PROXIMATE CAUSE-Continued. nary care. And he will not be entitled to recover if his negligence contributed proximately to the injury, even though the city had been negligent in the matter. Anderson vs. Mayor and Council, 28. 2. The defendant can be held liable only for such negligence as constitutes the proximate cause of the injury. Knopf vs. P., W. & B. R. R., 392. 3. If the plaintiff contributed proximately in any way to the accident, he cannot recover. Ray vs. D. S. Steel Co., 525. 4. The plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. Tully's Adm'r vs. P., W. & B. R. R., 537. PUBLICATION OF LIBEL.-See also CRIMINAL LIBEL. 1. Publication consists in communicating the defamatory matter to the mind of another, whether it be privately to the party injured alone with intent to provoke him to a breach of the peace, or to others with intent to injure the individual in question, or to perpetrate more extensive mischief. State vs. Shaffner, 171. 2. Any such communication thereof within the county, to another, or any others, would be a publication. Ibid. PUBLIC OFFICER. It has been quite uniformly held in this State that money held by a public officer or other person in a fiduciary capacity is not liable to attachment while so held-Decisions reviewed. Farmers Bank vs. Ball, 374. PUBLIC POLICY. When a defendant in an action for libel has been arrested under a writ of Capias ad Respondendum, and the words alleged as libelous were used in the pleadings in a suit still pending in another Court of this State, said defendant will be discharged on common bail. For this Court to dispose of the question here, as to whether such words were libelous or not libelous, would be interfering with the due administration of justice in another Court, and this cannot be permitted on the grounds of public policy. Hartman vs. May, 512. QUO WARRANTO.-See also CORPORATIONS. 1. The action of quo warranto held to be local on the authority of Knight and Kennedy vs. Ferris, 6 Houst., 283, decided by the Court of Errors and Appeals, and State vs. Green, 1 Pennewill, 63, in Superior Court. State vs. Hancock et al., 231. 2. The case at bar not distinguished with such clearness from those cases as to satisfy the Court that it is taken out of the rule of law there laid down. Ibid. 3. An information in the nature of a writ of quo warranto is, under the decisions of this State, a local action. State vs. Hancock et al., 252. 4. The first step in such action is an application for a rule to show cause why leave should not be granted to file the information. (Form of such rule given.) Ibid. 5. At the hearing on the rule the party asking for it should open and close. Ibid. 6. Section 1 of Article 9 of the Constitution does not prevent the AttorneyGeneral from instituting in this Court proceedings to oust individuals from the exercise of corporate powers. Ibid. QUO WARRANTO-Continued. 7. Form of judgment rendered by the Court on the finding of the jury. Ibid. 8. When the respondents justify under a charter, the burden is on them to show the incorporation, and they have a right to open and close. Ibid. RAILROADS. 1. Permissive way, etc. 2. Action by adm'r for mington City R'y Co., 157. Weldon vs. P., W. & B. R. R., 1. death of married woman. Wilcox's Adm'r vs. Wil 3. Damages for death of employee. Creswell vs. W & N. R. R., 210. 4. Ordinary care and diligence on the part of the defendant, when applied to the management of railroad cars in motion, imports all the care, circumspection, prudence and discretion which the circumstances require. And the plaintiff is bound at the same time to use care and diligence in proportion to the danger to be avoided. It is the duty of defendant to use all usual and appropriate means to warn wayfarers of the approach of the train, and defendant is not absolved from that duty by a law which provides for the ringing of the bell. Knopf vs. P., W. & B. R. R., 392. 5. A person approaching a railroad crossing with which he is familiar, is bound to avail himself of his knowledge of the locality, and act accordingly. If his line of vision is obstructed, he should look for approaching cars in time to avoid collision. Ibid. 6. If a person drives up to a railroad crossing and upon it, not only without stopping but without looking out or listening to ascertain if any train is approaching, and a collision and injury occurs to him from a passing train, which would have been prevented had the person so injured exercised the proper and ordinary prudence, care and caution mentioned, such person would be guilty of contributory negligence, and could not recover. Ibid. 7. If the jury find