Fletcher vs. Fletcher.

In such a case the parties would not be in pari delicto, and the deed, although made for an improper purpose, yet, hav ing been unfairly procured, through the influence of the grantee, or made under a delusion as to facts, might be set aside.

It is true that in the present instance the bill contains the additional averment that the action for slander was never brought to trial, but was dismissed by the plaintiff. We are of opinion, however, that this fact is not of itself sufficient to justify the court to set aside a deed which the bill itself avers was made after the action had been brought, and for the acknowledged purpose of defeating the collection of the judgment in case damages should be recovered.

The record in that cause is referred to and made a part of the bill, although it was not filed as an exhibit, nor produced at the argument in this court. On looking into it we have discovered that the action was not brought until the 5th of August, 1873, and the writ was not served till the 7th of that month. The deed in question, however, bears date the 16th, and was left for record on the 19th of June of that year, more than six weeks previous to the bringing of the action for slander. And yet the complainant's bill contains the averment that the deed was executed after the action had been brought, and with a view to place the property beyond the reach of any final process which might be issued in case the plaintiff should recover a judgment in that action.

Whether a deed executed under the actual circumstances which attended the execution of this one is void as to others from motives of public policy and yet valid as between the parties, because made under the apprehension that an action for slander might thereafter be brought against the grantors, presents, in our opinion, probably a different question from that which is presented on the face of the present bill.

For these reasons, we think the present bill ought to be dismissed without costs and without prejudice to complainant's right to institute a new suit should they be so advised, based upon the facts as they exist as to the transaction in question, and that the decree below should be affirmed.

CARTTER, Ch. J., dissenting.

Pabst vs. Baltimore and Ohio Railroad Co.

MATTHEW PABST vs. BALTIMORE AND OHIO RAILROAD COMPANY.

AT LAW.-No. 11336.

I. In cases tried under the common law, the refusal of the court to set aside a verdict for excessive damages cannot be alleged for error in the appellate court. The decision of the court below is final.

II. The Revised Statutes, sections 804 and 805, have changed this rule, so that when such a motion is heard upon the minutes of the judge who tried the case, and denied, an appeal to the general term may be taken upon a case to be settled by agreement of the parties.

III. The plaintiff's wife was a passenger on defendant's railroad train from Baltimore to Washington. When near its depot in the latter city, "Washington" was called by some one. She inquired of another passenger if they were in Washington, and was answered in the affirmative. She then prepared to leave the train. The night was dark. The announcement of "Washington" was not countermanded. No warning was given to passengers not to leave, and several passengers in fact left it. Plaintiff's wife lived near the depot, and had frequently been on the defendant's road. She was seen to go out of the car door, when the train started and moved into the depot. She was afterward found lying on the track about two squares outside of the depot, so much injured that her death ensued in about ten days. This action is by the husband for the loss of service. The judge instructed the jury that the passenger had a right to presume that the train had stopped, and that the cry of "Washington" was made by the agent of the company. That it was the duty of the company to counteract a false proclamation of their arrival and to keep an agent in their reach to advise passengers of the truth or falsehood of a proclamation so made, or else the company would be derelict in its duty, and chargeable with the consequences. This ruling was held to be erroneous, and a new trial granted.

STATEMENT OF THE CASE.

This action was instituted by the plaintiff to recover damages for injuries sustained by his wife while a passenger on defendant's railroad, in consequence of which she soon afterward died; and as is set forth in the declaration.

"By reason whereof he, the said plaintiff, was deprived of all the comfort, labor, benefit, and assistance of his said wife in his domestic and business affairs, which he otherwise might

Pabst vs. Baltimore and Oblo Railroad Co.

or would have had, and he, the said plaintiff, was thereby then and there forced and obliged to pay, lay out, and expend, and hath necessarily paid, laid out, and expended, divers sums of money in providing for medicines and medical and surgical attendance, and in and about her burial, and had also divers other expenses amounting to the sum of about $1,000, and suffered great mental agony in consequence of the great suffering and death of his said wife.

"Wherefore, the plaintiff claims damages in the sum of $25,000 and costs of suit."

