PRICE v. RHODE ISLAND COMPANY. [28 R. I. 220, 66 Atl. 200.] RAILROAD CROSSING.-The Obligation of a Traveler to Look and Listen when approaching a track upon which cars are run is so well established as the duty of a prudent person that a neglect of it is negligence in law, and not a mere circumstance for the jury to consider in passing upon the question of his care. (p. 737.) Trespass on the case for negligence. Robert S. Emerson and Geo. H. Huddy, Jr., for the plaintiff. Henry W. Hayes, for the defendant. 220 PER CURIAM. The accident which occasioned the injuries complained of was caused by a trolley-car of the defendant striking and frightening a horse driven by the plaintiff across the track. The defendant asked the court to charge the jury as follows: "If you believe the plaintiff did not look for an approaching car before entering the track she was guilty of contributory negligence and cannot recover." To which the court replied: "I suppose that that request is based upon the fact that the plaintiff stated that at some distance away from the track she did pull up her horse and did look and that after that she drove upon the track. Gentlemen, I shall decline to give you the charge in that form. I will say to you that the plaintiff was bound to exercise due care in going upon that track, and due care is dependent upon all the circumstances and all the facts of the case, as I have already explained to you. It is not necessarily negligence for the plaintiff not to look before driving upon the track. That is, it is not so as a matter of law, but it is a matter that you may take into consideration in determining whether she was guilty of negligence. If, at a point twenty or twenty-five or thirty feet, more or less, from the track she held up her horse and looked in both directions and then started on and did not look again and did not hold up her horse again, that is a circumstance which you may consider in determining whether or not she was guilty of contributory 221 negligence, but I will not say to you, gentlemen, that this is negligence as a matter of law. It is a fact which you may take into consideration and determine for yourself whether she was guilty of contributory negligence. "Mr. Hoffman: If your honor please, I didn't mean by that request as to whether or not she looked between the distance of twenty-five feet away from the track; whether she looked at all or not." "The Court: Very well; I will say the same thing as to whether she looked at all or not. That, if the plaintiffalthough you will recall the fact she said she did hold up her horse and did look and there are two witnesses that say, as I recollect it, that she did hold up her horse and did look, but whether she did or not I will not charge you, gentlemen, that it was negligence on her part, as a matter of law, not to look. I will charge you, gentlemen, that she was bound to exercise due care as a person of reasonable as a reasonable person she was bound to use due care in driving upon that crossing, and whether she was in the exercise of due care is entirely for you to say under all the circumstances from the evidence in the case. And if you find that she did not look, but drove upon the crossing without looking at all, then you may take that fact into consideration in determining whether she was guilty of contributory negligence in driving upon the track. I will not, however, charge you, gentlemen, that it was negligence, as a matter of law, in her not to look before driving upon the track. That depends upon all the circumstances, upon the conditions, the surroundings, the environments, in which she found herself." In view of the opinion of this court in Beerman v. Union R. R. Co., 24 R. I. 275, 52 Atl. 1090, this ruling of the court was erroneous. The obligation to look and listen when approaching a track upon which cars are run is so well established as the duty of a prudent person, that a neglect of it must be held to be negligence in law and not a mere circumstance for the jury to consider in passing upon the question of the plaintiff's care. Although the charge of the court had very fairly instructed 222 the jury in the law applicable to the case, the refusal to charge as requested on this point and the comments of the court in answer to the request were misleading upon a vital issue in the case. We think, therefore, that this exception must be sustained and that a new trial must be granted. We find no merit in the other exceptions, and it is not necessary to discuss the weight of the evidence or amount of the verdict, which may vary at the next trial. Case remanded to the superior court for a new trial. Am. St. Rep., Vol. 125-47 A Person About to Cross a Railroad Track is ordinarily bound to stop, look and listen for approaching trains: Scott v. St. Louis ete. Ry. Co., 79 Ark. 137, 116 Am. St. Rep. 67; Butler v. Rockland ete. St. Ry. Co., 99 Me. 149, 105 Am. St. Rep. 267; Bickel v. Pennsylvania R. R. Co., 217 Pa. 456, 118 Am. St. Rep. 926; Koch v. Southern California Ry. Co., 148 Cal. 677, 113 Am. St. Rep. 332; Queen Anne's R. R. Co. v. Reed, 5 Penne. (Del.) 226, 119 Am. St. Rep. 301. This duty is sometimes said to be absolute: Guhl v. Whitcomb, 109 Wis. 69, 83 Am. St. Rep. 889; Aiken v. Pennsylvania R. R. Co., 130 Pa. 380, 17 Am. St. Rep. 775. It would seem, however, that the failure of a person to stop, look and listen before crossing a track is not conclusive of a want of due care: Smith v. Boston etc. R. R., 70 N. H. 53, 85 Am. St. Rep. 596; Scott v. St. Louis etc. Ry. Co., 79 Ark. 137, 116 Am. St. Rep. 67. WOOD, FOR AN OPINION. WILLS Repugnant Clauses.