Inally laid by the company over the surface of their track, and that by reason of the growth of their business, at that locality, their trains should pass in such quick succession as to render such street almost impassable; under these circumstances, could it be pretended that the company could discharge themselves from the obligation which the section in question imposes, except by passing the street thus obstructed under their road, so as to restore it to public use. The duty prescribed is to keep at all times, and under all circumstances, the public highways, at the point where they cross the railroad, in a condition fit for safe and convenient use." That principle has been restated in so many Instances by the judges of this state as to have become thoroughly inbedded in our laws. See the opinion of Chancellor McGill in Township of Raritan v. Port Reading Railroad Company, 49 N. J. Eq. 14, 23 Atl. 127, and Read v. Camden, 53 N. J. Law, 322, 326, 21 Atl. 565, and later on, in Palmyra v. Pennsylvania Railroad Company, supra, and the additional cases there cited. If, then, the passageway under the railroad provided by the defendant in 1889 has become insufficient, it is their duty, under the language of their charter, to cause that passageway to be enlarged. It was not contended that the clause in question found in defendant's charter or any other clause or legislative grant authorized the defendants to put the abutments or supports of their bridge within the lines of the street, except that they have the right to plant posts for support to their structure on the edge of the sidewalks, giving an increased width to the outside of the sidewalks from their own right of way. This right is given by a proviso in section 27 of the revision of the act concerning railroads. P. L. 1903, pp.

659, 660.

I find therefore that the defendants have no excuse either at law or in equity, as to the first two charges against them, namely, the placing of the abutments to their bridge within the lines of the street, and the failure to properly drain the cul-de-sac which they have formed therein. But say the defendants, this court ought not to exercise jurisdiction because there is an ample remedy at law, either by mandamus, ejectment, or indictment. The remedy by mandamus was so thoroughly dealt with by Vice Chancellor Grey in his opinion in the Palmyra Case, supra, commencing at the bottom of page 615 of 62 N. J. Eq., page 375 of 50 Atl., that I will only refer to it. The learned Vice Chancellor was, indeed, dealing there with the constitutional question, but what he says applies with equal force to the present situation, and shows the inadequacy of such a proceeding. It lacks the pliability and adaptability to special circumstances which the remedy in this court affords. It is true that there is a remedy at law by

mandamus to compel a railroad company, or a canal company, to build a bridge across such railroad or canal. It was so decided in this state by the Supreme Court in the Trenton Water Power Company Case, 20 N. J. Law, 659, and Mr. High, in his work on Extraordinary Legal Remedies, at sections 319, 320 dilates upon the subject, and comes to the same conclusion. But, I have found no authority which goes to the length that the remedy by mandamus is efficient to adjudge a structure already existing as inefficient or to be a public nuisance and to order its removal and the substitution therefor of a proper structure, or to define what a proper structure should be. Moreover, it seems to me that the statute above cited giving this court jurisdiction gives the remedy in this court a sort of preference over other known remedies, and declares in advance that this court shall and may assume and exercise jurIsdiction without stopping to carefully examine and strike a balance between the adequacy of the remedy at law whether by mandamus, ejectment, or indictment, and that in this court. It may be admitted that each of those remedies are open to the complainant. The remedy by ejectment was recently maintained by Justice Pitney sitting in the Passaic Circuit Court.

But the question arises: What would the complainant do with a judgment in its favor giving it possession of the ground within the limits of the highway occupied by the abutments of the defendant's bridge, and how would that judgment be used to widen the road except by destroying the bridge and interrupting travel over a great public highway? Then with regard to the remedy by indictment. The same criticism arises. Suppose the indictment found and conviction under it, and an order to abate the nuisance. What would the sheriff do? But after all to speak with perfect frankness, the sentiment of the bench and bar as to the adequacy of indictment in cases like the present has changed and advanced within late years. As early as the case of the Hoboken Land & Improvement Company v. Hoboken (1873) 36 N. J. Law, 540, Justice Depue speaking for the court of Errors and Appeals says: "Where the public easement is such that possession, exclusive of any interference by the owner of the fee, is essential for its improvement, regulation, and enjoyment, the only appropriate action to obtain the possession is ejectment. To deny this form of relief and remit the public to a remedy by an indictment for a nuisance would result in subjecting public rights to the varying moods of grand juries." The learned judge was there dealing with the choice between ejectment and indictment; that is, between a civil remedy and a criminal remedy, and his reasoning applies here, and is supported by the Trenton Water Power Case, supra.

