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to divide the profits after deducting a fixed sum for have such right in that case by virtue of the agreeexpenses; but A. was not to bear any losses. Held, ment between himself and another, in the absence of that A. and B. were not partners as to third persons." any express provision conferring that right upon his This case is reported in 22 Am. Rep. 94, also.

associate in the business. If it appears that he would In Beecher v. Bush, 45 Mich. 188; S. C., 40 Am. Rep. have had such right had it not been for his agreement 465, the plaintiff endeavored to hold the defendant lia- to the contrary, then he is a partner, and his agreeble, on the ground of participation in profits. The ment merely operates as a surrender to his associate of court decided tbat the defendant was not liable, and a right which he would otherwise have enjoyed. We Cooley, J., at the close of his opinion in the case, submit that upon principle the question of partneradded the weight of his great name as a jurist to the ship is to be determined by the three following rules: authorities in favor of the only sound and logical doc- 1st. When the recipient of profits has, by virtue of trine, that there can be no partnership as to creditors an agreement with another, a right to participate as where there is no partnership in fact, provided the des principal trader in the management of the business fendant has not by acts or declarations estopped him- out of which the profits are to arise, then he is a partself from denying that he is a partner. He says: “Wener, and liable as such; and no secret intent not to bealso think there can be no such thing as a partnership come a partner, and no provision in the contract reas to third persons, when as between the parties them- stricting his liability or exempting him from all liaselves there is no partnership, and the third personbility will afford him immunity from the responsibilihas not been misled by concealment of factors or by ties of a partner. deceptive appearances."

2d. When the recipient of profits would, in the abIt has sometimes been stated that participation in sence of any express provisions in the agreement to profits ought to render the recipient liable on the the contrary, have by virtue of such agreemeut a right ground that he has a right to bring an action in equity to participate as principal trader in the management for an account of the profits in order to fix the amount of the business, then he is a partner, even though be coming to him. Now the fallacy of this argument lies has expressly agreed that his associate in the business in the assumption that no one other than a partner shall have the right to exercise exclusive control in can maiutain such an action. This is not the law. It conducting the business. is well settled that any person who has a right to a cer- 3d. In all other cases the recipient of profits is not tain share of profits, though he be not a partner, may a partner, and cannot be held liable to creditors unless file a bill for an account of such profits. Bentley v. Hur- he has estopped himself from denying that he is a partris, 10 R. I. 431; S. C., 14 Am. Rep. 695; Hargrave v. Conroy, 4 C. E. Green, 280; Harrington v. Churchward,

GUY C. H. CORLISS. 29 L. J. Ch. 521; Sheppard v. Brown, 4 Giff. 208; Buel

ST. PAUL, Minn. v. Sely, 5 Ill. App. 116; Garr v. Redman, 6 Cal. 574; Ferry v. Henry, 4 Pick. 75; Hallett v. Clemstone, 110 CONFISCATION PROCEEDINGS-RIGHTS OF AS. Mass. 32; Eastman v. Clark, 16 Am. Rep. 192-249; Col

SIGNEE. lyer on Part., $ 45, n. ; Story on Part., S 50, n. ; 2 Lindley on Part. 946. The distinctions which some of the SUPREME COURT OF THE UNITED STATES, courts have made between partnerships between the

MARCH 24, 1884. parties and partnerships as to creditors has necessitated the use in this article of an expression that is

PHOENIX BANK V. RISLEY.* tautological. We refer to the phrase "partnership Money in a bank in New York, held to the credit of an instituinter se.” The word partnership implies the existence tien in South Carolina, is not of such specific quality that of an agreement between two or more, and there can it is liable to seizure by a United States marshal in conbe no partnership even as to creditors unless there be fiscation proceedings. a partnership in fact. It is incorrect to say that one In an action by defendant in error in the State court, on an not a partner is liable as such because he has held him

assignment of part of the amount standing to the credit of

the South Carolina institution, the plaintiff in error set self out as such to the world. He is not a partner; but

up that the money due said institution had been seized, is liable on the ground of estoppel. Having shown that

condemned, and paid over to a United States marshal upon principle and authority there can be no liability

by virtue of confiscation proceedings. Held no defense, as partner in the absence of estoppel, unless the party

and that the assignee's right to recover was unaffected by sought to be charged is in fact a partner, it remains to such proceedings. be determined what will constitute one the partner of