-Where a will provides, "All the rest, residue, and remainder of my estate, either real, personal, or mixed, I give to my dear husband, Henry P. Wood, he to have the full use and benefit thereof unconditionally. After him, should any remain, I give the same to my sister, Clara N. Crombe, one-half, and to my sisters Hannah N. Partelo and Phoebe R. Partelo, the balance, share and share alike," the first sentence gives to the husband the rest of the estate in fee simple absolute, and the second sentence is void for repugnancy. (pp. 738, 739.) Samuel W. K. Allen, for the parties. 290 DOUGLAS, C. J. This is a petition brought under section 323 of the court and practice act, in which all the parties interested in the estate of Eunice B. Wood, late of Warwick in the county of Kent, deceased, concur in requesting the construction of the will of said Eunice B. Wood, which has been admitted to probate by the probate court of said Warwick. The clause in regard to which doubts have arisen is as follows: "All the rest, residue, and remainder of my estate, either real, personal, or mixed, I give to my dear husband, Henry P. Wood, he to have the full use and benefit thereof unconditionally. After him, should any remain, I give the same to my sister, Clara N. Crombe, one-half, and to my sisters Hannah N. Partelo and Phoebe R. Partelo, the balance, share and share alike." The opinion of the court is that the first sentence of this clause gave to Henry P. Wood the rest, residue, and remainder of the estate of the testatrix in fee simple absolute, and that the second sentence of said clause is void for repugnancy. It seems to us that the testatrix intended to give to her husband such absolute control over the estate as is inconsistent with the limitations of any less estate than a fee. The "use" of the estate might be enjoyed by a life tenant; but the full 291 "benefit" thereof could not be taken "unconditionally" without power to sell or to convey by will. The words in the second sentence, "after him, should any remain," indicate a desire that if Mr. Wood should not dispose in his lifetime of the whole estate the residue left by him should go to the beneficiaries named; but this is not consistent with the testamentary power which is given to him, as it seems to us, by necessary implication. This particular intent of the testatrix must yield to her general intent as expressed in the first sentence: Bullock v. Waterman etc. Society, 5 R. I. 273. In Pierce v. Simmons, 16 R. I. 689, 19 Atl. 242, where very similar provisions in a will were construed by this court, it was doubted whether the second provision, attempting to dispose of "whatever shall or may remain," following a devise which by itself conveyed an estate in fee simple, was not repugnant to the first devise. The words of the gift to Mr. Wood in the will now under consideration are much more comprehensive than those construed in Pierce v. Simmons, and the conflict between the two gifts here seems to us to be clear. Wills-Repugnancy.-The First Taker in a Will is Presumed to be the Favorite of the Testator, and the tendency is to adopt such a construction as will give an estate of inheritance to the first donee: Platt v. Brannan, 34 Colo. 125, 114 Am. St. Rep. 147; Allen v. Hirlinger, 219 Pa. 56, 123 Am. St. Rep. 617. A will bequeathing and devising to his wife all of the testator's property "to be hers absolutely," gives her an absolute estate in fee, and a succeeding repugnant provision in the will "that if at her death any of said property is still hers, then the residue still hers shall go to my, not her, nearest heirs," must fall, and fail of effect: Moran v. Moran, 143 Mich. 322, 114 Am. St. Rep. 648. O'NEIL v. NEW ENGLAND TRUST COMPANY. [28 R. I. 311, 67 Atl. 63.] BANKS Garnished Bank-Liability for Paying Out Funds.— A bank that pays out the funds of a depositor, when it is garnished, under execution against a judgment debtor bearing the same name as the depositor, is liable to the latter for the amount of the payment. (p. 740.) Bliss & Walsh, for the plaintiff. Charles A. Wilson and William J. Brown, for the defend ant. 311 DUBOIS, J. When a bank receives money on deposit, it is to be paid to the depositor or to his order, or to or for his use or account. The bank assumes the duty of seeing that it is so paid. If it pays out the money otherwise, it is liable. to the depositor to the amount of such payment: Tolman v. American National Bank, 22 R. I. 462, 84 Am. St. Rep. 850, 48 Atl. 480. The defendant, having so received the money of the plaintiff, paid out the same as garnishee under execution against a judgment debtor other than this plaintiff, but bearing the same name. The defendant claimed that it tried to communicate with the plaintiff without success, and afterward assumed that he must be the judgment debtor. This is no excuse. The duty of the trust company was to find out whether the defendant in the suit wherein it was named as garnishee, had funds on deposit with it. This it made no attempt to do. The defendant was not paid the garnishee fee to examine into the affairs of any other person than the one named in the writ, and the plaintiff in this case was not the one named therein. In other words, the defendant attempted an investigation of the wrong person and came to an erroneous conclusion. The judge who presided at the trial did not err in his charge and refusals to charge. The plaintiff made out a prima facie case when he proved that he deposited the money in question with the defendant and demanded the same from it; the burden of proving payment to or for the use of the plaintiff was upon the defendant, and 312 it failed to sustain the same. A verdict for the plaintiff was therefore properly directed. The defendant's exceptions are overruled, and the case is remanded to the superior court for judgment on the verdict, |