an affirmative claim set up by the contractor by cross-complaint
against the city for a recovery on implied assumpsit, if sus-
tained, defeats the taxpayer's action, and hence he may chal-
lenge the legal sufficiency of the cross-complaint on demurrer.
Cawker v. Central B. P. Co.
Demurrer. See APPEAL, 20.
25
MUNICIPAL CORPORATIONS, 20. PLEAD-
7. A defendant who neither demands a bill of particulars nor moves
to make the complaint more definite and certain cannot, by ob-
jection at the trial, exclude evidence which is comprehended
within the broad generalities of the complaint. Dralle v. Reeds-
burg,
319
PLEDGES AND COLLATERAL SECURITY.
A complaint alleges that plaintiff agreed to transfer a note and
mortgage to a bank as collateral security for loans, that de-
fendant, the cashier of the bank, by fraudulent statements that
it was an assignment as collateral security only, obtained from
plaintiff an assignment in form absolutely transferring the note
and mortgage to defendant, and that defendant refuses upon
demand to surrender such securities; and in effect admits that
the loans have not been repaid. Held, that no actionable fraud
against plaintiff is shown, but simply that his note and mort-
gage are held by the defendant for the bank as collateral se-
curity; and until the loans are repaid defendant is entitled so
to hold them. Doherty v. Wing,
227
POLICE POWER. See HEALTH.
AND TELEPHONES, 1, 2.
RAILROADS, 5, 19, 24. TELEGRAPHS
POSSESSION. See CANCELLATION OF INSTRUMENTS, 1. DOWER, 6. EJECT-
MENT. MILLS AND MILLDAMS, 2-8. REPLEVIN.
PREFERENCES. See BANKRUPTCY.
PRELIMINARY EXAMINATION. See CRIMINAL LAW, 1-3. HABEAS COR-
PRESCRIPTION. See HIGHWAYS, 9.
PRESUMPTIONS. See APPEAL, 11, 15.
CRIMINAL LAW, 9, 18, 21. DEATH.
DOMICILE. EVIDENCE, 1, 2. HIGHWAYS, 6, 7. INSURANCE, 3, 10.
JUDGMENT. MUNICIPAL CORPORATIONS, 13, 20. OFFICERS, 8.
SCHOOLS AND SCHOOL DISTRICTS, 4. TRIAL, 4.
The relation: Rights and duties of agent. See DEEDS, 1.
3-5. INSURANCE, 4-10. RAILROADS, 36, 37. SALES, 6.
Rights and liabilities to third persons: Undisclosed limitation on pow
ers of agent.
Defendants having sold the stock of liquors and glassware used in
a saloon business and turned the business over to the purchaser,
to be continued by him in their name, under licenses issued to
them, until the purchase price and cost of the licenses was re-
paid, a private and undisclosed agreement that he should not
commit them to liability for supplies purchased by him for the
business would not protect them against a claim for such sup-
plies by one who dealt with him in the ordinary line of such
business without knowledge of the restriction. Napa Valley
Wine Co. v. Casanova,
See MUNICIPAL CORPORATIONS, 15, 16.
Where the date of the actual completion of a building was Sep-
tember 20, and, as early as June 9, payments had been made
to the contractor aggregating upwards of $2,000 in excess of
the amounts stipulated to be paid prior to the final completion
of the building, the amount of the advanced payments and the
length of time in which they antedated the time when they
should have been raid are such material variances from the con-
tract as absolutely discharge the contractor's sureties.
v. Boll,
PRINTED CASE. See APPEAL, 29.
See CONSTITUTIONAL LAW, 1, 2, 5–7, 11.
PROBABLE CAUSE. See MALICIOUS PROSECUTION. TRIAL, 5.
PROMISSORY NOTES. See LARCENY. MALICIOUS PROSECUTION.
PROOFS OF Loss. See INSURANCE, 3.
PROXIMATE CAUSE. See ATTACHMENT, 2. CARRIERS, 7. HIGHWAYS,
12. MASTER AND SERVANT, 10, 11.
ROADS, 26-28.
PUBLIC HEALTH. See FOOD. HEALTH. MUNICIPAL CORPORATIONS, 7.
PUBLIC POLICY. See WILLS, 10.
PUBLIC USE. See TAXATION, 1–3.
PUNITORY DAMAGES. See DAMAGES, 5. HUSBAND and Wife, 4, 5.
QUANTUM MERUIT. See MUNICIPAL CORPORATIONS, 25.
See RAILROADS, 1, 2, 6-9, 13-15, 17, 18, 20.
1. An order of the Railroad Commission will not be disturbed by
the courts unless it is unlawful or unreasonable. State ex rel.
