and does not impair the obligation of any contract with such com-
pany. Boston & Maine R. Co. v. County Com'rs (Me.). 271.
Powers of corporations organized under legislative statutes are such only
as the statutes confer. The charter of the corporation is the measure
of its powers, and the enumeration of these powers implies the exclu-
sion of all others. State v. Atchison, etc., R. Co. (Neb.). 388.
Nebraska statute authorizes consolidation of two lines of railway only in
cases where the two roads will form a continuous line. State v. Atchi-
son, etc., R. Co. (Neb.). 388.
Nebraska statute prohibits any railroad from consolidating its stock, prop-
erty, etc., in whole or in part, with any other railroad owning and
operating a competing line. The word "consolidate," is used in the
statute in the sense of joining or uniting. State v. Atchison, etc.,
R. Co. (Neb.). 388.
Common law. Where protection to person or property requires otherwise,
the legislature is not restrained by the principle of the common law
that for a reasonable and careful use of property the owner cannot be
made liable. Grissell v. Housatonic R. Co. (Conn.). 349.
Statute making railroad responsible for damages caused by fire
ignited by locomotive is constitutional. Grissell v. Housatonic R.
Co. (Conn.). 349.
Nebraska statute prohibits any railroad from consolidating its stock, prop-
erty, etc., in whole or in part, with any other railroad owning and
operating a competing line. The word "consolidate," is used in the
statute in the sense of joining or uniting. State v. Atchison, etc., R.
Co. (Neb.). 388.
Statute requiring the expense of maintaining so much of a town-way as is
within the limits of a railroad, where such way crosses the track at
grade, to be borne by the railroad company is constitutional. Boston
& Maine R. Co. v. County Commissioners (Me.). 271.
Stock and bonds: Nebraska statute prohibiting the issue of, by railway
corporation, except for a consideration actually received. Objects of
the provision. State v. Atchison, etc., R. Co. (Neb.). 388.
CONTRACTS. See CARRIERS.
Estoppel. If a contract not originally binding be so far executed that the
party asserting its invalidity has actually received the benefit con-
tracted for, he will be estopped from refusing performance of his part,
on the ground that it was not originally binding on the other party
who has performed the conditions on his part. Louisville, etc., R.
Co. v. Flanagan (Ind.). 532.
CONTRIBUTORY NEGLIGENCE. See NEGLIGENCE, specific titles.
CONVERSION. See CARRIERS, subtit. Connecting Lines.
CROSSINGS. See STREETS AND HIGHWAYS.
Burden of proof is on plaintiff to show absence of negligence in deceased,
but plaintiff need not repel any presumption of deceased's negligence
arising from mere fact of the collision. Gugenheim v. Lake Shore,
etc., R. Co. (Mich.). 89.
Carelessness of deceased in crossing track at another time will not lessen
the liability of the railroad if it were negligent. Gugenheim v. Lake
Shore, etc., R. Co. (Mich.). 89.
Care required of a person crossing railroad is such as a reasonable man
would exercise under similar circumstances. If there is conflict in the
testimony it should be submitted to the jury. Wichita, etc., R. Co.
v. Davis (Kan.). 65.
Children injury to. Contributory negligence. 158 n.
City streets greater care must be used when trains are operated on, than
in less frequented localities; and neglect of proper precautions pecu-
liar to circumstances is negligence. Norfolk, etc., R. Co. v. Burge
(Va.).
23 n.
Collision at crossing of railway and private track.
Custom and license: duty of railroad at crossing by. 55 n.
Custom and license. Where railroad company permits public to pass over
its road at a given point without objection, it is held, while acquies-
cing in such use, to anticipate the continuance thereof, and is bound
to exercise due care. Harriman Pittsburgh, etc., R. Co. (Ohio). 37.
Dead man: finding at crossing. Evidence to render railroad liable. 160 n.
Degree of care. Charge that railroad company who use such care as is
used by a good specialist in the same business is an abstract proposi-
tion, and is properly refused. Norfolk, etc., R. Co. v. Burge (Va.).
Degree of care. If ordinary care required defendant to take other pre-
cautions than those he did take, plaintiff can recover unless he is
guilty of contributory negligence. Norfolk, etc., R. Co. v. Burge
(Va.). 101.
Defectively constructed. Obligation of railroad company to restore high-
way crossings and keep in repair. Liability for injuries caused by de-
fective crossings. 136 n.
Defectively constructed. Person having knowledge of defective cross-
ing is not guilty of contributory negligence in attempting to drive
over it where the obstruction is not per se dangerous. Evansville, etc.,
R. Co. v. Carvener (Ind.). 134.
Defectively constructed. Railroad company having imposed upon it the
duty of restoring a highway to its former state is liable for an injury
to a horse caused by the track being left nine inches above the sur-
face. Evansville, etc., R. Co., v. Carvener (Ind.). 134.
