poses for all the inhabitants and property of the city, a tax-payer of the
city may recover of the water company when, through a breach of its
contract, he is left without means of extinguishing fire, and his prop-
erty is on that account destroyed. Paducah Lumber Co. v. Paducah
15. MUNICIPAL ORDINANCE IN CONFLICT WITH GENERAL LAW OF STATE IS
NULLITY. - A municipal ordinance which conflicts with the general
law of the state is a nullity and of no authority. And where a general
state law requires railroad companies to blow a whistle when a person
or animal appears on the road, such companies are not excused from
the performance of this statutory duty within the boundary of a mu-
nicipality whose ordinance makes the blowing of such whistle a misde-
meanor. Katzenberger v. Lawo, 681.
See ASSIGNMENT, 2; Damages, 2-4; Railroad CompANIES, 32–34.
See HOMICIDE; Insurance, 28.
MUTUAL BENEFIT SOCIETIES.
See INSURANCE, 20–54.
1. NEGLIGENCE, IN A Legal SENSE, is no more than the failure to observe,
for the protection of another person, that degree of care, precaution,
and vigilance which the circumstances demand, whereby such other
person suffers injury. Barrett v. Southern Pacific Co., 186.
2 IT IS THE DUTY OF EVERY PERSON TO SO USE AND ENJOY HIS PROP-
ERTY AS TO INTERFERE WITH THE COMFORT AND SAFETY OF OTHERS
as little as possible, consistent with its proper use; and a failure to ob-
serve this duty in respect to those who have the right to invoke its pro-
tection is negligence. Barrett v. Southern Pacific Co., 186.
8. NEGLIGENCE MUST BE RESPECTING A DUTY TO PLAINTIFF. —To justify
recovery for alleged negligence, it is not sufficient to show that defend-
ant has neglected some duty or obligation existing at common law or
imposed by statute. He must be shown to have neglected a duty or
obligation which he owed to him who claims damages for the neglect.
Williams v. Chicago etc. R. R. Co., 397.
NEGLIGENCE IS NOT PRESUMED AGAINST THE Owner or DrivER OF A
HORSE from the fact that the horse, attached to a cart, ran away while
in charge of the driver, and, notwithstanding his efforts to control him,
ran over and injured a person in the street. O'Brien v. Miller, 320.
5. CHILDREN. TO LEAVE UNGUARDED, AND EXPOSED TO THE OBSERVA-
TION OF LITTLE CHILDREN, dangerous and attractive machinery, which
they naturally would be tempted to go about and upon, and against the
dangers of which their immature judgment opposes no warning or de-
fense, is an act of negligence. Barrett v. Southern Pacific Co., 186.
NEGLIGENCE IN LEAVING A TURN-TABLE UNGUARDED. If a turn-
table, provided with a latch and slot such as are in common use, is not
protected by any inclosure, nor left in the charge of any person whose
duty it is to guard it, and a child of eight years of age goes upon it to
ride while it is being turned by older children, and is caught and seri-
ously injured, it is for the jury to determine whether the owner of the
turn-table is guilty of negligence, and answerable to the child for the
injuries suffered. Barrett v. Southern Pacific Co., 186.
-The liability of one who has left a turn-table unguarded
and unprotected, for injuries suffered by a child of immature years, is
not affected by the fact that the turn-table was set in motion by the
negligence of older children. Burrett v. Southern Pacific Co., 186.
8. A CHILD OF IMMATURE YEARS HAS CAPACITY TO EXERCISE ONLY SUCH
CARE AND SELF-RESTRAINT as belongs to childhood, and a reasonable
man must be presumed to know this, and required to govern his actions
accordingly. Barrett v. Southern Pacific Co., 186.
9. NEGLIGENCE OF DRIVER OF WAGON NOT IMPUTABLE TO PERSON RIDING
WITH HIM. The negligence of the driver of a wagon and team which
collides with a railway train does not necessarily preclude a recovery by
a person riding in the wagon with such negligent driver; but such per.
son cannot recover in such a case unless it affirmatively appears that his
own negligence did not proximately contribute to his injury. Miller
v. Louisville etc. R'y Co., 416.
10. FAILURE OF PERSON RIDING WITH DRIVER OF WAGON TO LOOK AND
LISTEN FOR TRAIN AT CROSSING CONTRIBUTORY NEGLIGENCE. - Where
a wife is riding in a wagon with her husband, who is driving, at a rail-
way crossing known to her to be dangerous, it is her duty to look and
listen for approaching trains, and if, while a train is approaching in full
view, she takes no precautions to warn him or to avert the threatened
danger, she is guilty of contributory negligence, and no recovery can
be had for injuries received by her. Miller v. Louisville etc. R'y Co., 416.
11. CONTRIBUTORY NEGLIGENCE OF PARENT. - Where a child of immature
years has suffered injuries from an unguarded turn-table, and it is
claimed that the negligence of his mother in not properly watching over
and caring for him contributed to his injuries, it is not error to charge
the jury "that they may consider the evidence as to her condition and
circumstances in determining the question as to her negligence." Bar-
rett v. Southern Pacific Co., 186.