that the defendant's servant, in charge of the business of shifting cars, saw the boy who was injured in a place of danger on one of said cars, and failed to make any effort to prevent him from exposing himself to such danger, or any effort to avert such danger; and that the signaling brakeman saw, or should have seen, the boy in a place of danger on one of the cars he was approaching, in time to avoid the danger or give warning of it, and that he made no effort to avoid the danger or warn the boy, the jury would be justified in finding the defendant guilty of such negligence as would render it liable. Tully's Adm'r vs. P., W. & B. R. R., 537. RATIFICATION. An acceptance by an attorney of a less sum than is due to his client on an award will not be binding upon the latter, unless, with full knowledge, he ratified the act. Ratification may be inferred from the distinguishing facts and circumstances surrounding the case, or from acquiescence; and if once deliberately made, it cannot be revoked. Wood vs. Bangs, 435. REASONABLE CARE. 1. Where persons are using a permissive way across a railroad track at the invitation of the company, and under such circumstances as in law to affect the company with notice of their presence, the company must exercise toward them such care as reasonably careful and prudent persons would exercise under like circumstances. But where persons are using such permissive way, without such invitation of the company, and only upon the permission or silent acquiescence of the company, the rule of law is the same as in the case of mere trespassers; that REASONABLE CARE-Continued. the company will be held liable only for such injuries as arise from its gross neg ligence or wanton disregard of human life. In such case the user crosses the railway at his own risk and subject to all the perils of the way. Weldon vs. P., W. & B. R. R. Co., 1. 2. The general rule is that the care required of an infant in avoiding danger in any case is that which children of the same age of ordinary care and prudence would exercise in like circumstances; yet this is not an inflexible rule, but is to be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger, and his familiary with all surroundings and conditions in each particular case; and it is for the jury to say whether under all such circumstances the infant exercised reasonable care. Ibid. 3. The city has a right to block off a street for the comfort and well being of sick residents, but it is the duty of the city when doing so to so place and mark the obstruction as to properly guard the public safety, and give reasonable notice that the danger is there. And in proportion as the character of the obstruction is not manifest, the duty on the part of the city becomes the more imperative to plainly make known its existence. Anderson vs. Mayor and Council, 28. 4. The traveler is not bound to hunt for obstructions or pitfalls in the public streets. He has a right to presume that the city has done its duty and that the streets are in a reasonably good condition. But it is the duty of the traveler to proceed on said streets at a lawful rate of speed, and in the reasonable exercise of all his faculties. Ibid. 5. If the jury believe from the evidence that the defendant did all that a reasonably prudent man should have done under the circumstances to avert the accident, the plaintiff cannot recover. Ford vs. Whiteman, 355. 6. Care to be used with goods held as a distress for rent. 359. Weber vs. Vernon, 7. Ordinary care and diligence on the part of the defendant, when applied to to the management of railroad cars in motion, imports all the care, circumspection, prudence and discretion which the circumstances require. And the plaintiff is bound at the same time to use care and diligence in proportion to the danger to be avoided. It is the duty of defendant to use all usual and appropriate means to warn wayfarers of the approach of the train, and defendant is not absolved from that duty by a law which provides for the ringing of the bell. Knopf vs. P., W. & B. R. R., 392. 8. A person approaching a railroad crossing with which he is familiar is bound to avail himself of his knowledge of the locality, and act accordingly. If his line of vision is obstructed, he should look for approaching cars in time to avoid collision. Ibid. 9. If a person drives up to a railroad crossing and upon it, not only without stopping, but without looking out or listening to ascertain if any train is approaching, and a collision and injury occurs to him from a passing train, which would have been prevented had the person so injured exercised the proper and ordinary prudence, care and caution mentioned, such person would be guilty of contributory negligence, and could not recover. Ibid. 10. The delivery by the plaintiff to the defendant of a horse for the purpose of being shod constitutes in law a bailment, and in such case the skill, care and prudence required on the part of the defendant is such as a reasonably careful and prudent man would exercise under like circumstances. Pusey vs. Webb, 490. 