and the defendants be permanently restrained from effecting the proposed crossing at grade."

The defendant took this appeal and certiorari, assigning for error the overruling of the motion for the dissolution of the preliminary injunction.

David Wills and F. M. Kimmell (with them Stenger and McKnight), for plaintiff in error.

By the New Constitution, Art. 17, Sec. I., it is provided that "Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each the other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination."

The power of the appellant company to locate their road is absolute, and beyond judicial control, unless exercised in disregard of the rights of others. N. Y. and Erie R. R. Co. v. Young, 9 Casey, 182; Cleveland and Pittsburgh R. R. Co. v. Speer, 9 Sm. 333.

The fact that a large portion of the stock of the appellant is owned by a foreign corporation, viz., the Western Maryland R. R. Co., and that the road, when built, will be operated by that foreign corporation, does not deprive the appellant of any of its legal rights as a Pennsylvania corporation. N. Y. and Erie R. R. Co. v. Young, 9 Casey, 180.

When one railroad crosses another there must necessarily be some injury to the road crossed; but unless the injury is such as to deprive the company of the free use of its corporate franchises, or to seriously impair or interfere with its operations, there is no reason why a railroad company should claim immunity from such injury any more than other corporations or individuals.

The facts in the case of Pittsburgh and Connellsville R. R. Co. v. Southwest Penna. R. R. Co. (27 Sm. 173) were entirely different from those in the case at bar.

If an overhead crossing with a gradient of seventy-nine feet to the mile be constructed in order to surmount it, the appellant's trains would have to run through the streets of Chambersburg (the nearest town to the point of crossing) at a much greater rate of speed than the borough ordinances permit. On the other hand, if a gradient of fifty-two feet be adopted, the embankment would extend for several hundred feet within the borough limits, in direct violation of the agreement between the appellant and the authorities of Chambersburg, whereby the former have bound themselves to conform to the grades of the streets through which the railroad

passes.

The system of signals, which the appellant agrees to maintain, will render the grade crossing as safe as, if not safer, than an overhead crossing.

Kennedy and Stewart (with them J. McD. Sharpe), for appellee.

The finding of the Court below, as Master, will not be disturbed or reversed in this Court, unless there be plain error affirmatively shown. Kisor's Appeal, 12 Sm. 428. Phillip's Appeal, 18 Sm. 131. Sproull's Appeal, 21 Sm. 137. Crowell v. James, 2 Weekly Notes, 176. Trexler v. Mennig, 2 Ibid. 680. Miller's Appeal, 6 Casey, 478.

The appellant's allegation that the grade introduced at the overhead crossing would be so great as to destroy the appellant's road is unsupported by the testimony.

The Act of April 10, 1871, looks with disfavor upon grade crossings. Pittsburgh and Connellsville R. R. Co. v. Southwest Penna. R. R. Co., 27 Sm. 173.

The rights of the first occupant of the ground in pursuance of law, are recognized as superior to those of the new claimant.

THE COURT.-The findings of fact of the learned judge stand upon the same footing as the findings of a Master, or the verdict of a jury. We can set them aside only on the ground of palpable error. We see none in this case. Upon the facts, as found, the decree was unquestionably right. It is the imperative mandate of the Legislature by the Act of April 10, 1871, that if, in the judgment of the Court, it is reasonably practicable to avoid a gradecrossing, they shall, by their process, prevent a crossing at grade. The learned judge, in the Court below, to whom the case was submitted as a Master, found as a fact, we think, upon sufficient evidence that it was reasonably practicable for the appellants to avoid crossing the railroads of the appellees at grade, and he was bound by the law to prevent such crossing.

Decree affirmed and appeal dismissed at the costs of the appellant. PER CURIAM.

BALTIMORE AND O. R. R. Co.

v.

CAMPBELL.

(36 Ohio State Reports, 647. January Term, 1881.)

