yards; Fredericks v. Illinois Central R. R., 46 La. Ann. 1187, 15 So. 415, refusing recovery for injury to child by fall through open culvert; Daniels v. New York, etc., R. R., 154 Mass. 352, 26 Am. St. Rep. 255, 28 N. E. 284, Twist v. Winona, etc., R. R., 39 Minn. 166, 168, 12 Am. St. Rep. 627, 629, 39 N. W. 404, 405, Frost v. Eastern R. R., 64 N. H. 222, 10 Am. St. Rep. 398, 9 Atl. 791, and Delaware, etc., R. R. v. Reich, 61 N. J. L. 638, 68 Am. St. Rep. 728, 40 Atl. 683, 41 L. R. A. 833, reviewing authorities, Walsh v. Fitchburg, etc., R. R., 145 N. Y. 307, 45 Am. St. Rep. 618, 39 N. E. 1070, 27 L. R. A. 726, all holding railroad not liable for injury to child while playing on turntable; Battishill v. Humphreys, 64 Mich. 511, 31 N. W. 902, refusing recovery for injury to young child, allowed to go alone on railroad track; Mackey v. Vicksburg, 64 Miss. 783, 2 So. 180, awarding damages for injury to child by falling into unguarded excavation; Porter v. Anheuser-Busch Brewery, 24 Mo. App. 4, refusing recovery for injury to child meddling with furnace on street; Danbeck v. New Jersey Traction Co., 57 N. J. L. 467, 31 Atl. 1040, collecting authorities, and awarding damages for injury to boy thrown from street car through driver's negligence; O'Leary v. Brooks Elevator Co., 7 N. Dak. 560, 75 N. W. 920, 41 L. R. A. 679, refusing recovery for injury to boy caught in shaft of grain elevator; Harriman v. Railway Co., 45 Ohio St. 29, 4 Am. St. Rep. 517, 12 N. E. 458, awarding damages for injury to child through explosion of signal-torpedo left on track; Arnold v. Pennsylvania R. R., 115 Pa. St. 140, 2 Am. St. Rep. 545, 8 Atl. 215, reversing non-suit in action by passenger expelled from train; Missouri, etc., R. R. v. Edwards, 90 Tex. 70, 36 S. W. 432, 32 L. R. A. 827, refusing recovery for injury to child playing on pile of bridge ties in railroad yard; Houston, etc., Ry. v. Grigsby, 13 Tex. Civ. App. 641, 35 S. W. 815, upholding instruction that railroad must use reasonable care in ejecting a trespasser from its train. See note in 68 Am. Dec. 421, and 59 Am. Rep. 26.

Railroads. If, from the evidence, jury could justly infer negligence of the railroad, with regard to a turntable, a verdict awarding damages for injury to a child, will not be disturbed, p. 661.

Cited with approval in Union Pacific Ry. v. McDonald, 152 U. S. 275, 38 L. 440, 14 S. Ct. 624, holding railroad liable for injury to boy falling into hot slack alongside track (affirming S. C., 42 Fed. 583, reversing S. C., 35 Fed. 39); Fink v. Missouri Furnace Co., 10 Mo. App. 68, applying rule to verdict, awarding damages for death of child in unguarded sandpit.

Trial. In cases where existence of undisputed facts comes in question, rather than where deductions or inferences are to be made, effect of them is for judgment of court, p. 663.

Cited with approval in Ross v. Texas, etc., Ry., 44 Fed. 44, 45, holding railroad liable for death of child; Louisville, etc., R. R. v.

18 W

Eakins,

Ky.

45 S. W. 530, holding railroad may be liable for death of passenger, alighting from train, not stopping long enough at station; Steele v. Northern Pacific Ry., Wash., 57 Pac. 823, awarding damages for injury to boy at railroad crossing.

Trial.— In some cases, the necessary inference from the proof is so certain that it may be ruled as a question of law, p. 663.

