Evansville Journal, Volume 19, Evansville, Vanderburgh County, 28 February 1868 — Page 2

T'E EVANSVTLLE PA1LY J0URNA1 : FRIDAY. FEBRUARY 28, 1863

(Imported lor the Lvauitvllle Journal. DetUion of Supreme Court of Indiana. . The Evarisville and Crawfords-1 villa Kailroad t'oiupany,' Oibson vs. "Couaiy.Duucau Frazer. J The suit was by the appellee against the appellant. The complaint was iu two paragraphs; ticach of which' a demurrer by ihe Hefendaot was filed and overruled.-An issue was then made by the general, .denial, the triaj of which resulted m a verdict of tl'l'j for the plaintiff, upon which, over a rootionHhjithe dcfendant;for a 'new trial, iudsrment was rendered.

The first paragraph of ( the complaint was, that the defendant was a carrier of patenters by railroad; for hire, from Princeton to Fort Dranch; that on, &c, the plaintiff, at the defendant5 request," become and was received as a passenger from the former to the latter place, kc, and thereupon it then and there became and was the duty of said .defendants to ue due and proper 'care add diliigence, that the plaiutiff should be safely and securely carried and conveyed by and upon said railroad and cars, nn the eaid jouraey from the town of Princeton aforesaid to the town of Fort Branch aforesaid, but in alleging a breach of this contract on the part of the" appellants the appellee in paid paragraph of her complaint, after ...alleging . that, the, appellants "did not use dilligence, " in general terms, and alleging that the appellantd page 4, line 10.1 suffered and permitted the plaintiff " to be carried and "conveyed on "said iournev in a certain box or stock car," line 16 " dettitute ot platform, steps, or ladders, by means of which said plaintiff could with safety descend from the same, and also suffered and permitted the locomotive and train of cars aforesaid " line 22 " to stop, before the said car -wherein the plaintiff was a passenger as aforesaid had arrived at the platform or depot, at the town of Fort Branch aforesaid, and then and there by their agent or conductor" line 22 " ordered and commanded the plaintiff to get off the same, but wholly neglected to provide steps, ladders, platforms, or other means of descent for the use of the plaintiff, or toose due and proper care and dilligence for the safety of the plaintiff in that behalf, and. by reason thereof - ihe plaintiff wa com-' pelled to leap from the eide of the car aforesaid -to the ground, by means whereof, and without the fault or negligence of the plaintiff, one of the ankles of the plaintiff became ;and was fractured and broken, and she was otherwise greatly bruised and injured," and claimin2 damages special and general for said injury. Transcript, pages 4 and 5. , The second paragraph is substantially the same as the first, except that t says nothing about the kind of car in which she was conveyed to Fort Branch, or the want of any f teps or, ladders by which she could descend, and also excepting the allegation in the first paragraph that appellee had been ordered by appellant s " agentor conductor? to get off the train. The allegation in this paragraph Of the appellant's breach of, their contract is, that the "train was by and through the' carelessness and negligence and- improper, conduct of said defendants, stopped . at the town of Fort Branch aforesaid, before that part of the said last mentioned train on which the plaintitf was a passenger reached the platform or depot, and plaintiff, by reason thereof, was rrimnelled ' trt irtruV frnm Ktt'ni onr in and upon the ground, atid by meaus whereof, and without the fault or ; negligence of the .plaintiff, the ankle ; .! il. .1 '.i!! I 1 r I ox tue pinuuu uuuauie sou was irar tured, &c.'--- " ' . ' It is argued as to both paragraphs, 1st. That no breach of the contract alleged is shown, the contract alleged , being only to carry safely to Fort Branch, which" was fully performed. ; 2d. That the injury appears to have resulted from the rash conduct of the plaintiff herself. "" Both paragraps are, in our opinion, good. As to the second objection, it is sufficient to say that we do not understand, from the arguments, that the rash conduct of the plaintiff produced the injury. The other objection needs a more careful examination. The pleader undertook, unnecessarily, wc think, to state the duties which became incumbent upon the carrier in conse- ' quence of having received the plaintiff as a passenger from place to place, and failed to state the very duty, the neglect of which produced the injury, namely: providing a safe mode of exit from the car. These duties are annexed by law to the contract to carry, and we are of the opinion that the court will judicially take notice of them without any averment as to what they are. Dudley & Smith, 1 camp 167, was decided upon this principle. Though the duties of the carrier in reference to the passenger arise out of the contract between them, yet the suit may be in tort, because the duties of the carrier are rained by law. 1 Chit. pi. 153 n sig. Under the code it is, in such a case as this, unnecessary to aver the nature of the contract or the duties resulting from it, Form 4, 2 G & II 377.1 The evidence showed that the injury of the plaintiff resulted from jumping from the box-car in which she was carried, while the train was standing at Branchville. The distance to the ground was about four feet. She jumped in , what was deemed a critical place, by other witnesses,' alighted upon a cross-tree aud thereby fractured her ankle: Provision for f&fe di scent had been made ' on iU other eide of the car. but

