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gence as to the defendant without there was some reason to expect danger and a duty of care on his part in relation to it. There was, ordinarily, none. He had a right, therefore, to suppose everything secure and safely managed on the tramway; and because it was not, he was killed. Precisely the same argument could have been used if the boy had been killed in that place by the negligent use of fire-arms discharged a hundred yards off."
The defendant seems to claim, however, that although some of the plaintiff's injuries were caused by falling bricks, yet most of them were caused by his fall; and that as he prob ably would not have fallen had he remained behind the railing, he contributed to his injury by placing himself where, in case of such accident, there was nothing to prevent his fall.
Whether the claim that he would probably not have fallen had he remained where he was stationed be true or not must forever remain matter of conjecture. But if its truth could be demonstrated, it would not, as we have seen, change the relation of the plaintiff's act to the legal cause of his injury, or make that act, from a legal stand-point, a contributing cause, when it was but a condition.
And if the claim means that the plaintiff, by his act, increased the injury merely, then if this were true, it would not be such contributory negligence as would defeat the action. To have that effect, it must be an act or omission which contributes to the happening of the act or event which caused the injury. An act or omission that merely increases or adds to the extent of the loss or injury will not have that effect, though, of course, it may affect the amount of damages recovered in a given case: Gould v. McKenna, 86 Pa. St. 297; 27 Am. Rep. 705; Stebbins v. Central Vt. R. R. Co., 54 Vt. 464; 41 Am. Rep. 855. This claim, however, on the facts found, is wholly without foundation.
The plaintiff is entitled to judgment in his favor for one thousand dollars, and the superior court is so advised.
NEGLIGENCE, DEFINITION OF. -That an action for negligence may be maintained, it must appear that there existed some duty on the part of the defendant towards the plaintiff which was unfulfilled: Trask v. Shotwell, 41 Minn. 66; Schmidt v. Bauer, 80 Cal. 566; Osborne v. McMasters, 40 Minn. 103; 12 Am. St. Rep. 698, and note 700, 701; Caniff v. Blanchard etc. Co., 66 Mich. 638; 11 Am. St. Rep. 541, and note.
CONTRIBUTORY NEGLIGENCE, WHAT CONSTITUTES. Where danger is known, and can be easily avoided, peril voluntarily and unnecessarily as
sumed may constitute contributory negligence: Harris v. Township of Olinton, 64 Mich. 447; 8 Am. St. Rep. 842, and note 850, 851; Shelley v. Austin, 74 Tex. 609; for every one is required to exercise ordinary care: Moberly v. Kansas City etc. R. R. Co., 98 Mo. 183. The absence of an exercise of ordinary care is a question of fact for the jury: Carver v. Plank Road Co., 69 Mich. 616.
CONTRIBUTORY NEGLIGENCE-PROXIMATE CAUSE. - Contributory negligence cannot be invoked as a defense unless it is a proximate cause: North Birmingham etc. R'y Co. v. Calderwood, 89 Ala. 247; 18 Am. St. Rep. 105, Dickson v. Hollister, 123 Pa. St. 421; 10 Am. St. Rep. 533, and note; Smith v. Irwin, 51 N. J. L. 507; 14 Am. St. Rep. 699.
MASTER AND SERVANT-RISKS ASSUMED BY Servant. —A servant entering the service of his master assumes the risk of such perils as are incident to the particular employment in which he engages: Steffen v. Mayer, 96 Mo. 420; Illick v. Flint etc. R. R. Co., 67 Mich. 632; Roth v. Northern P. L. Co., 18 Or. 205; Rummel v. Dilworth, 131 Pa. St. 509; 17 Am. St. Rep. 827, and note. A servant voluntarily undertaking the risk of an obvious danger cannot recover for injuries occasioned therefrom, even though he exercised due care: Mellor ▼. Merchants' Mfg. Co., 150 Mass. 362; Coal Run Co. v. Jones, 127 Ill. 379. The servant must use ordinary care to avoid injury: Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 589; Clough v. Hoffman, 132 Pa. St. 626; 19 Am. St. Rep. 620, and note. But if the master has, by his own act, thrown the servant off his guard, inducing him to believe that no vigilance is required, then the want of vigilance on the part of the servant will not bar a recovery for injuries sustained: Kinney v. Folkerts, 78 Mich. 688.
DANGEROUS MACHINERY. · RISKS. — The danger resulting from negligence is not one of the ordinary risks of operating dangerous machinery: Brown v. Sullivan, 71 Tex. 470.
STANTON V. NEW YORK AND EASTERN RAILWAY
[59 CONNECTICUT, 272]
NOMINAL DAMAGES MEAN NO DAMAGES AT ALL. - They exist only in name, and not in amount, and should only be awarded where there has been a breach of contract, and no actual damages whatever have been or can be shown.
DAMAGES FOR BREACH OF CONTRACT. One who violates his contract with another is liable for all the direct and proximate damages which result from such violation, and the party who is prevented from performing his contract by such violation is entitled to recover the value thereof. CORPORATIONS CONTRACT BY PROMOTERS - RATIFICATION. A contract
made by the promoters of a corporation to aid the inchoate corpora tion, as a reasonable means for carrying out its authorized purposes, and afterwards ratified by the corporation, makes it liable for every. thing which has been done under the contract. Such ratification relates back to the execution of the contract, and renders it obligatory from the outset. CORPORATIONS - CONTRACT BY PROMOTERS - RATIFICATION. A corpora tion has power, when organized, to ratify a contract made by its pro
moters, when it is one within the purposes for which the corporation was organized, and is a reasonable means of carrying out those purposes, and the ratification makes the contract in all respects what it would have been if the requisite power had existed when it was entered into; nor can the corporation in such case take advantage of its own acts or omissions to escape liability on the contract. CONTRACTS, PAROL EVIDENCE TO VARY. Where a contract is in writing, and specially exempts one of the parties from the performance of certain duties, parol evidence is inadmissible to show a parol agreement inconsistent with the written one.