N error to the Court of Appeals of the State of New another. The question is not whether he has agreed

York. Opinion states the case. to sustain a share of the losses; nor does it depend upon his being interested in the partnership funds and Wm. 1. Evarts and Flamen B. Candler, for plaintiff property. He may be a partner, even though he bas

in error. stipulated that he shall not suffer any loss; and even F. A. Wilcox, W. R. Beebe, and John E. Risley, for though he has no interest in the partnership assets. defendant in error. These and other circumstances are to be considered in

MILLER. J. This is a writ of error to the Court of determining the question of partnership, but they are not decisive of that question. The ultimate inquiry

Appeals of New York. in all cases is whether the party claimed to be a part

The defendant in error recovered against the plaintner has become by agreement a principal trader in the

iff in error the sum of $10,000 and interest by the verbusiness with another. In other words, has he a right

dict of a jury, wbich found, as matter of fact, that the to participate as principal trader in the management

Bank of Georgetown, South Carolina, having a balance of the business? If he has, he is a partner. If he has

with the Phønix Bank of New York on the 20th day not, he is not a partner, with a single exception, which

of May, 1861, assigned to Risley, the plaintiff, in the however is rather apparent than real. The exception

State court, $10,000 of that sum, of which the Phenix is this: A person may be a partner, even though he

Bank bad due notice by demand made by Risley,Januhas by express agreement intrusted the control of the

ary 4, 1865. business exclusively to his associate in the business.

With the questions which arose out of this transacThe question, strictly speaking, is not whether the

tion in the State court we have nothing to do, except party has a right to control the business as principal

as they concern the defense set up by the bank that trader in the particular case, but whether he would

*Affirming 83 N. Y. 318.


the money in its hands due to the Bank of George- estate and effects are subject to lawful prize, capture town had been seized, condemned, and paid over to and seizure, and should be confiscated and conthe marshal of tbe Southern District of New York by demned. virtue of certain confiscation proceedings in the The monition, after reciting the libel against $15,000 District Court of the United States for that dis- belonging to the Georgetown Bank, which said $15,000 trict.

is now in cash and on deposit with the Phenix Bank, The sufficiency of those proceedings as a defense to commands the marshal to attach the said $15,000, and the action raises a question of a claim asserted under to detain the same in his custody until the further an authority of the United States, and as the Court of order of the court. Appeals sustained the judgment of the inferior court The return of the marshal is that he attached $13,of that State rejecting the defense, the case, as to that 000, more or less, deposited in the Phenix Bank, bequestion, is coguizable in this court.

louging to the Bank of Georgetown, and gave notice to The record of the confiscation proceedings in the all persons claiming the same that the court would try District Court was rejected by the State court when the case on January 24 thereafter. offered in evidence by defendant, and our inquiry The decree of the court is, that he, the judge, doth must be directed to ascertain, whether if admitted, it hereby order,sentence,and decree that $12,117.38 belongwould have been a good defense.

ing to the Bank of Georgetown, of Georgetown, in the The judge, before whom the jury trial was had, re- State of South Carolina, and now on deposit in the fused to receire the record in evidence, because it Phoenix Bank, in the city of New York, which said showed that the confiscation proceedings, being in rem, $12,117.38 has been heretofore seized by the marshal in were directed against certain specific money, which this proceeding, be and the same is hereby condemned was the property of the Georgetown Bauk and which as forfeited to the Cnited States. the Phenix Bank held as a special deposit in the na- On this sentence a venditione exponas was issued to ture of a bailment, and not against the debt which the the marsbal, in which he is ordered to sell this $12,Phenix Bank owed to the Georgetown Bank arising 117.38, and to have the moneys arising from the sale at out of their relations as corresponding banks; that the District Court on a day mentioned. this debt being assigned to Risley, the plaintiff was It is not possible to understand that this case prounaffected by the confiscation proceedings, because ceeded on any other idea than the actual seizure of a it was not mentioned in them, and no attempt was specific lot of money, supposed at first to amount to made to subject that debt to condemnation.