12. CONTRIBUTORY NEGLIGENCE QUESTION OF FACT WHEN. - Where an em-
ployee is injured by attempting to remove slivers from under a saw
without stopping the machinery, the fact that he did not stop the
machinery before attempting to remove the slivers does not, of itself,
constitute contributory negligence, but it is a question for the jury to
determine whether he was exercising due care in what he did. And the
jury may take into consideration the facts, that he had often seen such
obstructions removed from near the same place when the saw was in
motion, and had not been notified that it was dangerous to do so; that
to have stopped the machinery to remove the slivers would have occa-
sioned delay in the work; and that it was not the custom to do so. In-
german'v. Moore, 138.
18. CONTRIBUTORY NEGLIGENCE. - BURDEN TO PROVE contributory negli
gence is in all cases upon the defendant, although plaintiff's evidence
sometimes relieves from the necessity of discharging it. Georgia Pacific
R'y Co. v. Davis, 47.
See CARRIERS; CORPORATIONS, 11; MASTER AND Servant, 4; MUNICIPAL
CORPORATIONS, 7-12; RAILROAD COMPANIES,
NEGOTIABLE INSTRUMENTS.
See BILLS AND NOTES.
CRIMINAL LAW. A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED
EVIDENCE should be granted, when the accused has been convicted of
rape, and the newly discovered evidence is such as might have led the
jury to doubt whether the crime could have been committed as stated
by the prosecutrix. Lincecum v. State, 727.
NIGHT-WALKING.
See CRIMINAL LAW, 4
NONSUIT.
See TRIAL, 1, 2,
See AGENCY, 3; ASSIGNMENT, 2; CORPORATIONS, 4, 5; Insurance, 11; Lis
PENDENS; MUNICIPAL CORPORATIONS, 6, 13; PRIVATE WAYS, 3; RAIL
ROAD COMPANIES, 3.
1. WHAT CONSTITUTES, QUESTION OF LAW.-In actions to abate nuisances,
the question whether the place where the trade or business complained
of is carried on is a proper and convenient one for the purpose or not,
or whether the use by the defendant of his own land is, under all the
circumstances, a reasonable use or not, ought to be determined by the
court, and not submitted to the jury. Susquehanna Fertilizer Co. v.
Malone, 595.
2 WATERCOURSES - FLOATABLE STREAMS. — The MaintenaNCE OF A DAM
across a floatable stream, so as to prejudice the right of the public to
float logs therein, and without providing suitable sluices to allow the
logs to pass around the dam, is a public nuisance. Gaston v. Mace, 848.
8. TRADE OR BUSINESS carried on in such manner as to interfere with the
reasonable and comfortable enjoyment by another of his property, or
which occasions material injury to the property itself, is a wrong done
to the adjoining or neighboring owner, for which an action for nuisance
will lie, without regard to the locality where the business is carried on,
though it may be lawful, and useful to the public, and managed and
conducted with the best and most approved appliances and methods.
Susquehanna Fertilizer Co. v. Malone, 595.
4. CONVENIENT PLACE REASONABLE USE. --At no place can a nuisance
be maintained on the ground that it is convenient for the carrying on
of the business, if such business causes substantial injury to the prop.
erty of another; nor can any use of one's land be said to be a reasonable
use which deprives an adjoining owner of the lawful use and enjoyment
of his property. Susquehanna Fertilizer Co. v. Malone, 595.
5. EVIDENCE OF THE CONDITION OF LAND BEFORE IT WAS AFFECTED BY
THE NUISANCE complained of is admissible for the purpose of enabling
the jury to determine whether, and to what extent, it has been affected
by such nuisance. Aldworth v. City of Lynn, 608.
6. FERTILIZER FACTORY-ADMISSIBILITY OF EVIDENCE IN DEFENSE. —
Where a fertilizer factory is complained of as a nuisance by an owner of
adjoining land, evidence of the loss or injury which the owners of other
fertilizer factories in the neighborhood might sustain if such business is
held to constitute a nuisance, or of the amount invested in such fac-
tories, is inadmissible in defense. Susquehanna Fertilizer Co. v. Malone,
7. DEFENSE THAT PLAINTIFF CAME TO IT.- Where a fertilizer factory is
complained of as a nuisance by an adjoining land-owner, the fact that he
came to the nuisance is no defense, in the absence of a claim of pre-
scriptive right by defendant. Susquehanna Fertilizer Co. v. Malone, 595.
& FERTILIZER FACTORY - COMPARATIVE Loss No DEFENSE. - Where a fer-
tilizer factory is complained of as a nuisance by an adjoining land-owner,
no effort will be made to balance the inconveniences, or to estimate the
difference between the injury sustained by the plaintiff, and the money
invested and loss that may result to the defendant from having its busi-
ness as carried on found to be a nuisance. The neighboring owner is
entitled to the reasonable and comfortable enjoyment of his property,
and if his rights in this respect are invaded, he is entitled to protection,
let the consequences be what they may. Susquehanna Fertilizer Co. v.