11. If a person receives property as bailee, and such property is injured while in his possession, and while in the exercise of ordinary care, he is not liable for REASONABLE CARE-Continued. such injury; but if it be occasioned by the negligence or carelessness of the bailee, his servant or agent, he is liable for such injury. Ibid. 12. If a horse which was left with defendant for the purpose of being shod was restless and would not stand quietly, and the injury complained of resulted from an unavoidable accident caused by the horse jumping suddenly at the time of the trimming of his hoofs, and while the defendant was using reasonable care, the plaintiff cannot recover. Ibid. 13. Negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. There should always be exercised such reasonable care as would be exercised by a person of ordinary prudence under like circumstances. Tully's Adm'r vs. P., W. & B. R. R., 537. 14. In the application of the doctrine of contributory negligence to children the rule governing adults is greatly modified. A child is held only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age. The care required of a child is to be ascertained by his maturity and capacity, and the particular circumstances of the case, and the determination of the question should generally be submitted to the jury. Ibid. 15. The plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. Ibid. REASONABLE DOUBT. 1. Whenever any man is arraigned before the bar of justice, the law clothes him first with the presumption of innocence, and it is therefore incumbent on the State to prove to the satisfaction of the jury, beyond a reasonable doubt, every material element of the crime charged. State vs. Davis, 139. 2. Reasonable doubt defined. Ibid; State vs. Spencer, 225. 3. In cases of doubt, good character avails. If the case is clearly and satisfactorily proved, good character avails nothing. If there be a doubt of guilt, arising out of conflict of testimony or other cause, then the fact that the accused has lived in a community for years, and in all of those years has consistently built up for himself a character for integrity, honesty and fair dealing, should clothe him with the presumption of innocence; where the scales of justice hang in balance, good character comes to solve the difficulty, tips the balance, and inures to acquittal. State vs. Davis, 139. 4. In a trial for receiving stolen goods, in order to convict, the jury must be satisfied from the evidence beyond a reasonable doubt, first, that the goods were stolen; second, that they were the property of the person laid in the indictment; and, third, that the defendant, when he bought and received them, knew that they were stolen. Such knowledge may come from declarations made at the time, or from the circumstances surrounding the transaction. State vs. Wright, 228. 5. Reasonable doubt defined. Ibid; State vs. Cole, 344; State vs. Wallace, 402; State vs. Jones, 573. 6. In order to convict a person who was present, but did not actually commit the assault and battery the jury must be satisfied beyond a reasonable doubt that he was there present aiding, assisting and abetting the one who did actually commit the offense. State vs. Burton and Johnson, 472. RECEIVER. 1. Where receivers of a corporation have been appointed by a court in another 2. By comity receivers are now generally permitted to maintain suits in other 3. When the laws of the State in which receivers of a corporation are appointed 4. Appointment of receivers. Frantz vs. Girard Trust Co., 447. In a trial for receiving stolen goods, in order to convict, the jury must be satisfied 1. Under the law and practice in this State, although a recognizance which 2. Such being the law, the surety in such forfeited recognizance has an interest 3. Whether such a contract was conditional or not, that is, whether the princi- 4. The sureties on a sheriff's official recognizance are not liable to a printer for 5. Case of Use of News Publishing Company vs. Gould, et. al., 1 Pennewill, RECORD OF DEED.-See DEED. RECORD OF JUDGMENT.—See Judgment. RECORDS. See JUSTICE OF Peace. RECOVERY OF DEMISED PREMISES.-See Landlord and Tenant. |