whetht-r--.beSy-woof(rhexiE-i6

not clear, out bna.wiia many ouier, uictvui eviuuce. xuc injury wuutdid unt. at any, rate, observe it. tNo v..red thin, if it occurred, at all, and body else was hurt. There was sjme f thesis facts s re true, if anything in

ex:fNent and" baste about i-em-

barkinr, as the train was behindliinfiJfor a questioa-as. to ihel credibility of

Tiie ben wasnngingas a signal to get 'out, and it was understood that passeugcra fot thatta.Uftn.4Butetut quickly or, they would be carried on. She thought1 the' car "was too high to jimp from. was , .warnedf not to jump, hut nevertheless-did -so. 'No proper provision was smade for passengers to get out. of the box cars. The only evidence in relation to a command' by the conductor to get-out was,' that!he said, "all-ofl for Fort :Braneh.i If you do not jret off you will be taken ., to --XEvaoiville. "-The; conductor testifying as a :witnes, denies bavin? usea any such language. The occurrence took place on th? Fourth of Jalyi The defendant 'was provided with sufficient ' passengercoaches for all ordinary businessrbut not enouirh for such an occasion, andi hence ued freight cars. lhere werecelebrations at u on , orancn -ana Evansville, and there was an uuusua number or past-engers. The court gave to the jury the following instruction, laimed by Ihe appellant to be erroneous. If the jury finds there wasoo -want of - proper skill, or- care, or caution, on the part of ; the defendant ? or ! agent, A ana ttiat the injury was ' cans ed by the act rof the' plainliff, in rashly- and improperly springing from the cur, thea the defendant is not liable in this action.; But if the want of proper skill and da'rfr of the, conductor,or other perso'n , in charge of the train; or if he was' guilty of rashness, Degligende or' misconduct,. which placed the passengers in a state of peril in descending trom the car, the defendants are liable for any in jury resulting from his acfs;'.and the plaintiff is entitled to recover." It must be stated in this connection, that the jury was also instructed that if the plaintiff was guilty of negligence in jumping from the car, whereby she was injured, ' then" the verdict should be for the defendant, even if the defendaut was also guilty of npgligence. ; While the . instruction complained of was defective ptanding alone, yet that defect was fully supplied in the additional instruction stated; and we cannot supIose that the jury disregarded the atter. . .. , ;. .?. The appellant complains Yalsd of the refusal of the Court, to .instruct the jury as fallows: , . .. j t...; " if the jury beliete from the evidence, that the cars, platforms, and means of. descent provided by he defendant were at .the time sufficient for the ordinary travel on the road,: then there would la no negligence in not providing means and platforms for the iiccommodation of an unusual num-i ber of passengers, unless it appears that reasonable notice had been given tv provide such accommodations.'! ,i We do not think that this instruction should have been given. Tho defendant was not: bound to receive an unusual and unexpected number of passengers,! beyond what it was bouud to provide tor with safe accommodations. Haying . received them without qualification or condition Joe notice of its inability to provide for their safety, jt seems. to us that it assumed all the obligations usually incumbent upon a carrier of passengers, and became liable for the consequences of a failure to perform these obligations. The following was also refused: " If the jury find, from the evidence, ,thafc the defendant leaned from the car without being in peril of life or' limb, or having reason to believe she was, in such peril, and by so leaping received the injury, then the verdict should be for the defendant." We cannot say that -it was error to refuse this i-nstructioa in this particular case, i If the evidence had shown a leaping from a train when in rapid motion, or -if the case put by the instruction , had included ,the. element that the plaintiff hid leaped from -the car . under such circumstances that peril to herself might reasonably be . apprehended in .consequence of the leap, then to make " the leap would be a want of reasonable' care on herpartj and she could not recover. The instruction, however, assumes that leaping from a car under any circumstances, without a purpose to avoid thereby an apprehonded peril to life or limb, would relieve the carrier from liability. We do not so understand the law. It the leap was made under sucb circumstances that a person of ordinary caution and caie would not have apprehended danger therefrom, then it was not such an act of carelessness as would relieve the defendant from the responsibility otherwise resting upon it. Lastly it is contended that the evidence was not sufficient to support the verdict. ' s '' ' ' ' There never should be any just occasion for a reversal of a judgment by this Court upon the evidence alone, and -it is with the greatest reluctance, aud always with a caution so gr?at as to border closely urjon the unavoidable, that we ean relieve again this error of the Court below, consistently with the rule by which this Court has always governed itself iu , the matter. .t r. - In this case the fuctcome3 from the plaintiff herself,. '.testifying as a witness, that for the mere purpose of avoiding beiDg carried to Evansville, she voluntarily made 'what she re' garded as being a dangerous leap, and what other witnesses expressing au opinidn"upen the -subject also regarded, as involviogjparil. J This she did, notwithstanding she was warned at the moment not,to do it. Thereby she received the injury for which she sues.