Defectively constructed. When horse is injured by track being too far
above the surface of the highway, it will not be held to be the trav-
eller's duty to lighten his load and use other means to avoid injury
after encountering the obstruction, where the obstruction was such
that a reasonably prudent man would not have foreseen the injury.
Evansville, etc., R. Co. v. Carvener (Ind.). 134.
Double track. Traveller passing through open space of train standing
across highway, and not looking in the direction from which he had
reason to expect a train before going upon the second track, is guilty
of contributory negligence. Young v. New York, etc., R. Co. (N.Y.).
130.
Double track. Traveller passing through space between cars standing
across highway where there is a brakeman ready to couple them when
signalled so to do, is not relieved from the charge of negligence by
passing on to the second track without proper observation by the fact
that the brakeman gave no warning. Young v. New York, etc., R.
Co. (Ind.). 130.
Driving across track in view of train is contributory negligence. 156 n.
Duty to look and listen. Approaching crossing when view is obstructed,
slowly, looking and listening, but not stopping. 157 n.
Duty to look and listen before crossing railroad track. 70 n.
Duty to look and listen. Fact that trains moving past crossings on other
tracks does not authorize inference that the attention of the person
killed at crossing was so diverted as to excuse his omission to look
and listen to see if the track was clear. Woodard v. New York, etc.,
R. Co. (N. Y.). 137.
Failure of foot passenger carrying umbrella to
stop and look is contributory negligence. 155 n.
Failure to do so defeats recovery unless plaintiff
was seen in time to avoid the accident. Norfolk, etc., R. Co. v.
Burge (Va.). 101.
Going on track without looking to right or left
when train is in sight is contributory negligence.
156 n.
Duty to look and listen. If person goes upon track and without effort to
ascertain if train is approaching, he does so at his peril. Wichita etc.,
R. Co. v. Davis (Kan.). 65.
Duty to look and listen is imposed upon traveller; but he is not bound to
anticipate act of negligence on the part of the railway. O'Connor v.
Missouri Pac. R. Co. (Mo.). 61.
Duty to look and listen. Performance of this act of caution at the proper
place is imposed upon the traveller. Question whether he did so or
not is for the jury. Lehigh etc., R. Co. v. Lear (Pa.). 74.
Duty to look and listen. Person who could have avoided injury by proper
precaution will be regarded as having made an attempt to cross after
having seen the train. Indiana, etc., R. Co. v. Hammock (Ind.). 127.
Duty to look and listen. Railroad track is notice of danger, and person
before venturing upon it must look and listen. Matti v. Chicago, etc.,
R. Co. (Mich.). 71.
Duty to look and listen.
stop, look, and listen.
Duty to look and listen. Traveller driving upon track in open carriage
without looking is guilty of contributory negligence, which no failure
on the part of the company to do its duty will excuse. New York,
etc., R. Co. v. Kellam's Adm'r (Va.). 114.
Rule requiring person approaching crossing to
156 n.
Duty to look and listen. Traveller observing train pass before reaching
crossing, and not expecting another train although she saw one headed
that way in the town she had just left, is still guilty of contributory
negligence if she ventures on track when the view is obstructed and
she does not stop to look and listen. Durbin v. Oregon R. & N. Co.
(Ore.). 149.
Duty to look and listen. When flagman is stationed at crossing, and there
is no warning to traveller of danger, court will not say that traveller
is required to look elsewhere than to flagman. Chicago, etc., R. Co.
v. Hutchinson. (Ill.). 82.
Duty to look and listen. Where facts make it absolutely certain that per-
son killed saw a car coming and undertook to cross in front of it but
did not look when it was his duty, he is chargeable with contributory
negligence, and it is error to submit the question to the jury. Wood-
ard v. New York, etc., R. Co. (N. Y.). 137.
Duty to look and listen. Where there are five tracks, and view of fifth
track is obstructed until first four are passed, and there is no gate
or flagman, it is for jury to say whether traveller performed his duty
by stopping to look and listen before going on first track. Lehigh,
etc., R. Co. v. Lear (Pa.). 74.
Engine and car parted to let team through, not negligence to pass be-
tween. 30 n.
Engineer seeing adult person on track, at liberty to leave the track at
pleasure, may presume that such person will leave the track in time to
avoid danger. Ohio, etc., R. Co. v. Walker (Ind.).
Evidence. In action for injury at crossing when the evidence of each
party exonerates himself and entirely blames the other party, instruc-
tion that the sole question for determination is as to how the collision
and injury occurred and who is to blame for it is not erroneous.
Chicago, etc., R. Co. v. Hutchinson (Ill.). 82.
