"In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track."

"Statutes and municipal ordinances in every jurisdiction prescribe specifically the duty of railway corporations in respect to railway crossings; but no failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing upon approaching a railway crossing, and whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad's failure to perform its duty": Beach on Contributory Negligence, sec. 64, p. 195. See also Wood's Railway Law, 1312; Salter v. Utica etc. R. R. Co., 75 N. Y. 281; Murray v. Pontchartrain R. R. Co., 31 La. Ann. 492; Childs v. New Orleans City R. R. Co., 33 La. Ann. 151; Houston v. Vicksburg etc. R. R. Co., 39 La. Ann. 796; Weeks v. New Orleans etc. R. R. Co., 40 La. Ann. 800; 8 Am. St. Rep. 560.

As applied to the case in hand, this reasonable rule required that Brown, in attempting to cross the railroad track, should have looked up and down the track; by so doing he would inevitably have seen the train, which was in full view for nearly a mile, without the slightest obstruction. And that obligation is not affected by the fact that the train was a special or extra train; that circumstance may have mitigated the degree of his negligence, but it could not screen his conduct from the imputation of some negligence. Had he listened as he approached the crossing, he would certainly have heard the train as it thundered along in the open field at the rate of thirty miles an hour, with no obstruction to sound, and making a noise which one of the witnesses compares to that made by "a drove of cattle going across a bridge."

It is in proof that one of plaintiffs' witnesses, who was half a mile off, that another, who was at a distance of one hundred yards, a third, who was three hundred yards off, and a fourth, who was at a distance of several hundred yards, and who was walking toward Brown, on the same road and on the opposite side of the track, all saw and heard the train before the accident; and that the attention of one of them was attracted to the train by the noise which it made.

There is no pretense that Brown was defective in hearing, or near-sighted, and it is passing strange that he should have neither seen or heard the approaching train. Plaintiffs' coun

sel suggests that his mind was absorbed in thoughts about his work. This is very probably the case, and it turns out to have been his misfortune, and the loss of his parents; but it is legal negligence, which clearly contributed to the deplorable accident which cost him his life, and which is a bar to plaintiffs' right of recovery in this case.

It was negligence on the part of the engineer to have omitted to sound the whistle at a quarter of a mile before that crossing; but that omission did not render the accident inevitable, if, on the other hand, Brown had been sufficiently prudent and careful when he approached the crossing.

It is in proof that his mules came from a slow trot to a walk at about twenty feet from the track. Had he seen or heard the train, it was yet time, and it would have been easy for him to have stopped his team, and thus have avoided the accident.

When the train-hands first saw him, they used every means in their power to avoid the collision; but it was no easy matter to stop a train moving at the rate of thirty miles an hour, and there was no obligation on the part of the company to slacken the speed of its trains at the numerous plantation cross-roads intersected by its track. When the fireman first saw Brown, he rang the bell, and he naturally supposed that the team would be stopped before reaching the crossing; but as the team kept on approaching, the engineer, who could not see Brown from his place, was then warned, and he applied the brakes and reversed his engine; but it was too late. At that point, nothing more could have been exacted of them. We therefore conclude that Brown's negligence or want of care contributed to the accident, and that therefore his parents cannot recover in the present action.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; that the verdict of the jury be set aside, and that plaintiffs' demand be rejected, and their action dismissed, at their costs in both courts.

RAILROAD COMPANIES, DUTY OF, AT PUBLIC CROSSINGS. - As to the duty required of a railway company towards one who may be approaching the track at a public crossing, see Heddles v. Chicago etc. R'y Co., 77 Wis. 228; 20 Am St. Rep. 106, and note 114, 115.

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RAILWAY CROSSINGS, DUTY REQUIRED OF PERSONS APPROACHING. who is approaching a railway crossing is bound to use the care of a prudent man, such as stopping, looking, and listening for approaching trains: Cincinnati etc. R'y Co. v. Howard, 124 Ind. 280; 19 Am. St. Rep. 96, and note; note to Heddles v. Chicago etc. R'y Co., 20 Am. St. Rep. 114, 115.

YOUNG v. UPSHUR.

[42 LOUISIANA ANNUAL, 362.]

JUDGMENTS, WHEN BINDING ON NON-RESIDENTS WITHOUT PERSonal SerVICE. An action by a citizen of one state in a court of another state against a citizen of another state, by which plaintiff claims title to an undivided one-half interest in joint ownership with defendant in a judg ment concerning property, rendered in the court where the present suit is brought, but which is pending on writ of error in the supreme court of the United States, is substantially a proceeding in rem; and an exception to the jurisdiction of the court ratione personæ, tendered by a curator ad hoc appointed to represent the absent defendant, on the ground that the latter has not been personally served, is not good. Substituted service by citation is effectual in such case, and the judgment rendered thereon will bind the absent defendant as to the property specially affected thereby.