-Uponbi?e point"thefff"1s a6VTh-

Ihe case is true. There" is no room the witnesses who so testify," for the plaintiff herrielf is the chief ef those wt taesiom ""'ii vfdKiiT, was a - want of ordinary qare, on her part, directly contributing tf ttie injury, and m such a state of castj the law is equally clear. mar ine p;ai jiiii .cannay recover. .,, . '..i Under s"uca circumstances' we can not hesitate d o reverse the judgments ...... t.jj. J ' '. - j i." ' uaucuieui ieverM3u wnu costs. Crafe remanded for a new trial; Bamwafi'!Enl;rtr1s4i oa"the ' Pacific ,.,it i .'''! ' ' i Coast.' 1 ' 1 1 According to th1 'California, papers. theji3resflj ,jfeari promises to, be ne of remarkable aetivitv in railroad j.bVidingid 'trtat 'seiftio'ri of the coun Jtrjl The Central Pacific Bailroad Company intend, and are prepared ito pvi-h 'the line oC. their road . thr.ed hundred miles - east of the summit during the ' next twelve ' months. making the' aggregate length of the track, bye next January about four !huuhxed 'anct ;five miles. . The compiny have: orgio:z?d for thi work a force ' of .'tea thousand laborers! and will use one thousand mules and horses. ,If theTproiuifw "made is jeal-. ized. there-will Yeraain afout J three hundred and sev,euty . miles .more to reach Salt Lale, aud from-tliat locality about two hundred and. thirty to Fort Bridger, 1 tho objective point in all sfive hundred , miles. - Extraordinary efforts will It; iM-ie to reach the Fort as soon as it is reached from the other side by the Union Pacific, as it is believed that the company which first pierces the Utah basin will control the traffic cf the middle- tier of llocky Mountain territories. Of the other enterprises, the San Francisco Bulletin remarks: , " It is caid further to be the intention of the successors of the Western Pacific Railroad Company to resume work on the railway from San Jose to Sacramento via Stockton,, at an early day. . The prosecution of this second enterprise b' the same; parties who have the Central Pacific in hand will be a bold- work; Connecting, with it at San Jose t'aere is to be thirty miles of rail' laid ito.GUroy, southward, forming the rst section of a line destined ultimately to reach as far as Los'Angeloa or i-'an l)iegoMand to be a link in a southern trans-continental road.1' Then positive promise is made that the Calif srnia Pacific.orValley Jo aed Sacramento Railroad, sixty-two miles long.'wili be completed and in operation by next Fall, ,. With that will connect the Su5C0l,' Napa and Calistoga Railroad, a twelve miles of which are already in operation: and the Healdsburgh add Sonoma VaHey Railroad, the commencement of which is promised for the ensuing Summer, Some signs of vitality are given by the Company which secured from Congress a ' &raot of lands to aid in the construction T of a railroad from Marysville to Oregon. It has consolidated with the road from Marysville to Itoseville, looking to direct connection with the Central Pacific. No intimations are given when the work of constructing the first twenty-mile section north , of Marysville, or Oroville,:will be commenced.. The Oreiron CeBtral Iload, which is to be conLstructed by Oregonians and meet the California and Oregon at the State boundary, - is ' now receiving material from the East, and will get to work at an early day." '. . t .-, :-!':.;. i- Revenue Decision. Commissioner Rollins, of the Internal Revenue Bureau, has recently made the following decision, which will be of general interest: . ' "Every change in a firm by which a member rstires from the same, whether a nevr partner takes his place, or the surviving partner continues the business alone, or by which a former proprietor disposes of his entire business, and . a successor takes his place, constitutes alike in conterafilatiOn of law, a new person or firm iabJe to special tax for the balance of the' year for which tax has once been paid by the original firm or owner. No L provision oi law exists in relation to special tax. receipts similar to, that which formerly admitted of the transfer of a license from one person or firm to a successor by endorsement of the Collector, as you will therefore perceive that in the case you cite the Earty continuing the business must be eld liable for special tax from the first of the month in which he becomes the successor of the firm. In the' case of dealers, manufacturers, hotel keepers and some others, having paid special tax as .such, when it appears to ih i satisfaction of the Assessor, on the 1st day of May, 1368, that the sales, products, or gross receipts, as the case may be, of any Jerson or firm, have not exceeded 1,000 value for the year then ending, the Assessor or some assistant will aid m prepari ng a proper claim upon the office to have the tax paid refunded. Bankers, brokers and liquor dealers, and ; some, others who have rionft hnsines'i as such, were not thin privileged wii;h respect to refunding t taxes paid.''-; .'! ' -: .:'-. , DR A. WEDBER--i - t Formerly of Hopklnsviile, Ky.) V Oilers his prol:ional services to the citir tensof Evinitdlle. Hesideace on Third, between Cherry and "Oak StrotHs. OOXfic over the Post-Offlce. se27 dam

