair the title of one purchasing from another without production of the bond. The bonds themselves, although under the seal of the company, are negotiable instruments within the repeated decisions of our courts. White v. V. and M. Railroad Co., 21 How. (U. S.) 575; Gelpcke v. Dubuque, 1 Wall. 175; Clark v. Iowa City, 20 id. 583; Brainerd v. New York and Harlem Railroad Co.. 25 N. Y. 496; Dinsmore v. Duncan, 57 id. 573; Haven v. Grand June. Railroad and Depot Co., 109 Mass. 88. The cases of Myers V. New York and Cumberland Railroad Company, 43 Me. 232, and Jackson v. The Same, 48 id. 147, holding somewhat different doctrines, cannot be regarded as authority.

The coupons of the Danville, Urbana, Bloomington and Pekin. Railroad Company, termed upon their face "interest warrants," are in somewhat different form. Whether they are within that description of property to which a title may be acquired by a bona fide transferee for value, notwithstanding a defect of title in the transferor, depends upon their negotiability. If they are not