That this bill was forwarded to plaintiff's | 2 Story, 502; Westminster Bank v. Wheaton, 4 creditor in payment for goods bought; that it R. I. 30. was in due course forwarded to defendant for collection; that the bill was never presented for payment, and payment thereof was never demanded at the maturity thereof, but that on April 14, 1888, the defendant did falsely, wrongfully and maliciously cause said bill to be pro tested for nonpayment, and did cause and procure notices of protest to be sent forth and published, to the great damage and injury of plaintiff. Defendant's demurrer to the complaint was sustained, and plaintiff appealed. Mr. Carman N. Smith, for appellant: The instrument set forth in the complaint is a bill of exchange, and not a check. The defendant Bank was only an agent for the collection of this check, and the notary appears to have been another agent not acting in behalf of defendant. The only corporate act was the delivery of the paper to the notary, and the Bank is no more liable for his negligence than for that of an attorney or of another bank to whom they might have passed the paper for collection. Citizens Bank v. Howell, 8 Md. 530; Agricultural Bank v. Commercial Bank, 7 Smedes & M. 592; 2 Hilliard, Torts, p. 331. Mitchell, J., delivered the opinion of the court: Daniel, Neg. Inst. §§ 1573-1575; Taylor v. This appeal presents the question whether a French, 4 E. D. Smith, 453; Woodruff v. Mer-written order on a bank or bankers to pay a chant's Bank, 25 Wend. 673; Merchants Bank sum of money at a day subsequent to its date, v Woodruff, 6 Hill, 174; Bowen v. Newell, 8 N. and subsequent to the date of its issue, is a Y. 190; Ivory v. State Bank, 36 Mo. 475; Hen-check" or a "bill of exchange," and hence enderson v. Pope, 39 Ga. 361, reaffirmed, Georgia | titled to grace. The question is one which has Nat. Bank v. Henderson, 46 Ga, 496; Minturn v. Fisher, 4 Cal. 36; Morrison v. Bailey, 5 Ohio St. 13; Work v. Tatman, 2 Houst. (Del.), 304; Bradley v. Delaplaine, 5 Harr. (Del.) 305; 2 Parsons, Notes and Bills, 68, 69; Morse, Banking, p. 243; Hawley v. Jette, 10 Or. 31. The instrument, not being a check but a bill of exchange, is entitled to grace, and is not due in fact or in law until the last day of grace. Minn. Gen. Stat. chap. 23, 17, p. 317; Daniel, Neg. Inst. § 614; Bank of Washington v. Triplett, 26 U. S. 1 Pet. 25 (7 L. ed. 37); Bell v. First Nat. Bank, 115 U. S. 373 (29 L. ed. 409); Ogden v. Saunders, 25 U. S. 12 Wheat. 213 (6 L. ed. 606). given rise to considerable discussion and some conflict of opinion. About all the law there is on it, as well as all the arguments on each side, will be found in Morse on Banks and Banking, 3d ed. § 381 et seq. The two principal authorities holding such an instrument a check are Re Brown, 2 Story, 502, and Champion v. Gordon, 70 Pa. 474. Both of these are entitled to great weight, but they stand almost alone, the Supreme Courts of Rhode Island (Westminster Bank v. Wheaton, 4 R. I. 30), and perhaps of Tennessee, being, so far as we know, the only ones which have adopted the same views. All other courts which have passed upon the question, as well as the text writers, have almost uniformly laid it down that such an instrument is a bill of exchange, and that an essential characteristic of a check is that it is payDaniel, Neg. Inst. § 578; Bank of Washing-able on demand. This was finally settled, afton v. Triplett, supra; Griffin v. Goff, 12 Johns. 433; Jackson v. Newton, 8 Watts, 401; Farmers Bank v. Duvall, 7 Gill & J. 78; Mechanics Bank v. Merchants Bank, 6 Met. 13; Story, Bills, 333; 2 Bl. Com. 469; 3 Kent, Com. 100, 101; Donegan v. Wood, 49 Ala. 242; Bell v. First Nat. Bank, 115 U. S. 373 (29 L. ed. 409). The presentment before maturity was a nullity, would not authorize protest, and was absolutely void. ter some conflict of opinion, in New York,the leading commercial State of the Union,— in the case of Bowen v. Newell (several times before the courts), 5 Sandf. 326, 2 Duer, 584, 8 N. Y. 190, 13 N. Y. 290. See also Morrison v. Bailey, 5 Ohio St. 13; Woodruff v. Merchants Bank, 25 Wend. 673; Minturn v. Fisher, 4 Every injury to a right imports a damage Cal. 36; Bradley v. Delaplaine, 5 Harr. (Del.) though it does not cost the party one farthing. 305; Georgia Nat. Bank v. Henderson, 46 Ga. Addison, Torts, § 1, p. 15; Bonomi v. Back-487; Icory v. State Bank, 36 Mo. 475; Work v. house, El. Bl. & El. 657;, Ashby v. White, 2 Ld. Raym. 938. Injury to the drawer is prima facie presumed, where there has been no presentment. Conroy v. Warren, 3 Johns. Cas. 259; Daniel, Neg. Inst. § 1588; Ford v. McClung, 5 W.Va. 166; Little v. Phenix Bank, 2 Hill, 425; Daniels v. Kyle, 1 Ga. 304; Harbeck v. Craft, 4 Duer, 122; 2 Parsons, Notes and Bills, p. 71. The careless disregard of the rights of others is implied as malice in law. Jerman v. Stewart, 12 Fed. Rep. 266; Kenne dy v. Meacham, 18 Fed. Rep. 312. Messrs. Woods & Kingman, for respond ent: The instrument very strongly resembles a check, and the circumstances under which it was drawn naturally suggest the use of a check, and there is very eminent authority for pronouncing it a check. Champion v. Gordon, 70 Pa. 475; Re Brown, Tatman, 2 Houst. 