Wade R. Young, in propria persona, for the appellant.

Hugh Tullis, curator ad hoc, for the appellee.

WATKINS, J. The plaintiff, claiming to be the owner of an undivided one-half interest in a certain judgment rendered by this court on appeal from the parish of Tensas, in the suit entitled Mrs. Annie M. Upshur et al. v. Mrs. Mary E. Briscoe et al., by purchase from the plaintiffs therein, who are citizens of the District of Columbia, and which is still pending on writ of error in the United States supreme court, complains,

1. That in the notarial act of transfer said plaintiffs, as transferrers, bound themselves not to interfere with her as the transferee of an interest therein, in the conduct and management of said suit, in any manner; 2. That said vendors. and transferrers refuse to execute and comply with their agreement, and disavow their title so made, and contrary to their obligation, are attempting to effect a compromise of the matters in litigation, in violation thereof and to her great injury. Therefore she instituted suit in the parish of Tensas, and prays for a judicial recognition and enforcement of said contract of sale and her ownership of one undivided half-interest in said judgment.

The defendants being absentees in the sense of the Revised Civil Code, 3556, No. 3, the court granted an order appointing for them a curator ad hoc, in pursuance of the provisions of article 56 and corresponding provisions of the Code of Practice, upon whom substituted service of citation was made. The curator excepted to the jurisdiction of the court ratione personæ, on the ground that defendants have not been cited personally,

and have not been brought into court by any process of the court issuing against property of theirs within its jurisdiction. This exception was sustained, the suit dismissed, and the plaintiff has appealed.

The question is, whether this proceeding constitutes judicial process within the meaning of the Fourteenth Amendment to the federal constitution. The leading case is Pennoyer v. Neff, 95 U. S. 730. In that case the supreme court announced the governing principle to be, that substituted service of citation "is effectual only when, in connection with process against the person for commencing the action, property in that state is brought under the control of the court and subjected to its disposition by process adapted to that purpose, or when the judgment is sought as a means of reaching such property, or (of) affecting some interest therein; in other words, when the action is in the nature of a proceeding in rem ": Page 733.

Then proceeding to specify what, in that sense, a proceeding in rem is considered to be, the court say: "It is true that in a strict sense a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but in a larger and more general sense, the terms are applied to actions between parties, when the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the state, they are substantially proceedings in rem, in the broader sense we have mentioned."

As preparatory to the utterance just quoted, the court said: Such service may, also, be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract, or a lien respecting the same, or to partition it among different owners, etc. In other words, such service may answer in all actions which are substantially proceedings in rem. But when the entire object of the action is to determine the personal rights and obligations of the defendants, that is, when the suit is merely in personam, constructive service is sufficient for any purpose ": Page 327.

Within the "larger and more general sense" in which the court treated actions in rem, we think this action comes clearly. It is not an action in personam. Its object is to obtain ju

dicial recognition and enforcement of a specific interest in tangible property situated in the parish of Tensas, in this state. The defendants are averred to be the plaintiff's vendors, and joint owners of the property in question, and she complains that they are about to dispose of same to her prejudice, and in direct violation of their contract.

Evidently, judgment is sought for the purpose of reaching the property in question, or of affecting an interest therein, by enforcing a contract respecting same, within the meaning of that opinion. This appears conclusive in the light of the concluding part of it, in which the court was careful enough to announce that it was not their intention to say "that a state may not require a non-resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the state to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, .... and that judgments rendered upon such service may not be binding upon the non-residents both within and without the state."

On the face of plaintiff's petition, it appears that by virtue of defendants' sale to her of an interest in a judgment, they became joint owners thereof, and that their contract is enforceable in the courts of this state quoad that property.

Laughlin v. Louisiana etc. Ice Co., 35 La. Ann. 1185, is not a similar case. In that case we held that substituted service of citation was insufficient for the purpose of subjecting a foreign corporation, unrepresented by an agent in this state, to a personal action sounding in damages upon the simple averment that it owned property in this state. In that view we are still firm, and deem it perfectly consistent with the jurisprudence of this court as expounded by our predecessors, and that the jurisprudence is consistent with the principles of Pennoyer v. Neff, 95 U. S. 730.

Dupuy v. Hunt, 2 La. Ann. 263, was an action for the recovery of slaves, or their value, against two defendants; one a citizen of Mississippi, the other of Louisiana. The former was cited through a curator ad hoc, and he excepted on the grounds assigned here, and the court said: "If the absentee leaves hist property without an administrator or agent, if it be attached at the suit of a creditor, or if an absentee becomes a necessary party to a suit between other persons lawfully in court, in furtherance of justice, the law authorizes a curator to be appointed