- HENKING,

DIRECT, JJUJ'QR TERS. . 1ANO WHOLESALE-!lEA.LERJ '-D' GLASSWARE OP EVER.Y.SCEIfTIOJl Gold-Band And Plain White. , ,, FRENCH AND ENGLISH ! 1 FRENCH, fcNGTLISH, AND 1 GERM , , FA.NCY-GOQQS r IN JURE AT vXrVeTY. Also, Qoal iOU- Lflmn .ftnd La n term, Hanging Lamps, and ubaodeliers.,, , We are Agentti for MERIDEN BRITAN. NIA CO. "a and RCKiEllS BROIHERS celebrated which ha RtoM the'tct of ever twenty CARPETS; " . '! '; v,t-.;..;;i-Xl lilt t.. arms " GREAT CARPET'' "WAREHOUSE. - WmIjE. JFRE.VC1T & CO. ' ave' lit .no 'e ' f R o m '' ar o.. id JSOKIM rjt4.1I BTULtT 10 Kos. : 47 and 49 Main Street, (Over the tore of Sohaplcer, Buxslng & Co.) Where our friends will at all times find a stock of th following good, which in Quantity, Quality, St 1, and I'riee, We propose to offer akainxt all honest com panion i carpets, : ; ; 1 0IL-CL0TH3, ; ; ;; r MATTINGS, WINDOW-SHADES, ; :K WALL-PAPERS LACE i CDRTAINS, 1 , ' ; DAMASKS, And a full line of Farhishlog . Goods in ueuerai, lor . Dwellings, Steamboats, and Hotels W3I. E. FEEXCII :& CO.; Xo8. 47 and 49 Slain Street, febSI (IIP.8TA I O.H.) ' ' STOVE T70I1KS. Excelsior; Stoye ; Works. ULEIXKER, TILLMAN & Co. ' ' ' : (Suooeora to H. E. Blemkcr), : ., , - MAM'FAtTCREKN of the line and . . :i .. i heavy ,v i ,, c - . . EXCELSIOR STOVE, , , the most durable noW made, and' the rarnouu . - , - . CHARTER STOVE, ; and the good and cheap t "t .. , Armada, StonewaH, Kentucky, TENNESSEE, and PALMETTO STOVE.-. and a great t variety1 ' of HJBATIJTQ STOVES, all of the, latent and most approved patterns. ' ' " ' Alao.Llttht and Smooth Country HollowWare, Hkilleu and Lldn, Ovens and Lids, Dog-Irons, Dinner Pots, Tea-Kettle.; and Fiarticular attention paid to the manufaoure of Houua-Work !... .... CAST-mo:r jsonts, crates. c, ic! f ,' Alaox Tiuware; and Dealers la Tinners' Stock, i . , If desired. Cooking: Stoves warranted for twelvemonth. . .. , f.; J; Orders solicited before purohasinK else where. Foandery, corner Sixth Street and Canal. Store and Sample Room at No. 14 Second r Htreet. H. E. Bleraker'i old stand. BLEMKEB, TILLMAN CO. maj-29 No. 25 MaifUn Lane, , ... : Xeie Fork, Dt-c 14. 1867. f : la BT Card of Nov. L 1867, 1 atatd . that, ''for tlie purpose of more fully -supplying the wtnta of the public, and Iu order to prevent unrrupn