And Vice Chancellor Emery in Grey v. the

Greenville & Hudson Railroad Company, 59 N. J. Eq. 372, 46 Atl. 638, at the bottom of page 387 of 59 N. J. Eq., page 645 of 46 Atl., says: "The uncertainty of protecting public rights in highways by indictments against nuisances was one reason for the establishment of the doctrine that these public rights should also be protected by ejectment and by injunction pursued by the municipal bodies vested with the control of the highways." And he then quotes the language of Justice Depue which I have just quoted. In support of his position in this behalf counsel for defendants cites a long line of cases culminating in that of the Inhabitants of the Township of Raritan v. Port Reading Railroad Company (1891) 49 N. J. Eq. 11, 23 Atl. 127, decided by Chancellor McGill. That case is also relied upon by the complainant in support of its position on the lack of right of the railroad company to narrow the highway, and is precisely in point on that subject. But while deciding as he did that the duty of the railroad company was to place the supports of its bridge entirely outside the line of the highway (in that case 50 feet wide) he declined to grant an injunction on the ground that its proposed structure which was to be supported by abutments only 25 feet wide, was entirely ample for all present and Immediately prospective travel over the highway, and he remarked that under the doctrine of the Central railroad Case above cited, 32 N. J. Law, 220, it would be the duty of the railroad company to widen the passageway whenever the public travel required it, and after asserting the power of the township to maintain its suit for preventive remedy in this court he refused to grant the injunction on the ground "that the travel over the highway is merely nominal, and that the roadway in use consisted of a single wagon track, and that the highway on each side of the wagon track where the abutments are being erected is underbrush and weeds, so that for all practical purposes the 25-foot space between the abutments will be ample for the public accommodations at present and perhaps for years to come." He then remarked that the remedy by indictment was sufficient to abate the nuisance and restore to the public the use of the entire highway. The latter remark was entirely unnecessary for his decision, and it is entirely clear that it was based upon the facts in the case which showed that no practical inconvenience would arise to the public from the contemplated encroachment. And it is equally clear that had the circumstances justified it he would have granted the injunction.

I am, therefore, of the opinion that the complainant is entitled to relief as to the first two charges above mentioned; namely, the location of the abutements of the bridge within the limits of the road, and the insufficient drainage of the cul-de-sac which defendant has created in the grade of the highway.

I stop here to say that the railway com; pany at the hearing presented a plan which it had devised to remedy this collection of water by entirely diverting all the surface water which comes down to the bridge from the long strip of railway to the east thereof. It may be that if it succeeds in such diversion the present long drain will be suffi cient to carry away the water which accumulates there from the surface of the highway.

I come now to the third duty which the complainant asserts rests upon the defendants and which they have not performed, and that is the maintaining in good order the highway under the bridge. The language of the obligation is this: "To construct and keep in repair good and sufficient bridges or passages over or under the said railroad where any public or other road shall cross the same."

I am unable to follow the very ingenious argument of the counsel for the complainant in support of his construction of that clause of the act. I think that the words "construct and keep in repair," applies wholly to the word "bridges." It may be said that the railroad will, in self-protection, so to speak, keep a bridge like this, which conveys the railroad over the highway, in good repair. But that consideration does not apply to the case where the bridge is erected to carry the highway over the railroad. The words "keep and repair" were intended to apply to the latter class of bridges, and do not, in my judgment, apply to the word "passages" under the railroad. This, I think, is the reasonable construction. The object of the Legislature was to prevent the railroad company from imposing upon the public any increased burden by reason of the railway crossing. Hence, where there is a crossing at grade it is the duty of the railroad to keep in repair with proper planking, etc., so much of the highway as is immediately affected by the presence of its ties and rails. In the present case, the burden of the public is not increased by the crossing except so far as the road is rendered more liable to fall into disrepair by the change in its grade, and the accumulation of water in the cul-de-sac. But in these cases, it must be born in mind that the general traveling public over the railroad are to be considered, and that it has always been considered to be proper in adopting plans of crossings to avoid crossings at grade, and to that end that the wagon way should be somewhat depressed where necessary. But I do not see upon what principle under the statute the depression in this case can be held to impose on the railroad company the expense of keeping that part of the road in repair.

