quiring persons, artificial or natural, doing business within its borders, to transact that busines with fair ness, diligence and impartiality. A statute operating upon persons within the State, declaring an existing duty, adding neither new nor additional ones, usurps no functions of the Federal Congress, and infringes no constitutional provision. We are not willing to concede that the police power inherent in all sovereignties is annihilated in all matters touching interstate commerce by the provisions of the National Constitution to which we have referred; on the contrary, we are satisfied that the power is not impaired or limited, except to the extent that it may not be exercised in such a manner as to abridge, embarrass or interfere with the freedom of interstate commerce, or so as to encroach upon valid congressional legislation. The right to exercise the police power is not so hedged in as that it cannot be exercised upon instruments or articles of commerce; it may be exercised, even in commercial affairs, provided that it is not so exercised as to impose burdens or restrictions which limit or impede the free course of commerce. Sherlock v. Alling, 93 U. S. 99; County of Mobile v. Kimball, 102 id. 691.

The police power is the right to regulate the enjoyment of property, to maintain public order, to secure the rights of citizenship, and to prevent injury to private rights. This power cannot be exercised within State limits by the Congress of the Nation. United States v. Dewitt, 9 Wall. 41; United States v. Reese, 92 U. S. 214; United Stated v. Cruikshank, id. 512; Munn v. Illinois, 94 id. 113; Civil Rights Cases, 109 id. 3. The power of enacting laws upon this subject resides solely and exclusively in the States, and extends to all matters of personal and property rights within the States. A denial of the right to legislate upon matters connected with commerce and its instrumentalities would result in evils of great magnitude. If there be no such power then the State cannot regulate the speed of railroad trains where the railroad line extends beyond the State, nor enact any law providing for the safety of passengers and the community, and if the States possess no such power then it has no existence, because by the conclusive adjudications of the highest court, the police power does not reside in Congress. The States must, and do, possess this power, even with respect to commercial affairs. True, the power is somewhat limited, but it nevertheless exists.

We assume that the power to enact laws declaratory of a duty exists, and it remains to determine whether our statute is a valid exercise of this sovereign power. In Munn v. Illinois, supra, the act of the Legislature of Illinois providing for the storage and shipment of grain by warehousemen was held valid, and in speaking of the effect of the constitutional provision respecting commerce the court said of the warehousemen: "Incidentally they may become connected with interstate commerce, but not necessarily so. Their regulation is a thing of domestic concern, and certainly until Congress acts in reference to their interstate relations the State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside of its imme. diate jurisdiction."

The court in another case said: "Yet it is not everything that affects commerce that amounts to a regulation of it withing the meaning of the Constitution." Railroad Co. v. Pennsylvania, supra.

Strong language was used in City of New York v. Miln, supra, but we only have space for the following brief extract: "That all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained; and that consequently in relation to these, the authority of a State is complete, 1, and exclusive."

un

commerce.

This language was used in a case where the State law directly affected, and in a very material degree, foreign The case from which we have quoted, and its principle, has been applied in many instances, and among the cases furnishing a striking illustration of the rule declared, and of its application, is that known as the Slaughter House Cases, 16 Wall. 36.

In the case of Cooley v. Board, etc., supra, a State law requiring vessels to take pilots, and prescribing a penalty for breach of duty, was held valid. The court sustained a State statute levying taxes upon articles of commerce in Woodruff v. Parham, 8 Wall. 123. It was said of that statute, what may with truth be said of ours, that "There is no attempt to discriminate injuriously against the products of other States, or the rights of their citizens, and the case is not therefore an attempt to fetter commerce among the States, or to deprive the citizens of other States of any privilege or immunity possessed by citizens of Alabama."

Cooley, J., says: "And it cannot be doubted that there is ample power in the legislative department of the State to adopt all necessary legislation for the purpose of enforcing the obligations of railway companies as carriers of persons and goods to accommodate the public impartially, and to make every reasonable provision for carrying with safety and expedition." Cooley Const. Lim. (5th ed.) 718.

