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INDEX.

NOTE.-The mode of citing the American and English Railroad Cases is as
follows:
31 Am. & Eng. R. R. Cas.

The index contains references to the decisions and to the notes. References
to the decisions are to the pages upon which the cases begin. References to the
notes are to the pages upon which the propositions stated in the index are found.
References to Constitutional or Statutory Provisions are to the pages upon which
they are cited.

ACCORD AND SATISFACTION.

Where plaintiff was injured, and after injury continued in company's ser-
vice, the mere fact that he accepted pay at the usual rate did not
depart from the special agreement to the effect amounting to accord
and satisfaction so as to estop him from suing for damages. Hewitt
v. Flint, etc., R. Co. 249.

ACTIONS. See ANIMALS; ASSIGNMENT.

Colorado statute as to railroad's liabilty for stock killed does not apply for
stock killed in New Mexico, and in absence of proof of New Mexico
statute its existence will not be presumed; but if killed by company's
gross negligence, it is liable under common-law principles without re-
gard to New Mexico laws. Atchison, etc., R. Co. v. Betts. 563.
Declaration by widow for damages for husband's death, stating that de-
ceased got on track sixty feet in front of train, approaching at rate of
fifteen to thirty miles an hour, unobserved by him, though there was
nothing to obstruct view, and proceeded in middle of track to walk
home, and was killed by train, and engineer might and ought to have
seen him, states no cause of action, and demurrer should be sustained.
Mobile, etc., R. Co. v. Stroud. 443.

Owner of stock killed by railroad may have common-law action against
company for negligence, though statute makes it liable without regard
to negligence, provided owner follows procedure required. Denver,
etc., R. Co. v. Henderson. 559.

ALIGHTING. See PASSENGERS.

AMENDMENT.

Plaintiff only alleged possession of hotel property without showing him-
self a party or privy to any covenant in the deeds as to a right of
way. Held, not error for court on plaintiff's motion to permit amend-
ment setting up plaintiff's lease. Avery v. New York, etc., R. Co.
583.

ANIMALS. See ARBITRATION; FENCES; INDICTMENT.

Arkansas act providing that railroad hands caught disfiguring carcass killed
on railroad without first notifying persons whose duty it was to pre-
serve marks or value of stock shall be guilty of misdemeanor and
fined, is not unconstitutional, arising from the police power and not
being class legislation or of unequal operation. Bannon v. State. 553.
Colorado statute as to railroad's liability for stock killed does not apply
for stock killed in New Mexico, and in absence of proof of New Mex-
ico statute its existence will not be presumed; but if killed by com-
pany's gross negligence, it is liable under common-law principles
without regard to New Mexico laws. Atchison, etc., R. Co. v. Betts.
Engineer after discovery of animal on track must stop train if he has
reasonable apprehension of its remaining there, though he need not
anticipate such remaining before it becomes his duty to stop. Grim-
mell v. Chicago, etc., R. Co. 537.

563.

Evidence as to the precise time of first discovery of cattle on track may
be excluded when it is undisputed that engineer after discovery had
time to stop before accident. Grimmell v. Chicago, etc., R. Co. 537.
Failure of trial court to state issues presenting question of contributory
negligence is not error, there being a subsequent instruction in which
duty of defendant to restrain stock was correctly stated; issues need
not be stated in single paragraphs of charge. Timmins v. Chicago,
etc., R. Co. 541.

Horse was alleged to have been injured by falling through cattle-guard by
failure to fence track; tracks of horse showing speed on right of way
and passage of train during night of accident were proved; court in-
structed that plaintiff, to recover, must show by preponderance of
evidence cause of injury to have been driving of horse by train into
cattle-guard. Held, presumption of fright by train mere surmise, and
verdict for plaintiff could not be sustained. Moore v. Burlington,
etc., R. Co. 572.

541.

Instruction that if jury found that horses escaped from pasture, passed
over guard, stepping between cross-ties, and that differently con-
structed cattle-guards were used elsewhere, those facts would not jus-
tify inference that cattle guard was defective or insufficient, is not
erroneous, there being sufficient other evidence, to which court called
attention, of character of guards. Timmins v. Chicago, etc., R. Co.
Land-owner habitually turning horses on adjoining track through gate
maintained for his accommodation as convenient way for them to go
to pasture cannot claim compensation for injuries to which he volun-
tarily exposed them. Ft. Wayne, etc., R. Co. v. Woodward. 546.
Locomotive fireman on train which killed stock, having four years' experi-
ence, may give his opinion as witness as to whether there was time to
stop within certain distance of an animal on track, question being
possibility of stopping after stock was discovered. Grimmell v. Chi-
cago, etc., R. Co. 537.

Mere killing of animal by railroad is not evidence of negligence, and fact

ANIMALS-Continued.

that animal was found killed on track will not warrant recovery
against company. Atchison, etc., R. Co. v. Betts. 563.

Owner can recover for killing of horse, escaped from his control, having
used reasonable diligence to recapture; killing having been by pass-
ing train at railroad crossing running faster than permitted by the
New Hampshire statute; and company's negligence may be inferred
by rate of speed. Clark v. Boston, etc., R. Co. 548.