Where it is necessary for a traveller, in going from one place to another, to pass over the connecting lines of several railroad companies, it is competent for either company to contract with him for the transportation of himself and baggage the whole distance, or that its liability shall be confined to loss or damage occurring on its own road; but the collection, by such contracting carrier, of fare in advance for the entire journey, without agreement as to risks, renders it liable, on receipt of such traveller's baggage, to transport it safely to the end of the route, and there deliver it, on demand, to such owner.

Words on a railroad ticket or baggage check limiting the liability of the car

rier to a specific amount for loss of baggage, are not binding on a passenger, unless, with knowledge of such limitation, he agrees to it. A passenger by railroad train, as soon as practicable after its arrival at the place of destination, presented to the agent in charge of the baggageroom a check for his baggage and demanded the same, which baggage he had delivered to the carrier when he took passage on the train. The agent being unable to find the baggage, took the number of the check, and requested the passenger to cali again. On the same evening the passenger returned to the depot, but the agent informed him that he had made further search and the baggage could not be found: Held, that such acts and declarations of the agent were competent evidence for the passenger in his action against the carrier for loss of such baggage.

ERROR to the District Court of Guernsey County.

Martha Campbell and James W. Campbell, her husband, brought suit in the court of common pleas of Guernsey county, against the Baltimore and Ohio R. R. Co., to recover the value of baggage belonging to Mrs. Campbell, which is said to have been lost by the company, a common carrier.

A verdict was found in favor of the plaintiffs for $973.55; judg ment was rendered thereon at the November term, 1876; the judg ment was affirmed in the district court, and on application of the company, leave was granted to file in this court a petition in error.

In the petition of the plaintiffs below, it is alleged, that on December 8, 1874, at the city of New York, the company, in consideration of $17.50, then and there paid to it by Mrs. Campbell, agreed with her to safely carry herself and child and their baggage from the city of New York to Columbus, Ohio, by way of the New York and Philadelphia R. R., and the Philadelphia, Wilmington and Baltimore R. R., and the roads of the defendant; that she delivered her baggage at the city of New York to the defendant, and received from it a check for the carriage of such baggage over said roads to Washington, D. C., where the company, by the agreement aforesaid, was to re-check said baggage to Columbus; that the baggage consisted of her trunk, containing the wearing apparel and ordinary appendages (stated in detail in the petition) incident to herself and child as such travellers; that on arriving at Washington, D. C., she presented the check to the proper agents of the company and demanded the baggage, but they neglected and refused to deliver the same or any part thereof.

The company, by its answer, admitted the sale of a ticket for the transportation of Mrs. Campbell and her baggage from the city of New York to Columbus, Ohio, for the price and at the time stated in the petition, and that the plaintiffs had demanded the baggage as stated; but the defendant denied the other allegations in the petition, and further answered as follows: "The defendant further says that in the sale of said ticket for the transportation of said plaintiff and her baggage from the city of New York to Baltimore, Md., it acted as the agent only of the Pennsylvania R. R. Co.,

and the Philadelphia, Wilmington and Baltimore R. R. Co., owning and operating the lines of railroad between said points, and for her transportation with her baggage from Baltimore, Md., to Columbus, Ohio, for itself, owning and operating the residue of said route; that by the terms and conditions of said ticket, issued to and accepted by said plaintiff, each company representing said route was to be responsible only for the safety of passengers, or the loss of their baggage on its line of road, and not each for the others, and for the loss of baggage not exceeding in value $100, unless by special contract; and the defendant denies that said trunk and its contents were delivered to, or received by it from said company, nor was it lost upon its said line of railroad."

