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quiring persons, artificial or natural, doing business This language was used in a case where the State law within its borders, to transact that busines with fair directly affected, and in a very inaterial degree, foreign ness, diligence and impartiality. A statute operating
The case from wbich we have quoted, and upon persons within the State, declaring an existing its principle, has been applied in many iustances, and duty, adding neither new nor additional ones, usurps among the cases furnishing a striking illustration of the no functions of the Federal ('ongress, and infringes no rule declared, and of its application, is that known as constitutional provision. We are not willing to con- the Slaughter House Cases, 16 Wall. 36. cede that the police power inherent in all sovereignties Iu the case of Cooley v. Board, etc., supra, a State is annihilated in all matters touching interstate com- law requiring vessels to take pilots, and prescribing a merce by the provisions of the National Constitution penalty for breach of duty, was held valid. The court to which we have referred; on the contrary, we are sustained a State statute levying taxes upon articles of satisfied that the power is not impaired or limited, ex- commerce in Woodruff v. Parham, 8 Wall. 123. It was cept to the extent that it may not be exercised in such said of that statute, what may with truth be said of a manner as to abridge, embarrass or interfere with ours, that “There is no attempt to discriminate injuthe freedom of interstate commerce, or so as to en- riously against the products of other States, or the croach upon valid congressional legislation. The right rights of their citizens, and the case is not therefore to exercise the police power is not so hedged in as that an attempt to fetter commerce among the States, or to it cannot be exercised upon instruments or articles of deprive the citizens of other States of any privilege or commerce; it may be exercised, even in commercial immunity possessed by citizens of Alabama." affairs, provided that it is not so exercised as to impose Cooley, J., says: “And it cannot be doubted that burdens or restrictions which limit or impede the free there is ample power in the legislative department of course of commerce. Sherlock v. Alling, 93 U. S. 99; the State to adopt all necessary legislation for the County of Mobile v. Kimball, 102 id. 691.
purpose of enforcing the obligations of railway The police power is the right to regulate the enjoy- | companies as carriers of persons and goods to accomment of property, to maintain publio order, to secure modate the public impartially, and to make every reathe rights of citizenship, and to prevent injury to pri- sonable provision for carrying with safety and expedivate rights. This power cannot be exercised within tion.” Cooley Const. Lim. (5th ed.) 718. State limits by the Congress of the Nation. United In Harrigan v. Connecticut River, etc., Co., 129 Mass. States v. Dewitt, 9 Wall. 41; United States v. Reese, 92 580; 37 Am. Rep. 387, a statute prohibiting, except in U. S. 214; United Stated v. Cruikshank, id. 512; Munn a specified manner, the rafting of logs from another v. Illinois, 94 id. 113; Civil Rights Cases, 109 id. 3. The State through Massachusetts was held valid, and this power of enacting laws upon this subject resides solely decision certainly goes much farther than we are reand exclusively in the States, and extends to all mat- quired to do here. It has been held by this court in ters of personal and property rights within the States. several cases that the statute inay be enforced although A denial of the right to legislate upon matters con- the message is received for transmission to another nected with commerce and its instrumentalities would State, aud if we should hold the law invalid we should result in evils of great magnitude. If there be no such be compelled to overrule these cases. Western Union power then the State cannot regulate the speed of rail- Tel. Co. v. Lindley, 62 Ind. 371; Western Union Tel. road trains where the railroad line extends beyond the Co. v. Hamilton, 50 id. 181; Carnahan v. Western UnState, nor enact any law providing for the safety of ion Tel. Co., 89 id. 526. This doctrine has been asserted passengers and the community, and if the States pos- by other courts. Western Union Tel. Co. v. Blanchard, sess no such power then it has no existence, because 68 Ga. 299; S. C., 45 Am. Rep. 480, 486, auth. n. It is by the conclusive adjudications of the highest court, true that in these cases the constitutional question was the police power does not reside in Congress. The not argued, but it is nevertheless involved, and was States must, and do, possess this power, even with re- uecessarily decided. We are satisfied that the enactspect to commercial affairs. True, the power
ment of our statute was a legitimate exercise of the what limited, but it nevertheless exists.
