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to divide the profits after deducting a fixed sum for expenses; but A. was not to bear any losses. Held, that A. and B. were not partners as to third persons." This case is reported in 22 Am. Rep. 94, also.
In Beecher v. Bush, 45 Mich. 188; S. C., 40 Am. Rep. 465, the plaintiff endeavored to hold the defendant liable, on the ground of participation in profits. The court decided that the defendant was not liable, and Cooley, J., at the close of his opinion in the case, added the weight of his great name as a jurist to the authorities in favor of the only sound and logical doctrine, that there can be no partnership as to creditors where there is no partnership in fact, provided the defendant has not by acts or declarations estopped himself from denying that he is a partner. He says: "We also think there can be no such thing as a partnership as to third persons, when as between the parties themselves there is no partnership, and the third person has not been misled by concealment of factors or by deceptive appearances."
It has sometimes been stated that participation in profits ought to render the recipient liable on the ground that he has a right to bring an action in equity for an account of the profits in order to fix the amount coming to him. Now the fallacy of this argument lies in the assumption that no one other than a partner can maintain such an action. This is not the law. It is well settled that any person who has a right to a certain share of profits, though he be not a partner, may file a bill for an account of such profits. Bentley v. Hurris, 10 R. I. 434; S. C., 14 Am. Rep. 695; Hargrave v. Conroy, 4 C. E. Green, 280; Harrington v. Churchward, 29 L. J. Ch. 521; Sheppard v. Brown, 4 Giff. 208; Buel v. Sely, 5 Ill. App. 116; Garr v. Redman, 6 Cal. 574; Ferry v. Henry, 4 Pick. 75; Hallett v. Clemstone, 110 Mass. 32; Eastman v. Clark, 16 Am. Rep. 192-249; Collyer on Part., § 45, n.; Story on Part., § 50, n.; 2 Lindley on Part. 946. The distinctions which some of the courts have made between partnerships between the parties and partnerships as to creditors has necessitated the use in this article of an expression that is tautological. We refer to the phrase "partnership inter se." The word partnership implies the existence of an agreement between two or more, and there can be no partnership even as to creditors unless there be a partnership in fact. It is incorrect to say that one not a partner is liable as such because he has held himself out as such to the world. He is not a partner; but is liable on the ground of estoppel. Having shown that upon principle and authority there can be no liability as partner in the absence of estoppel, unless the party sought to be charged is in fact a partner, it remains to be determined what will constitute one the partner of another. The question is not whether he has agreed to sustain a share of the losses; nor does it depend upon his being interested in the partnership funds and property. He may be a partner, even though he has stipulated that he shall not suffer any loss; and even though he has no interest in the partnership assets. These and other circumstances are to be considered in determining the question of partnership, but they are not decisive of that question. The ultimate inquiry in all cases is whether the party claimed to be a partner has become by agreement a principal trader in the
business with another. In other words, has he a right to participate as principal trader in the management of the business? If he has, he is a partner. If he has not, he is not a partner, with a single exception, which however is rather apparent than real. The exception is this: A person may be a partner, even though he has by express agreement intrusted the control of the business exclusively to his associate in the business. The question, strictly speaking, is not whether the party has a right to control the business as principal trader in the particular case, but whether he would
have such right in that case by virtue of the agreement between himself and another, in the absence of any express provision conferring that right upon his associate in the business. If it appears that he would have had such right had it not been for his agreement to the contrary, then he is a partner, and his agreement merely operates as a surrender to his associate of a right which he would otherwise have enjoyed. We submit that upon principle the question of partnership is to be determined by the three following rules: 1st. When the recipient of profits has, by virtue of an agreement with another, a right to participate as principal trader in the management of the business out of which the profits are to arise, then he is a partner, and liable as such; and no secret intent not to become a partner, and no provision in the contract restricting his liability or exempting him from all liability will afford him immunity from the responsibilities of a partner.
2d. When the recipient of profits would, in the absence of any express provisions in the agreement to the contrary, have by virtue of such agreement a right to participate as principal trader in the management of the business, then he is a partner, even though he has expressly agreed that his associate in the business shall have the right to exercise exclusive control in conducting the business.
3d. In all other cases the recipient of profits is not a partner, and cannot be held liable to creditors unless he has estopped himself from denying that he is a part
PHOENIX BANK V. RISLEY.*
Money in a bank in New York, held to the credit of an institution in South Carolina, is not of such specific quality that it is liable to seizure by a United States marshal in confiscation proceedings.