304; Hawley v. Jette, 10 Or. 31; 2 Daniel, Neg. Inst. § 1573-1575; Morse, Banks and Banking, supra. Nearly every definition of a check given in the books is to the effect, not only that it must be drawn on a bank or banker, but that it must be payable on demand. 1 Randolph, Com. Paper, § 8; Byles, Bills, 13; 2 Daniel, Neg. Inst. 1566; 1 Edwards, Bills and Notes, & 19; Bigelow, Bills and Notes, 116; Chalm. Dig. Bills and Notes, art. 254; Shaw, Ch. J., in Bullard v. Randall, 1 Gray, 605; Bouvier, Law Dict.; Burrill, Law Dict. Occasionally the expression is used “payable on presentation," but evidently-except perhaps in Story on Bills-as synonymous with "payable on demand." As the question is a new one in this State, we would not feel compelled to follow the majority if the better reasons were with the minority. Perhaps the weightiest argument in favor of holding such an instrument a check is the practical one advanced by Sharswood, J., in Champion v. Gordon, viz., that if held to be a bill of exchange the holder might immediately present it for acceptance, and if not accept ed he could sue the drawer, or if accepted it would tie up the drawer's funds in the hands of the bank, and thus, in either case, frustrate the very object of making it payable at a future day. In answer to this, it may be said that the drawer, if he wished, could very easily avoid such consequences by inserting appropriate provisions in the instrument. On the other hand, if we hold that an instrument not payable on demand may be a check, we are left without any definite or precise rule by which to determine when the paper is a check, and when a bill of exchange. The fact that it is drawn on a bank is not alone enough to distinguish a check from a bill of exchange, for nothing is better settled than that a bill of exchange may be drawn on a banker. Neither will the fact that the maker writes it on a "blank check" be any test, for the kind of paper it is written on cannot control the import and legal effect of its words. Neither can the question whether it is drawn against a previous deposit of funds by the drawer with the drawee furnish any criterion, for nothing is clearer than that a bill of exchange, as well as a check, can be drawn against such a deposit, and that an instrument may be a check although the drawer has no funds in the hands of the drawee. Neither will it do to say that if it is entitled to grace it is a bill, but if not entitled to grace it is a check, because the legal character of the instrument has first to be determined before it can be known whether or not it is entitled to grace. In short, if we omit from the definition of a check the element of its being payable on demand, bankers and business men are left without any definite rule by which to govern their action in a matter where simplicity and precision of rule are especially desirable. It might be expedient to enact, as has been done in New York and some other States, that all checks, bills of exchange or drafts, appearing on their face to be drawn on a bank or banker, whether payable on a specified day or any number of days after date or sight, shall be payable on the day named in the instrument without grace; or, what might be better still, to abolish days of grace altogether as a usage which has already long outlived the condition of things out of which it had its origin. But this is a matter for legislatures, and not for courts. We are therefore of opinion that the better rule is to hold that such an instrument is a bill of exchange, and hence entitled to grace. We may add that it is always desirable that the decisions of the courts should be in accord with the business usages and customs of the country. Such usages are entitled to special weight on a question like this, for the whole matter of grace on bills and notes had its origin in the usage of bankers. And, so far as we are advised, the general practice of bankers in this State has been to treat instruments like this as bills of exchange and not checks. Counsel for respondent suggests that, even if we hold that payment of this paper was demanded, and protest made prematurely, yet the action of the court below in sustaining the demurrer to the complaint should be affirmed on other grounds, viz., that the act of protesting, etc., was the act of the notary and not of the Bank; that the protest could not have damaged the financial standing of plaintiff because