Cited and principle applied in White v. Colorado Cent. R. R., 5 Dill. 436, 3 McCrary, 567, F. C. 17,543, holding storing of powder with other goods in warehouse, negligence, and awarding damages; Ross v. Texas, etc., Ry., 44 Fed. 45, holding railroad liable for death of child; Amato v. Northern Pac. R. R., 46 Fed. 563, holding railroad liable for injury to laborer, run down on bridge; City Council, etc. v. Wright, 72 Ala. 421, 47 Am. Rep. 422, and Denver v. Soloman, 2 Colo. App. 540, 31 Pac. 509, awarding damages for injury through defective sidewalk; Kansas Pacific R. R. v. Twombly, 3 Colo. 129, holding railroad liable for death of person at crossing; Farrell v. Waterbury Horse R. R., 60 Conn. 249, 21 Atl. 677, refusing recovery for injury to workman in sewer trench under track; Ohio, etc., R. R. v. Collarn, 73 Ind. 269, 38 Am. Rep. 135, holding railroad liable for injury to employee, through negligence of fireman running engine; Binford v. Johnston, 82 Ind. 433, 42 Am. Rep. 513, holding sale of cartridges to boy, in violation of statute, negligence, and awarding damages for death; Mann v. Belt R. R., etc., 128 Ind. 142, 26 N. E. 820, applying rule to contributory negligence and refusing recovery for injury at crossing; Ostertag v. Pacific R. R., 64 Mo. 425, refusing recovery for death of boy, sitting on trestle-work under freight car; Walsh v. Fitchburg, etc., R. R., 145 N. Y. 307, 45 Am. St. Rep. 618, 39 N. E. 1070, 27 L. R. A. 726, applying rule, and holding railroad not liable for injury to child playing on turntable; South., etc., Mfg. Co. v. Dakota, etc., Ins. Co., 2 S. Dak. 30, 48 N. W. 314, applying rule in action on insurance policy; Steele v. Northern Pacific Ry.. Wash. 57 Pac. 823, awarding damages for injury to boy at railroad crossing.

Negligence. Where different inferences might reasonably be drawn, the question of negligence is for the jury, although the facts are undisputed, p. 664.

Following are the Federal citing cases, applying this holding: Hayes v. Michigan Central R. R., 111 U. S. 242, 28 L. 415, 4 S. Ct. 375, reversing non-suit in action against railroad for injury of child; Leather Mfrs. Bank v. Morgan, 117 U. S. 122, 29 L. 821, 6 S. Ct. 669, reversing judgment where question of negligence in paying raised checks were withdrawn from jury; Washington, etc., R. R. v. McDade, 135 U. S. 572, 34 L. 241, 10 S. Ct. 1049, applying rule to contributory negligence, and affirming award of damages for injuries; Richmond, etc., R. R. v. Powers, 149 U. S. 45, 37 L. 643, 13 S. Ct. 749, collecting authorities, and applying rule in awarding damages

Corporations.- Corporate officers cannot, by agreement with stockholder, release him from his obligation to pay up his stock subscription, to the prejudice of its creditors, except by fair and honest dealing, and for valauble consideration, though such agreement is good as against the corporation, p. 620.

This holding has been affirmed and relied upon as follows: Upton v. Tribilcock, 91 U. S. 48, 23 L. 205, collecting cases, unpaid installments collectible, though stock represented as unassessable; County of Morgan v. Allen, 103 U. S. 508, 26 L. 502, holding invalid, surrender of subscription bonds to county by consent judgment; Fogg v. Blair, 139 U. S. 125, 35 L. 106, 11 S. Ct. 477, collecting cases, railroad cannot issue full-paid stock to contractor without fair equivalent; Handley v. Stutz, 139 U. S. 427, 35 L. 234, 11 S. Ct. 534, collecting cases, those gratuitously distributing new full-paid stock among themselves are liable for face value; Camden v. Stuart, 144 U. S. 113, 36 L. 366, 12 S. Ct. 588, obliging stockholders to pay up in spite of simulated payments or any device short of actual payment in good faith; Potts v. Wallace, 146 U. S. 703, 36 L. 1140, 13 S. Ct. 200, holding a stockholder not exonerated by company refusing payment when tendered; Union Nat. Bank v. Douglass, 1 McCrary, 92, F. C. 14,375, reviewing cases, holding stockholders liable to creditors for bonds distributed in proportion to their paid-up stock; Barcus v. Gates, 89 Fed. 789, 61 U. S. App. 610, reviewing cases, it is not fraudulent, but shareholder may be called to pay par; Scott v. Latimer, 89 Fed. 852, 60 U. S. App. 737, a stockholder of insolvent national bank cannot be relieved from assessments of comptroller by agreement; Gay v. Brierfeld, etc., Iron Co., 94 Ala. 327, 11 So. 363, 16 L. R. A. 574, a gift of bonds with stock, and a collusive judgment to foreclose mortgage therewith, set aside by creditors; Melvin v. Lamar Ins. Co., 80 Ill. 459, 22 Am. Rep. 208, collecting cases, a subscriber cannot be allowed the option of withdrawing; Union, etc., Ins. Co. v. Frear, etc., Co., 97 Ill. 549, 37 Am. Rep. 136, disallowing an agreement for non-assessability against creditors without notice; Coffin v. Ransdell, 110 Ind. 421, 11 N. E. 22, collecting cases, unpaid subscription not recoverable from one paying in overvalued property, unless first set aside for fraud; Osgood v. King, 42 Iowa, 484, officers liable for fraud if they issue stock full paid for overvalued property; Jackson v. Traer, 64 Iowa, 479, 52 Am. Rep. 455, 20 N. W. 768, debts paid in stock makes creditor liable for paid-up value; Crawford v. Rohrer, 59 Md. 604, no simulated payment will defeat creditors; Skrainka v. Allen, 7 Mo. App. 440, the whole transaction must be looked to; Wetherbee v. Baker, 35 N. J. Eq. 512, and Kelly v. Clark, 21 Mont. 327, 69 Am. St. Rep. 682, 53 Pac. 966, collecting cases, both holding one accepting stock issued for overvalued property is liable for difference between actual value and par; Medler v. Hotel, etc., Co., 6 N. Mex. 345, 28 Pac. 555, holding same, but that overvaluation must be intentional;