$15,000, but which turned out to be less, and that that That the relation of the Phoenix Bank and the lot of money was seized, was formally condemned and Georgetown Bank was that of debtor and creditor and ordered by the court to be sold, and the proceeds of nothing more, has been the settled doctrine of this the sale brought into court for distribution under the court, as it is believed to be of all others, since the case confiscation law. The specific money is described by of the Marine Bank v. Fulton Bunk, 2 Wall. 252. In apt words, as the property of the Bank of Georgetown, that case it was said, tbat “all deposits made with for whose misconduct it is seized, condemued aud forbankers may be divided into two classes, namely, feited. those in wbich the bank is bailee of the depositor, the The very language is used, and no other, that would title to the thing deposited remaining with the latter; be if it were twelve hundred horses instead of twelve and that other kind of deposit of money peculiar to thousand dollars, of which the Georgetown Bank the banking business, in which the depositor, for his was owner, though in the possession of the Phoenix own convenience, parts with the title to his money Bank. and loans it to the banker; and the latter, in consider- There is not the slightest intimation in the libel, the ation of the loan of the money and the right to use it monition, the return to that monition, or in the final for bis own profit, agrees to refund the same amount, decree, that a debt due by the Phoenix Bank to the or any part thereof, on demand.” “It would be a Georgetown Bank is attached, aud no language apwaste of time,” said the court, “to prove that this lat- propriate to such a purpose is found in the whole proter was a debtor and creditor relation.” This prop- ceeding from the beginning to the end. On the conosition has been reaffirmed in Thompson v. Riggs, 5 trary, the whole case presents the idea of tangible Wall. 572; Bank v. Villard, 10 id. 155; Oullon v. Sav- property, actual cash taken by manual seizure, in the ings Institution, 17 id. 503; Scammon v. Kimball, 92 hands of the Phoenix Bank, the ownership of which U. S. R. 370; and Newcomb y. Il'ood, 97 U. S. 583. was in the Georgetown Bank; that these dollars,

Mr. Parker, the cashier of the Phoenix Bank, speak- whether of gold, silver, or bank bills, were to be placed ing of the time when the marshal served the monition in the hands of the marshal and sold, and the sum in the confiscation case on him, says that there were no bid for them brought into court under its order. specific funds, separate in kind, in the bank belonging In further illustration of this idea, the libel charges to the Georgetown Bank, and only a general indebted- that the Bank of Georgetown, the owner of the propness in account for money, or drafts remitted, which erty libelled, did purchase and acquire said property, has been collected. "It was a debt.

No specific and the same was sold and given to it by a person unmoney or bills, the property of the Georgetown known to the attorney, with intent to them to use and Bauk."

employ, aud to suffer the same to be used and emThe libel of information in the District Court com- ployed, in aiding, abetting and promoting the insurmences by saying that it is “ against the estate, prop- rection, and resistance to the laws, and in aiding and erty, money, stocks, credits, and effects, to wit: abetting the persons engaged therein, and that the against $15,000 (fifteen thousand dollars), more or less, Georgetown Bank did knowingly use and consent to belonging to the Bank of Georgetowu, a corporation such use of the property, contrary to the provisious of doing business at Georgetown, in the State of South an act to confiscate property used for insurrectionCarolina, which said $15,000 is now in cash, and is now ary purposes," approved August 6, 1861. on deposit in the Phønix Bank, a corporation doing It is beyond question that this act was directed to business in the city of New York, all of which are the confiscation of specific property used with the owned by and belonging to and are the property of the consent of the owner to aid the insurrection, and said Bank of Georgetown.”

had no reference to the guilt of the owner, and could And it is alleged, that by reason of the use of this only apply to visible, tangible property which had property in aid of tbe rebellion, and the treasonable been so used. practices of the Georgetown Bank, the said property, If the thing seized and condemned in the District