In Harrigan v. Connecticut River, etc., Co., 129 Mass. 580; 37 Am. Rep. 387, a statute prohibiting, except in a specified manner, the rafting of logs from another State through Massachusetts was held valid, and this decision certainly goes much farther than we are required to do here. It has been held by this court in several cases that the statute may be enforced although the message is received for transmission to another State, and if we should hold the law invalid we should be compelled to overrule these cases. Western Union Tel. Co. v. Lindley, 62 Ind. 371; Western Union Tel. Co. v. Hamilton, 50 id. 181; Carnahan v. Western Union Tel. Co., 89 id. 526. This doctrine has been asserted by other courts. Western Union Tel. Co. v. Blanchard, 68 Ga. 299; S. C., 45 Am. Rep. 480, 486, auth. n. It is true that in these cases the constitutional question was not argued, but it is nevertheless involved, and was uecessarily decided. We are satisfied that the enactment of our statute was a legitimate exercise of the police power of the State, and that as the statute infringes no provision of the Constitution, trenches upon no law of Congress, and does not interfere with the freedom of interstate commerce, it is valid and effective.

It is argued that as the message was received for transmission to a point in Iowa, the place of performance is not in this State, and therefore our law cannot prevail. This argument rests upon an assumption that cannot be made good. The action is not for a breach of contract, but to recover a penalty given to the sender of a message for a breach of duty by the telegraph company. The argument of counsel is able and ingenious, but it is plainly fallacious. No question of the right to damages is involved; the single question is as to the right to recover a statutory penalty. Counsel are in error in asserting that there is conflict in our case upon this subject; from first to last it has been steadily held that the statute is a penal one, awarding not liquidated damages, but a penalty. It is also decided by these cases that the foundation of the right is the contract with the corporation, but in none of them is it intimated that the recovery is for damages for a breach of contract; on the contrary, all our de cisions affirm that the recovery is for a penalty given by statute to a private individual. Carnahan v. Western Union Tel. Co., supra; Western Union Tel. Co. v. Adams, 87 Ind. 598; 44 Am. Rep. 776; Western Union Tel. Co. v. Roberts, 87 Iud. 377; Western Union Tel. Co.

V. Gougar, 84 id. 176; Rogers v. Western Union Tel. Co., 78 id. 169; 41 Am. Rep. 558; Western Union Tel. Co. v. Axtell, 69 Ind. 199; Western Union Tel. Co. v. Lindley, supra; Western Union Tel. Co. v. Ferguson, 57 Ind. 495; Western Union Tel. Co. v. Hamilton, supra; Western Union Tel. Co. v. Buchanan, 35 Ind. 429; 9 Am. Rep. 744; Western Union Tel. Co. v. Ward, 23 Ind. 377.

The action given by the statute is for a penalty, and the right to maintain it is in the sender of the message who pays or tenders the compensation provided by the rules and regulations of the company. The cases we have cited all proceed upon this theory, and it is clear that under the provisions of the statute no other theory could be correct. The English cases deny that the person to whom the message is sent can maintain an action for damages against the company for the reason that there is no privity of contract. Dickson v. Reuter's Tel. Co., L. R., 2 C. P. D. 62; 19 Eng. R. 313; Playford v. U. K. Tel. Co., L. R., 4 Q. B. 706.

The American cases however take a different view of the subject, for they hold that if the error occurs in transmitting the message, the person to whom the message is sent may maintain an action for damages, but while this is held, it is conceded that the holding constitutes an exception to the general rule. Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 486, n.; 2 Whart. Con., § 791; 17 Cent. L. J. 466; 15 Am. L. Rev. 231. Wharton says that the better opinion is that where the action is for non-delivery the sender only can maintain the action. Our cases of Western Union Tel. Co. v. Meek, 49 Ind. 53; Western Union Tel. Co. v. Hopkins, id. 223; and Western Union Tel. Co. v. Fenton, 52 id. 1, were actions for damages based upon a statutory provision entirely different from that which gives the right to recover a penalty, and cannot be deemed in conflict with the decisions declaring the right of action for the penalty to be in the sender of the message. It is our settled conviction that our cases decide, and rightly decide, that the right to recover the penalty is in the sender of the message.