wagon-driver by collision; Kansas Pac. Ry. v. Twombly, 3 Colo. 129, Pittsburgh, etc., R. R. v. Bennett, 9 Ind. App. 114, 35 N. E. 1041, Louisville, etc., R. R. v. Williams, 20 Ind. App. 581, 51 N. E. 130, Baltimore, etc., R. R. v. Walborn, 127 Ind. 149, 26 N. E. 209, Kansas Pac. Ry. v. Pointer, 14 Kan. 54, 66, Chicago, etc., R. R. v. Kennedy, 2 Kan. App. 702, 43 Pac. 805, O'Connor v. Boston, etc., R. R., 135 Mass. 362, Omaha, etc., R. R. v. O'Donnell, 22 Neb. 480, 35 N. W. 237, Steele v. Northern Pacific Ry., Wash. -, 57 Pac. 823, and Kimball v. Friend, 95 Va. 141, 27 S. E. 904, all holding railroads liable for death or injury at crossings; Denver v. Soloman, 2 Colo. App. 541, 31 Pac. 510, awarding damages for injury by excavation in sidewalk; Pueblo Electric St. R. R. v. Sherman, 25 Colo. 120, 71 Am. St. Rep. 118, 53 Pac. 324, refusing recovery for injury to boy alighting from moving car; Farrell v. Waterbury Horse R. R., 60 Conn. 249, 256, 21 Atl. 677, 679, refusing recovery for injury to workman in sewer trench under track; Pekin v. McMahon, 154 Ill. 149, 45 Am. St. Rep. 117, 39 N. E. 486, 27 L. R. A. 209, collecting authorities, and awarding damages for death of child in unguarded pool; Levey v. Bigelow, 6 Ind. App. 693, 34 N. E. 133, refusing recovery for injury to boy working on printing press; Indiana Pipe-Line, etc., Co. v. Neusbaum, 21 Ind. App. 369, 52 N. E. 474, holding employer liable for injury to servant by falling into unguarded well; Ohio, etc., R. R. v. Collarn, 73 Ind. 269, 38 Am. Rep. 135, holding railroad liable for injury to employee, through negligence of fireman running engine; Udell v. Citizens' Street R. R., 152 Ind. 516, 71 Am. St. Rep. 353, 52 N. E. 802, refusing recovery for injury to boy, wrongfully clinging to side of car; Kansas Cent. R. R. v. Fitzsimmons, 22 Kan. 692, 31 Am. Rep. 206, A. & N. R. R. v. Bailey, 11 Neb. 336, 9 N. W. 51, Evansich v. Gulf, etc., R. R., 57 Tex. 129, 44 Am. Rep. 588, Houston, etc., R. R. v. Simpson, 60 Tex. 106, and Ilwaco Ry., etc. v. Hedrick, 1 Wash. 452, 22 Am. St. Rep. 174, 25 Pac. 337, all holding railroads liable for injury to children, while playing on turntables; Dolfinger v. Fishback, 12 Bush, 480, applying rule, in action for damages from runaway horse, left untied; Louisville, etc., R. R. v. Eakins, Ky., 45 S. W. 530, holding railroad may be liable for death of passenger alighting from train, not stopping long enough at station; Larrabee v. Sewall, 66 Me. 381, awarding damages for negligent collision of vehicles on highway; Nugent v. Boston, etc., R. R., 80 Me. 70, 6 Am. St. Rep. 153, 12 Atl. 798, awarding damages to brakeman injured through negligent construction of awning on station-house; American, etc., Express Co. v. Phillips, 29 Mich. 520, determining freight for carrying live pigeons, with set-off for negligence; Craver v. Christian, 36 Minn. 418, 1 Am. St. Rep. 679, 31 N. W. 460, awarding damages for injury to workman in flour mill; Stendal v. Boyd, 67 Minn. 280, 69 N. W. 899, overruling demurrer to complaint to recover for injury to child, by falling into unguarded excavation; Fuchs v. St. Louis, 133 Mo. 199, 34 S. W.