In an action by defendant in error in the State court, on an assignment of part of the amount standing to the credit of the South Carolina institution, the plaintiff in error set up that the money due said institution had been seized, condemned, and paid over to a United States marshal by virtue of confiscation proceedings. Held no defense, and that the assignee's right to recover was unaffected by such proceedings.
Appeals of New York.
The defendant in error recovered against the plaintiff in error the sum of $10,000 and interest by the verdict of a jury, which found, as matter of fact, that the
Bank of Georgetown, South Carolina, having a balance with the Phoenix Bank of New York on the 20th day of May, 1861, assigned to Risley, the plaintiff, in the State court, $10,000 of that sum, of which the Phoenix Bank had due notice by demand made by Risley,January 4, 1865.
With the questions which arose out of this transaction in the State court we have nothing to do, except as they concern the defense set up by the bank that
*Affirming 83 N. Y. 318.
the money in its hands due to the Bank of Georgetown had been seized, condemned, and paid over to the marshal of the Southern District of New York by virtue of certain confiscation proceedings in the District Court of the United States for that district.
The sufficiency of those proceedings as a defense to the action raises a question of a claim asserted under an authority of the United States, and as the Court of Appeals sustained the judgment of the inferior court of that State rejecting the defense, the case, as to that question, is cognizable in this court.
The record of the confiscation proceedings in the District Court was rejected by the State court when offered in evidence by defendant, and our inquiry must be directed to ascertain, whether if admitted, it would have been a good defense.
The judge, before whom the jury trial was had, refused to receive the record in evidence, because it showed that the confiscation proceedings, being in rem, were directed against certain specific money, which was the property of the Georgetown Bank and which the Phoenix Bank held as a special deposit in the nature of a bailment, and not against the debt which the Phoenix Bank owed to the Georgetown Bank arising out of their relations as corresponding banks; that this debt being assigned to Risley, the plaintiff was unaffected by the confiscation proceedings, because it was not mentioned in them, and no attempt was made to subject that debt to condemnation.
That the relation of the Phoenix Bank and the Georgetown Bank was that of debtor and creditor and nothing more, has been the settled doctrine of this court, as it is believed to be of all others, since the case of the Marine Bank v. Fulton Bank, 2 Wall. 252. In that case it was said, that "all deposits made with bankers may be divided into two classes, namely, those in which the bank is bailee of the depositor, the title to the thing deposited remaining with the latter; and that other kind of deposit of money peculiar to the banking business, in which the depositor, for his own convenience, parts with the title to his money and loans it to the banker; and the latter, in consideration of the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand." "It would be a waste of time," said the court, "to prove that this latter was a debtor and creditor relation." This proposition has been reaffirmed in Thompson v. Riggs, 5 Wall. 572; Bank v. Millard, 10 id. 155; Oulton v. Savings Institution, 17 id. 503; Scammon v. Kimball, 92 U. S. R. 370; and Newcomb v. Wood, 97 U. S. 583.
Mr. Parker, the cashier of the Phoenix Bank, speaking of the time when the marshal served the monition in the confiscation case on him, says that there were no specific funds, separate in kind, in the bank belonging to the Georgetown Bank, and only a general indebtedness in account for money, or drafts remitted, which has been collected. "It was a debt. No specific money or bills, the property of the Georgetown Bauk."
The libel of information in the District Court commences by saying that it is "against the estate, property, money, stocks, credits, and effects, to wit: against $15,000 (fifteen thousand dollars), more or less, belonging to the Bank of Georgetown, a corporation doing business at Georgetown, in the State of South Carolina, which said $15,000 is now in cash, and is now on deposit in the Phoenix Bank, a corporation doing business in the city of New York, all of which are owned by and belonging to and are the property of the said Bank of Georgetown."
And it is alleged, that by reason of the use of this property in aid of the rebellion, and the treasonable practices of the Georgetown Bank, the said property,
estate and effects are subject to lawful prize, capture and seizure, and should be confiscated and condemned.
The monition, after reciting the libel against $15,000 belonging to the Georgetown Bank, which said $15,000 is now in cash and on deposit with the Phoenix Bank, commands the marshal to attach the said $15,000, and to detain the same in his custody until the further order of the court.
The return of the marshal is that he attached $13,000, more or less, deposited in the Phoenix Bank, belonging to the Bank of Georgetown, and gave notice to all persons claiming the same that the court would try the case on January 24 thereafter.