Malone, 595.
9. PERMANENT. DAMAGES WILL BE ALLOWED ONLY TO THE COMMENCE-
MENT OF THE ACTION for injury sustained by plaintiff from the main
tenance of a dam and reservoir by the defendant, from which water
percolated, saturating plaintiff's land, though such dam and reservoir
were constructed for permanent use, if the court cannot see that the de-
fendant may not reconstruct them in such a way as to prevent the con-
tinuance of the percolation with much less expenditure than would be
required to pay for a permanent injury to the plaintiff's land. Ald-
worth v. City of Lynn, 608.
10. DAMAGES FOR, UP TO WHAT TIME SHOULD BE ESTIMATED. — In an
action for polluting a spring by suffering coal-oil to percolate into an
underground stream from which the spring was fed, the damage recov-
able is that which resulted from the deprivation of the use of the water
for domestic or fire purposes up to the time of the trial only, where
it is in the power of the defendant to prevent the continuance of the
injury. Kinnaird v. Standard Oil Co., 545.
11. PARTY LIABLE ONLY FOR SUCH, AS RESULTS FROM HIS OWN ACT.
-A nuisance, to be indictable, must be the natural and direct cause
of the act of the party charged with maintaining it. It is therefore
error, upon the trial of an indictment for maintaining a nuisance in
keeping a hog-pen in a filthy condition, for the court to charge that "if
the jury find that the smell created by the defendant's pen was not suffi-
cient within itself to constitute a nuisance, yet it contributed, with other
pens in the neighborhood, to forming a nuisance, the defendant would be
guilty." Gay v. State, 707.
12. LIABILITY FOR, BY ONE HAVING NO NOTICE OF THE RESULTING IN
JURY. -One who, on his land, maintains a warehouse for the storage
of coal-oil, and permits it to leak from casks and penetrate the ground
and contaminate an underground stream of water, from which a spring
on the land of an adjacent proprietor is fed, is answerable for the dam.
ages thus occasioned, though he did not know of the injury which the
percolation of the oil was doing to the spring. Kinnaird v. Standard Oil
Co., 545,
Bee ARREST; ATTACHMENT, 2; CORPORATIONS; INJUNCTION; MANDAMUS;
MUNICIPAL CORPorations; Replevin, 3, 4.
See MUNICIPAL CORPORATIONS, 15; RAILROAD COMPANIES, 32.
AGREEMENT TO MAKE CHILD HEIR, EFFECT OF. Where a husband and
wife, without children of their own, agreed to take a young child, pro-
vide for and bring her up as their own, and at their death leave her all
their property, and the husband, with his wife's assent, afterwards
adopted the child, it was held, -1. That the husband was not precluded
by the contract from the perfectly free and unrestrained enjoyment of
his property, and that he could dispose of it as he pleased, at any time
during his life, by gift or otherwise; 2. That a conveyance in good faith,
during his lifetime, of all his property to his wife vested in her an abso-
lute title free from any trust in favor of the child; 3. That the contract
was void as to the wife, and incapable of subsequent ratification by her-
because of her coverture at the time it was entered into; 4. That a new
verbal contract, made by the wife after her husband's death, was within
the statute of frauds, and that a part performance by the child did not
take it out of the statute. Austin v. Davis, 456.
See ELECTIONS, 7; EVIDENCE, 7; INSURANCE, 18; RAILROAD COMPANIES, 34.
NON-JOINDER OF PARTY NOT AVAILABLE WHEN. - Where one of the parties
to a trust deed, who is made a party defendant in an action to appoint
a new trustee, transfers all his interest in the land to a third person,
after the execution of the deed, and after the commencement of the ac-
tion, he is not in a position to complain that such third person was not
made a party to the action, if he did not ask to have him so joined.
Smith v. Davis, 92.
1. Co-oWNERS, POWER OF COURT TO ORDER SALE OF PROPERTY OF. —
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Under the statutes of Connecticut, courts of equitable jurisdiction have
the power to order a sale of property owned by two or more persons
jointly or in common when, in the opinion of the court, the sale will
better promote the interests of the owners; but no person is entitled to
the benefit of this statute who is not interested in the property as an
owner. Hence the court is not, by this statute, authorized to direct its
sale to pay debts. Vail v. Hammond, 330.
2 PARTITION OF PROPERTY NOT SUSCEPTIBLE OF DIVISION.-When partition
in kind cannot be conveniently made, the court may either allot the en-
tire subject-matter to the tenant offering the largest sum for the whole, or
may order the sale of the whole, and a distribution of the proceeds among
the tenants. The court cannot, however, allot the whole to a tenant who
is able, but unwilling, to pay to the other tenants as much or more pro-
portionally for their interests as they are willing and able to pay him
for his interest; nor can it compel one tenant to accept for his inter-
est less than he is willing and able to pay for the like interests of the
other tenants. Corrothers v. Jolliffe, 836.
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