N. P. R. Co. v. Railroad Comm.
145
Control and regulation: Railroad crossings: Eminent domain.
2. Ch. 454, Laws of 1907, and particularly sec. 1797-56, Stats, vests
in the Railroad Commission power to determine the point at
which, as well as the manner in which, the track of one rail-
road shall be crossed by that of another; and the question of
compensation only is left to the commissioners appointed by
the court under subd. 6, sec. 1828, Stats. (1898). State ex rel.
N. P. R. Co. v. Railroad Comm.
145
3. The law as it before existed respecting the right of a railroad
company to designate its route was not abrogated by ch. 454,
Laws of 1907.
Ibid.
4. A railway company which constructed its road while a statute
(subd. 6, sec. 1828, Stats. 1898) was in force under which, as
at common law, it could not be required to pay any part of the
expense of making and maintaining any subsequent crossing of
its track by the track of another railway, acquired thereby a
vested property right which cannot be taken for the benefit of
another company without compensation, in the exercise of the
reserved right to alter or amend charters.
Ibid.
5. To compel the senior railway company to pay any part of the
expense occasioned by the crossing of its road by the junior
company would be a taking of the property of the former; and
such a taking without compensation to the senior company
would not be a reasonable or valid exercise of the police power.
Ibid.
6. Sec. 1797-56, Stats. (Laws of 1907, ch. 454), may reasonably be
so construed as not to require the Commission to impose any
part of the expense of the crossing upon the senior road which
would result in a taking of its property without compensation;
and in support of the validity of the statute it should be so con-
strued.
Ibid.
7. When, pursuant to sec. 1797-56, the Railroad Commission im-
poses upon the senior road a part of the expense of construct-
ing, operating, and maintaining a crossing of its tracks and the
prescribed protective appliances, the senior road is entitled to
recover in the condemnation proceedings before commissioners
appointed by the court (under subd. 6, sec. 1828, Stats. 1898),
all damages suffered by it by reason of the crossing, including
damages on account of the burden or expense so imposed upon
it by the Commission.
Ibid.
8. This provision of sec. 1797-56, that the Railroad Commission
may apportion the expense of the crossing, is not a delegation
of legislative power, or a vesting of judicial power in the Com-
mission.
Ibid.
9. An order of the Railroad Commission apportioning the expense
of a crossing, pursuant to sec. 1797-56, should leave the amount
of damages occasioned by the crossing to be fixed by the com-
missioners appointed by the court in the condemnation proceed-
ings under subd. 6, sec. 1828, Stats. (1898).
Ibid.
Per MARSHALL, J., concurring:
10. The right, in a general sense, to construct a railroad is referable
to the certificate of public convenience and necessity, under
secs. 1797-43 to 1797-53, Stats. (Laws of 1907, ch. 454). Ibid.
11. The right to cross the tracks of a senior railroad is referable to
subd. 6, sec. 1828, Stats. (1898).
Ibid.
12. The right to take the property of the senior road at the point of
crossing is referable to said subd. 6, sec. 1828.
Ibid.
13. Authority to locate the place of crossing is referable to the im-
plied power of the Railroad Commission under secs. 1797-54
to 1797-56, and the general spirit of the act of 1907, super-
seding by necessary inference subd. 6, sec. 1828, Stats. (1898),
on that subject.
Ibid.
14. The manner of constructing the railroad, including the manner
of making the crossing with its accessories, and the establish-
ing of status in respect thereto to be dealt with in condemna-
tion proceedings, is referable to the decision of the Railroad
Commission under secs. 1797-54 to 1797-56.
Ibid.
15. The manner of acquiring property for the purposes of the road,
including that of any other road at the crossing, is referable to
secs. 1845-1851, and such other parts of ch. 87, Stats. (1898), as
bear on the subject, the proceedings to that end to be subse-
quent to the determination by the Railroad Commission under
secs. 1797-54 to 1797-56.
Ibid.
16. The commissioners in condemnation proceedings are required to
deal with the situation created by the determination aforesaid
making the owner of the senior road good by an award of a
money equivalent for such appropriation of its property rights
as shall be contemplated in view of such determination, includ-
ing the cost of such grading, rails, frogs, switches, and other
appliances used in constructing and maintaining the crossing,
and maintaining and operating safety appliances, as shall be
preliminarily entailed upon it in view of such determination.
BARNES, J., and WINSLOW, C. J., dissenting, are of the opinion:
17. So much of sec. 1797-56, Stats., as empowers the Railroad Com-
mission to require the senior company to bear any portion of
the expense of constructing a crossing proper is void because
it deprives the company of its property without due process of
law; but the invalidity of this particular provision does not af-
fect the remaining portion of the act.