police power of the State, and that as the statute inWe assume that the power to enact laws declaratory fringes no provision of the Constitution, trenches upon of a duty exists, and it remains to determine whether no law of Congress, and does not interfere with the our statute is a valid exercise of this sovereign power. freedom of interstate commerce, it is valid and effectIn Munn v.Illinois, supra, the act of the Legislature of ive. Illinois providing for the storage and shipment of It is argued that as the message was received for grain by warehousemen was held valid, and in speak- transmission to a point in Iowa, the place of performing of the effect of the constitutional provision re- ance is not in this Stata, and therefore our law cannot specting commerce the court said of the warehouse- prevail. This argument rests upon an assumption that men : “ Incidentally they may become connected with cannot be made good. The action is not for a breach interstate commerce, but not necessarily so. Their of contract, but to recover a penalty given to the regulation is a thing of domestic concern, and cer- sender of a message for a breach of duty by the teletainly until Congress acts in reference to their inter- graph company. The argument of counsel is able and state relations the State may exercise all the powers of ingenious, but it is plainly fallacious. No question of government over them, even though in so doing it may the right to damages is involved; the single question indirecily operate upon commerce outside of its imme. is as to the right to recorer a statutory penalty. Coundiate jurisdiction."
sel are in error in asserting that there is conflict in our The court in another case said: “ Yet it is not case upon this subject; from first to last it has been everything that affects commerce that amounts to a steadily held that the statute is a penal one, awarding regulation of it withing the meaning of the Constitu- not liquidated damages, but a penalty. It is also detion." Railroad Co. v. Pennsylvania, supra.
cided by these cases that the foundation of the right Strong language was used in City of New York v. is the contract with the corporation, but in noue of Miln, supra, but we only have space for the following them is it intimated that the recovery is for damages brief extract: “That all those powers which relate to for a breach of contract; on the contrary, all our de merely municipal legislation, or what may perhaps cisions affirm that the recovery is for a penalty giren more properly be called internal police, are not thus by statute to a private individual. Carnahan v. IVestern surrendered or restrained; and that consequently in Union Tel. Co., supra; Western Union Tel. Co. v. relation to these, the authority of a State is complete, Adams, 87 Ind. 598; 44 Am. Rep. 776; Western Union 1, and exclusive."
Tel. Co. v. Roberts, 87 Iud. 377; Western Union Tel.Co.
. Gougar, 84 id. 176; Rogers v. Western Union Tel. Co., of the State; nor is there the remotest analogy be78 id. 169; 41 Am. Rep. 558; Western Union Tel. Co. v. tween such a case as the present and the case of an atArtell, 69 Iud. 199; Western Union Tel. Co. v. Lindley, tempt to enforce in one jurisdiction the laws of ansupra; Iestern Union Tel. Co. r. Ferguson, 57 Ind. otber State or Nation. There is here no attempt to 495; Western Union Tel. Co. v. Hamilton, supra; West. euforce the law of another State, nor to enforce a penern Union Tel. Co. v. Buchanan, 35 Ind. 429; 9 Am. alty for a breach of a duty created by a foreign statute. Rep. 744; Western Union Tel. Co. v. Ward, 23 Ind. The action is in an Indiana foruin to euforce a duty 377.
created by an Iudiana statute, and arising out of an InThe action given by the statute is for a penalty, and diana contract made by parties within the State. We the right to maintain it is in the sender of the message see no reason to depart from the rule laid down in the who pays or tevders the compensation provided by the cases of Western Union Tel. Co. v. Hamilton, supra; rules and regulations of the company. The cases we Western Union Tel. Co. v. Lindley, supra; and Carna. bare cited all proceed upon this theory, and it is clear han v. Western Union Tel. Co., supra, and we not only that under the provisions of the statute no other theory refuse to overrule them, but expressly and fully apcould be correct. The English cases deny that the
prove them. person to whom the message is sent can maintain an In holding as we do, that our statute may be enaction for damages against the company for the reason forced, although the undertaking is to transmit the that there is uo privity of contract. Dickson v. Reu- message beyond the State, we do not trench upon the ter's Tel. Co., L. R., 2 C. P. D. 6:2; 19 Eng. R. 313; doctrine that State laws have no extraterritorial ef. Playford v. U. K. Tel. Co., L. R., 4 Q. B. 706.
fect. What we hold is that the statute operates upon The American cases however take a different view of
the parties and the subject matter within our jurisdicthe subject, for they hold that if the error occurs in tion by enforcing the performance of a duty created transmitting the message, the person to whom the here, owing here, and violated here. message is sent may maintain an action for damages, If a telegraph company should show a positive statbut while this is held, it is conceded that the holding
ute of another State commanding the delivery of mesconstitutes an exception to the general rule. Western
sages in a certain manner, and different from that preUnion Tel. Co. v. Blanchard, 45 Am. Rep. 486, 11.; 2 scribed by our statute, then it would perhaps be true Whart. Con., $ 791; 17 Cent. L. J. 406; 15 Am. L. Rev.