the certificate of the notary shows on its face that it was done before maturity; also, that the instrument being of doubtful classification, involving a legal question on which courts differed, the defendant would not be liable for an honest mistake of law. Whatever force there might be in these suggestions, either by way of defense or in mitigation, we think they are unavailing in support of a demurrer to a complaint which alleges that the defendant "falsely, wrongfully and maliciously caused" the paper to be protested for nonpayment, and notices of protest sent out, and which also shows that such notices-which were presumably what, if anything, injured plaintiff's standing and creditcontained nothing indicating that payment was prematurely demanded. Order reversed. MASSACHUSETTS SUPREME JUDICIAL COURT. Michael F. MCMAHON et al., Piffs., v. Catherine GRAY. is available to the creditor of a widow to reach her right of dower unassigned. (November 30, 1889.) PPEAL from a judgment of the Superior A Court in Worcester County sustaining a demurrer to a bill in equity. Reversed. The suit was to reach the unassigned dower of defendant, and have it applied on her debt to plaintiffs. Messrs. Verry & Gaskill, for plaintiffs : The real estate which can be taken on execution is "the lands of a debtor in possession, remainder and reversion, all his rights of entry into lands and of redeeming mortgaged lands, and all such lands and rights which have been fraudulently conveyed by him," etc. Pub. Stat. chap. 172, § 1. The same phraseology has been employed in successive statutes since the passage of chap. 57, Acts 1783. While this latter Statute was in force it was held that the dower interest of a widow, not assigned, could not be taken on execution. Gooch v. Atkins, 14 Mass. 378. The same doctrine is uniformly held. Freeman, Executions, § 185; Nason v. Allen, 5 Me. 479; Waller v. Mardus, 29 Mo. 25; Shields v. Batts, 5 J. J. Marsh. 12; Petty v. Malier, 15 B. Mon. 591; Newman v. Willetts, 48 Ill. 534; Aikman v. Harsell, 98 N. Y. 186; Weaver v. Sturtevant, 12 R. I. 537; Maxon v. Gray, 14 R. I. 641. The nature and incidents of the dower interests are such that there is no estate; there is nothing to convey or attach. Croade v. Ingraham, 13 Pick. 33; Mason v. Mason, 1 New Eng. Rep. 106, 140 Mass. 63; Pixley v. Bennett, 11 Mass. 298. Our statutes give complete jurisdiction in equity. Pub. Stat. chap. 151, § 2, cl. 11; 1884, chap. 285. Similar bills have been entertained and a similar remedy decreed, as in this case, in many States. Tompkins v. Fonda, 4 Paige, 448; Stewart v. Mc Martin, 5 Barb. 438: Davison v. Whittlesey, 1 MacArth. 163; Payne v. Becker, 87 N. Y. 153; Boltz v. Stoltz, 41 Ohio St. 540. The only case found in which the remedy here sought was denied is Maxon v. Gray, supra. But that is decided upon the express ground that there is no statute in Rhode Island giving the court jurisdiction in equity to reach and apply property in payment of debts. Mr. James H. Bancroft, for defendant: All real and personal estate liable to be taken on execution may be attached. Pub. Stat. chap. 161, § 38. All the lands of a debtor in possession, remainder or reversion, all his rights of entry into lands, and of redeeming mortgaged lands, may be taken on execution. Pub. Stat. chap. 172. § 1. A woman having an inchoate right of dower may have a bill in equity to redeem land from a mortgage in which she has joined, and this after the conveyance of the husband's equity therein. Such right of dower is a contingent interest in land. Davis v. Wetherell, 13 Allen, 60. Since the Statute of 1816, chap. 84, a widow entitled to dower in lands of which her husband died seised may continue to occupy the same with the heirs or devisees, or to receive her share of the rents, issues or profits thereof, so long as such heirs or devisees do not object thereto. Pub. Stat. chap. 124, § 13. The case of Gooch v. Atkins, 14 Mass. 378, arose upon facts existing prior to the Statute of 1816, chap. 84. - Field, J., delivered the opinion of the court: We think it clear that the right of the defendant to have dower assigned to her out of the lands of her deceased husband cannot be attached or taken on execution in an action at law. The statutes relating to dower have not made a dowress a tenant in common with others in the lands of her deceased husband. The statutes which in some cases give to a widow, in lieu of dower, an estate for her life in one half of the lands of which her husband died seised in fee, or which give to her an estate in fee in such lands to an amount not exceeding $5,000, have been held to be modifications of the Statutes of Descent, and to vest the title to these estates in the widow immediately on the death of her husband. Sears v. Sears, 121 Mass. 267; Lavery v. Egan, 143 Mass. 