The bill of exceptions presents the facts of the case as follows: "The plaintiff to maintain the issue on his part joined, of fered evidence tending to show that, on the 2d day of December, A. D. 1872, his wife purchased at defendant's depot in Washington City a return-trip ticket from Washington to Baltimore and back; that she went to Baltimore and returned on the same evening to Washington; that, in approaching the depot at Washington, late in the evening, the train stopped some distance from the depot and 'Washington' was called by some one, whereupon plaintiff's wife inquired of one of the witnesses, also a passenger, if they were in Washington, and upon his replying in the affirmative, prepared to leave the car; that the night was dark, so that the location of the train could not be ascertained by looking out of the window; that the announcement of Washington was not countermanded, and there was no warning given to passengers not to leave the train; that many passengers in fact left it, among them the plaintiff's wife, who was seen to go out of the car door, and before her daughter who was with her had time to get out of the car the train suddenly started again and moved into the depot; that the plaintiff's wife was afterward found lying by the track near E street, about two squares outside of the depot, with the toes of her right foot crushed by the wheel of the car and the heel of her left foot injured; that partial amputation of the right foot was made. In about ten days lock-jaw set in, and that her death ensued as the result of her injuries, on the 3d day of January, 1873. The plaintiff further offered evidence tending to prove the expenses he was subjected to by the accident and the value to him of his wife's services; and that said expenses and the

Pabst vs. Baltimore and Ohio Railroad Co.

cost of employing another person to do the work and service his wife had before done, about his house, was about $500. It further appears from the plaintiff's testimony, that he has for some years kept a saloon and restaurant on New Jersey avenue, a short distance south of the defendant's passenger depot, and that his wife has often traveled over defendant's road and was familiar with the depot and its surroundings. After the plaintiff had closed his testimony, the defendant offered evidence, tending to show that the train upon which the plaintiff's wife was, on the occasion in question, was the New York through-express train, and that it did not, in fact, stop between Bladensburg and the passenger depot, in Washington, but only slowed down as it approached said depot; and that the train which stopped on the evening in question, as shown in the testimony on the part of the plaintiff, was another train known as the local express train from Baltimore, which arrived a few minutes after the other, and was detained briefly outside, until the latter could be removed from the depot; that the two trains are made up at and start from the same platform in the station at Baltimore, and with a short interval of time between them; that, on the evening in question, no officer of the company announced the arrival of the said New York train at Washington, before it reached the depot; nor is it their habit to announce such arrival at all, unless when it takes place late at night and passengers are asleep; that Mrs. Pabst was found by some employés of the defendant, between an outer and inner track, near E street, nearly two squares distant from the depot, as the New York through train was coming in, and just in the rear thereof, and before the arrival of the second train. Defendant further offered evidence tending to show that Mrs. Pabst was near the rear of the second of four passenger cars; that there was a brakesman between the two front and between the two rear cars, but none between the second, where she was, and the third."

Several exceptions were taken to prayers granted and refused, but as the decision of the court in general term was confined to the exceptions to the general instructions of the court below to the jury, the following portions of the charge are all that is necessary to set forth in this statement.

Pabst vs. Baltimore and Ohio Railroad Co.

"I hold if the proclamation of arrival at Washington was made, it is to be presumed it was made by an employé of the company until the contrary is shown, and if made by other sources than the authority of the company, that it should have been countermanded by the company.

"In reference to the outcry, if you find from the testimony the train approached the depot and came to a state of restfor both must combine to justify a passenger in leaving it, I think-and the proclamation was made that it had arrived at Washington by the exclamation Washington,' the passengers had a right to presume, in the midst of the darkness that surrounded the car at that point of time, and from the fact that the car was at rest, that the train had stopped, that the proclamation proceeded from the mouth of the agents of the company, or the agent of the company. And if it did not so proceed, I charge you that the company held such relation to that train under the law that they should countermand a false proclamation of their arrival. In other words, it was the duty of this company to maintain upon that train, and within the reach of those passengers, an agent that would be able to advise them of the truth or falsehood of that proclamation. And if the proclamation came either from the mouth of their agent, or was unauthorized, but was uncontradicted through their agency, under the law, the company would be derelict in its duty, and chargeable with the consequences. That is the point to which my attention has been particularly called. Now, as you shall find, gentlemen of the jury, in this case, that the train proceeded to the depot without stopping, or on the contrary, that it paused, and a proclamation that they had arrived was made, you will find for plaintiff or the defendant. It would have been an act of carelessness on the part of the decedent, an act of indiscretion on the part of a passenger to leave the train, or attempt to do so, while in motion; it would be an act of carelessness and in discretion on the part of the agents of the company, after having come to a standstill, with a proclamation in the car of arrival, to start up without having a guard against injury. This is all that remains for the court to say in reference to the issue of liability, or otherwise."

The jury having rendered a verdict for the plaintiff for