The statute operates in favor of the sender of a message delivered at an office in this State, and upon a corporation represented within our borders by its agents and officers. The parties are therefore within our jurisdiction. The duty which the statute assumes to enforce is one arising in Indiana, for it grows out of and is founded upon an undertaking entered into in this State. The parties and subject-matter being within our jurisdiction, they are subject to our laws. Persons and property within the jurisdition of a State are subject to the laws of that State.

The duty which the statute seeks to enforce is owing here in Indiana, and not elsewhere; it was here that the contract was made which imposed the duty on the telegraph company, and it was here that the failure occurred, for the message was not transmitted, as the law commands, in good faith and with diligence and impartiality. The duty which the company failed to perform was not a duty owing in Iowa, but was a duty owing in Indiana, where the parties executed the contract out of which the duty arose. The duty of the company did not end at the State line; it extended throughout the whole scope of the undertaking, and required the message to be transmitted and delivered in good faith and with reasonable diligence to the person to whom it was sent. The breach of duty, no matter where the specific act constituting it occurred, was a breach here, and not elsewhere. The duty is a general and continuous one, and if not performed, the failure to perform, irrespective of the place where the failure occurred, is a breach of the duty at the place of its creation. There is not the slightest resemblance between such a case as this and cases of distinct and independent wrongs occurring wholly beyond the limits

of the State; nor is there the remotest analogy between such a case as the present and the case of an attempt to enforce in one jurisdiction the laws of another State or Nation. There is here no attempt to enforce the law of another State, nor to enforce a penalty for a breach of a duty created by a foreign statute. The action is in an Indiana forum to enforce a duty created by an Indiana statute, and arising out of an Indiana contract made by parties within the State. We see no reason to depart from the rule laid down in the cases of Western Union Tel. Co. v. Hamilton, supra; Western Union Tel. Co. v. Lindley, supra; and Carna· han v. Western Union Tel. Co., supra, and we not only refuse to overrule them, but expressly and fully approve them.

In holding as we do, that our statute may be enforced, although the undertaking is to transmit the message beyond the State, we do not trench upon the doctrine that State laws have no extraterritorial effect. What we hold is that the statute operates upon the parties and the subject-matter within our jurisdiction by enforcing the performance of a duty created here, owing here, and violated here.

If a telegraph company should show a positive statute of another State commanding the delivery of messages in a certain manner, and different from that prescribed by our statute, then it would perhaps be true that the company would make out a perfect defense by showing obedience to its commands. In such a case the defense would not be good, for the reason that our statute is bad, but because of the rule that necessity is always an excuse, and a positive law enjoining a duty creates a necessity. However this may be, the defense in this case is not valid, for the reason that there is nothing in the Iowa statute which contravenes or impairs the statute of Indiana.

We have decided several times, as has been already shown, that our statute gives the right of action for the penalty to the sender of the message, and he can of course recover no other penalty than that prescribed by our statute. If the company should wrongfully violate the law of some other State, and be punished by the courts of that State, the punishment would not be for a violation of our law, but would be for a wrong committed against the law of another jurisdiction, so that it is impossible that the punishment should be for one and the same offense.

Our statute does not give the right to the penalty because a specific act of negligence is committed, but gives the penalty to secure the performance of a duty which springs into existence when the contract is made. It is the breach of duty that is punishable, and not the particular act which constitutes the breach. Wherever the act which constitutes the breach of duty is committed, whether here or in a foreign jurisdiction, the duty is broken here, where it came into being, and where it was owing and should be discharged. A confusion of thought leads to a wrong conclusion, but this is cleared away when it is brought fully into view that the wrong consists in the violation of duty, and that this violation takes place where the duty exists, and where the one party owes it and the other has a right to demand that it be neither violated nor omit ted. There is no conflict of law, and no clashing of jurisdiction, for where the duty is owing there it is violated by an act which constitutes a breach.

Mr. Thompson says: "In an action to recover the statutory penalty for failure to transmit a message from an office in one State to an office in another State, the fact that the act of negligence which prevented the message from reaching its destination occurred out of the former will not defeat a recovery in that State." 2 Thomp. Neg. 838.

Judgment affirmed.

CLARK'S ADMR. V. RICHMOND AND D. R. Co.