The decree of the court is, that he, the judge, doth hereby order, sentence, and decree that $12,117.38 belonging to the Bank of Georgetown, of Georgetown, in the State of South Carolina, and now on deposit in the Phoenix Bank, in the city of New York, which said $12,117.38 has been heretofore seized by the marshal in this proceeding, be and the same is hereby condemned as forfeited to the United States.
On this sentence a venditione exponas was issued to the marshal, in which he is ordered to sell this $12,117.38, and to have the moneys arising from the sale at the District Court on a day mentioned.
It is not possible to understand that this case proceeded on any other idea than the actual seizure of a specific lot of money, supposed at first to amount to $15,000, but which turned out to be less, and that that lot of money was seized, was formally condemned and ordered by the court to be sold, and the proceeds of the sale brought into court for distribution under the confiscation law. The specific money is described by apt words, as the property of the Bank of Georgetown, for whose misconduct it is seized, condemned and forfeited.
The very language is used, and no other, that would be if it were twelve hundred horses instead of twelve thousand dollars, of which the Georgetown Bank was owner, though in the possession of the Phoenix Bank.
There is not the slightest intimation in the libel, the monition, the return to that monition, or in the final decree, that a debt due by the Phoenix Bank to the Georgetown Bank is attached, and no language appropriate to such a purpose is found in the whole proceeding from the beginning to the end. On the contrary, the whole case presents the idea of tangible property, actual cash taken by manual seizure, in the hands of the Phoenix Bank, the ownership of which was in the Georgetown Bank; that these dollars, whether of gold, silver, or bank bills, were to be placed in the hands of the marshal and sold, and the sum bid for them brought into court under its order.
In further illustration of this idea, the libel charges that the Bank of Georgetown, the owner of the property libelled, did purchase and acquire said property, and the same was sold and given to it by a person unknown to the attorney, with intent to them to use and employ, and to suffer the same to be used and employed, in aiding, abetting and promoting the insurrection, and resistance to the laws, and in aiding and abetting the persons engaged therein, and that the Georgetown Bank did knowingly use and consent to such use of the property, contrary to the provisious of an act to confiscate property used for insurrectionary purposes," approved August 6, 1861.
It is beyond question that this act was directed to the confiscation of specific property used with the consent of the owner to aid the insurrection, and had no reference to the guilt of the owner, and could only apply to visible, tangible property which had been so used.
If the thing seized and condemned in the District
Court was the actual dollars, they were the property of the Phoenix Bank, and the loss was its loss, and that did not satisfy the debt which at that time it owed to Risley; nor would it have been otherwise if the debt had been then due to the Georgetown Bank, for the debt was not seized, but the dollars of the Phoenix Bank.
Counsel for plaintiff in error insists strenuously however that it was the debt which was intended to be seized and condemned, and which constitutes the res in the proceeding.
We are not able to see that this view of the matter places the case in any more favorable condition for the bank,
While the manner of seizing ordinary personal property or real estate, for the purposes of confiscation proceedings, under the two acts of Congress on which this libel professes to be founded, namely, the act of April 6, 1861, and the act of July 17, 1862, is easily understood and followed, namely, an actual seizure and actual possession by the officer under the monition, it has not been so plain what proceeding should be had in the confiscation of debts due to one who has incurred the penalty of such confiscation, and who is not within the jurisdiction of the court.
In this class of cases, where the debt is evidenced by a note, bond, or other instrument in writing whose possession carries the right to receive the debt, it may be that the manual seizure of that instrument gives jurisdiction to the court to confiscate it and the debt which it represents.
And we are not prepared to say that the debt itself may not be confiscated in the absence of the bond or note which represents it. But in this class of cases, and in the case of an indebtedness on a balance of accounts where no writing or other instrument represents the debt or ascertains its amount, or carries with it by transfer the right to receive it, it is obvious that something more is necessary than the statement of the marshal that he has attached or seized a certain sum of mony.
In the case of Miller v. United States, 11 Wall. 268, which was a case of confiscation of stock in a railroad company, these difficulties are fully considered, and it is there held that the proper mode of seizure of such stock is by notice of the proceeding and attachment to the proper officer of the company, whose stock is the subject of the proceeding. And the same matter is very fully considered in the subsequent case of Alexandria v. Fairfax, 95 U. S. 774, where the sufficiency of the seizure was brought up collaterally in another suit, and the whole proceeding held void, because notice of the seizure or attachment of the debt of the city of Alexandria was not made to the officer of the city named by the statute of the State, though it was given to another officer of the city government.
