INTERSTATE COMMERCE-Continued.
Equalizing rates as between small and large towns is not a ground of
complaint against a railroad company, even though the fact may be
prejudicial to the large towns which before had been specially
favored. Crews v. Richmond, etc., R. Co. (Int. St. Com.). 596.
Express companies. Express business conducted as a branch of the
business of a railroad company is not subject to the act, but express
business conducted by an independent organization acquiring trans-
portation rights by contract is not described in the act with sufficient
precision to warrant the commision in taking jurisdiction. Re Express
Companies. 567.
Failure to furnish cars owing to inability no violation of the act. Duty to
furnish cars ratably. Preference. 616 n.
Milling in transit system. A carrier is not compellable by law to give to
the merchants of a town on its line the privilege of shipping their
goods from the point of purchase to their own locality and again from
thence to the place at which the goods may be sold by them at the
same rate which would have been charged had there been but one
shipment from the point of purchase to the point of ultimate delivery.
Crews v. Richmond, etc., R. Co. (Int. St. Com.). 596.
Milling in transit system. The fact that the refusal to give the through
rate as for one shipment operates prejudicially to the town desiring
the privilege and favorably to another, does not operate as unjust
discrimination when the carrier applies the same rules to all towns
and accords the privilege to none. Crews v. Richmond, etc., R. Co.
(Int. St. Com.). 596.
Rates: establishment of, upon a mileage basis not required. 595 n.
Seaboard rates. In view of the longer haul to Boston than to New York,
the greater cost of transportation to Boston, the very much greater
volume of business to and from New York, the competition by water
transportation by the Lakes, Erie Canal, and Hudson River, and also
by several railroad lines, and the geographical and commercial advan-
tages of New York; the differentials on Boston local rates of ten cents
per hundred pounds on the first and second classes of merchandise,
and of five cents per hundred pounds on the four other classes,
between New York and Boston, on traffic originating west of Buffalo,
have not been shown to be unjust or unreasonable, or to constitute
unjust discrimination against Boston. Boston Chamber of Commerce
v. Lake Shore, etc., R. Co. (Int. St. Com.). 618.
Seaboard rates. The fact that the export rates through Boston, and the
rates on merchandise intended for coast-wise points east of Portland,
and the west-bound rates from Boston, have been made by the carriers
the same as corresponding New York rates, in order to put Boston on
an equality with New York and other seaboard cities, wherever Boston
is a competitor with those cities, is not controlling in determining the
reasonableness of east-bound Boston local rates on a traffic in which
there is no competition by other cities. Boston Chamber of Commerce
v. Lake Shore, etc., R. Co. (Int. St. Com.). 618.
Special rate. The discrimination made by "special rate" of the Southern
Railway & Steamship Assoc. between pearline and common soap to
the extent now existing on the shipments to which it refers is unjust
and must be discontinued, and while common soap is in the sixth class
pearline must be placed in the fifth class. Pyle v. East Tennessee R.
Co. (Int. St. Com.). 584.
Spirit and purposes of the act require that when the circumstances and
conditions will fairly admit of it the charges to all points for a like
INTERSTATE COMMERCE-Continued.
service should be made relatively equal. Crews v. Richmond, etc., R.
Co. (Int. St. Com.). 596.
Seaboard rates. The relative reasonableness of rates on shipments from
western points to cities on the Atlantic seaboard is to be determined
by all the circumstances and conditions that affect the traffic to the
respective points between which the rates are questioned, and not
solely by one standard of comparison. Boston Chamber of Com. v.
Lake Shore, etc., R. Co. (Int. St. Com.). 618.
Underbilling: conclusions and recommendations of the commission con-
cerning. 595 n.
Authority. Lease of Atchison & Nebraska R. to the B. & M. R., the two
roads not forming a continuous line, was unauthorized.
State v.
Atchison, etc., R. Co. (Neb.). 388.
Authority. Nebraska statute authorizes the leasing of a railroad con-
structed by another company only in cases where the road of the lessee
and of the company making the lease will form a continuous line.
State v. Atchison, etc., R. Co. (Neb.). 388.
Forfeiture. A railroad company without authority leasing its road to
another company thereby abandons the operation of its road and is
subject to forfeiture. State v. Atchison, etc., R. Co. (Neb.). 388.
Lessor of street railway liable to passenger on the car of the lessee while
on the leased road who was injured by the negligence of a servant of
the lessee. Braslin v. Somerville R. Co. (Mass.). 406.
Liability. When lessee is liable for negligence. 411 n.
When lessor is liable for negligence. 410 n.
Liability. Where lessor and lessee are held jointly liable. 412 n.
Power to lease is limited. 410 n.
Power to lease: source of. 409 n.