C., a brakesman on a freight train of the R. & D.'R. R., while in discharge of his duties on the top of a car, in the night time, was struck by an over-head bridge and killed. This bridge, like most of the over-head structures on same road, did not admit of a man's standing erect upon the top of a car while passing under it. Previous to his employment as brakesman, C. had been employed in the railroad company's yard in shifting cars, making up trains

etc.

At the time of his employment as brakesman he was warned by the company's agent to look out for the over-head bridges, and his fellow brakesmen were instructed to show him the bridges and warn him of the danger of them. He had passed under this same bridge three times in daylight. On the night in which he was killed, on leaving the station next before the bridge, he was warned to "look out for the bridge," and upon approaching the bridge his fellow brakesman, observing that he was standing, shouted to him to stoop, but he did not do so. In an action for damages brought by C.'s administrator the defendant demurred to the evidence. Held, that the defendant was not liable.

I. C. was guilty of negligence which was the proximate cause of his death, and the company is not liable in damages therefor.

II. The risk being one incident to the employment, and arising from causes open and obvious, the dangerous character of which C. had the opportunity to ascertain, must be held to have been in contemplation at the time of the contract, and to have been assumed by C.

RROR to the Circuit Court of Danville.
ROR

ER

Trespass on the case by H. F. Clark, administrator of James H. Clark, deceased, against the Richmond and Danville Railroad to recover damages for the killing of the said James H. Clark, a brakesman on the said road, through the alleged negligence of the defendant. Demurrer to evidence by the defendant, joinder therein and judgment for the defendant. The plaintiff obtained this writ.

The facts are fully stated in the opinion. Flournoy & Martin, and Carrington & Fitzhugh, for plaintiff in error.

H. H. Marshall, for defendant in error.

LACY, J. The case is as follows: The deceased, James H. Clark, was a brakesman upon a freight train of the defendant company; he lost his life on the 21st day of February, 1880, while in discharge of his duties as brakesman, and his administrator, the plaintiff in error, brought this suit to recover of the defendant in error damages on the ground that his death was due to the negligence of the defendant in error. The defendant demurred to the evidence, and the court compelled the plaintiff to join therein; the jury assessed the damages of the plaintiff, if judgment should be for him, at $7,500. The court sustained the demurrer, and gave judgment for the defendant thereon, whereupon the plaintiff applied for and obtained a writ of error and supersedeas to this court, which was awarded May 18, 1882.

The plaintiff's intestate's duty as brakesman on a freight train required him to be on the top of the moving train. In his service upon the said freight train, while running from Greensboro to Richmond, he was struck by a highway bridge which spans a cut in the said railroad line on the suburbs of the city of Dauville, and killed by the collision. In coming to Danville the train runs down grade, which begins about a

mile before reaching the said highway bridge. It was impossible for a man of ordinary stature to stand erect on the freight cars and pass with safety under said bridge, and such is the case with most of the overhead structures on the line of this road.

It is insisted that the defendant company was guilty of negligence in constructing its over head bridges so low as to require a brakesman who is doing duty to stoop in order to pass under the same with safety; and that it was negligence in the said company not to have any ascertained and established system of bridge signals to give notice of the approach to these bridges, and not to have any guard across the track to warn its employees of the approaching danger; and that in this case there was no sufficient warning given this brakesman who was a new hand and under twenty-one years of age, of the approach to this particular bridge which was passed in the night time. The evidence shows that the said employee was of the usual size and stature of full grown men, being six feet high, and weighing 180 pounds, and having the appearance of a full grown man; and the fact that he was under age was unknown to the company, or to any of its agents; that the said employee had been employed by the said company some two years before without objection on the part of his father, who suffered his son to collect his own pay from the company, and pay it to him; that for some time before he sought and obtained employment as brakesman he had been employed in the company's yard in Manchester, shifting cars, making up trains, and the like. The evidence shows that at the time when his service was engaged by the company's agent, the said employee was warned to look out for the over-head bridges, and his fellow brakesmen were instructed to show him the bridges and warn him of the dangers attending the same. The said employee had been under this highway bridge three times, and in the day time, and was killed in going under the same in the night time, but it was not a dark, but a moonlight night; that on leaving the station west of Danville, his fellow brakesman had said to him, "now we are going down to Danville, look out for the bridge," and the bridge in question was the only bridge in going from there down to Danville, When nearing the bridge his fellow brakesman saw he was standing, endeavored to warn him of the danger, and shouted to him to stoop, but he remained standing as if not hearing or noticing, and was struck and killed by the bridge.