that the company would make out a perfect defense by 231. Wharton says that the better opinion is that
showing obedience to its commands. In such a case where the action is for non-delivery the sender only the defense would not be good, for the reason that our can maintain the action. Our cases of Western Union
statute is bad, but because of the rule that necessity is Tel. Co. v. Meek, 49 Ind. 53; Western Union Tel. Co.
always an excuse, and a positive law enjoining a duty 5. Hopkins, id. 223; and Western Union Tel. Co. v.
creates a necessity. However this may be, the defense Fenton, 52 id. 1, were actions for damages based upon in this case is not valid, for the reason that there is a statutory provision entirely different from that nothing in the Iowa statute which contravenes or imwhich gives the right to recover a penalty, and cannot pairs the statute of Indiana. be deemed in conflict with the decisions declaring the
We have decided several times, as has been already right of action for the penalty to be in the sender of shown, that our statute gives the right of action for the message. It is our settled conviction that our
the penalty to the sender of the message, and he can of cases decide, and rightly decide, that the right to re
course recover no other penalty than that prescribed corer the penalty is in the sender of the message.
by our statute. If the company Ishould wrongfully The statute operates in favor of the sender of a mes
violate the law of some other State, and be punished sage delivered at an office in this State, and upon a
by the courts of that State, the punishment would not corporation represented within our borders by its be for a violation of our law, but would be for a wrong agents and officers. The parties are therefore within committed against the law of another jurisdiction, so our jurisdiction. The duty which the statute assumes
that it is impossible that the punishment should be for to enforce is one arising in Indiana, for it grows out of
one and the same offense. and is founded upon an undertaking entered into in this state. The parties and subject matter being because a specific act of negligence is committed, but
Our statute does not give the right to the penalty within our jurisdiction, they are subject to our laws. Persons and property within the jurisdition of a State gives the penalty to secure the performance of a duty
which springs into existence when the contract is are subject to the laws of that State.
made. It is the breach of duty that is punishable, and The duty which the statute seeks to enforce is owing here in Indiana, and not elsewhere; it was here that
not the particular act which constitutes the breach.
Wherever the act which constitutes the breach of duty the contract was made which imposed the duty on the
is committed, whether here or in a foreign jurisdictelegraph company, and it was here that the failure occurred, for the message was not transmitted, as the
tion, the duty is broken here, where it came into belaw commands, in good faith and with diligence and ing, and where it was owing and should be discharged. impartiality. The duty which the company failed to
A confusion of thought leads to a wrong conclusion,
but this is cleared away when it is brought fully into perform was not a duty owing in Iowa, but was a duty owing in Iudiana, where the parties executed the con
view that the wrong consists in the violation of duty, tract out of which the duty arose. The duty of the
and that this violation takes place where the duty ex.
ists, and where the one party owes it and the other has company did not end at the State line; it extended
a right to demand that it be neither violated nor omit throughout the whole scope of the undertaking, and required the message to be transmitted and delivered
ted. There is no conflict of law, and no clashing of
jurisdiction, for where the duty is owing there it is vio. in good faith and with reasonable diligence to the person to whom it was sent. The breach of duty, no mat
lated by an act which constitutes a breach. ter where the specific act constituting it occurred, was
Mr. Thompson says: “In an action to recover the a breach here, and not elsewhere. The duty is a gen
statutory penalty for failure to transmit a message eral and continuous one, and if not performed, the
from an office in one State to an office in another State, failure to perform, irrespective of the place where the
the fact that the act of negligence which prevented the failure occurred, is a breach of the duty at the place of message from reacbing its destination occurred out of its creation. There is not the slightest resemblance be
the former will not defeat a recovery ip that State.” 2 tween such a case as this and cases of distinct and in- | Thomp. Neg. 838. dependent wrongs occurring wholly beyond the limits
MASTER AND SERVANT - “ USUAL RISKS”
SUPREME COURT OF APPEALS, VIRGINIA, JULY, 1884.