The statute authorizing these confiscation proceedings requires that they be conducted according to proceedings in admiralty as near as may be, and hence libels, monitions, publications, and sentences have been the usual mode of enforcing confiscation. The thirty-seventh admiralty rule in force, long before this statute was enacted, provides how such seizures shall be made:
"In cases of foreign attachment, the garnishee shall be required to answer under oath or solemn affirmation as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded to him by the libellant; and if he should refuse so to do, the court may award compulsory process against him. If he admits any debts, credits, or effects, the same shall be held in his hands liable to the exigency of the suit."
Here was a plain mode of attaching the debt of the
Phoenix Bank due to the Georgetown Bank pointed out by the very rule to which the act of Congress referred as prescribing the mode of practice in such
In the first case, above referred to, the court, after referring to the practice in admiralty, said: "These are, indeed, proceedings to compel appearance, but they are nevertheless attachments or seizures bringing the subject seized within the jurisdiction of the court, and what is of primary importance, they show that in admiralty practice, rights in action, things intangible as stocks and credits, are attached by notice to the debtor or holder without the aid of any statute."
In the latter case the court said: "We are compelled to inquire whether the simple statement of the marshal, that he had given notice to R. Johnson, auditor of the city, was a sufficient seizure, in face of the conceded fact that he had made no actual or manual seizure of any thing to give jurisdiction to the court. And in determining what it was of which Johnson had notice, it is, perhaps, fair to infer that the marshal read to him the paper issued by the district attorney."
The court, after saying there is no doubt that the stocks were credits and liable to confiscation within the meaning of the act, added:
"It is clear that there was a mode of reaching them under the act of Congress, notwithstanding the evidences of Fairfax's right to them were in his pocket and beyond the reach of the court. If the debt due him had been by an individual, there would have been no difficulty in serving such a process or notice on the debtor as would have subjected him to the order of the court in regard to it."
The record of the District Court in the confiscation proceedings gives no evidence of any service of notice on the Phoenix Bank, the debtor in this case, and as it was an ex parte proceeding in the absence of the party whose property was condemned, the language of the court in Alexandria v. Fairfax is appropriate, that "where the seizure is a sine qua non to the jurisdiction of the court, and where, as in the present case, actual manucaption is impossible, the evidence which supports a constructive seizure should be scrutinized closely, and be of a character as satisfactory as that which would subject the party holding the fund or owing the debt, which is the object of the proceedings, to an ordinary civil suit in the same court." 95 U. S. 779.
Assuming that as argued by counsel, this was a proceeding to reach the debt of the Phoenix Bank to the Georgetown Bank, then it could not be the subject of actual manucaption or seizure, and there should be such evidence of service of the attachment or notice ou the Phoenix Bank as would be sufficient in an ordinary civil suit for that debt.
Nothing of the kind is shown here. No notice of any kind to the Phoenix Bank is shown in that record.
But in the deposition of the cashier of the Phoenix Bank in the present suit, he is shown the monition in the confiscation case, and says that paper was served on him on the 5th day of January, 1865, at 11:50 in the morning.
It admits of grave doubt whether the essential fact on which the jurisdiction of the court in the confiscation case depended, not being found in the record, can be supplied in another suit where it is introduced in evidence, by parol proof of that fact.
But if it could be done at all, the monition which was served on the cashier gave no intimation of a proceeding to charge the Phoenix Bank with a debt due from it to the Georgetown Bank, and require it to pay said debt to the marshal or into the court. Nothing
in that monition required the bank to answer in regard to such a debt, and the bank made no answer. If it had been called on by that notice to answer, as it certainly would if a debt was claimed of it as being due to the Georgetown Bank, it would have been bound at its peril to have disclosed the assignment of that debt to Risley by the Georgetown Bank, and the demand and notice of Risley to the Phoenix Bank before the commencement of the confiscation proceedings. Indeed it is quite remarkable that no answer or appearance for the Phoenix Bank is made in that proceeding. If the money, the actual cash in the bank vaults, was attached, the bank must have known that the dollars were its dollars, and it should have defended. If it was the debt which was attached, its legal duty to its creditor, whether that was Risley or the Georgetown Bank, was to have stated the facts to the court.
It does not appear to us that any seizure or attachment of the debt due by the Phoenix Bank to the Georgetown Bank was made, by which the District Court, if it intended to do so, obtained jurisdiction to confiscate it.