The principles upon which a demurrer to evidence is to be considered have been often stated by this court. Upon the demurrer to evidence the practice is to allow either party to demur, unless the case be clearly against the party offering the demurrer, or the court should doubt what facts should be reasonably inferred from the evidence demurred to, in which case the jury is the fit tribunal to decide; to put all the evidence offered on both sides into the demurrer, and then to consider the demurrer as if the demurrant had admitted all that could reasonably be inferred by the jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it. See the opinion of Stanard, J., in Ware v. Stephenson, 10 Leigh, 155; Trout v. Va. & Tenn. R. Co., 23 Gratt. 619; Tutt v. Slaughter's Admr., 5 id. 364; Green v. Judith, 5 Rand. 1; Hansborough's Ex'r. v. Thorn, 3 Leigh, 147; Stevens v. White, 2 Wash. 203, 210; Union Steamship Co. v. Nottingham, 17 Gratt. 115; Richmond & Danville R. Co. v. Morriss; and Same v. Anderson, 30 id. 200 and 812; Richmond & Danville R. Co. v. Moore, Va. L. J., 1884, 84.

The plaintiff in error assigus as error in this case that

he was compelled in the Circuit Court to join in the demurrer. Either party, plaintiff or defendant, has a right to demur to the evidence, and the other party will be compelled to join in the demurrer, unless the case be plainly against the demurrant, and his object in demurring seems to be clearly nothing else but delay. Trout v. Va. & Tenn. R. Co., 23 Gratt. 619; Boyd's Admr. v. City Savings Bank, 15 id. 636; Hyers v. Green, 2 Call. 556; Rohr v. Davis, 9 Leigh, 30; Eubank'r Ex'r. v. Smith, Va. L. J. 1883, 245. Upon the evidence in this case it cannot be said that the evidence was plainly against the demurrant, or that the object of the demurrant was clearly nothing else but delay, and the plaintiff was properly required to join therein. When we consider this evidence in the light of the authorities cited, and the established principles which govern in the case of a demurrer to evidence, we must determine first whether the defendant was guilty of such negligence as was the immediate cause of the injury received by the deceased, and whether there was contributory negligence on the part of the deceased; whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary or common care and caution, that but for such negligence or want of ordinary care or caution on his part the misfortune would not have happened.

In the first case, the plaintiff would be entitled to recover; in the latter not; as but for his own fault the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not however disentitle him to recover unless it were such that but for that negligence or want of ordinary care and caution the misfortune could not have happened, nor if the defendant might, by exercise of care on his part, have avoided the consequence of the neglect or carelessness of the plaintiff. The negligence charged against the defendant company is as we have seen that the over-head bridges are constructed so low as not to allow a person to stand erect upon the top of freight cars passing thereunder, and in the second place not sufficiently warning the deceased of the threatened danger.

In the case of Devitt v. Pacific Railroad, 50 Mo. 302, questions similar to these raised by this record were considered and decided by the court. The plaintiff's son was a minor and was killed riding on the top of a freight car passing under a bridge. The accident occurred in the day time, and the deceased had been in the employ of the company about three weeks, had frequently passed under the bridge, and had been repeatedly warned to look out for this and other bridges aud when last seen he was sitting upon the brake facing the bridge. The court in that case held that "it would be difficult to imagine a clearer case of contributory negligence, and if one guilty of it could recover, or his friends for him, if the experiment proved fatal, we must necessarily ignore the legal consequences of such negligence. * * An employee or servant cannot recover for injuries received from the negligence of other servants when the principal is not at fault. But if the principal has been guilty of fault or negligence either in providing suitable machinery or in the employment or selection of suitakle agents or servants, and injury arise in consequence, he must respond in damages. This liability is however modified when the servant himself, well knowing the default of his principal, as in providing defective or unsuitable machinery, voluntarily enters upon the employment. By so doing he assumes the risk and hence cannot charge it to his employer. * * * If persons are induced to engage, in ignorance of such neglect, and are injured in consequence, they should be entitled to