CLARK'S ADMR. V. RICHMOND AND D. R. Co. C., a brakesman on a freight train of the R. & D.'R. R., while
in discharge of his duties on the top of a car, in the night time, was struck by an over-head bridge and killed. This bridge, like most of the over-head structures on same road, did not admit of a man's standing erect upon the top of a car while passing under it. Previous to his employment as brakesman, C. had been employed in the railroad company's yard in shifting cars, making up trains etc. At the time of his employment as brakesman he was warned by the company's agent to look out for the over-head bridges, and his fellow brakesmen were instructed to show him the bridges and warn him of the danger of them. He had passed under this same bridge three times in daylight. On the night in which he was killed, on leaving the station next before the bridge, he was warned to “ look out for the bridge," and upon approaching the bridge his fellow brakesman, observing that he was standing, shouted to him to stoop, but he did not do so. In an action for damages brought by C.'s administrator the defendant demurred to the evidence. Held,
that the defendant was not liable. I. C. was guilty of negligence which was the proximate
cause of his death, and the company is not liable in dam
ages therefor. II. The risk being one incident to the employment, and aris
ing from causes open and obvious, the dangerous character of which C. had the opportunity to ascertain, must be held to have been in contemplation at the time of the con
tract, and to have been assumed by C. 'RROR to the Circuit Court of Danville.
mile before reaching the said highway bridge. It was impossible for a man of ordinary stature to stand erect on the freight cars and pass with safety under said bridge, and such is the case with most of the overhead structures on the line of this road,
It is insisted that the defendant company was guilty of negligence in constructing its over head bridges so low as to require a brakesman who is doing duty to stoop in order to pass under the same with safety; and that it was negligence in the said company not to have any ascertained and established system of bridge sig. nals to give notice of the approach to these bridges, and not to have any guard across the track to warn its employees of the approaching danger; and that in this case there was no sufficient warning given this brakesman who was a new hand and under twenty-one years of
age, of the approach to this particular bridge which was passed in the night time. The evidence shows that the said employee was of the usual size and stature of full grown men, being six feet high, and weighing 180 pounds, and having the appearance of a full grown man; and the fact that he was under age was unknown to the company, or to any of its agents; that the said employee had been employed by the said company some two years before without objection on the part of his father, who suffered his son to collect his own pay from the company, and pay it to him; that for some time before he sought and obtained employment as brakesman he had been employed in the company's yard in Manchester, shifting cars, making up traius, and the like. The evidence shows that at the time when his service was engaged by the company's agent, the said employee was warned to look out for the over-head bridges, and his fellow brakesmen were instructed to show him the bridges and warn him of the dangers attending the same. The said employee had been under this highway bridge three times, and in the day time, and was killed in going under the same in the night time, but it was not a dark, but a moonlight night; that on leaving the station west of Danville, his fellow brakesman had said to him, “now we are going down to Danville, look out for the bridge,” and the bridge in question was the only bridge in going from there dowu to Danville. When nearing the bridge his fellow brakesmau saw he was standing, endeavored to waru him of the danger, and shouted to him to stoop, but he remained standing as if not hearing or noticing, and was struck and killed by the bridge.
The principles upon which a demurrer to evidence is to be considered have been often stated by this court. Upon the demurrer to evidence the practice is to allow either party to demur, unless the case be clearly against the party offering the demurrer, or the court should doubt what facts should be reasonably inferred from the evidence demurred to, in which case the jury is the fit tribunal to decide; to put all the evidence offered on both sides into the demurrer, and then to consider the demurrer as if the demurrant had admitted all that could reasonably be inferred by the jury from the evidencegiven by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it. See the opinion of Stanard, J., in Ware v. Stephenson, 10 Leigh, 155: Trout v. Va. & Tenn. R. Co., 23 Gratt. 619; Tutt v. Slaughter's Admr., 5 id. 361; Green v. Judith, 5 Rand. 1; Hansborough's Ex'r. v. Thorn, 3 Leigh, 147; Stevens v. White, 2 Wash. 203, 210; Union Steamship Co. v. Nottingham, 17 Gratt. 115; Richmond & Danville R. Co. v. Morriss; and Same v. Anderson, 30 id. 200 and 812; Richmond & Danville R. Co. v. Moore, Va. L. J., 1884, 84.
The plaintiff in error assigus as error in this case that
Trespass on the case by H. F. Clark, administrator of James H. Clark, deceased, against the Richmond and Danville Railroad to recover damages for the killing of the said James H. Clark, a brakesman on the said road, through the alleged negligence of the defeudant. Demurrer to evidence by the defendant, joinder therein and judgment for the defendant. The plaintiff obtained this writ.