On the whole case, we are of opinion
1st. That the specific money in the Phoenix Bank, against which the confiscation proceedings seem to have been directed, and which was condemned, was the money of that Bank, and not of the Georgetown Bank, and the loss, if any, is the loss of the Phoenix Bank.
2d. That no such seizure or attachment was made of the debt due by the Phoenix Bank to the Georgetown Bank, if any such debt existed, when the proceedings were commenced, as would give the District Court jurisdiction of that debt, and no actual condemnation of that debt, or order on the Phoenix Bank to pay it, was made, which can constitute a defense to the present action.
3d. That the right of Risley to recover the debt as assignee of the Georgetown Bank remains unaffected by those proceedings.
The judgment of the Court of Appeals of New York is therefore
PROXIMATE CAUSE - UNFENCED RAILWAYINJURY TO CHILD.
SUPREME COURT OF THE UNITED STATES, APRIL 7, 1884.
HAYES V. RAILROAD COMPANY.
Where a municipal ordinance, granting to a railroad the right of way through the city, requires it to maintain suitable fences, and provides that upon the acceptance by the company of the benefit of the ordinance covenants shall be executed by both parties, embodying its terms, the enactment is not merely a contract between the public corporation and the railroad, but a positive mandate for the benefit of the individual citizens, any one of whom is entitled to recover damages suffered by him through the neglect of the company to discharge the duties thus imposed.
The ordinance requiring such sufficient walls and ences to be maintained as would secure persons and property from danger, "said structure to be of such height as the city council may direct,” held, that the obligation to build sufficient fences was absolute. The right of the council was to give specific directions if it saw proper, and to supervise the work when done, if necessary; but it was matter of discretion, and they were not required to act in the first instance, nor at all, if they were satisfied with the work as executed by the railroad company.
The plaintiff, a child, who was playing in a public park strayed upon the railway and was injured; held, that it was a question of fact for the jury whether the absence of
a fence was the cause of the mishap. It is not necessary, in order to charge the company with the responsibility, that its negligence should be the efficient cause of the injury; if the injury would not have occurred but for such negligence, that is enough.
N error to the Circuit Court of the United States for the Northern District of Illinois. The opinion states the case.
A. D. Rich, for plaintiff in error.
Ashley Pond, for defendant in error.
MATTHEWS, J. This action was brought by the plaintiff in error to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in error. After the evidence in the cause had been closed, the court directed the jury to return a verdict for the defendant. A bill of exceptions to that ruling embodies all the circumstances material to the case, and presents the question, upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury.
The defendant, in running its trains into Chicago, used the tracks of the Illinois Central Railroad Company, under an arrangement between them; and no question is made but that the defendant is to be treated, for the purposes of this case, as the owner as as well as occupier of the tracks.
The tracks in question are situated for a considerable distance in Chicago, including the place where the injury complained of was received, on the lake shore. They were built in fact, at first, in the water on piles; a breakwater, constructed in the lake, protecting them from winds and waves, and on the west or land side, the space being filled in with earth, a width of about 280 feet, to Michigan avenue, running parallel with the railroad. This space between Michigan avenue and the railroad tracks is public ground, called Lake Park, on the south end of which is Park Row, a street perpendicular to Michigan avenue and leading to and across the railroad tracks to the water's edge. Numerous streets, from 12th street north to Randolph street, intersect Michigan avenue at right angles, about 400 feet apart, and open upon the park, but do not cross it. Nothing divides Michigan avenue from the park, and the two together form one open space to the railroad.
The right of way for these tracks was granted to the company by the city of Chicago over public grounds by an ordinance of the common council, dated June 14, 1852, the 6th section of which is as follows:
"Section 6. The said company shall erect and maintain on the westeru or inner line of the ground pointed out for its main track on the lake shore, as the same is herein before defined, such suitable walls, fences, or other sufficient works as will prevent animals from straying upon or obstructing its tracks and secure persons and property from danger, said structure to be of suitable materials and sightly appearance, and of such height as the common council may direct, and no change therein shall be made except by mutual consent; provided however that the company shall construct such suitable gates at proper places, at the ends of the streets which are now or may hereafter be laid out, as may be required by the common council, to afford safe access to the lake; and provided also that in case of the construction of an outside harbor, streets may be laid out to approach the same, in the manner provided by law, in which case the common council may regulate the speed of locomotives and trains across them."