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Court was the actual dollars, they were the property Phenix Bank due to the Georgetown Bank pointed of the Phønix Bank, and the loss was its loss, and out by the very rule to which the act of Congress rethat did not satisfy the debt which at that time it ferred as prescribing the mode of practice in such owed to Risley; nor would it have been otherwise if the debt had been then due to the Georgetown Bank, for In the first case, above referred to, the court, after the debt was not seized, but the dollars of the Phænix referring to the practice in admiralty, said: “These Bank.

are, indeed, proceedings to compel appearance, but Counsel for plaintiff in error insists strenuously how they are nevertheless attachments or seizures bring. ever that it was the debt which was intended to being the subject seized within the jurisdiction of the seized and condemned, and which constitutes the res court, and what is of primary importance, they show in the proceeding.

that in admiralty practice, rights in action, things We are not able to see that this view of the matter intangible as stocks and credits, are attached by places the case in any more favorable coudition for the notice to the debtor or holder without the aid of any bank,

statute." While the manner of seizing ordinary personal prop- In the latter case the court said: “We are compelled erty or real estate, for the purposes of confiscation to inquire whether the simple statement of the marproceedings, under the two acts of Congress on which shal, that he had given notice to R. Johnson, auditor this libel professes to be founded, namely, the act of of the city, was a sufficient seizure, in face of the conApril 6, 1861, and the act of July 17, 1862, is easily un- ceded fact that he had made no actual or manual derstood and followed, namely, an actual seizure and seizure of any thing to give jurisdiction to the court. actual possession by the officer under the monition, it And in determining what it was of which Johnson has not been so plain what proceeding should be had had notice, it is, perhaps, fair to infer that the marin the confiscation of debts due to one who has incurred shal read to him the paper issued by the district atthe penalty of such confiscation, and who is not within torney." the jurisdiction of the court.

The court, after saying there is no doubt that the In this class of cases, where the debt is evidenced by stocks were credits and liable to confiscation within a note, bond, or other instrument in writing whose the meaning of the act, added : possession carries the right to receive the debt, it may “It is clear that there was a mode of reaching them be that the manual seizure of that instrument gives under the act of Congress, notwithstanding the evijurisdiction to the court to confiscate it and the debt dences of Fairfax's right to them were in his pocket which it represents.

and beyond the reach of the court. If the debt due And we are not prepared to say that the debt itself him had been by an individual, there would have been may not be confiscated in the absence of the bond or no difficulty in serving such a process or notice on the note which represents it. But in this class of cases, and debtor as would have subjected him to the order of in the case of an indebtedness on a balance of accounts the court in regard to it.” where no writing or other instrument represents the The record of the District Court in the confiscation debt or ascertains its amount, or carries with it by proceedings gives no evidence of any service of notice trausfer the right to receive it, it is obvious that on the Phønix Bank, the debtor in this case, and as it sometbing more is necessary than the statement of the was an ex parte proceeding in the absence of the party marshal that he has attached or seized a certain sum whose property was condemned, the laaguage of the of mony.

court in Alexandria v. Fairfax is appropriate, that In the case of Miller v. United States, 11 Wall. 268," where the seizure is a sine qua non to the jurisdicwhich was a case of confiscation of stock in a railroad tion of the court, and where, as in the present case, company, these difficulties are fully considered, and it actual manucaption is impossible, the evidence which is there held that the proper mode of seizure of such supports a constructive seizure should be scrutinized stock is by notice of the proceeding and attachment to closely, and be of a character as satisfactory as that the proper officer of the company, whose stock is the which would subject the party holding the fund subject of the proceeding. And the same matter is or owing the debt, which is the object of the proceedvery fully considered in the subsequent case of Alex- | ings, to an ordinary civil suit in the same court." 95 andria v. Fairfax, 95 U. S. 774, where the sufficiency of U. S. 779. the seizure was brought up collaterally in another suit, Assuming that as argued by counsel, this was a proand the whole proceeding held void, because notice of ceeding to reach the debt of the Phoenix Bank to the the seizure or attachment of the debt of the city of Georgetown Bank, then it could not be the subject of Alexandria was not made to the officer of the city actual manucaption or seizure, and there should be named by the statute of the State, though it was given such evidence of service of the attachment or notice ou to another officer of the city government.

