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afford evidence of a fraudulent alteration of an instrument. It may often be an important item of evidence on that question, and it may be consistent with the utmost honesty. There is nothing in the fact considered by itself which will require the court to exclude the instrument for that reason as matter of law. It may be a proper consideration for the jury in connection with other facts on the question of a fraudulent alteration."

(C.)

1. A note was sued on dated in 1831. The date appeared to have been altered from 1835. The burden was on the plaintiff to explain it.(31)

2. An action was brought on a bond dated November 11, 1821. The defense was that the date had been altered from November 11, 1820. It was not incumbent on the plaintiff to explain the alteration.(32)

In case 1 the alteration was in the plaintiff's favor, for it entitled him to four years' more interest than as it originally stood. In case 2, on the other hand, the alteration was prejudicial to the plaintiff, for it deprived him of a year's interest. "Formerly," it was said in case 2, "the court judged of an erasure by inspection; latterly the jury do. In judging by inspection the court governed itself, as jurors do now, by probabilities in the absence of positive proof. If the. alteration on the erased part was in the handwriting of the obligee or a stranger, and beneficial to the obligee, the court adjudged it an erasure, that is an alteration, made after the execution, and avoided the deed. If prejudicial to the obligee, the court adjudged it no erasure, that is made before execution, and did not avoid the deed. If in the handwriting of the obligor either way, they adjudged it no erasure, that the alteration was made before execution, and did not avoid the deed. Juries are now governed by the same rules. In the case before us the date of the bond is altered, and it was made payable in 1821 instead of 1820, as it is said is evident from the erasure not being complete, as appears from au inspection of the deed, and the alteration is in the handwriting of the obligee, and prejudicial to the obligee, for he loses one year's interest. It is payable from the date or from a fixed period from the date. One of the rules before mentioned, to wit, that if the alteration is prejudicial to the obligee, though in his handwriting, it is no erasure, determines this case, as it is presumed that the alteration was made before execution. If the question was to be decided by the court, as formerly, we should pronounce it to be no erasure. In the absence of all evidence dehors the deed the jury were properly instructed to pronounce it so."

(D.)

1. In an action on a bill of exchange the bill was produced by the plaintiff. The upper left-hand corner of the bill was torn off, carrying with it the word "second" as preceding the words "each for." The printed word "second" in the body of the bill had black lines drawn through it, and the word "only" written over it. The printed words "first unpaid " had also black lines drawn through them. The burden was on the plaintiff to explain this.(33)

(E.)

1. Suit was brought upon the following instrument:

(31) Warren v. Layton, 3 Harr. (Del.) 404 (1840); Shoner v. Ellis, 6 Ind. 159 (1855).

(32) Pullen v.Shaw, 3 Dev. 238. And see Sayre v. Reynolds, 5 N. J. L. 737 (1820); Coulson v. Watson, 9 Pet. 98 (1835); Failee v. Failee, 21 N. J. L. 284 (1848).

(33) Fontaine v. Gunther, 31 Ala. 264 (1857). And see Van Busen v. Cockburn, 14 Barb. 118 (1852); Ridgley v. Johnson, 11 id. 540 (1851); Waring v. Smith, 2 Barb. Ch. 11 (1847).

BROWN CITY, April 1, 1847. Against the tenth day of July next, I promise to deliver at the residence of James Short fifty dollars' worth of good cattle, to be two years old past, not more than two shall be heifers, any number above the fifty dollars' worth will (thirty dollars' worth of salable cattle shall be delivered above the fifty $5 worth) be received on the house debt, all to be salable cattle.

The defendant, as required by statute, denied the execution of the instrument under oath. The plaintiff was bound to explain the alteration.(34)

In case 1 it was said: "Upon this point there is a conflict of the authorities. Some courts have held that if nothing appears to the contrary, the alteration will be presumed to have been made contemporaneously with the execution of the instrument. The reason given by the courts that have so decided is that the law will never presume wrong, and to hold an alteration to have been made after the execution of the instrument would be to presume the holder guilty of forgery. This reason has no foundation in this State, so far at least as relates to instruments of writing upon which suits are brought or which are set up by way of defense or setoff, the execution of which by the 14th section of the 83d chapter of the Revised Statutes a party is not permitted to deny, except on oath. When such a denial is made on oath, as in the present case, the law would presume quite as great wrong in assuming that the party making oath that the instrument was not his, had been guilty of perjury, as in assuming that the holder of the instrument had altered it after its execu tion." The court in this case criticised the soundness of the rule independent of the statute also.

