vania Co. v. Marion, 104 Ind. 239, 27Am. & Eng. R. Cas. 132; Moreland v. Boston & P. R. Co., 141 Mass. 31; Kelly v. Manhattan R. Co., 112 N. Y. 443, 37 Am. & Eng. R. Cas. 60. Nor is there any claim that the defendant is an insurer, but that it was bound to use ordinary care to keep its approaches to its boat landing safe and convenient, and that to leave a railing off of a bridge of this kind, at such a place, and at such a height from the ground, for a period of several weeks, was a want of ordinary care, if not gross negligence. Nor do the cases cited by the defendant conflict with these principles, as declared by the authorities, or support its contention. It will be sufficient to notice those claimed to be most in point. In Eisenberg v. Missouri Pac. R. Co., 33 Mo. App. 91, it did not appear that the road had been built by the defendant, and held out to its patrons as a way to its depot. There was another and safer road, and the exact situation of the defect was known to the plaintiff. The only element in the case is that, prior to the accident, the company had im. proved it, but, upon the plaintiff's own testimony, the case was void of all elements of negligence upon the part of the defendant. The court says: "In the case at bar, the danger was neither a hidden nor recent danger. The excavation existed before the road was built. The plaintiff knew the exact situation for years. His drivers knew it. This very driver had traveled over the road repeatedly on the . day of the accident. He discussed such dangers when they were in full view, in broad daylight, with his fellow-servant, and, knowing what risk he undertook, voluntarily assumed it, although he might have used another and safer road." It was a clear case of contributory negligence. In Cusick v. Adams, 115 N. Y. 58, the bridge was built for the convenience of the defendant. The plaintiff was a stranger to him, and to whom he owed no duty. Nor was the plaintiff upon the bridge upon the defendant's invitation, nor to do any business with him, but for the purpose of seeing a shooting match upon an island with which the defendant had no connection whatever. In Texas & N. O. R. Co. v. Dessommes, (Tex. Sup.) 15 S. W. Rep. 806, the testimony was so positive and definite that the defendant had nothing whatever to do with the crossing at the place of the injury that the verdict. was held contrary to the evidence. There is no relevancy in the cases, or the others cited, to the case at bar; nor is there anything in the fact, if it be admitted, that the land where this bridge was constructed and maintained by the defendant was platted as one of the public streets. It by no means follows that the city was bound to open the same to public travel. As THAYER, C. J., after showing that the ded

ication of streets by maps and plats was irrevocable, and vested them in the public, said: "But it does not follow that the city is under any obligation to open and improve such streets at once; they may be allowed to remain dormant until their use becomes a public necessity." Meier v. Portland Cable R. Co., 16 Or. 500. There is no pretense or evidence to show that the city had opened this street beyond its inhabited portion. The evidence is undisputed that the defendant built the bridge partly upon it for its own purposes, and has ever since used it, exclusively, as a railroad bridge, and as a way to its boats. The city had nothing to do with it. "There was no business other than that connected with the defendant company's business, west of the bridge in question, which would take persons thereover, and it was used only by persons having business with the defendant company, in traveling to and from its wharf for the purpose of traveling over its line, and in shipping and receiving freight." So runs the record.

Nor do we think there is anything in the contention that the defendant is not liable because the plaintiff and her husband started to go on the boat in the evening, in- Contributory stead of in the morning. It was the custom of negligence. the defendant to receive passengers on its boats in the evening, and allow them to sleep there, for which they were charged extra, or "fifty cents for single berths, and six bits for double." Its officers at the wharf boat informed the defendant and her husband of the custom, and they were going to the boat to avail themselves of it when the injury occurred. By so doing the defendant invited its patrons to take passage on its boats in the evening instead of in the morning, and was bound to make its approaches safe for the travel of such persons as it was for persons who came on board of the boat in the morning. We think there was no

error.

It is next objected that the court erred in declining to instruct the jury that the platting of the ground under the bridge in question as a public street, and selling lots by reference to the same, constituted a dedication of the street. This objection is embraced in five long instructions out of the numerous instructions asked, and are justly subject to the criticism suggested by counsel. The proposition itself was not disputed as a matter of law, nor was the refusal of the court to give the instructions asked in conflict with it. It was the fact that the instructions ignored the distinction between the dedication of a street and the opening of that street as a public highway, by which the defendant sought to excuse liability, that caused the court to refuse them; but

the view we have taken renders their further consideration unnecessary. The evidence shows that the street was not opened by the city, nor used by it, but that it was exclusively occupied by the defendant with its bridge as a means of access to its boat landing, and under its control at the time of the accident.

It is next objected that the trial court erred in refusing and modifying instruction No. 16, upon the question of contributory negligence. This instruction is objectionable, but instruction No. 39, as given by the court, better states the law, as applicable to the facts. There can be no doubt but the bridge was a place where a railing or guard on it was necessary at all times, but especially after dark, when passengers were expected to travel over it to and from the landing place. The plaintiff and her husband were strangers, and the circumstances already stated were not such as the court could declare contributory negligence.