It was also provided in the ordinance, that it should be accepted by the railroad company within ninety days from its passage, and that thereupon a contract
under seal should be formally executed on both parts, embodying the provisions of the ordinance and stipulating that the permission, rights, and privileges thereby conferred upon the company should depend upon their performance of its requirements. This contract was duly executed and delivered March 28, 1853.
The work of filling in the open space between the railroad tracks and the natural shore line was done gradually, more rapidly after the great fire of October 9th, 1871, when the space was used for the deposit of the debris and ruins of buildings, and the work was completed substantially in the winter of 1877--8.
In the meantime several railroad tracks had been constructed by the railroad company on its right of way, used by itself and four other companies for five years prior to the time of the injury complained of, and trains and locomotives were passing very frequently, almost constantly.
The railroad company had also partially filled with stones and earth the space east of its tracks, to the breakwater, sufficiently so in some places to enable people to get out to it. This they were accustomed to do, for the purpose of fishing and other amusements, crossing the tracks for that purpose. At one point there was a roadway across the park and the tracks, used by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great numbers of people crossed to the breakwater; from two streets, the public were also accustomed to cross over the tracks from the park to ferryboats.
From Park Row, at the south end of the park, running north a short distance, the railroad company, in 1872, had erected on the west line of its right of way a five-board fence, the north end of which at the time of the injury to the plaintiff was broken down. The rest of it was in good order.
The park was public ground, free to all, and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open-air concerts.
The plaintiff was a boy between eight and nine years of age, bright and well-grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake Park. Across the street from where they lived was a vacant lot where children in the neighborhood frequently played.
On Sunday afternoon, March 17, 1878, St. Patrick's day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the permission of his father, to play; while playing there a procession celebrating the day passed by, and the plaintiff, with other boys, but without the observation of his brother, followed the procession to Michigan avenue at 12th street, just south of Lake Park; he and his companions then returned north to the park, in which they stopped to play: a witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north; turning round toward it he saw the plaintiff on the tracks south of him, but north of the end of the fence; he also saw a colored boy on the ladder on the side of one of the cars of the train motioning as if he wanted the plaintiff to come along; the plaintiff started to run north beside the train, and as he did so,turned and fell, one or more wheels of the car passing over his arm. There were four tracks at this point, and the train was on the third track from the park. The plaintiff had his hands reached out toward
the car, as he ran, as if he was reaching after it, and seemed to the witness to be drawn around by the draft of the train, and fall on his back. Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit.
The question of contributory negligence does not appear to us to arise upon this record. It is not contended by the counsel for the defendant in error, that if there was evidence tending to prove negligence on its part, the case could properly have been withdrawn from the jury on the ground that it appeared as matter of law that the plaintiff was not entitled to recover by reason of his own contributory negligence. The single question therefore for present decision is whether there was evidence of negligence on the part of the defendant which should have been submitted to the jury.
The particular negligence charged in the declaration and relied on in argument, is the omission of the railroad company to build a fence on the west line of its right of way, dividing it from Lake Park; a duty, it is alleged, imposed upon it by the ordinance of June 14, 1852, a breach of which, resulting in his injury, confers on the plaintiff a right of action for damages.
It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that at common law the question is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with such reasonable precautions for the safety of others, not in fault, as is required by the maxim, sic utere tuo, ut non alienum lædas; that consequently in circumstances where the public safety requires such a precaution, as a fence, to prevent danger from the ordinary operations of the railroad, to strangers not themselves in fault, the omission of it is negligence; and that it is a question of fact for a jury, whether the circumstances exist which create such a duty.
This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. "These cases," said the Supreme Court of Massachusetts in Eaton v. Fitchburg R. Co., 129 Mass. 364, "all rest on the commonlaw rule that when there are different public easements to be enjoyed by two parties, at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has common rights in the highway at those points. The fact that the Legislature has seen fit, for the additional safety of travellers, imperatively to require the corporation to give certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary." It was accordingly held in that case, that the jury might properly consider, whether, under all the circumstances, the defendant was guilty of negligence in not having a gate or a flagman at the crossing, although not expressly required to do so by any statute or public authority invested with discretionary powers to establish such regulations.
And the same principle has been applied in other cases, than those of the actual coincidence, at crossings, of public highways.
In Barnes v. Ward, 9 C. B. 392, it was decided, after much consideration, that the proprietor and occupier of land making an excavation on his own land, but adjoining a public highway, rendering the way unsafe to those who used it with ordinary care, was guilty of a public nuisance, even though the danger consisted in