In one of the latest cases the rule is laid down thus, viz. that where there is no dispute on the interlineation or alteration, the presumption is that it was made before execution, but when a contest arises and the in strument is offered in evidence, and the alteration is beneficial to the party presenting it, the presumption of law is not the other way (viz., that it was made after) but the burden is on him to explain it.

"When we look at a written instrument containing an interlineation or erasure," said Woodward, J., "without reference to contested rights, the natural and fair presumption doubtless is that the alteration was made before signature, because if altered after execution it would be forgery, which is never to be presumed. Instruments of writing executed with the solemnities appointed by law are like the men who made them, to be presumed innocent until some circumstance is shown to beget a counter presumption. But when a contest occurs, and the instrument is of fered in evidence, the question at once arises whether the alteration is beneficial to the party offering it; if it be not, as in the instance of a bond or note altered to a less sum, the prima facie presumption is unchanged; if it be, as was the case here, we do not presume a forgery, but we hold the party offering it in evidence and seeking advantage from it bound to explain the alteration to the satisfaction of the jury. The initiative and burden of proof are thrown on him. If the interlineation or erasure have been noted in the attestation clause as having been made before signa ture, this is sufficient, or if the similarity of ink and handwriting, or the conduct of the parties or other facts proved shall persuade a jury that it was so made, the instrument is relieved from suspicion, and the (34) Walters v. Short, 10 Ill. 252 (1848). But in a Texas case where the alteration was not an apparent one (viz., following a blank), the burden of proving the alteration-the execution being denied under oath-was held to be on the defendant. Wells v. Moore, 15 Tex, 521 (1855); Mucklery v. Bethany, 27 id. 551 (1864).

party offering it is entitled to the benefits of it. So long as any ground of suspicion is apparent on the face of the instrument, the law presumes nothing, but leaves the question as to the time when it was done to be ultimately found by the jury upon proofs to be adduced by him who offers the evidence."(35)

In Simpson v. Davis (36) it was ruled that where a declaration in a promissory note alleges that the defendant made the note, and the answer denies this, and alleges an alteration, proof of the defendant's signature is prima facie evidence that the whole body of the note written over it is the act of the defendant; but the burden of proof is on the plaintiff to show that the note declared on was the note of the defendant.(37)

In Bailey v. Taylor(38) the court refused to rule that there was a presumption that an alteration of the amount of a note had been made after its execution, saying: "The result to which we have arrived is that where there is an erasure or alteration in an instrument under which a party derives his title, and the adverse party claims that such erasure or alteration was improperly made, the jury are from all the circumstances to determine whether the instrument is thereby rendered invalid. Circumstances may be such as may require this explanation on the part of the plaintiff, or on the other hand, may arise where it would be absurd to require it." JOHN D. LAWSON.

ST. LOUIS, Mo.

CONSTITUTIONAL LAW-TELEGRAPH - INTERSTATE COMMERCE - PENALTY.

WESTERN UNION TEL. Co. v. PENDLETON.*

A statute imposing a penalty upon a telegraph company for failure to transmit a message as therein required, even as applied to a message sent to another State, is not a violation of the Constitution of the United States giving to Congress the power to regulate commerce between the States, but is a valid exercise of the police power which belongs exclusively to the States.

The sender of the message has the right to recover the penalty given by the statute. It is a penalty for a breach of duty arising in this State, and not damages for the breach of contract, and the right to recover is not affected by the fact that the particular act constituting the specific breach of duty occurred in another State.

FROM the Shelby Circuit Court. The opinion states

the points.

J. E. McDonald, J. M. Butler and A. L. Mason, for appellant.

E. K. Adams and L. J. Hackney, for appellee. ELLIOTT, J. Our statute provides that a telegraph company with a line of wires wholly or partly within the State shall, during the usual office hours, receive dispatches, and on payment or tender of the usual charge, according to the regulation of the company, transmit messages with impartiality and good faith in the order in which they are received, and for a failure to perform this duty shall be liable to a penalty of $100, to be recovered by the person whose dispatch is postponed or neglected.