8. Tweedy and J. S. Seymour, for the appellant.
J. B. Hurlbutt, for the appellees.
ANDREWS, C. J. The New York and Eastern Railway Company was a railroad corporation organized under the general railroad law of this state for the purpose of building and operating a railroad from the western line of the state, in the town of Greenwich to the town of New Haven, a distance of forty-six miles, and included a bridge across the Housatonic River.
At the March term, 1875, of the superior court in Fairfield County, upon the application of Daniel N. Stanton and others, Levi Warner, Esq., was duly appointed receiver of all the property and assets of this corporation. Mr. Warner accepted the trust, and gave bond as required by the decree of the court. At the same term of the court it was ordered that all persons having claims against the corporation should present them to the receiver within ninety days after the publication of the order. Among others, Henry Hungerford of Norwalk presented to the receiver in due time a claim against the corporation, amounting to two hundred thousand dollars. At a later term of the court such proceedings were had that Julius B. Curtis, Esq., was appointed a committee of the court to examine and adjust all the claims so presented to the receiver and not allowed by him, and to make report to the court of his doings in the premises. Mr. Hungerford appeared before the committee, and offered testimony in support of his claim. Various proceedings were had in court and before the committee from time to time, and the committee returned his completed report to the court in June, 1889. Thereupon Mr. Hungerford came into court and remonstrated against its acceptance. The court overruled the remonstrance, accepted the report, and rendered judgment pursuant thereto. Mr. Hungerford now brings the case to this court by appeal. For a clear under
standing of the questions raised by the appeal, a somewhat more extended statement is required.
On the twelfth day of September, 1873, Henry Hungerford entered into a contract with Samuel E. Olmstead, William C. Street, William T. Minor, and Henry R. Parrott, as follows:
"Whereas, the New York and Eastern Railway Company are desirous of procuring lands for the right of way, for depots side-tracks, gravel-pits, and other necessary purposes for their railroad, as called for by the terms of the contract between said railway company and D. N. Stanton and A. P. Balch, and within the limits herein provided,― the assent of the said Stanton and Balch in writing having been obtained thereto,from the line of the state of New York to the western line of the city of New Haven, and from Stratford to Derby;
"Now, therefore, for that purpose, the following memorandum of agreement is this day entered into, by and between Samuel E. Olmstead, William C. Street, William T. Minor, and Henry R. Parrott, a committee of the directors of the said railway company duly authorized thereto, the party of the first part, and Henry Hungerford of Norwalk, Connecticut, party of the second part :
"The party of the first part, for all the lands necessary for the above purposes, on the line of their said railroad between the western line of the state of Connecticut, in the town of Greenwich, and the western line of the city of New Haven, and for all expenses for procuring the same except engineering, which shall be paid by the party of the first part, agrees to give the party of the second part five hundred thousand dollars of the capital stock of the said railway company, fully paid up.
"The said party of the second part will at once, as soon as the engineer has located any part of the line of said railroad, proceed to purchase and procure all such necessary lands on said line at his own charge and expense, and within a reasonable time, and as fast as required by said company, will cause such lands to be conveyed to said railway company, or to be taken under the statute laws of the state, that said company may enter thereon and construct their road.
"The engineer shall lay out such additional lines as may be indicated and required by said party of the second part, subject to the approval of the said company, and of the said Stanton and Balch, to enable him to make the most advantageous
terms in purchasing said lands for the building of the said road on the most feasible and direct route, as provided by said
"It is mutually agreed and understood that the party of the second part shall commence at once to procure said lands on such portions of said route as may be required by the party of the first part, and located by said engineer, and as soon as and when he shall cause to be conveyed to said company, or shall procure under the statute the said lands or any portion thereof, then the party of the first part shall pay to the party of the second part or assigns, according to said engineer's estimate per mile for the property conveyed, compared with his gross estimate, in relative proportion to the sum of five hundred thousand dollars; and when all of said lands are so conveyed and procured, then the remaining portion, if any, of said five hundred thousand dollars capital stock, fully paid up, shall be paid to the party of the second part or assigns. If said five hundred thousand dollars of capital stock shall be insufficient to purchase and procure said lands, then any additional amount to be used for such purpose shall be a matter of further agreement.
"Nothing in this agreement shall be so construed as to hold the said party of the second part liable in any way for procuring charters for drawbridges over navigable waters.
"It is further mutually agreed between the parties hereto that if any portion of the said right of way between the aforesaid boundaries shall not be taken by said company, then so much of said five hundred thousand dollars as shall be a fair relative proportion of the estimated cost of said right of way, depot-grounds, etc., not taken, shall be withheld by the party of the first part in the final settlement between the parties hereto; and the party of the second part shall have no claim of any kind against said company for time or expenses in so purchasing or procuring said right of way, and that no part of said five hundred thousand dollars of stock or its proceeds shall be used to pay for such time or expenses, except any balance that may be left after purchasing and procuring said lands.
"In case any disagreement should arise between said parties hereto in regard to any matter provided for, or pertaining to this memorandum of agreement, such disagreement or difference shall be submitted to the arbitration of three disinterested persons, either agreed on by the parties or one appointed by
AM. ST. REP., VOL. XXI. -8