In their reply, the plaintiffs say, "that it is not true that the said defendant, in the sale of said ticket for the transportation of said plaintiff and her baggage, from the city of New York to Baltimore, Md., acted as the agent of the Pennsylvania R. R. Co. and the Philadelphia, Wilmington and Baltimore R. R. Co.; nor is it true that by the terms and condition of said ticket issued to and accepted by said plaintiff, each company representing said route was to be responsible only for the safety of passengers or the loss of their baggage on its line of road; nor is it true that said plaintiff received and accepted a ticket for her transportation, with her baggage, by the terms and conditions of which each company named in said answer, as representing said route, was to be responsible only for the safety of passengers or the loss of their baggage on its line of road and not each for the others, and for the loss of baggage not exceeding in value $100, unless by special contract."

The record does not purport to contain all the evidence or all of the charge to the jury. The errors relied on are, that the court erred in admitting certain evidence, in refusing to charge the jury as requested by the company, and in the charge given.

Evidence was offered to show the following facts: Mrs. Campbell, with her infant child, and father, mother and aunt, all residents of Cambridge, Ohio, were at the home of W. J. Hendricks, in Bond street, Brooklyn, N. Y., during parts of November and December, 1874, where Mrs. Campbell was receiving medical treatment. Desiring to return home by way of Washington, D. C., Mr. White, father of Mrs. Campbell, on December 8, 1874, on behalf of himself and his wife, daughter and her aunt, gave to Mr. Hendricks $70, and directed him to go to the office of the defendant, in New York city, and buy four tickets for the persons named, from New York city to Columbus, Ohio, by way of Washington, D. C. Mr. Hendricks, on the same day, went to the office of the company on Broadway, and procured the railroad tickets, and also ferry tickets, in envelopes, each of the four envelopes containing a railroad and ferry ticket, and having printed thereon the words: Office Baltimore & Ohio R. R. Tickets to all points west, south

and south-west, 229 Broadway, corner Barclay street, New York. Pullman palace cars on all trains. Baggage checked through from hotels and residences. J. T. Bullock, Ticket Agent." At the time Mr. Hendricks purchased the tickets, he obtained of the agent of the defendant a time card, containing, among others, the following words: "Save time by taking the Balto. & Ohio. Quickest route west Great through route. All trains run via Washington. Call at company's offices, 315 and 261 Broadway." On the same day, at his residence, he delivered the tickets. and time card to the persons for whom they were intended. Mr. White and Mrs. Campbell then went to Dodds' Express Office in Brooklyn, to have the baggage of the party, consisting of their trunks, checked. The agents in charge of the office required them to produce their railroad tickets and to pay $1.50. On that evening a driver from the express company went to Mr. Hendricks' house and obtained the baggage and furnished the owners metal checks. The check of Mrs. Campbell had on one side of it the words "New York, 357, to Washington;" on the other side: "Dodds' Express, N. Y. & Phila. R. R.-P. W. & B.-B. & O.— Liability limited to $100." The evidence tended to show that in receiving the baggage the express company acted as agent of the defendant.

On the morning of December 9, Mrs. Campbell and those in company with her went to the railroad depot in Jersey City, where some person pointed out to them their coach in the railroad train of the defendant, which coach they entered, and they rode without change of cars to Washington, D. C., where they arrived the same evening. On the following morning, Mr. White went to the proper office of the defendant, saw its agent in charge of the baggage-room, and demanded for the party their baggage. Two of the trunks were found and re-checked, but Mrs. Campbell's baggage could not be found, and it has never been delivered. Neither she nor those in company with her have seen or heard of it since it was delivered to the driver of the express company on the night of December 8, 1874. In the conversation between Mr. White and the agent, above referred to, the agent said Mrs. Campbell's baggage might have gone over to the other depot of the company. He took a memorandum of her check and requested Mr. White to call again. He did call in the evening of the same day, but the agent informed him the baggage could not be found. . The company objected to the admission of these acts and declarations of the agent as evidence, but the court overruled the objection, and the company excepted.

On the trial the evidence of one of the defendant's agents was offered, tending to show that the railroad tickets so sold by the defendant were issued by the Pennsylvania R. R. Co. in the following form: