refusing admittance to passengers who do not exhibit proper tickets for that train? Has a passenger who gets on the wrong train a right of action, because the flagman permits him to enter without examining his ticket or inquiring his destination? To answer this question in the affirmative is to do violence to the established principle that the only duty resting upon the carrier is not to misdirect the passenger when information is applied for and that it is the duty of the passenger to find out by inquiry the destination of the train he takes.

The flagman has a right to assume that the passenger knows the destination of the train; the passenger has no right to assume that the flagman knows the destination desired by the passenger. Upon what principle can it be said that the flagman is at fault in failing to inquire of the passenger, while the passenger is blameless in failing to inquire of the flagman? How can a passenger in full possession of his faculties ground an action at law on the failure of a flagman to stop him and ask him whether he has taken the common-sense precaution to find out where the train he boards is bound for?

The

It is true that the flagman in failing to inquire the destination of the passenger has breached a duty he owes to his employer, but he has thereby violated no duty which the carrier owes to the passenger. carrier's regulations requiring the flagman to prevent entry of passengers without proper tickets, like the rule of a theater requiring its ticket-taker to refuse entry to persons without tickets is established for the purpose of protecting the company against the intrusion of unauthorized persons, and not for the purpose of protecting the person from his own mistake. Passengers are not entitled to recover on account of the failure of railroad employes to obey rules established solely for the protection. of the carrier. "Mere pretermission of self

(8)

8

Cent. of Ga. R. Co. v. Carlisle, 2 Ala. App. 518; Barney v. Hannibal & St. J. Ry. Co., 126 Mo. 392, 26 L. R. A. 847.

imposed precaution does not constitute actionable negligence.""

"The mere fact that a railroad receives a passenger on a train without protest, and that the passenger does not know that the train does not stop at the station for which he holds a ticket, does not entitle the passenger to damages, but he must also show that he exercised ordinary care to ascertain that the train was the proper train.”1

"Neither was the brakeman bound to know or ascertain what her destination was, unless inquiry was made of him by her in reference thereto. The brakeman or other employe of the company, in the absence of notice to the contrary, had a right to assume, when she walked out on the platform in a manner indicating her intention to leave the train, that she had reached her destination."11

"Averments that a carrier's servants carelessly and negligently caused a passenger to enter a train for which she had a ticket given her by mistake, without averment of their knowledge that she did not desire to take passage on the train indicated by the ticket she held, did not constitute a cause of action against the carrier."

What Duty Does Carrier Owe Passenger Discovered on Wrong Train.-By the decided preponderance of authority, if a passenger boards a train not scheduled to stop at the passenger's destination, even though the mistake was due to misdirection on the part of the carrier's employes, and even though the train passes through such point of destination, it is not the duty of the carrier to stop at such point and let him off. The carrier owes the public a duty to maintain its regular schedules and to operate its trains in a safe and orderly way, and this duty is paramount to any consideration of the convenience of the individual passenger.

Upon discovering on his train a passenger who desires to alight at an unscheduled

(9) Skelton v. London & Northwestern Railroad, L. R. 2 C. P. 636.

(10) St. Louis S. W. R. Co. v. Campbell, 39 Tex. C. A. 35. 69 S. W. 451.

(11) Louisville N. A. & C. R. Co. v. Cook, 12 Ind. App. 109, 38 N. E. 1104.

(12) Scott v. Cleveland, C. C. & S. L. R. Co., 144 Ind. 125, 32 L. R. A. 154.

A traveler who boards the wrong train through his own mistake is there without authority and has no greater rights than a person who mistakenly goes to any other place where he has no authority to be. He has not a contract entitling him to passage, nor has he been accepted as a passenger. He is not entitled to the care and protection due a passenger. It has been held, that such a traveler has no greater rights than trespasser;19 that the carrier does not even owe him the duty of telling him that he is on the wrong train;20 that he cannot de

(17) St. Louis, K. C. & N. R. Co. v. Marshall, 78 Mo. 610, 18 A. & E. R. R. C. 252.

(18) Missouri, K. & T. R. Co. v. Dawson, 29 S. W. 1106; Texas & P. R. Co. v. James, 82 Tex. 306, 18 S. W. 589; Pennsylvania R. Co. v Wentz, 37 O. St. 333; Atchison, T. & S. F. R. Co. v. Gants, 38 Kans. 608, 5 A. S. R. 780; Fink v. Albany & S. R. Co., 4 Lansing, 147 (N. Y.); Ohio & M. R. Co. v. Swarthout, 67 Ind. 567; Wells v. Alabama G. S. R. Co., 67 Miss. 24, 6 So. 737; Texas & P. R. Co. v. White, 17 S. W. 419; Chicago, S. L. & P. R. Co. v. Bills, 104 Ind. 13, 3 N. E. 611; Ohio & M. R. Co. v. Applewhite, 52 Ind. 540; Louisville & N. R. Co. v. Miles, 37 S. W. 486; St. Louis, I. M. & S. R. Co. v. Lewis, 69 Ark. 81, 61 S. W. 163; Hancock v. Louisville & N. R. Co., 27 Ky. L. R. 85 S. W. 210; Logan

v. Hannibal & S. J. R. Co., 77 Mo. 633; New York C. & S. L. R. Co. v. Willing, 24 Ohio C. C. R. 474; England v. International & G. N. R. Co., 32 Tex. C. A. 86, 73 S. W. 24; Alabama G. S. R. Co. v. Carmichael, 90 Ala. 19.

(19) Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608, 5 A. S. R. 780; Chicago, S. L. & P. R. Co. v. Bills, 104 Ind. 13, 3 N. E. 611.

(20) Texas & P. R. Co. v. Ludlam, 57 Fed. (C. C. A.) 481.

ROSE, District Judge. The defendant ob jects to the entering of the judgment upon so much of the verdict of the jury in this case as ascertained the damages suffered by plaintiff subsequent to the date of the filing of the suit. In the nature of things there is no reason why a jury should not be allowed to ascertain and award the damages suffered by plaintiff down to the time of trial, from wrongful acts of the same nature as those mentioned in the declaration. If such were the law, there would doubtless sometimes be difficulty in applying it; but, on the whole, much trouble and expense would be saved.

The general rule is to the contrary; perhaps because when it was first formulated the judges were interested in the fees paid to the chancery for the writs, and they did not care to furnish for the price of one the justice that, from their point of view, should be paid for by

the suing out of two or more. However this may be, it has long been established that the plaintiff can recover only for such damages as were the consequences of what the defendant did before suit was brought, although it is immaterial whether the effect of what was done showed itself before or after the bringing of the suit, as, for example, where the thing complained of is a tortious injury to the person or property from some particular act, the plaintiff may recover for any damage which manifests itself up to the time of the verdict. On the other hand, where the injury sued for is caused by a mere repetition or continuation of acts of the same class as that for which the suit was brought, the plaintiff's recovery is limited to the damages resulting from such of those acts as were done before the bringing of the suit. In Lawlor v. Loewe, 235 U. S. 536, 35 Sup. Ct. 170, 59 L. Ed. 341, the plaintiff was allowed to recover for the damage done to it by a secondary boycott instigated by the defendant before the bringing of the suit, although some of the injury did not manifest itself until afterwards; but the authorities cited by the Supreme Court in support of its conclusion do not justify the assumption that it intended to modify the previously recognized principles of law.

In this case the only damage proved by the plaintiff was the loss of profits it would have made on resales of Old Dutch Cleanser, if it had been able to buy Old Dutch Cleanser at the price at which other jobbers could obtain it. Such damage is a damage which occurs from day to day, and the damage on one day is not the necessary result of an act done by the defendant at an earlier date. The difference between cases in which the jury can give damages down to the date of the verdict and those in which it cannot may be illustrated thus: If the defendant had made some false and libelous statement against the plaintiff, which acquired general circulation, the damage from that false and libelous statement might well have continued long after the bringing of the suit, and long after defendant ceased to be in business at all. On the other hand, if the defendant in the case at bar had wound up its affairs the day after the suit was brought, no one would contend that plaintiff was entitled to recover damages caused by the refusal of defendant to sell its goods after that date, or to permit other persons so to do, because both the motive and the power to enforce such refusal or restraint ceased with the defendant's going out of business.

I wish the law were otherwise, but, as it is, I shall be compelled to set aside so much of

!

the verdict as awards the plaintiff damages from the time of the institution of the suit to the verdict. Judgment in plaintiff's favor will be entered upon the balance of the verdict.

NOTE.-Damages for Loss by Failure to Deliver Property Contracted to be Sold.-The case of Lawler v. Loewe, 235 U. S. 536, 35 Sup. Ct. 170, 59 L. ed. 341, seems to us not to indorse a rule of damages applicable to the question in the instant case. That case holds that damages which "were the consequence of acts done before and constituting part of the cause of action declared on may be recovered, though they accrued or manifested themselves after the action." This, of course, means up to verdict. This rule is held by the instant case not to apply to a case where the damage occurs from day to day, and the damage on one day is not the necessary result of an act done by the defendant at an earlier date. This means, as we understand the statement, that if market value is the measure of damages that measure is determined by market value up to or before the institution of suit. We do not believe that such is the rule, and we do not see that it is true that: "If the defendant *** had wound up its affairs the day after suit was brought," it could not be contended "that plaintiff was entitled to recover damages caused by the refusal of defendant to sell its goods after that date." If defendant could be made to respond for damages which were a consequence of precedent acts, though he had wound up his business, he could be made to respond for the highest value in the market up to verdict. One damage is as much in contemplation of the parties as the other. And fixing damages at the time of bringing of the suit is more arbitrary than at the time of verdict, because that value hinges on when the suit is brought. This may be promptly or barely within the period of limitations. Damage up to verdict is arbitrary too, but it approaches justice more nearly because this extends the time. If the rendition of verdict is at a time not within the period of limitations, it may be, that the measure might be at a time between the filing of suit and the rendition of verdict.

Taking it that the goods contracted for in the instant case were such as had a market price, up to what time may the loss be computed?