389, 3 New Eng. Rep. 439. But as we said in Sears v. Sears, "The title thus vested in the widow wholly differs from a mere right of dower, which extends to all lands owned by the husband at any time during the coverture and confers no seisin until it has been assigned to her." Before the dower is assigned, the widow has no legal estate in the land upon which an execution can be levied. Gooch v. Atkins, 14 Mass. 378; Hildreth v. Thompson, 16 Mass. 191; Croade v. Ingraham, 13 Pick. 33. At common law a dowress could not enter until her dower had been assigned; and after dower had been assigned and she had entered into possession she became immediately seised for her life of a freehold estate, with the usual incidents of such an estate, and she could convey it and it could be taken on execution by her creditors. Windham v. Portland, 4 Mass. 384, 388; Sheafe v. O'Neil, 9 Mass. 13. It is manifest that the reason of the commonlaw rule that a widow cannot convey to another her right to have dower assigned, or enter upon the land before the assignment, as well as of the rule that her right could not be taken on execution, was not founded upon any policy of the law that dower should be a provision for her support which should be exempt from liability to be taken by her creditors, because she could not enjoy her dower until it was assigned and then it at once became alienable by her and liable to be taken on execution to satisfy judgments obtained against her. The right to have dower assigned is a valuable right to property, and in the present case it is a right to land within this Commonwealth which the dowress can have set off to her whenever she chooses by legal process if necessary. By the weight of authority it is a right which in equity she can assign to another, and courts of law will recognize the assignment to the extent of enabling the assignee to maintain a writ of dower in her name. Lamar v. Scott, 4 Rich. L. (S. C.) 516; Robie v. Flanders, 33 N. H. 524: Potter v. Everitt, 7 Ired. Eq. 152; Tompkins v. Fonda, 4 Paige, 448; Strong v. Clem, 12 Ind. 37; Payne v. Becker, 87 N. Y. 153; Pope v. Mead, 99 N. Y. 201; Davison v. Whittlesey, 1 MacArth. 163. The fact that the lands described in the bill are lands of which her husband died seised, and that she is in occupation and may continue in occupation under Pub. Stat. chap. 124, § 13 (if the heirs or devisees do not object), without having her dower assigned, does not change the essential nature of her right. This provision of the statutes was undoubtedly enacted for her benefit, but we are unable to see any indications that it was enacted for the purpose of exempting her right of dower from being taken to satisfy her debts. She continues to have the same right and power to compel an assign powers of a court of equity. Payne v. Becker, Tompkins v. Fonda and Davison v. Whittlesey, supra; Boltz v. Stolz, 41 Ohio St. 540. ment of dower that a dowress had before the Statute of 1816, chap. 84, was enacted. See Rev. Stat. chap. 60, § 6, and Commissioner's note, Gen. Stat. chap. 90, § 7; Pub. Stat. chap. In Mason v. Mason, 140 Mass. 63, 1 New 124, § 13. Eng. Rep. 106, the conveyance was of an inAs this right is a valuable interest in prop-choate right of dower by a married woman in erty within the Commonwealth, which is as- the lifetime of her husband. signable in equity, we are of opinion that it can be reached by creditors under Pub. Stat. chap. 151, § 2, cl. 11, as amended by Statute 1884, chap. 285. Suits similar to this, under statutes resembling ours have been maintained elsewhere, and the means whereby the land has been applied to the payment of the plaintiff's debt seem to be within the ordinary Maxon v. Gray, 14 R. I. 641, was decided on the ground that there were no statutes of Rhode Island which gave the court jurisdiction, and that the case was not within the general equity jurisdiction of the court. The decree dismissing the bill must be reversed, and the demurrer overruled. So ordered. NEW YORK COURT OF APPEALS (2d Div.). Hubbard J. GOODRICH, Appt., v. NEW YORK CENTRAL & HUDSON (....N. Y.....) 1. It is negligence on the part of a 2. A brakeman does not assume the risk Statement by Brown, J.: Appeal from a judgment of the General Term of the Third Judicial Department, which affirmed a judgment entered upon an order at the circuit dismissing the plaintiff's complaint. This action was brought to recover damages for injuries received by the plaintiff, a brakeman in the employ of the defendant, while engaged in coupling cars. It appeared from the testimony that on the morning of the 17th of October, 1882, the plaintiff and other employés of the defendant were directed to go from Albany to Fishkill, and take charge of a circus train which was to come upon defendant's road from the New England road. The circus