The facts are fully stated in the opinion.
Flournoy & Martin, and Carrington & Fitzhugh, for plaintiff in error.
H. 11. Marshall, for defendaut in error.
LACY, J. The colse is as follows: The deceased, James H. Clark, was a brakesman upon a freight train of the defendant company; he lost his life on the 21st day of February, 1880, while in discharge of his duties as brakesman, and his aduinistrator, the plaintiff in error, brought this suit to recover of the defendant in
damages the ground that his death was due to the negligence of the defendant in error. The defendant demurred to the evidence, and the court compelled the plaintiff to join therein; the jury assessed the damages of the plaintiff, if judgment should be for him, at $7,500. The court sustained the demurrer, and gave judgment for the defendaut thereon, whereupon the plaintiff applied for and obtained a writ of error and supersedeas to this court, which was awarded May 18, 1882.
The plaintiff's intestate's duty as brakesman on a freight train required him to be on the top of the moving train. In his service upon the said freight train, while running from Greensboro to Richmoud, he was struck by a highway bridge which spans a cut in the said railroad line on the suburbs of the city of Dau: ville, and killed by the collision. In coming to Dan ville the train runs down grade, which begius about a
he was compelled in the Circuit Court to join in the compensation; but if advised of it they assume the demurrer. Either party, plaintiff or defendant, has a risk. They contract with reference to things as they right to demur to the evidence, and the other party are known to be, and no contract is violated, and no will be compelled to join in the demurrer, unless the wrong is done if they suffer from a neglect whose risk case be plainly against the demurrant, and his object they assumed.” Citing Wright v. N. Y. C. R., 25 N. in demurring seems to be clearly nothing else but de- Y. 566; Buzzell v. Laconia M. Co., 48 Me. 113: Thayer lay. Trout v. Va. & Tenn. R. Co., 23 Gratt. 619; v. St. L. and T. H. R., 22 Ind. 26; Hayden v. SmithBoyd's Admr. v. City Savings Bank, 15 id. 636; Hyers ville M. Co., 2 Conn. 548; Mad. River and L. E. R. v. v. Green, 2 Call. 556; Rohr v. Davis, 9 Leigh, 30; Barber, 5 Ohio St. 541. Eubank'r Er'r. v. Smith, Va. L. J. 1883, 245. Upon In the case of Owen v. N. Y. C. R. Co., 1 Lang. 108, the evidence in this case it cannot be said that the evi- a brakesman, in the employ of a railroad company, dence was plainly against the demurrant, or that the while discharging duties in the line of his employment object of the demurrant was clearly nothing else but upon the roof of a freight car, was carried against a delay, and the plaintiff was properly required to join highway bridge, and sustained injuries, for which he therein. When we consider this evidence in the light brought an action against his employer. The bridge of the authorities cited, and the established principles was some three and a half feet higher than the top of which govern in the case of a demurrer to evidence, the highest freight car in use by the company. The we must determine first whether the defendant was brakesman had entered into the employment of the guilty of such negligence as was the immediate cause company with knowledge of the position and height of the injury received by the deceased, and whether of the bridge, and he had had opportunity of informthere was contributory negligence on the part of the ing himself as to its continuance in the same position. deceased; whether the damage was occasioned en- It was held that the plaintiff should have been nontirely by the negligence or improper conduct of the de- suited, the danger from the bridge being clearly incifendaut, or whether the plaintiff himself so far con- dent to the labor be undertook to perform. In view tributed to the misfortune by his own negligence or of the brakesman's knowledge as to the bridge, bis want of ordinary or common care and caution, that omission to avoid the accident by stooping was such but for snch negligence or want of ordinary care or want of ordinary care and caution as would have decantion on his part the misfortune would not have feated his action if otherwise maintainable. Having happened.