It has been held that where there was a failure to deliver stock, the measure of damages is the difference between the contract price and the highest market value between the date for delivery and a reasonable time after that date in which plaintiff could purchase the stock. Vos v. Child Huswit & Co., Mich., 137 N. W. 209, 43 L. R. A. (N. S.) 368. Were plaintiff the day following the breach to bring suit, this reasonable time might take him over to a time after suit was instituted.

In McKinley v. Williams, 74 Fed..94, 20 C. C. A. 312, the same rule is stated, the court saying: "He who deprives another of the control of property agreed to be sold ought to assume the risk of the fluctuations in its market value, until its owner, by purchase or sale, can restore himself to the condition in which he would have been if his property had not been wrongfully taken.

It rests upon the proposition that the risk of the market during this time should be assumed by the perpetrator, not by the victim of the wrong.'

Gallagher v. Jones, 129 U. S. 193, 9 Sup. Ct. 335, 32 L. ed. 658, was a case where a principal ordered a broker to sell certain stocks and purchase others in their stead. Those ordered sold went down in price and those ordered bought advanced. The court, in speaking of other sales than of stocks, said: "Other goods wrongfully converted are generally supposed to have a fixed market value at which they can be replaced at any time, and, hence, with regard to them, the ordinary measure of damages is their value at the time of conversion, or, in the case of sale and purchase, at the time fixed for their delivery. But the application of this rule to stocks would be very inadequate and unjust."

As to stocks, it was said: "The rule of highest intermediate value up to the time of trial formerly prevailed in New York and may be found laid down in Romaine v. Van Allen, 26 N. Y. 309, and Markham v. Jaudon, 41 N. Y. 235, and other cases." The hardship of this rule is adverted to and was changed afterwards to be "the highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock." This rule is adopted in the Gallagher case as having "the most reasons in its favor." It was said that there was hardship in "estimating the damages by the highest price up to the time of trial which might be years after the transaction occurred." It was suggested by us, supra, that the trial ought to occur at least within the period of limitations that suit might be brought.

It is easy to be perceived, however, that neither the time of instituting suit nor that of bringing in the verdict rests upon any but an arbitrary point of time.

In Gray v. Kemp, 88 Va. 201, 16 S. E. 225, there was an agreement to sell stock at $3.50 per share. Plaintiff sued for damages upon failure to deliver and the jury rendered a verdict for damages at the rate of "$20 per share, the value of the stock at the time of trial." The court said: "This, no matter what may be regarded as the proper rule, cannot be deemed excessive. The general rule, where there has been no unreasonable delay in the commencement and prosecution of the case, is to treat the refusal as amounting to a conversion and give as the measure of damages the value of the stock or its highest value in market at any time after demand and refusal. But in this case it is immaterial whether this be the rule or whether the rule be the value of the stock at the date of trial. In either event, the defendant has not been injured, for the proof shows that the highest intermediate value was $26, while the actual value on the day of trial was $20 per share."

The case of Gallagher v. Jones, supra, was cited, which ruled as we have stated. That might have shown $26 per share, or it might have shown less than $20 per share. It is to be noticed that the Gray case speaks of the general rule spoken of applying only where there has been "no unreasonable delay in the commencement and prosecution of the case."

It seems then purely arbitrary in suits regarding conversion or non-delivery of what has been contracted to be sold, to fix either the commence

ment of a suit or the rendering of the verdict as the time for measurement of damages. One wronged cannot lay by and allow damages to increase, but he must act with reasonable promptness to save himself from loss. C.

BOOK REVIEWS.

WILLIAMS ON JURISDICTION AND PRACTICE OF FEDERAL COURTS.

Mr. Charles P. Williams, A. B., of St. Louis Bar, presents to the profession and for advantageous use by students, a handbook of the law of Jurisdiction and Practice of Federal Courts. Mr. Williams, for the past four years, has been a professor in the law school of Washington University at St. Louis and his lectures, there delivered, supply the basis for this excellent, timely book.

The work is not theoretical, and yet is more than a mere digest of rulings, arranged in logical sequence. The reason and spirit of federal jurisprudence, as evolved and co-ordinated by our federal courts, is attempted, with great measure of success, to be exposed in this book.

The growth of this system is hard accurately to be followed. Fortunately, however, whatever plasticity there was in our federal jurisprudence, arising out of the impossibility of written law to take care efficiently of all situations in the future, was in the moulding by a master hand-our august federal Supreme Court. Mr. Williams' task, by no means an easy, and by no means an uninteresting one, was to discern the underlying principles of this intelligent moulding.

In this connection we refer particularly to Chapter XVI, Admiralty Jurisdiction. Mr. Williams, in speaking of the Judiciary Act of 1789, vesting exclusive original jurisdiction of admiralty and maritime causes in the district courts, quite clearly shows his power of analysis in considering the problem here presented. That he is almost prophetic, a case appearing in July 1st, 1917, in advance sheets of Federal Supreme Court reporter, tends to prove. The case is that of Southern Pacific Co. v. Jensen, 37 Sup. Ct. 524, and discussed in 85 Central Law Journal 57, and this chapter has added interest given to it by that decision. Other chapters might be thus alluded to, but this would seem invidious.

The entire work gives evidence of painstaking, intelligent, discriminating attention in ref