!ou dealers from palmlnsr ntlule- , -lor and werthlrw Kooda the Flortott Gold Ptn, I ahall here after aell no pood at ltoleJ exe.pt only to dulv appointed and authorized Accents," et- To thi plan I have ainoe atrictly adhered. . In accepting- Amenta, great oare jhaa been, exercised to appoint theae who, . by long-continued fair dealing, have acquired a reputation for . honesty, responsibility, and probity men in whose word the public have learned to place confidence. These Agents have agreed to keep a full assortment of my pens, and to aell theza at my published price. ' Thus the public are supplied by them with Just such pens as they want, either aa to writimy or price, and ret a full equivalent for the money i paid. - : : . . . , No arent is appointed to travel from . . . place to place, or canvass the country, to that all who want a Morton Gold ' Pen raust get it from the Local Agent ' ' or from head quarter a. ' ." r- ' ' , None need apply for the Agency except in conformity to the above, tha'J' liberal discount 4,To Clubs " bei?ig IttiScient inducement to all others. A. MOBTOJ ;iJ tuwt m : v .

A piiiimxro.

.. "3ka. JOURNAL COMPANY i ,7 i : 'f - : , . i i . . r : book iiif6S r : ; i .l ! I' i ? I. t r .!iTf. ! r. : v-tf ft1 M-L- - ; It. r : u V ' .. "I' - . rt-' KEW PRESSES!-" , r it- :.. '- . ''');. '.L-- 1 i 1 NEW" TYPE ( And a good supply of Paper,, Cardo, Ace.' Having expended a large ' amount of money in refitting the liook and Job De, partmenUi of this office, the proprietors feel aatls0ed that they are how. able to compete, successfully, with any like estab lishment In this section of the country. and are prepared to oiler such induce ments to the public as they have not hith erto enjoyed. We are prepared to print, in the bes style, , I . BOOKS, i . L -! ' " I AMP 11 LETS. POSTERS,. HANDBILLS, , ;;u ;! CIRCULARS, ; V:'- V ':. '" ' BILL-HEADS, BANE CHECKS, i "... . , LEGAL BLANKS' PROFESSIONAL CARDS, WEDDING CARDS, PROGRAMMES, LETTEIl-HEA DS, LABELS, BILLS- 01 -FARE, .. CATALOGUE BUSINESS CARp& V. f ; rjlS!TlNG-CARDJ$;: ,.