The validity of this statute is contested upon the ground that it infringes the provision of the Constitution of the United States which invests Congress with power "to regulate commerce with foreign nations and among the several States." This position cannot

(35) Jordan v. Stewart, 23 Penn. St. 246 (1854).

(36) 119 Mass. 269 (1876).

(37) Simpson v. Davis, 119 Mass. 269 (1876).

(38) 11 Conn. 531 (1836).

*To appear in 95 Indiana Reports,

of course be even plausibly maintained in cases where the line is wholly within the State; in such cases the business is purely domestic, and not interstate, but here the line of the company extends beyond the State, and the message delivered to the company was undertaken to be transmitted to a point in Iowa.

The telegraph is an instrument of commerce. Intercourse by telegraph is commercial intercourse, and where it extends beyond the State is interstate, and subject to the control of Congress. Pensacola Tel. Co. v. Western U. Tel. Co., 96 U. S. 1; Telegraph Co. v. Texas, 105 id. 460.

There is much conflict of opinion in the decisions of the courts of last resort upon this subject, and it will be found to be no easy task to extract from the decisions well defined rules. The study of the many able opinions that have been delivered by our great judges, beginning with that of the great chief justice, John Marshall, is an interesting one, but we do not feel called upon to review these cases. Three theories seem to have been maintained-one that the States cannot legislate upon the subject at all, whether Congress has or has not exercised the power vested in it; another, that when Congress has exercised its power the States can adopt no valid legislation; and still another, that the States may legislate upon the subject even though Congress has exercised the power vested in it by the Constitution. We think however that the ultimate conclusion deducible from the later decisions is, that the States cannot embarrass commercial communication, abridge the freedom of commerce, discriminate in favor of the products of one State, lay burdens upon the instruments of commerce, or exact licenses from persons, natural or artificial, engaged in interstate commerce, and that this is so whether Congress has or has not legislated upon the subject. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 419; Willson v. Blackbird, etc., Co., 2 Pet. 245; City of New York v. Miln, 11 id.102; Thurlow v. Massachusetts,5 How. (U.S.) 504; Smith v. Turner,7 id.283; Cooley v. Board, etc.,12 id. 299; State v. Wheeling, etc., Co., 13 id. 518; Smith v. State, 18 id. 71; Gilman v. Philadelphia, 3 Wall. 715; Railroad Co. V. Pennsylvania, 15 id. 232; Welton v. State, 91 U. S. 275; Cook v. Pennsylvania, 97 id. 575; Webber v. Virginia, 103 id. 344; Telegraph Co. v. Texas, supra.

Accepting this conclusion as the law which rules our decision, we still have no hesitation in affirming that our statute is not borne down by it. No discrimination is made in favor of any person, or in favor of any article of commerce; the freedom of commercial intercourse is not abridged, and no new duty or burden is imposed upon the company. The statute secures to all alike the privilege of demanding that the duties of the corporation be performed with diligence, impartiality and good faith. It enforces an existing duty and provides a penalty, but it confines the duty to no class and denies the penalty to none. It is impossible to conceive the slightest restriction upon commercial intercourse, or the faintest discrimination in favor of any person or thing.

Granting then the lack of power in the State to abridge the freedom of commerce or to discriminate in favor of men or things, we may still maintain that telegraph companies having offices and doing business in our State may be compelled to discharge their duties diligently and impartially, because in requiring this a police power, inherent in all sovereignties, is rightfully exercised. We do not maintain that under the guise of a police regulation the State can abridge the freedom of commercial intercourse, or discriminate in favor of the products of one State, or grant commercial rights to the citizens of some particular State and deny them to others, but we do maintain that the sovereign State has power to enact laws re

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. 542; 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. 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."

Their

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, unqualified, and exclusive."

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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 expedi tion." 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 necessarily 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 Ind. 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 Carnahan 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 vio lated 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.

MASTER AND SERVANT-" USUAL RISKS" PROXIMATE CAUSE.

SUPREME COURT OF APPEALS, VIRGINIA, JULY, 1884.

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.

ERROR t

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 Danville, 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, uuless 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 assigns as error in this case that

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