Ibid.
18. An order of the Commission, not imposing upon the senior com-
pany any part of the expense of constructing the crossing
proper, but requiring it to defray one half of the expense of
maintenance, is not erroneous in the absence of anything to
show that such latter expense was a material item or that the
half thereof would exceed the cost of maintaining the road at
that point had no crossing been made.
Ibid.
19. Whether a crossing already exists or is to be made, the state, in
the exercise of its police power, may require that it be safe-
guarded by protective appliances, such as interlocking plants,
whenever in the exercise of reasonable judgment such devices
are deemed to be required for the public safety or convenience,
and may make any reasonable apportionment of the expense
between the roads affected, without reimbursement to the senior
company.
Ibid.
20. The legislative declaration requiring railway companies to in-
stall approved safety devices whenever necessary to protect life
or facilitate commerce is implied in the language of ch. 454,
Laws of 1907, and in view thereof the delegation of power to
the Railroad Commission to determine the fact as to the neces-
sity for such devices at a given point, and to apportion the ex-
pense thereof, is valid.
Ibid.
21. Sec. 1797-56, Stats., should not be construed as giving the senior
company any right to recover from the junior, in condemnation
proceedings or otherwise, the amount apportioned to and paid
by such senior company for the construction or maintenance of
safety devices at a crossing.
Ibid.
22. Under sec. 1299h-1, Stats. (Laws of 1907, ch. 120),-the company
must, by planking or some equivalent therefor, adjust the sur-
face of the highway where it crosses the tracks substantially to
a level with the tops of the rails. Chicago, M. & St. P. R. Co.
v. Fair Oaks,
334
23. Where a portion of the right of way of a railway company is con-
demned for the purpose of extending a highway across the
tracks, the company is not entitled to be compensated for the
expense which it must incur in constructing and maintaining
the crossing as required by the statute, such burden being im-
posed upon it solely for the protection of the public.
Ibid.
24. The requirement of sec. 1299h-1, Stats., is a legitimate exercise
of police power for the protection of the safety of the public.
Ibid.
Same: Fences: Personal injuries to infant.
25. The question whether a given place is or is not depot grounds
within the calls of sec. 1810, Stats. (1898), is ordinarily a ques-
tion of fact. Schwind v. C., M. & St. P. R. Co.
1
26. Failure of the statutory duty imposed upon railroad companies
to fence their right of way constitutes negligence, and for in-
juries proximately caused thereby, and not contributed to by
the negligence of the person injured, the company is liable.
Ibid.
27. Where, in addition to the duty imposed upon railroads to fence
their right of way, the provisions of the statute impose liability
for all damage to persons and animals occasioned "in any man-
ner, in whole or in part, by the want of such fences," an injury
may be occasioned in whole or in part by the absence of a fence,
although it may not be proximately caused thereby.
Ibid.
28. Under sec. 1810, Stats. (1898), imposing upon railroads liability
for damages to persons and animals occasioned by unfenced
right of way, proximate causal relation, including reasonable
anticipation, is not necessary, and contributory negligence is
no defense; the purpose of the statute being to cast upon rail-
roads absolute liability.
Ibid.
[29. Whether the deliberate and intentional entry upon a railroad
right of way and tracks by an adult fully cognizant of all the
conditions, and with no circumstances of confusion or inadvert-
ence, may be held, as matter of law, not occasioned by absence
of a fence, not determined.]
Ibid.
30. Where, in the light of childish tendencies, an injury happens to
a child ten years of age upon the unfenced right of way of a
railroad, the court cannot say, as matter of law, that his devia-
tion onto the railroad grounds would have so certainly occurred
had a fence been interposed as to warrant reversing a finding
that the injury was caused in whole or in part by the absence
of a fence.
Ibid.
31. In an action for personal injuries happening to a child walking
upon an unfenced right of way, it is not error to instruct the
jury to consider whether a fence would have "prevented or
tended to prevent" plaintiff's entry on the right of way. Ibid.
Right of way. See EMINENT DOMAIN, 5. RAILROADS, 2-21. VENDOR
AND PURCHASER, 1-6.
Operation: Injuries to passengers.
Same: Injuries to employees.
Same: Injuries to animals.
See CARRIERS, 1. MASTER AND SERV-
32. Upon the evidence in an action for the value of a horse killed on
defendant's track it is held that the trial court properly refused
to direct a verdict for defendant. Bodenheimer v. C. & N. W.
R. Co.
623
33, The evidence being conflicting as to whether the horse was killed
at a highway crossing or north thereof on defendant's track be-
|