No evidence was adduced at the hearing nor any suggestions made at the argument as to what remedy the court should adopt with regard to the narrowing of the highway both immediately under the bridge and on

each side thereof, and I have not given the subject consideration. With regard to the drainage of the cul-de-sac I am inclined to think the defendant's plans presented at the hearing should be subjected to the actual test. But upon these matters I express no definite opinion. They are proper subjects for consideration, and further evidence on the subject will be provided for by the decree which I shall advise upon notice to the solicitors.

(101 Me. 279)

FINN v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

(Supreme Judicial Court of Maine. March 19, 1906.)

1. WITNESSES-CROSS-EXAMINATION - RE-EX

AMINATION-COLLATERAL MATTER.

In an action on the case for negligence, the plaintiff introduced testimony tending to show that the accident in which he was injured was occasioned through the negligence of the foreman, who assured him, without any action or warning as he was about to enter the place of danger to begin his work, that everything was all right. The foreman was a witness for the defendant, and, on cross-examination, was asked whether he had not on the evening of the accident requested the night editor of the local newspaper not to publish any account of the accident in the paper, and denied that he had done so. The plaintiff then offered evidence that the foreman on the evening of the accident did request said night editor to suppress the account of the accident, which evidence was excluded.

Held, that the answer of the foreman that he had not requested the suppression of the account of the accident was in response to a question involving a collateral matter brought out on cross-examination, and therefore could not be contradicted.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1273-1275.] 2. EVIDENCE-OFFERS OF COMPROMISE.

As tending to show an admission of liability on the part of the company for the accident, the plaintiff offered evidence that a few weeks after the accident the plaintiff, without any request on his part, and before he had made or filed any claim, was sent for by the local manager of the defendant company and was offered by the company, through such manager, two checks covering the expenses of the accident, accompanied by a receipt which he was requested to sign for said amount; that said statement or receipt contained a clause releasing and discharging the defendant company from all liability for this particular accident, which was then specifically mentioned and described; that the plaintiff refused to sign and the checks were not delivered to him. This evidence was also excluded.

Held, that the above offer fell within the rule of compromise offers which is in cases of tort that, when a party has reasonable ground for anticipating that a demand will be made against him for damages, the claim may then be said to so far exist as to authorize him, without any move on the part of the claimant, to seek a settlement of it and to be protected in so doing by the general rules of law applicable to compromise settlements. That is, an offer to purchase peace either with intent to prevent a possible controversy or to end one that has arisen, cannot be used in evidence as an admission of liability.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 745-752.]

3. SAME.

Held, also, that the admissibility or nonadmissibility of evidence offered to prove an alleged compromise depends upon the intention of the party seeking it. If he intends his offer to be a compromise settlement it is inadmissible. If he intends it to be an admission of liability, coupled with an endeavor to settle such liability, then it is admissible to prove such liability.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 745-752.1

4. APPEAL-REVIEW-DISCRETION OF COURT. In the case at bar, it was clearly within the province of the court to determine the preliminary question of fact as to what was the intention of the defendant in making the alleged offer of settlement. To the exercise of his discretion in this respect no exception can lie. (Official.)

Exceptions from Supreme Judicial Court, Kennebec County.

Action by Edward T. Finn against the New England Telephone & Telegraph Company. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Action on the case to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant company, and alleged to have been caused by the negligence of the defendant company. Plea the general issue. At the trial the plaintiff offered certain evidence which was excluded, and thereupon the plaintiff excepted.

Argued before WISWELL, C. J., and EMERY, SAVAGE, POWERS, and SPEAR, JJ.

Williamson & Burleigh, for plaintiff. Cornish & Bassett, for defendant.

SPEAR, J. This was an action on the case for negligence. The plea was the general issue. The plaintiff, a telephone lineman, while in the employ of the defendant company, was injured by a live wire of high voltage with which a telephone cable upon which he had been directed to work by the defendant's foreman of a crew came in contact. The verdict was for the defendant. The case comes on exceptions by the plaintiff to the ruling of the presiding Justice in excluding certain evidence that was offered by him.

1. The plaintiff introduced testimony tending to show that he was in the exercise of due care himself and that the accident was occasioned through the negligence of the foreman who assured him. without any caution or warning as he was about to enter the place of danger to begin his work, that everything was all right.