The next objection is that "the court erred in instructing the jury that the defendant was bound to keep its approaches safe and well lighted at all hours of night, regardDuty to keep less of the time set for the departure of its boats." approach safe This refers to the court declining to give certain at night. instructions asked by the defendant, and giving certain others asked by the plaintiff. By the instructions thus given and refused, it is claimed that the court imposed upon the defendant the duty to keep the approaches or bridge constructed by it, and under its control, leading to its steamboat landing, in such order and repair, and so well lighted, as to be reasonably safe at all hours of night. The complaint is that this laid the duty on the defendant regardless of time, and of the fact that the boat did not leave until the next morning. Upon this point the instruction given by the court was: "If the defendant had been in the habit of and accustomed to take passengers on the boat in the evening, and permitting them to sleep thereon, then its liabilities as to a passenger passing over its walks and ways in the evening for such purpose would be just the same, and its duties as to keeping its ways to its boat would be just the same, as it would towards a passenger going to the boat at the hour of starting in the morning." The court did not, therefore, instruct the jury that the defendant was bound to keep its approaches safe and well lighted at all hours of the night. The plaintiff and her husband were going down to the boat, as the evidence indicates, between 6 and 8 o'clock in the evening. It was the usual time when the defendant was in the habit of receiving passengers. They were invited to come on board, and they had a right to be there; they

1

juries.

were going there to do business with the defendant,-to sleep on board of the boat all night, and pay for the accommodation. The benefit was mutual. It was not a gratuitous privilege for their own special convenience. The boat was just coming into its landing, and the time was in the evening, and appropriate. There is no claim, nor can be on the facts, that it was the duty of the defendant to keep its approaches to its landing safe at all hours of the night, but that it was its duty in the evening, when it was accustomed to receive passengers. Whether it was the duty of the defendant to keep them in that condition at other later hours of the night was a matter with which the plaintiff in this case has no concern. It is next objected that the damages awarded are excessive. The damages assessed by the jury are large. The evidence tends to indicate that the plaintiff is permanently injured. "I think," says the medical Damages for witness, that if she does regain the use of her personal inlimb, and it becomes free from pain, it will be several years. It will take a long time to fully recover, if she ever does." She is unable, now, to stand without support, and altogether unable to walk, and still suffers great physical pain from the injury. The probabilities are that she will be a cripple during her life, and subject to much pain and suffering. In such case different individuals would vary in their estimate of the sum which would be a just pecuniary compensation. "It is one thing," said Mr. Justice STORY, "for a court to administer its own measure of damages in a case properly before it, and quite another thing to set aside the verdict of a jury because it exceeds that measure." Thurston v. Martin, 5 Mason (U.S.) 497. Nor is the fact to be overlooked that the judge who heard the testimony, in refusing the motion for a new trial, approved the verdict of the jury. In such case, it has not been the practice of this court to interfere, nor, if such was not the practice, are the damages given so excessive as to justify our interference. Many larger verdicts for less injuries have been sustained by the courts.

Thus far, the cases have been considered together; but the point is made in the administrator case that no earning power was proven on the part of the deceased. This is based on the inference that the deceased was a wealthy man, living on his income. Under the statute, the age and sex, the general health and intelligence of the deceased, his habits and capacity, mental and physical, to earn and acquire property, are all to be considered. The deprivation of his affection and society cannot be taken into account. This would include skill in the management of wealth, or capacity to

manage affairs, which would be of advantage to an estate, and the loss of which would prove a detriment to it. In view of all the circumstances, we are unable to say there was error, and must affirm the judgments, or judgment, in both cases.

Liability of Railroad Company for Injuries Caused by Defective Stations and Approaches.-Ensley R. Co. v. Chewning (Ala.) 50 Am. & Eng. R. Cas. 46, note 55; Woolwine v. Chesapeake & O. R. Co. (W. Va.) 50 Id. 37, note 46; Graham v. Pennsylvania R. Co. (Pa.) 47 Id. 522, note 528, note 37 Id. 66.

Evidence as to Repairs and Alterations after Accident.-See Terre Haute & I. R. Co. v. Clem, (Ind.) 42 Am. & Eng. R. Cas. 229, and cases cited in note 233.

Excessive Damages for Personal Injuries.—See note, 46 Am. & Eng. R. Cas. 667-679.

UNITED STATES

v.

TRANS-MISSOURI FREIGHT ASSOCIATION.

(U. S. Circuit Court, D. Kansas, F. D. Nov. 28, 1892.)

Railroad Traffic Association-Contract in Restraint of Trade-Public Policy-Congressional Anti-Trust Law.—An agreement between a number of railroad companies constituting a traffic association, the object and purpose of which is to maintain just and reasonable rates, and prevent unjust discrimination in compliance with the terms of the Interstate Commerce Act, by furnishing equal facilities for the interchange of traffic between the several lines, is not an agreement, combination, or conspiracy in restraint of trade, in violation of the first section of the Act of Congress of July 2, 1890, entitled "An Act to Protect Trade and Commerce against Unlawful Restraint and Monopolies," commonly known as the "AntiTrust Law."

Same-Monopolization of Commerce. The public is not entitled to free and unrestricted competition between railroad companies, but is only entitled to a free and healthy competition, and therefore there is nothing in such an agreement tending to create a monopoly in violation of the second section of the said Act.

Same-Transfer of Franchises and Corporate Powers.-An agreement between a number of railroad companies creating a traffic association, whereby each company maintains its organization as before, elects its officers, operates its line, and gives no power to the association to govern in any respect the operations, or method of transacting the business of the lines, and leaving each line perfectly free to transact all the business it can secure, and in its own way, although containing a provision for regulating changes in rates, and that the association shall consist of a representative of each of the lines, not necessarily a officer of the company, does not amount to a transfer of the franchises and corporate powers of the different railroad companies, and is not forbidden by public policy.