the Phønix Bank as would be sufficieut in an ordinary The statute authorizing these confiscation proceed civil suit for that debt. ings requires that they be conducted according to pro- Nothing of the kind is shown here. No notice of ceedings in admiralty as near as may be, and hence any kind to the Phæuix Bank is shown in that reclibels, monitions, publications, and sentences have ord. been the usual mode of enforcing confiscation. The But in the deposition of the cashier of the Phønix thirty-seventh admiralty rule in force, long before this Bank in the present suit, he is shown the monition in statute was enacted, provides how such seizures shall the confiscation case, and says that paper was served on be made :

him on the 5th day of January, 1865, at 11:50 in the “In cases of foreign attachment, the garnishee shall morning. be required to answer under oath or solemn affirma- It admits of grave doubt whether the essential fact tion as to the debts, credits, or effects of the defend- on which the jurisdiction of the court in the confiscaant in his hands, and to such interrogatories touching tion case depended, not being found in the record, can the same as may be propounded to him by the libel- | be supplied in another suit where it is introduced in laut; and if he should refuse so to do, the court may evidence, by parol proof of that fact. award compulsory process against him. If he But if it could be done at all, the monition whicb admits any debts, credits, or effects, the same shall was served on the cashier gave no intimation of a probe beld in his hands liable to the exigency of the ceeding to charge the Phoenix Bank with a debt due Buit."

from it to the Georgetown Bank, and require it to pay Here was a plain mode of attaching the debt of the said debt to the marshal or into the court. Nothing

a fence was the cause of the mishap. It is not necessary, in order to charge the company with the responsibility, that its negligence should be the efficient cause of the injury ; if the injury would not have occurred but for such negligence, that is enough.

IN error to the Circuit Court of the United States for

in that monition required the bank to answer in regard to such a debt, and the bank made no answer. If it had been called on by that notice to answer, as it certainly would if a debt was claimed of it as being due to the Georgetown Bank, it would have been bound at its peril to have disclosed the assignment of that debt to Risley by the Georgetown Bauk, and the demand and notice of Risley to the Phoenix Bank before the commencement of the confiscation proceedings. Indeed it is quite remarkable that no answer or appearance for the Phenix Bank is made in that proceeding. If the money, the actual cash in the bank vaults, was attached, the bank must have kuown that the dollars were its dollars, and it should have defended. If it was the debt which was attached, its legal duty to its creditor, whether that was Risley or the Georgetown Bank, was to have stated the facts to the court.

It does not appear to us that any seizure or attachment of the debt due by the Phænix Bank to the Georgetown Bank was made, by which the District Court, if it intended to do so, obtained jurisdiction to confiscate it.

On the whole case, we are of opinion

Ist. That the specific money in the Phoenix Bank, against which the confiscation proceedings seem to bave been directed, and which was condemned, was the money of that Bank, and not of the Georgetown Bank, and the loss, if any, is the loss of the Phoenix Bank.

2d. That no such seizure or attachment was made of the debt due by the Phoenix Bank to the Georgetown Bank, if any such debt existed, when the proceedings were commenced, as would give the District Court jurisdiction of that debt, and no actual condemnation of that debt, or order on the Phønix Bank to pay it, was made, which can constitute a defense to the present action.

3d. That the right of Risley to recover the debt as assignee of the Georgetown Bank remains unaffected by those proceedings.

The judgment of the Court of Appeals of New York is therefore


states the case.

A. D. Rich, for plaintiff in error.
Ashley Pond, for defendant in error.

MATTHEWS, J. This action was brought by the plaintiff in error to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in error. After the evidence in the cause had been closed, the court directed the jury to return a verdict for the defendant. A bill of exceptions to that rulin embodies all the circumstances material to the case, and presents the question, upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury.

The defendant, in running its trains into Chicago, used the tracks of the Illinois (Central Railroad Company, under an arrangement between them; and no question is made but that the defendant is to be treated, for the purposes of this case, as the owner as as well as occupier of the tracks.