The foreman was a witness for the defendant, and testified that he had no recollection of saying that everything was all right, but that if he did say so his meaning was misconstrued by the plaintiff; but the plaintiff contends that his testimony was to the general effect that, personally, he had been guilty of no negligence in providing a reasonably

safe place for the plaintiff to work or in any other respect. On cross-examination he was asked whether he had not on the evening of the accident requested the night editor of the local newspaper not to publish any account of the accident in the paper, and he denied that he had done so. The plaintiff then offered evidence that the foreman, on the evening of the accident, did request said night editor to suppress the account of the accident, which evidence was excluded.

In discussing this exception we shall assume that the foreman was not a fellow servant of the plaintiff, but represented the master at the time of the accident in the discharge of a duty owed by the master to the plaintiff.

It is a familiar rule of evidence that a witness cannot be contradicted as to collateral matter brought out upon cross-examination. Was the answer by the foreman, then, that he had not requested the suppression of the account of the accident in response to a question involving a collateral matter? We think it was.

What is collateral matter? In Page v. Homans, 14 Me. 478, it is said "that a collateral fact not bearing upon the issue elicited in cross-examination is not to be contradicted." From this it would appear that “a fact not bearing upon the issue" is collateral. In Ware v. Ware, 8 Me. 42, at page 53, it is said questions are merely collateral that "have no Immediate connection with the cause." Wigmore on Evidence, & 1003, lays down the test as to whether evidence elicted upon crossexamination is collateral, to be this: "Could the fact as to which error is predicated have veen shown in evidence for any purpose independently of the contradiction?"

2

The plaintiff's brief frankly says: "We do not claim that the evidence should have been received on the ground that it was an admission of liability by an agent of the defendant which would bind the corporation.

On the contrary, had the foreman not been a witness in the case an offer of the answer in question would, we think, have been rightfully refused."

Applying the above tests, could the plaintiff have shown, independently of any contradictory effect, that the foreman on the evening of the accident requested the night editor not to publish any account of the accident? If not, then the denial of the foreman that he did make such a request was with respect to a collateral matter.

Now the issue in the case on trial involved the alleged nonperformance by the master of the duty to provide a reasonably safe place for the servant to work, due to the alleged negligence of the foreman in not having the place made safe. The alleged request of the foreman to the night editor of the newspaper, if true, was long after the accident, and entirely without the scope of his duty or authority, and could have no possible relevancy tending to prove or disprove the is

sue in question, as conceded in plaintiff's brief above quoted. The evidence offered was therefore to contradict a collateral matter brought out on cross-examination.

But the plaintiff says further that while the alleged suppression was entirely independent of his duties to the corporation and un authorized by it, yet it should have been admitted for the purpose of contradicting the witness; but it seems to us that this is seeking the admission of testimony in direct violation of the rule just considered, the very reason for which assumes that collateral evidence is capable of being contradicted, and the very object of which is to prevent such contradiction and the consequent extension of a trial by the introduction of contentions irrelevant to the main issue.

2. As tending to show an admission of liability on the part of the company for the accident the plaintiff offered evidence that a few weeks after the accident the plaintiff, without any request on his part, and before he had made or filed any claim, was sent for by the local manager of the defendant company at Ellsworth, Me., the home of the plaintiff, and was offered by the company, through such manager, two checks covering expenses of the accident accompanied by a receipt which he was requested to sign for said amount; that said statement or receipt contained a clause releasing and discharging the defendant company from all liability for this particular accident, which was therein specifically mentioned and described; that the plaintiff refused to sign the same, and the checks were not delivered to him. The exclusion of this evidence constitutes the second ground of exception.

The real question to be determined upon this branch of the case is whether the attempted negotiations of a settlement by the defendant company fall within the rule protecting compromise settlements. If it did, then the offer of the defendant was inadmissible. It is a rule too familiar to require citation that an offer to compromise a claim or to purchase peace cannot be shown to prove admission of liability. The plaintiff contended that the defendant's offer does not fall within this rule, because there was no evidence that any claim had been made or filed by him, and that until a claim is made or an actual controversy arises the rule does not apply. But the rule is not so limited, and the alleged limitation is not sustained either by reason or authority.