Rates. Mandamus is proper remedy to enforce the order of the Board of
Transportation to a railroad company to reduce its rates to conform to
the schedule presented by the board. State v. Fremont, etc., R. Co.
(Neb.). 426.
Teamster not in employ of railroad company, hauling iron to car in com-
pany's yards, who is injured by moving passenger car, is, under the
Pennsylvania statute, in the same position as an employee of the com-
pany and bound to exercise care appropriate to the risks of his
employment. Baltimore, etc., R. Co. v. Colvin (Pa.). 160.
MILLING IN TRANSIT SYSTEM. See INTERSTATE COMMERCE.
MONOPOLY. See STREET RAILWAYS.
MUNICIPAL CORPORATIONS. See ORDINANCE; STREET RAILWAYS; STREETS
AND HIGHWAYS.
NEGLIGENCE. See CROSSINGS; FIRES; and other specific titles.
Anticipation. Traveller approaching crossing is not bound to anticipate
negligence on the part of the railway company. O'Connor v. Missouri
Pac. R. Co. (Mo.). 61.
Burden of proving negligence and duty of alleging it is on the party rely-
ing upon it and in action for causing death it is not necessary to al-
lege that deceased exercised due care. O'Connor v. Missouri Pac. R.
Co. (Mo.). 61.
Comparitive: doctrine of, does not prevail in Michigan. Matti v. Chi-
cago, etc., R. Co. (Mich.). 71.
Complaint charging in general terms is sufficient on demurrer when
remedy for uncertainty is by motion to make more specific. Ohio,
etc., R. Co. v. Walker (Ind.).
Contributory. Error of court in charging that if plaintiff is repelled on
account of deceased's contributory negligence he can nevertheless re-
cover if the act causing death was wilfully done. Nashville, etc., R.
Co. v. Seaborn (Tenn.). 9.
Contributory. General allegation that the plaintiff was without fault suf-
ficiently indicates contributory negligence unless facts specially
pleaded clearly show it. Ohio, etc., R. Co. v. Walker (Ind.). 121.
Contributory negligence must be determined from facts of particular
case. If testimony is conflicting, question is for the jury. If evi-
dence is undisputed, the question is for the judge. Seefeld v. Chi-
cago, etc., R. Co. (Wis.). 109.
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.).
101.
Degree of care required cannot be formulated into particular rule for
reason that conduct of prudent man will vary as circumstances may
be varied. Chicago, etc., R. Co. v. Hutchinson (Ill.). 82.
Delay in bringing suit may be considered by jury in determining whether
injury complained of resulted from cause alleged. Lehigh, etc., R.
Co. v. Lear (Pa.). 74.
Illinois doctrine that plaintiff may recover for injuries received from en-
gine of defendant if he has observed ordinary care. Chicago, etc.,
R. Co. v. Hutchinson (Ill.).
Instructions. If it be considered that the plaintiff did not exercise that
degree of care which an ordinarily prudent man would observe, the
court will be required to state, as a matter of law, that the party fail-
ing to perform his legal duty, the failure to observe such degree of
care, has been guilty of negligence. Chicago, etc., R. Co. v. Hutchin-
son (Ill.). 82.
Burden of proof. When passenger on street car is injured by collision
with railroad train, the burden to disprove negligence is on street car
company, but if passenger desires to recover of railroad company, he
must prove negligence on its part. Central Pass. R. Co. v. Kuhn
(Ky.). 16.
Independent contractor. Railroad company cannot relieve itself from lia-
bility for negligence by contracting for the moving of its cars by
horse power. Philadelphia, etc., R. Co. v. Hahn (Pa.). 24.
Omission or commission. If negligence by the defendant be the proper
cause of injury to the plaintiff it is of no consequence which it is.
Harriman v. Pittsburgh, etc., R. Co. (Ohio). 37.
Precautions. It cannot be said as a matter of law that particular precau-
tion must be taken in place of danger, or just what a prudent man
would do under all the circumstances. Chicago, etc., R. Co. v. Hutch-
inson (Ill.). 82.
Question for jury. It is proper to leave to jury to find whether the defen-
dant performed or omitted any act which it was its duty to perform.
Norfolk, etc., R. Co. v. Burge (Va.). 101.
Question of fact. When the question is whether a party has performed
his legal duty and observed proper care, and the determination of the
question involves the weighing of evidence, the question must be
submitted to, as one of fact. Chicago, etc., R. Co. v. Hutchinson
(Ill.). 82.
Question of fact: whether person injured by negligence of another has
exercised proper care, is, and not one of law, and is for the jury to
determine. Chicago, etc., R. Co. v. Hutchinson (Ill.). 82.