The tracks in question are situated for a considerable distance in Chicago, including the place where the injury complained of was received, on the lake shore. They were built in fact, at first, in the water on piles; a breakwater, constructed in the lake, protecting them from winds and waves, and on the west or land side, the space being filled in with earth, a width of about 280 feet, to Michigan avenue, running parallel with the railroad. This space between Michigan avenue and the railroad tracks is public ground, called Lake Park, on the south end of which is Park Row, a street perpendicular to Michigan avenue and leading to and across the railroad tracks to the water's edge. Numerous streets, from 12th street north to Randolph street, intersect Michigan avenue at right angles, about 400 feet apart, and open upon the park, but do not cross it. Nothing divides Michigan avenue from the park, and the two together form one open space to the railroad.

The right of way for these tracks was granted to the company by the city of Chicago over public grounds by an ordinance of the common council, dated June 14, 1852, the 6th section of wbich is as follows:

“Section 6. The said company shall erect and maintaiu on the westeru or inner line of the ground pointed out for its main track on the lake shore, as the same is hereinbefore defined, such suitable walls, fences, or other sufficient works as will prevent animals from straying upon or obstructing its tracks and secure persons and property from danger, said structure to be of suitable materials and sightly appearance, and of such height as the common council may direct, and no change therein shall be made except by mutual consent; provided however that the company shall construct such suitable gates at proper places, at the ends of the streets which are now or may bereafter be laid out, as may be required by the common council, to afford safe access to the lake; and provided also that in case of the construction of an outside harbor, streets may be laid out to approach the same, in the manner provided by law, in which case the common council may regulate the speed of locomotives and trains across them."

It was also provided in the ordinance, that it should be accepted by the railroad company within ninety days from its passage, and that thereupon a contract




APRIL 7, 1884.

HAYES V. RAILROAD COMPANY. Where a municipal ordinance, granting to a railroad the

right of way through the city, requires it to maintain suitable fences, and provides that upon the acceptance by the company of the benefit of the ordinance covenants shall be executed by both parties, embodying its terms, the enactment is not merely a contract between the public corporation and the railroad, but a positive mandate for the benefit of the individual citizens, any one of whom is entitled to recover damages suffered by him through the neglect of the company to discharge the duties thus

imposed. The ordinance requiring such sufficient walls and ences to be

maintained as would secure persons and property from danger, ** said structure to be of such height as the city council may direct,” held, that the obligation to build sufficient fences was absolute. The right of the council was to give specific directions if it saw proper, and to superFise the work when done, if necessary; but it was matter of discretion, and they were not required to act in the first instance, nor at all, if they were satisfied with the

work as executed by the railroad company. The plaintiff, a child, who was playing in a public park

strayed upon the railway and was injured; held, that it was a question of fact for the jury whether the absence of

under seal should be formally executed on both parts, the car, as he ran, as if he was reaching after it, and embodying the provisions of the ordinance and stipu- seemed to the witness to be drawn around by the lating that the permission, rights, and privileges draft of the train, and fall on his back. Amputation thereby conferred upon the company should depend of the left arm at the shoulder was rendered necessary, upon their performance of its requirements. This con- and constituted the injury for which damages were tract was duly executed and delivered March 28, claimed in this suit. 1853.

The question of contributory negligence does not apThe work of filling in the open space between the rail- pear to us to arise upon this record. It is not conroad tracks and the natural shore line was done teuded by the counsel for the defendant in error, that gradually, more rapidly after the great fire of October if there was evidence tending to prove negligence on 9th, 1871, when the space was used for the deposit of its part, the case could properly have been withdrawn the debris and ruins of buildings, and the work from the jury on the ground that it appeared as matwas completed substantially in the winter of ter of law that the plaintiff was not entitled to recover 1877--8.

by reason of his own coutributory negligence. The In the meantime several railroad tracks had been single question therefore for present decision is constructed by the railroad company on its right of whether there was evidence of negligence on the part way, used by itself and four other companies for five of the defendant which should have been submitted to years prior to the time of the injury complained of, the jury. and trains and locomotives were passing very fre- The particular negligence charged in the declaration quently, almost constantly.