The rule relating to a matter so important to both sides of a controversy should be founded upon a substantial, and not upon a meaningless, distinction. Suppose a collision of trains on a railroad by which a person in the exercise of due care is injured, where liability is as a rule fixed by law, can it be said in this case that no claim exists against the defendant until the party injured formally presents one? The only distinction between this and other cases of tort for injuries,

is with respect to the diligence required to be proven against the tort-feasor to bring him within the rule of ordinary care. In either case it seems to us it would be a delusion to claim that the tort-feasor was not authorized to anticipate a claim. A normal state of mind would naturally raise such anticipation.

Now what makes the difference, whether a defendant, impressed with this veiw of the situation, waits until the claim against him is formally filed, or anticipates what he belives to be true, that the claim will be filed, and then attempts to make overtures of settlement or to buy his peace? We are unable to discover any good reason why he should not do so in the one case as well as in the other and be protected in so doing. In cases of tort the proper rule should be that, when a party has reasonable grounds for anticipating that a demand will be made against him for damages, the claim may then be said to so far exist as to authorize him, without any move on the part of claimant, to seek a settlement of it and to be protected in so doing by the general rules of law applicable to compromise settlements.

That is, an offer to purchase peace, made either with intent to prevent a possible controversy or to end one that has arisen, cannot be used in evidence as an admission of liability.

And why should not this be so? The early reasons underlying the principles of law pertinent to compromise settlements applied to business conditions and methods entirely different from those which prevail to-day. If we go back the short period of fifty years we shall find the existence of corporations employing large bodies of employés to be comparatively a rare instance; but to-day nearly all the industries of the state are operated through the agency of corporations, engaged in kinds of business that entail every degree of hazard known to the operation of machinery and the use of the ordinary utensils of labor. Under these conditions, accidents, the risks of which must necessarily be assumed by the employés and for which no liability can be fixed, must constantly and frequently occur. Should there be a rule of law existing in this state that an employer of labor, whether a corporation or individual, in view of an accident and injuries to one of his employés, for which he is in no sense liable, shall not be allowed the privilege of approaching such employé and assuming the payment of the necessary expenses of his injuries and continuing, or offering to continue, his name upon the pay roll, or pay him a definite sum of money, or aiding in the support of his family, without having his act of generosity and kindness offered in evidence against him as an admission on his part of liability? It seems to us that such a rule under present conditions would be far more liable to operate injuriously to the interests of the employé than those of the employer. We

think the time has come when, if a different rule has obtained, the one which we have herein laid down should be substituted for it, and hereafter prevail as the rule of law in this state.

While we are unable to find that the exact point in controversy has been decided in our state, we believe that the best modern authorities sustain the views above expressed. 2 Wigmore on Evidence, § 1061, after discussing very fully the rule and the various theories which have been given for it, finally lays down what the writer believes to be the true theory, as follows: "The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a belief that the adversary's claim is well founded, but rather a belief that a further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered; in short, the offer implies merely a desire for peace, not a concession of wrong done. By this theory, the

offer is excluded because as a matter of interpretation and inference, it does not signify an admission at all. There is no concession or claim to be found in it, expressly or by implication. It would follow then, conversly, that if a plain concession is in fact made, it is receivable, even though it forms part of the offer to compromise; but this much has long been well understood."

The same authority quotes with approval Colburn v Groton, 66 N. H. 151, 28 Atl. 95, 22 L. R. A. 763, in which Chief Justice Doe in an elaborate opinion said: "The preliminary question is, not merely whether an admission of fact was made during a settlement or negotiations, or whether a statement or act was intended to be an admission, which is a question not of time or circumstances, but of intention. On that question the time and circumstances may be material evidence; an offer of payment whether accepted or rejected, is evidence, when the party making it understood it to be and made it as an admission of his liability. It is not evidence when he made it for the purpose of averting litigation not intending to admit his liability;

the

entire claim may be paid to avoid a lawsuit, the payer intending to admit nothing but his desire for peace."

From these authorities it would seem clear that the admissibility or nonadmissibility of evidence offered to prove an alleged compromise depends upon the intention of the party seeking it. If he intends his offer to be a compromise settlement it is inadmissible. If he intends it to be an admission of liability coupled with the endeavor to settle such liability, then it is admissible to prove such liability. But who is to determine the preliminary question of intention? The court should do so unless the only inference from the testimony offered