assumed the risk of injury to his person from the In the first case, the plaintiff would be entitled bridge, evidence offered by him upon the trial tending to recover; in the latter not; as but for his own fault to show its dangerous character was properly exthe misfortune would not have happened. Mere neg
cluded. “The danger was open and obvious and ligence or want of ordinary care or caution would not within the plaintiff's personal knowledge at the time however disentitle him to recover unless it were such he entered the defendant's employment. It was a danthat but for that negligence or want of ordinary care ger clearly incident to the service be undertook to peraud caution the misfortune could not have happened, form. He knew as well as his employer the perils of nor if the defendant might, by exercise of care on his
the business, at least as respects the bridge in question, part, have avoided the consequence of the neglect or and the law will imply that he assumed the risk of carelessness of the plaintiff. The negligence charged personal injury.” Citing Sherman v. Rochester & Syraagaiust the defendant company is as we have seen that cuse R. Co., 17 N. Y. 153; Faulkner v. Erie R. Co., 49 the over-head bridges are constructed so low as not to Barb. 324 ; 39 N. Y. 468. allow a person to stand erect upon the top of freight “This is a well-settled rule; but if tbe rule were cars passing thereunder, and in the second place not otherwise, upon the evidence in this case, the plaintiff sufficiently warning the deceased of the threatened was not entitled to recover upon another ground. The danger.
injury was caused by his own negligence. It is adIn the case of Devitt v. Pacific Railroad, 50 Mo. mitted that he knew that this was a low bridge, and 302, questions similar to these raised by this record he must have known that he could not pass under it were considered and decided by the court. The plaint- while on the top of the cars, unless he stooped, withiff's son was a minor and was killed riding on the top out injury. He might have avoided all injury by the of a freight car passing under a bridge. The accident exercise of the most ordinary care and caution. The occurred in the day time, and the deceased had been
exception taken to the ruling of the court, excluding in the employ of the company about three weeks, had
the evidence offered by the plaintiff that other persons frequently passed under the bridge, and had been re
had been killed at the same crossing, must be overpeatedly warned to look out for this and other bridges
ruled. That evidence was wholly immaterial if the aud when last seen he was sitting upon the brake fac- plaintiff took upon himself the risk of injury to ing the bridge. The court in that case held that "it his person from that structure, as he undoubtedly would be difficult to imagine a clearer case of contribu
did." tory negligence, and if one guilty of it could recover,
In the case of the Baltimore & Ohio R. Co. v. Stricker, or his friends for him, if the experiment proved fatal,
51 Md. 47, the court said upon this question: "This we must necessarily ignore the legal consequences of
suit was brought by the appellee to recover for injursuch negligence. * * An employee or servant
jes received by being carried against a bridge spancannot recover for injuries received from the negli- ning the appellants' road while he was on the top of a gence of other servants when the principal is not at
horse car' in the discharge of his duty as a conductor fault. But if the principal has been guilty of fault or
of a freight train. * To entitle the plaintiff to negligence either in providing suitable machinery or
maintain this suit, it was necessary to prove that the in the employment or selection of suitakle agents or company had beeu guilty of negligence which directly servants, and injury arise in consequence, he must re
caused the injury; that is to say, that in the relation spond in damages. This liability is however modified
which existed between the appellee and the company, when the servant himself, well knowing the default the latter had failed or neglected to perform some of his principal, as in providing defective or unsuitable duty toward the appellee, which was devolved upon it machinery, voluntarily enters upon the employment.
by law. And secondly, it must appear that the apBy so doing he assumes the risk and hence cannot pellee was not guilty of any negligence on his part, or charge it to his employer. * * If persons are in any want of reasonable prudence and caution to avoid duced to engage, in ignorance of such neglect, and are
the accident. 1st. As to the alleged negligence on injured in consequence, they should be eutitled to the part of the company. In what did this consist ?
率 * 本
It was said it was negligent in constructing the bridge company. While we think the accident was caused so low that a conductor or brakesman could not pass by want of reasonable care on the part of the appelunder it in safety on the top of a house car where bis laut's intestate, we do not rest our decision solely on duty required him sometimes to be. But there is no this grouud. This peril was oue incident to the emevidence to support this position; on the contrary all ployment, in contemplation at the time of the conthe proof shows that the employees of the company, tract, and arising from causes open and obvious, the and the appellee among them, every day passed under dangerous character of which the deceased had an opthe bridge safely by observing the simple and easy pre-portunity to ascertain, and the risk of which he ascaution of stooping or sitting down wbile passing sumed. Having stated our opinion upon the rules of under the bridge.
law applicable to the case, which deny to the appellee “No negligence can be imputed to the company be- the right to recover, it is not necessary to more speccause the struts of the bridge were not high enough to ially notice the several assignments of error contained allow a person to pass under them standing upright on in the record. We are of opiniou tbat there is no error top of the cars. Baylor v. Del. W. R. Co., 11 Vroom, in the judgment complained of and appealed froin in 23. It was not required of the appellee to stand upon this case, and the same must be aflirmed. his feet while passing the bridge. * * Nothing
Judgment affirmed. is better settled than that the implied contract be- Fauntleroy, J., dissents. tween the employer and the employee is that the latter takes upon himself all the natural risks and perils incident to the service. Moran's case, 44 Md.