*

compensation; but if advised of it they assume the risk. They contract with reference to things as they are known to be, and no contract is violated, and no wrong is done if they suffer from a neglect whose risk they assumed." Citing Wright v. N. Y. C. R., 25 N. Y. 566; Buzzell v. Laconia M. Co., 48 Me. 113; Thayer v. St. L. and T. H. R., 22 Ind. 26; Hayden v. Smithville M. Co., 2 Conn. 548; Mad. River and L. E. R. v. Barber, 5 Ohio St. 541.

In the case of Owen v. N. Y. C. R. Co., 1 Lans. 108, a brakesman, in the employ of a railroad company, while discharging duties in the line of his employment upon the roof of a freight car, was carried against a highway bridge, and sustained injuries, for which he brought an action against his employer. The bridge was some three and a half feet higher than the top of the highest freight car in use by the company. The brakesman had entered into the employment of the company with knowledge of the position and height of the bridge, and he had had opportunity of informing himself as to its continuance in the same position. It was held that the plaintiff should have been nonsuited, the danger from the bridge being clearly incident to the labor he undertook to perform. In view of the brakesman's knowledge as to the bridge, his omission to avoid the accident by stooping was such want of ordinary care and caution as would have defeated his action if otherwise maintainable. Having assumed the risk of injury to his person from the bridge, evidence offered by him upon the trial tending to show its dangerous character was properly excluded. "The danger was open and obvious and within the plaintiff's personal knowledge at the time he entered the defendant's employment. It was a danger clearly incident to the service he undertook to perform. He knew as well as his employer the perils of the business, at least as respects the bridge in question, and the law will imply that he assumed the risk of personal injury." Citing Sherman v. Rochester & Syracuse R. Co., 17 N. Y. 153; Faulkner v. Erie R. Co., 49 Barb. 324; 39 N. Y. 468.

"This is a well-settled rule; but if the rule were otherwise, upon the evidence in this case, the plaintiff was not entitled to recover upon another ground. The injury was caused by his own negligence. It is admitted that he knew that this was a low bridge, and he must have known that he could not pass under it while on the top of the cars, unless he stooped, without injury. He might have avoided all injury by the exercise of the most ordinary care and caution. The exception taken to the ruling of the court, excluding the evidence offered by the plaintiff that other persons had been killed at the same crossing, must be overruled. That evidence was wholly immaterial if the plaintiff took upon himself the risk of injury to his person from that structure, as he undoubtedly

did."

*

In the case of the Baltimore & Ohio R. Co. v. Stricker, 51 Md. 47, the court said upon this question: "This suit was brought by the appellee to recover for injuries received by being carried against a bridge spanning the appellants' road while he was on the top of a 'horse car' in the discharge of his duty as a conductor of a freight train. * * To entitle the plaintiff to maintain this suit, it was necessary to prove that the company had been guilty of negligence which directly caused the injury; that is to say, that in the relation which existed between the appellee and the company, the latter had failed or neglected to perform some duty toward the appellee, which was devolved upon it by law. And secondly, it must appear that the appellee was not guilty of any negligence on his part, or any want of reasonable prudence and caution to avoid the accident. 1st. As to the alleged negligence on the part of the company. In what did this consist?

It was said it was negligent in constructing the bridge so low that a conductor or brakesman could not pass under it in safety on the top of a house car where his duty required him sometimes to be. But there is no evidence to support this position; on the contrary all the proof shows that the employees of the company, and the appellee among them, every day passed under the bridge safely by observing the simple and easy precaution of stooping or sitting down while passing under the bridge.

"No negligence can be imputed to the company because the struts of the bridge were not high enough to allow a person to pass under them standing upright on top of the cars. Baylor v. Del. W. R. Co., 11 Vroom, 23. It was not required of the appellee to stand upon his feet while passing the bridge. * * *Nothing is better settled than that the implied contract between the employer and the employee is that the latter takes upon himself all the natural risks and perils incident to the service. Moran's case, 44 Md. 292.