514, 34 L. R. A. 125, awarding damages for death of party, through explosion of sewer; Fink v. Missouri Furnace Co., 10 Mo. App. 71, awarding damages for death of child by falling into unguarded sandpit; Dunn v. Cass Avenue Ry., 21 Mo. App. 200, applying rule in action for injury to boy run over by street car; Lincoln v. Gillilan, 18 Neb. 116, 24 N. W. 444, awarding damages for injury to party by horse stumbling on defective street; Johnson v. Missouri Pacific R. R., 18 Neb. 698, 26 N. W. 349, applying rule, in action to recover for death of railroad section hand; City of Omaha v. Ayer, 32 Neb. 387, 49 N. W. 448, awarding damages for injury by driving into obstruction on street; Stephens v. Omaha, etc., R. R., 41 Neb. 174, 59 N. W. 559, refusing recovery for injury in runaway caused by noise of railroad; Solen v. Virginia, etc., R. R., 13 Nev. 129, awarding damages for injury to person walking on track in city during snow storm; Stark v. Lancaster, 57 N. H. 94, applying rule, in action for damages resulting from defective condition of highway; Moebus v. Becker, 46 N. J. L. 44, refusing recovery for injury by accidental discharge of defendant's gun, while hunting; Walsh v. Oregon Ry., etc., 10 Or. 259, reversing non-suit in action by brakeman for injury received by striking water-tank alongside track; Peabody v. O., R. & N. Co., 21 Or. 136, 26 Pac. 1058, 12 L. R. A. 830, and n., refusing recovery for expulsion from train of passenger not having proper ticket; Knight v. Towles, 6 S. Dak. 579, 62 N. W. 965, applying rule, in action to recover for negligent brush fire; Davis v. Utah Southern R. R., 3 Utah, 225, 2 Pac. 524, applying rule, in action for damage by fire communicated from locomotive; Cunningham v. Union Pacific Ry., 4 Utah, 215, 7 Pac. 799, and Reddon v. Union Pac. Ry., 5 Utah, 355, 15 Pac. 266, collecting authorities, and awarding damages for injury to miner by fall of coal; Carrington v. Ficklin, 32 Gratt. 677, applying rule, in action on bill of exchange; McQuillan v. Seattle, 10 Wash. 465, 45 Am. St. Rep. 801, 38 Pac. 1120, and Smith v. Spokane, 16 Wash. 408, 47 Pac. 889, both holding contributory negligence should be left to jury in action to recover for injury caused by defective sidewalk; Baltimore, etc., R. R. v. McKenzie, 81 Va. 82, holding instruction that if defendant knew rock was dangerous, failure to remove it was negligence, proper; Gerity v. Haley, 29 W. Va. 108, 11 S. E. 905, applying rule in action for injury sustained while digging in soil; Union Pacific Ry. v. Gilland, 4 Wyo. 407, 34 Pac. 957, collecting authorities, and applying rule in action against railroad for damage caused by fire. Cited also in dissenting opinion in Finlayson v. Utica Mining etc., Co., 67 Fed. 521, 32 U. S. App. 143, majority holding company not liable for death of miner by fall of earth; St. Louis, etc., R. R. v. Whittle, 74 Fed. 310, 40 U. S. App. 23, majority holding railroad not liable for train backing down on person waiting at station, on a dark night; Myers v. Chicago, etc., R. R., 95 Fed. 414, majority refusing recovery for death of brakeman, knocked from train while