Question of law and fact. Unless facts are undisputed when it is a
question of law, it is error for the court to submit interrogatories call-
ing for mere conclusions of the law as to negligence, but the error is
harmless where the answers are not conclusive. Chicago, etc., R. Co.
v. Ostrander (Ind.). 361.
Slight negligence of one party will not prevent a recovery where negli
gence of the other party is great. Wichita, etc., R. Co. v. Davis.
(Kan.). 65.
Signal: effect of failure to give statutory. 74 n.
Speed of train, and fact that it is behind hand, is not per se evidence of
negligence. New York, etc., R. Co. v. Kellam's Adm'r (Va.). 114.
Trustee surrender of railroad to, under the laws of Virginia, will not re-
lieve it from liability for. Nagler v. Alexandria R. Co. (Va.). 401.
NUISANCE. See STREETS AND HIGHWAYS.
Injunction. If unauthorized occupation of street is not susceptible of be-
ing adequately compensated by damages at law, or is such that from
its continuance a permanent mischief must occasion a constantly re-
curring grievance, equity will enjoin it. Kavanagh v. Mobile, etc., R.
Co. (Ga.). 267.
Unauthorized occupation of a street in a city by railroad track with cars
and engine amounts to public nuisance, and if abutting owner suffer
special damages therefrom, he is entitled to maintain an action. Kav-
anagh v. Mobile, etc., R. Co. (Ga.). 267.
OFFICERS AND AGENTS. See BILLS OF LADING.
Depot agent: promise of, to shipper that cars should not be changed on
through shipment, Carrier's liability for the agent's conduct. Vari-
ance between allegations and proof. Alabama, etc., R. Co. v. Thomas
(Ala.). 464.
OPINION EVIDENCE. See EVIDENCE.
ORDINANCE. See STREET RAILWAYS.
Ordinance adopting and ratifying a former invalid ordinance granting
corporation exclusive privileges is not deprived of its validating force
by a provision therein that grants of exclusive privileges shall not be
enlarged by virtue thereof. Des Moines St. R. Co. v. Des Moines B.
G. St. R. Co. (Iowa). 209.
Crossings. Violation of ordinance limiting speed of train does not excuse
contributory negligence. 15 n.
Previous ordinance: ordinance purporting to adopt, granting corporation
certain privileges, although void as an ordinance, is nevertheless ef-
fectual as a ratification by the city. Des Moines St. R. Co. v. Des
Moines B. G. St. R. Co. (Iowa). 209.
Streets. Obstruction. Where a railroad relies upon ordinance vacating a
street, in an action against it by a municipal corporation for obstruc-
ting such street, it must be presumed to have known of the invalidity
of the ordinance relied upon if it was not passed by a three-fourths
majority of the council, as required by statute. St. Louis, etc.,
Co. v. Belleville (Ill.). 278.
PARENT AND CHILD. See CROSSINGS.
PARTIES. See QUO WARRANTO.
Street car collision with railroad train at crossing.
negligent, are liable to passenger on street car.
v. Kuhn (Ky.). 16.
Both companies, if
Central Pass. R. Co.
PLEADING AND PRACTICE. See STREETS AND HIGHWAYS.
After new trial has been granted, plaintiff has a right to dismiss or discon-
tinue the action the same as if no trial had ever been had. It would
be a dismissal before trial, and no bar to another suit for the same
cause of action. Nor would the plaintiff be estopped from stating in
the second suit, as the basis of his right to recover, different facts
from those set up in the first action. Phelps v. Winona, etc., R. Co.
(Minn.). 56.
Binding instruction: omission of court to give, when there is no evidence
of negligence on the part of defendant, none being asked, is not such
an error as to admit of reversal. Pennsylvania R. Co. v. Page (Pa.).
386.
Carriers. Delay. Amendment to a petition in an action against a carrier
for delay in the shipment of machinery, in which it is alleged that de-
fendant's agent had notice that a portion of plaintiff's mill would be
suspended until the machinery should be returned, does not state a
new cause of action, but merely perfects the cause of action already
definitely stated. Pacific Express Co. v. Darnell. (Tex.). 543.
Complaint averring that plaintiff was on a public street, and in a street
along which a track was laid, shows that he was not trespassing, and
is good without alleging that he was wilfully run upon if it contains
a general allegation that he was free from fault. Ohio, etc., R. Co. v.
Walker (Ind.). 121.
Contributory negligence. General allegation that the plaintiff was with-
out fault sufficiently indicates contributory negligence, unless facts
specially pleaded clear ly show it. Ohio, etc., R. Co. v. Walker (Ind.).
121.
Defence of the pendency of another suit for some cause of action cannot be
maintained unless it be affirmatively proved that the suit is still pend-
ing. Phelps v. Winona, etc., R. Co. (Minn.). 56.
Demurrer: objections to a pleading upon the ground of indefiniteness,
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