Owner of stock killed by railroad may have common law action against
company for negligence, though statute makes it liable without regard
to negligence, provided owner follows procedure required. Denver,
etc., R. Co. v. Henderson. 559.

Rule that those in charge of trains need not watch to ascertain if an ani-
mal trespassing on track without company's fault is there, and that
their duty arises only on discovery, applies to case of animal wrong-
fully on highway at railroad crossing. Palmer v. Northern Pac. Ř.
Co. 544.

561.

Though the Mississippi Code provides that before sale mortgagor shall be
deemed owner of mortgaged property, it is no defence, in suit against
railroad for killing stock in mortgagor's possession, that it was mort-
gaged and the mortgaged property forfeited at time of killing. Illi-
nois Cent. R. Co. v. Hawkins.
Under Texas statute making railroad liable for stock killed unless track
is fenced, the company is not liable for injury to animal on track
through fright at train, and injured on trestle and not by locomotive
or cars. International, etc., R. Co. v. Hughes. 569.
Where evidence showed that cow killed by locomotive could have been
seen where she was lying after injury by one on engine for about 175
yards, and that had engineer been looking out of right side of cab as
it rounded curve cow might have been seen in time to stop train,
there is enough proof of negligence to submit question to jury. Den-
ver, etc., R. Co. v. Henderson. 559.

Where owner pursues common-law remedy he has burden of proof, and
does not make out prima facie negligence by showing injury by loco-
motive striking stock and damages for certain sums, railroads not
being required in Arkansas to fence, and stock being permitted to
run at large. Denver, etc., R. Co. v. Henderson. 559.
Where railroad on which stock was killed is owned by one company and
leased by another without special authority from State, both com-
panies are liable to owner. Missouri Pac. R. Co. v. Dunham. 530.
Where statute forbade running of horses at large, and horses left loose in
enclosed lot in which there was an aperature in side next highway
open except for single loose bar which horses pushed aside and then
escaped on highway and on railroad crossing were killed, owing, as
alleged, to defective cattle-guard, question whether turning horses
loose under circumstances is contributory negligence or equivalent to
allowing them to remain at large within meaning of statute is for
jury. Timmins v. Chicago, etc., R. Co. 541.

Where stock is killed while trespassing on track in town, it may be shown
that stock was not permitted by law to run at large in said town; and
there being such law, railroad is liable only for gross negligence in
killing same. Missouri, etc. R. Co. et al. v. Dunham. 530.

ANNOTATIONS.

Actions.

Survival of right of action to personal representative. 319 n.

Alighting.

ANNOTATIONS—Continued.

Alighting from moving train. 50 n.

Alighting from slowly-moving train where company is negligent. 51 n.
Alighing against the conductor's advice.

Alighting by direction of the conductor.

53 n.

52 n.

Whether alighting amounts to negligence is for the jury. 52 n.

Animals. See FENCES.

Animals entering railroad bridge from public highway. 499 n.
Cattle ahead near bridge. When animal has left the track. Animal
wrongfully on highway at crossings. 497 n.
497 n.

Cattle attracted to depot by hay on cars.

Contributory negligence of owner. As defence when company has
failed to fence. What is what is not contributory negligence. 500 n.
Duty of engineer on perceiving cattle on track. 497 n.

Injuries to animals. Fences.

able injury. 496 n.
Injuries to animals. Fences.
negligence. 496 n.

Injuries to animals. Fences.
moving train.

496 n.

When company is not liable. Unavoid-

Contributory negligence. Absence of

Injuries not resulting from contact with

Presumption of negligence. Statutory provisions. When negligence
need not be proven. Inferred from unlawful speed. Unusual but
lawful speed no evidence. Number of brakemen on train. Appli-
ances for stopping train at night. 499 n.

Safety of train must be regarded. 497 n.

Where railroad is owned by one company and leased by another. 497 n.
Where owner wilfully exposes animals on track. 496 n.

497 n.

When sounding signals would not have averted injury. 497 n.
When speed of train may be slackened or increased.
When company is liable for failure to exercise reasonable care.

Failure

to give signals at crossings. For killing mortgaged stock. For de-
fective headlight. Where owner is negligent. For stock killed at
unfenced point where company is bound to fence.

498 n.

Permitting cattle to run at large is not contributory negligence. 501 n.
Cattle running at large killed through negligence of company. Ques-
tion for jury. 501 n.

Injuries to animals at crossings. 505 n.

Validity of statute imposing criminal liability upon officers for negli-
gent killing of stock.

Baggage.

Constitutional protections.

[blocks in formation]

579 n.

Cattle ahead near bridge. When animal has left the track. Animal
wrongfully on highway at crossings. 497 n.

Animals entering railroad bridge from public highway. 499 n.

Carriers.

Carrier's liability for goods deposited. 101 n.

Carriers of Live-stock.

Where injury is caused by combined negligence of the carrier and the
nature and propensities of the live-stock.

91 n.

What are injuries resulting from inherent nature or propensities of ani-
mals for which carrier is not liable. 91 n.

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