CORPORATE STOCK-EXECUTION SALE-RIGHTS 292.
OF PURCHASER. “When a servant enters upon an employment he accepts the service subject to the risks incidental to it.
RHODE ISLAND SUPREME COURT, FEBRUARY 9, 1884. An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open and obvious, the
BECKWITH v. BURROUGH.* dangerous character of which causes he had opportun- Whenever any property, tangible or intangible, becomes ity to ascertain.
liable to attachment or execution for debt, it falls under "If a man chooses to accept employment, or con- the common-law rules forbidding its transfer in fraud of tinue in it, with the knowledge of the danger, he must creditors. abide the consequences so far as any claim against the A. transferred certain corporate stock in fraud of his crediemployer is concerned. Wooley v. M. D. R. Co., 2 L. tors. It was subsequently attached as the property of A. R. (Ex. Div.) 389.
and after judgment against A. sold on execution. The “What then was the legal duty of this company? It purchaser filed a bill in equity to obtain the stock. was the duty of the company to exercise all reasonable Held, that the shares of stock were liable to attachment and care to provide and maintain safe, sound, and suitable execution sale as the property of A. notwithstanding the machinery, road-way, structures and instrumentali- prior fraudulent transfer by him. ties; and it must not expose its employees to risks be- Hold further, that the bill in equity should be maintained, yond those which are incident to the employment and
the complainant having no adequate remedy at law, if were in contemplation at the time of the contract of any. service; and the employee has a right to presume that
LL in equity to avoid a transfer of corporate the company has discharged these duties. O'Connell's
stock. On demarrer to the bill. case, 20 Md. 212; Scally's case, 27 id. 589; Wonder's case, 32 id. 419."
James M. Ripley and John D. Thurston, for comIn the case in hand the deceased, after service in the plainant. company's depot grounds for some time, engaged about Rollin Mathewson and Nathan W. Littlefield, for reshifting cars, coupling cars, and such like duties, spondents. sought employment as brakesman. As this service
DURFEE, C. J. This is a suit to avoid certain transwas performed in the town of Manchester, on the
fers of corporate stock. The stock was attached on banks of the James river, which is spanned by one of
original writ in an action at law in favor of the comthe bridges of this railroad company, and close to the plainant and one John T. Mauran against the defendsame, it might be presumed perhaps that he knew of the character of the duties of a brakesman performed Burrough was sold on execution to the complainant,
ant Burrough, and after judgment recovered against before his eyes every day. But in this case it is clearly The stock had formerly belonged to Burrough and had proved that he was instructed by his employer at the stood in his name on the books of the corporation, but time of the contract of service, as to the dangerous bxad been transferred on the books before the attachcharacter of the service required of a brakesmau, and
ment. The bill alleges that the transfers were made especially as to the danger in passing under these over
by Burrough with intent to hinder, delay and defraud head structures without sitting down or stooping, and that he was notified in particular about this particular The case is before us now on demurrer under which
his creditors, and therefore asks to have them avoided. bridge, and that it was shown to him, and that he
three questions have been argued, to wit, first does our passed under it in the broad daylight which he could
statute of fraudulent conveyances extend to fraudunot bave done without stooping. That after passing
lent transfers of corporate stock, and if not, under this bridge three times, he was specially warned
second, are such transfers void as against credabout it again as he was about to pass under it on the
itors at common law, and third, shares fatal night. That he did not exercise the precaution required of stooping, and that he was standing up to sale on execution, if they do not stand in the name
stock liable to attachment and
of corporate when he was struck. Why he did not stoop or sit
of the debtor? The discussion of the two first quesdown will never be known, as he was killed by the
tions discloses some diversity of decision. There arc collision. Whether he forgot to stoop, as he had before
cases which apply to the statute a very liberal condone iu passing under this bridge, is not known, but
struction and hold that it extends to every species of his negligence in not exercising this simple and ordinary care and caution was the proximate cause of his property which is liable to be taken by legal process death, without which it would not have occurred, and for the payment of debts, the words "goods and chatthe appellant cannot recover damages therefor of the
*To appear in 14 Rhode Island Reports.