DR.. I. H A A S

Over Flnrt National Runt, - ' " Corner Main god Flrt htri-et, i ' EvariKvllie, IikL. f7A5irrArnRi; or 'xtiit.' j4m t'US Gom Wfirli, !,!, Hilver, VqIcmjite, t'oraiite. snd Amix" Plates, Carved Work, Artihclal 1'alale., & :. ADMiSlKlKATOlt of X!!rou Gt1 ' (an extie-it and ' m)l h-i t ro for m, Etter, aud ul-nt nevriai locfcl pijr l. ' Ijzeis. N El ft A LOIO A frwrtions-treateil. MY KACILXTIEM are as iioihI ami nr ei'titblihuinut as luru (eornttsllfiif of riv rooiuM) a any In th? 'ni;ed MaU-s. I riKTURyWy 'THAS'K'j Mr n, s , ler:"lve I'MtronugBreutlveaduu-lCK u pw,

fciuni l CAlt.-. lui-bli DR. J. C. EIERLWEI 'Wll ''Surgeon t Dentist, t OlBCe. -No. 10 FIIWT HTP.EET, bt Mala i and Locust, Tenders hi profe-ioual nerrlrm 1 !! , citizen, tit KvansviUe aud vi-iiiy t i. : if AsrulnlMters ilrn utxln Vitc,awaViat pain in extracting teeth. WRIT GOODS. SCHAPKEH, BUSSING '& C0H i Nos. 47and49 Main. Street, Will sell off taeir large L.tock. tt 1 Staple aud Fancy lry Cootf.w V EllY CUE ?P , In ordor to make rooav iot Ibelr - ' " ,.r ! ii--. -.'.': . s SPJtlAO. hTOCK. Jan20 G. MAGHEE & CO., s No. la rutsT m rr., I:thiimv!1Ic. IiKllHiia, yHE KOVT H'ESIXU A I. A HUB ttoclc Of NEW atd BtHIJlAKLK HTi.rLE AND FAXCY Hosiery, Motions, HOOP SKIRTS, , . ; AC, AO. Having bought lit sioflt lor enti diuv the great d-cllue, tliy will give iclal lnducerneots to buyers, and invite all la In search of cheap good loxamlDe tbHr stock.' , U. MAUHEE CXJ. novl8dtl DRY OOOX!S. FALL H X O C I AT THK MAMMOTH llOVHK or HUDSPETH, AHUIS & C0,f 63 Maiq Street WE W OFFEK TO Till! IT11c a larve and well-wlccU,! ol Fall and Wlutt-r try iitxKln. iUviuf bouicht n!W unln re;-illv. aud m-Ieiijk all our if'X'di at rr)e only junt.lfipd y prnt low prloM Khhi, we rnjfct)uJly fimw the public to c.il and - nar tUjt K lr-M (juoilK. All the uewtt shadrs In Freucti and irlnb I'opMu. tinuii Merino, tlin yrt"n i.'iottiH, WImhcv, Melange Hootch l'iald, and A11-WX)1 iv,Auh. uar ktooa Hi wki-q vi in tr.e rfi a the oitv. Iu "loiliof all color. hmi inreH. Ha ln t, '1 wel, Jau, and JK inneln. we are able lo ollt-r to cnlmpr In(lucruioniii no other boue In the city can. Our triors, of Notion 1m iHr, notnprUI ug everything eiprt-d to be lound. liav a luriee hkk-H of Knit (ifKKtM, Khlrt and ltrtwerx. Hoo-ti and Ntibiiut, Hhawls and Iloop-HklrtH, lilaiik v, Ac. We have now In ulrxic. In Hleaohd' and ' Brown MiihlniH. C anion 1 mnm is. i'riil. Checks, anl Hh'kory Mrlfcs. roU of lf,e bel brands proliirfi in uiw country. I lie Ijoum-- mat K'lii mii t,xi ai uiarici value in , i . L HUDSPETH, ADAL'3 & CO. "..-", : '" . . ' 63 Mafn Street. ,

) 1

r-.

t J.