When a servant enters upon an employment he accepts the service subject to the risks incidental to it. An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he had opportunity to ascertain. * *

*

"If a man chooses to accept employment, or continue in it, with the knowledge of the danger, he must abide the consequences so far as any claim against the employer is concerned. Wooley v. M. D. R. Co., 2 L. R. (Ex. Div.) 389.

"What then was the legal duty of this company? It was the duty of the company to exercise all reasonable care to provide and maintain safe, sound, and suitable machinery, road-way, structures and instrumentalities; and it must not expose its employees to risks beyond those which are incident to the employment and were in contemplation at the time of the contract of service; and the employee has a right to presume that

company. While we think the accident was caused by want of reasonable care on the part of the appellant's intestate, we do not rest our decision solely on this ground. This peril was oue incident to the em ployment, in contemplation at the time of the contract, and arising from causes open and obvious, the dangerous character of which the deceased had an opportunity to ascertain, and the risk of which he assumed. Having stated our opinion upon the rules of law applicable to the case, which deny to the appellee the right to recover, it is not necessary to more specially notice the several assignments of error contained in the record. We are of opinion that there is no error in the judgment complained of and appealed from in this case, and the same must be affirmed.

BECKWITH V. BURROUGH.*

Whenever any property, tangible or intangible, becomes liable to attachment or execution for debt, it falls under the common-law rules forbidding its transfer in fraud of creditors.

A. transferred certain corporate stock in fraud of his creditors. It was subsequently attached as the property of A. and after judgment against A. sold on execution. The purchaser filed a bill in equity to obtain the stock. Held, that the shares of stock were liable to attachment and execution sale as the property of A. notwithstanding the prior fraudulent transfer by him.

Held further, that the bill in equity should be maintained, the complainant having no adequate remedy at law, if any.

case, 20 Md. 212; Scally's case, 27 id. 589; Wonder's case, 32 id. 419."

In the case in hand the deceased, after service in the company's depot grounds for some time, engaged about shifting cars, coupling cars, and such like duties, sought employment as brakesman. As this service was performed in the town of Manchester, on the banks of the James river, which is spanned by one of the bridges of this railroad company, and close to the same, it might be presumed perhaps that he knew of the character of the duties of a brakesman performed before his eyes every day. But in this case it is clearly proved that he was instructed by his employer at the time of the contract of service, as to the dangerous character of the service required of a brakesman, and especially as to the danger in passing under these overhead structures without sitting down or stooping, and that he was notified in particular about this particular bridge, and that it was shown to him, and that he passed under it in the broad daylight which he could not have done without stooping. That after passing under this bridge three times, he was specially warned about it again as he was about to pass under it on the fatal night. That he did not exercise the precaution required of stooping, and that he was standing up when he was struck. Why he did not stoop or sit down will never be known, as he was killed by the collision. Whether he forgot to stoop, as he had before done in passing under this bridge, is not known, but his negligence in not exercising this simple and ordinary care and caution was the proximate cause of his death, without which it would not have occurred, and the appellant cannot recover damages therefor of the

stock. On demurrer to the bill.

James M. Ripley and John D. Thurston, for complainant.

Rollin Mathewson and Nathan W. Littlefield, for respondents.

DURFEE, C. J. This is a suit to avoid certain transfers of corporate stock. The stock was attached on original writ in an action at law in favor of the com plainant and one John T. Mauran against the defendant Burrough, and after judgment recovered against Burrough was sold on execution to the complainant. The stock had formerly belonged to Burrough and had stood in his name on the books of the corporation, but had been transferred on the books before the attachment. The bill alleges that the transfers were made by Burrough with intent to hinder, delay and defraud his creditors, and therefore asks to have them avoided. The case is before us now on demurrer under which three questions have been argued, to wit, first does our statute of fraudulent conveyances extend to fraudulent transfers of corporate stock, and if not, second, are such transfers void as against creditors at common law, and third, are shares of

corporate stock liable to attachment and to sale on execution, if they do not stand in the name of the debtor? The discussion of the two first ques tions discloses some diversity of decision. There are cases which apply to the statute a very liberal construction and hold that it extends to every species of property which is liable to be taken by legal process for the payment of debts, the words "goods and chat*To appear in 14 Rhode Island Reports.