Evidence that deceased was told that train was approaching will not
charge him with negligence unless it appears that he heard and un-
derstood what was said to him. Gugenheim v. Lake Shore, etc., R.
Co. (Mich.). 89.
Failure to stop at right place. Whipping up horses after discovering the
train. 81 n.
Failure to stop team is negligence which will preclude recovery where the
view is obstructed and there are noises at the crossing and traveller is
aware that train is due. Seefeld v. Chicago, etc., R. Co. (Wis.). 109.
Familiarity with crossing: contributory negligence of person having.
158 n.
Flagman's absence at, may excuse one cognizant of his duty from failure
to look before attempting to cross. Chicago, etc., R. Co. v. Hutchin-
son (Ill.). 82.
Flagman: general reputation of, for carelessness is inadmissible where it
is admitted that accident was caused by his carelessness. Baltimore,
etc., R. Co. v. Colvin (Pa.). 160.
Flagman: duty of keeping, in Michigan is regulated by the railroad com-
missioner; but there are cases where a flagman would be necessary to
acquit the company of negligence. Gugenheim v. Lake Shore, etc.,
Co. (Mich.). 89.
Flagman: duty of railroad company to post. 100 n.
Flagman. Evidence of negligence on previous occasion.
Flagman. If ordinarily prudent man would do more than observe absence
of flagman's signal, facts should be submitted to the jury to be con-
sidered in determining whether traveller exercised ordinary care to
avoid injury. Chicago, etc., R. Co. v. Hutchinson (Ill.). 82.
Flagman: right of public to rely upon presence and care of, at crossings.
Flying switch at crossings. 64 n.
Flying switch: it is negligence for a railway company to make, when
crossing is unguarded. O'Connor v. Missouri Pac. R. Co. (Mo.). 61.
Flying switch: making, at crossing at speed of 20 miles an hour. Ques-
tion of negligence is for jury. Lehigh, etc., R. Co. v. Lear (Pa.).
Gate lowered: attempting to cross after, is contributory negligence.
154 n.
Gateman: following directions of, not contributory negligence. 155 n.
Head muffled up: approaching crossing with, is contributory negligence.
155 n.
Horses frightened at drawbar. Encroachment on crossing, question for
jury. 159 n.
Horses frightened by trains passing at unlawful rate of speed. 159 n.
Independent contractor. Railroad company cannot relieve itself from
liability for negligence at crossings by contracting for the moving of
its cars by horse power. Philadelphia, etc., R. Co. (Pa.). 24.
Irregular train running at unexpected time at extraordinary speed: injury
caused by. 121 n.
Master and servant. Teamster not in the employ of railroad company
hauling iron to car in company's yards who is injured by moving
passenger car is under the Pennsylvania statute in the same position
as an employee of the company, and bound to exercise care appropriate
to the risks of his employment. Baltimore, etc., R. Co. v. Colvin
(Pa.). 160.
Noises from engine: horses frightened by. 159 n.
Noise of wagon. Contributory negligence in not stopping. 154 n.
Obstructed view. Approaching crossing during snowstorm at the rate of
ten miles an hour is contributory negligence. 155 n.
Obstructed view. Double track. When view is obstructed by passing
train on first track it is negligence to pass immediately upon the
crossing as soon as the way is clear where trains are liable to run
frequently in opposite directions. Marty v. Chicago, etc., R. Co.
(Minn.). 107.
Obstructed view. Duty of traveller approaching crossing when view is
obstructed. 114 n.
Obstructed view. Greater caution required on approaching crossings when
view of track is obstructed than when it is clear. Central Pass. R.
Co, v. Kuhn (Ky.). 16.
Obstructed view. It is not error for the court to refuse an instruction that
if by looking around the plaintiff could have discovered the approach
of the cars or have avoided them and did not he cannot recover, the
instruction being vague and misleading. Norfolk, etc., R. Co. v.
Burge (Va.). 101.
Obstructed view. Law imposes duty of extra watchfulness on company
and traveller when the view is obstructed, and the company cannot
block up the view of its tracks and excuse its want of care by plea
that there is no statute against it. Gugenheim v. Lake Shore, etc., R.
Co. (Mich.). 89.
Obstructed view. Negligence of railroad company in obstructing view of
track by leaving cars standing near crossing. 100 n.
Obstructed view. Smoke: crossing track when view is obstructed by, is
contributory negligence. 155 n.
Obstructed view. Where person could not see approaching train the fact
that he was looking in front of him is not contributory negligence.
Norfolk, etc., R. Co. v. Burge (Va.). 101.
Obstructed view. Where railroad cuts through hill so as to obstruct view
from wagon road, party familiar with the crossing cannot recover for
injury if she does not stop to look and listen. Durbin v. Oregon R. &
N. Co. (Ore.). 149.
Obstructing crossings with snow thrown from track: in action for injury
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