and relied on in argument, is the omission of tbe railThe railroad company had also partially filled with road company to build a fence on the west line of its stones and earth the space east of its tracks, to the right of way, dividing it from Lake Park; a duty, it is breakwater, sufficiently so in some places to enable alleged, imposed upon it by the ordinance of June 14, people to get out to it. This they were accustomed to 1852, a breach of which, resulting in his injury, do, for the purpose of fishing and other amusements, confers on the plaintiff a right of action for damcrossing the tracks for that purpose. At one point ages. there was a roadway across the park and the tracks, It is not claimed on the part of the plaintiff in error used by wagons for bauling materials for filling up the that the railroad company was under an obligation, at space, and a flagman was stationed there. At this

common law, to fence its tracks generally, but that at point great numbers of people crossed to the break- common law the question is always whether, under water; from two streets, the public were also accus- the circumstances of the particular case, the railroad tomed to cross over the tracks from the park to ferry. has been constructed or operated with such reasonboats.

able precautions for the safety of others, not in fault, From Park Row, at the south end of the park, run- as is required by the maxim, sic utere tuo, ut non ning north a short distance, the railroad company, in alienum lædas; that consequently in circumstances 1872, had erected on the west line of its right of way a where the public safety requires such a precaution, as five-board fence, the north end of which at the time of a fence, to prevent danger from the ordinary operthe injury to the plaintiff was broken down. The rest ations of the railroad, to strangers not themselves in of it was in good order.

fault, the omission of it is negligence; and that it is a The park was public ground, free to all, and fre- question of fact for a jury, whether the circumstances quented by children and others as a place of resort for exist which create such a duty. recreation, especially on Sundays. Not far from This pr iple has been recognized and applied in the south end, and about opposite the end of cases of collisions at crossings of railroads and public the fence, was a band-house for free open-air con- highways, when injuries have occurred to persons certs.

necessarily passing upon and across railroad tracks in The plaintiff was a boy between eight and nine years the use of an ordinary highway. “These cases,” said of age, bright and well-grown, but deaf and dumb. the Supreme Court of Massachusetts in Eaton v. FitchHis parents were laboring people, living, at the time of burg R. Co., 129 Mass. 364, “all rest on the common. the accident, about four blocks west of Lake Park. law rule that when there are different public easeAcross the street from where they lived was a vacant ments to be enjoyed by two parties, at the same time lot where children in the neighborhood frequently and in the same place, each must use his privilege played.

with due care, so as not to injure the other. The rule On Sunday afternoon, March 17, 1878, St. Patrick's applies to grade crossings, because the traveller and day, the plaintiff, in charge of brother about two the railroad each has common rights in the highway at years older, went to this vacant lot, with the permis- those points. The fact that the Legislature has seen sion of his father, to play; while playing there a pro- fit, for the additional safety of travellers, imperatively cession celebrating the day passed by, and the plaint- to require the corporation to give certain warnings at iff, with other boys, but without the observation of such crossings, does not relieve it from the duty of his brother, followed the procession to Michigan doing whatever else may be reasonably necessary." avenue at 12th street, just south of Lake Park; he and It was accordingly held in that case, that the jury his companions then returned north to the park, in might properly consider, whether, under all the cir. which they stopped to play: a witness, going north cumstances, the defendant was guilty of negligence in along and on the west side of the tracks, when at a not having a gate or a flagman at the crossing, although point a cousiderable distance north of the end of the

not expressly required to do so by any statute or pubbroken fence, saw a freight train of the defendant lic authority invested with discretionary powers to escoming north; turning round toward it he saw the tablish such regulations. plaintiff on the tracks south of him, but north of the And the same principle has been applied in other end of the fence; he also saw a colored boy on the lad- cases, than those of the actual coincidence, at crossder on the side of one of the cars of the train motion

ings, of public highways. ing as if he wanted the plaintiff to come along; the In Barnes v. Ward, 9 C. B. 392, it was decided, after plaintiff started to run north beside the train, and as much consideration, that the proprietor and occupier he did so,turned and fell, one or more wheels of the car of land making an excavation on his own land, but adpassing over his arm. There were four tracks at this joining a public highway, rendering the way unsafe to point, and the train was on the third track from the those who used it with ordinary care, was guilty of a park. The plaintiff had his hands reached out toward public puisance, even though the danger consisted in

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