train reached Fishkill about 3 o'clock in the afternoon, and was switched upon a side track north of the depot. In the evening, between 7 and 8 o'clock, the plaintiff was directed by the conductor to couple some of the cars of the circus train to some stationary cars further north on the same track, and this he proceeded to do. He stood on the east side of the track as the cars were moving north at a slow gait. It was dark, and plaintiff had a lantern. When the cars to be coupled were within a few feet of each other, he stepped between them for the purpose of inserting the link which was in the bumper or draw-head of the stationary car. When the cars were three or four feet apart, he discovered that the bumper of the moving car was lower than the bumper of the stationary car. He testified that he thought, by raising the link, it would enter the bumper of the stationary car. He took hold of the link with his left hand to raise it up, but found it would not enter the bumper of the stationary car. The bumper of the moving car passed under the bumper of the stationary car, and in attempting to withdraw his hand it was caught be tween the dead-woods and severely crushed. The dead-woods were about eight inches on each side of the bumpers. Their purpose was servant to peril or hazard. Foley v. Pette Mach. Works, 4 L. R. A. 52, note, 149 Mass. 294. A master is bound to use ordinary care in supplying and maintaining proper and safe appliances, and provide for servant's safety. Lindvall v. Woods (Minn.) 4 L. R. A. 796, note; Louisville, N. A. & C. R. Co. v. Buck, 2 L. R. A. 520, note, 116 Ind. 566; Griffin v. Boston & A. R. Co. 1 L. R. A. 699 note, 148 Mass. 143. The plaintiff, who was the first of defendant's employés to handle the cars, discovered the defect in time to have had the same remedied and to have avoided any danger. He not only disregarded the defect and neglected to report the same to his superior, but proceeded to act as if it did not exist, although he knew the effect thereof. Under these circumstances there was no omission of any duty which the defendant owed to the plaintiff in the exercise of reasonable care in providing fit appliances for the plaintiff. to prevent the cars coming together, and thus | 419, 101 N. Y. 396; Shaw v. Sheldon, 5 Cent. afford protection to a person standing between Rep. 41, 103 N. Y. 667; Cahill v. Hilton, 9 them. The bumper on the moving car was Cent. Rep. 255, 106 N. Y. 512; Appel v. Bufnot broken, but hung lower than the one on the falo, N. Y. & P. R. Co. 111 N. Y. 550. stationary car, and lower than it was intended to hang, for the reason that the staple or strap which surrounded it, and in which it played, was broken on one side. It is customary, in coupling cars of which the bumpers are of different heights, to use a crooked link, and such links are supplied by the company, and were in the caboose which plaintiff and his fellows took with them from Albany to Fishkill. The link in the bumper at the time of the accident was a straight one. After the accident a crooked link was used, and the coupling was made, and the car was thus used while on defendant's road. The bumpers are backed by strong springs, and it frequently happens that, wheu the cars meet with considerable force, the bumpers are pressed in upon the springs, and the dead-woods come together; but when the cars approach each other at a slow, or, as the witnesses term it, "ordinary," speed, the bumpers receive the shock, and a space is left between the dead-woods of from two to eight inches. It further appeared that in making the coupling the plaintiff's hand would necessarily be between the dead-woods of the two cars. Plaintiff appeals. Mr. Amasa J. Parker, for appellant: The circus train being run on the track of the defendant, and by the defendant, and in charge of the defendant's men, imposed the same responsibility upon the defendant as if it was owned by it. De Kay v. New York, L. E. & W. R. Co. 33 Hun, 665, 102 N. Y. 666; Gottleib v. New York, L. E. & W. R. Co. 29 Hun, 637, 1 Cent. Rep. 728, 100 N. Y. 462; Chicago, B. & Q. R. Co. v. Avery, 109 Ill. 315, 318. The defendant is liable for the defect in the car which caused the injury. De Graff v. N. Y. Cent. & H. R. R. Co. 76 N. Y. 125; Kelly v. New York & S. B. R. Co. 11 Cent. Rep. 874, 109 N. Y. 44; Devlin v. Smith, 89 N. Y. 470; Arnold v. Delaware & H. Canal Co. 6 N. Y. S. R. 368; Bailey v. Rome, W. & O. R. Co. 49 Hun, 377. Brown, J.,delivered the opinion of the court: It was decided in Gottlieb v. New York, L. E. & W. R. Co. 100 N. Y. 462, 1 Cent. Rep. 728, that a railroad company is bound to inspect the cars of another company used upon its road, just as it would inspect its own cars; that it owes this duty as master, and is responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection; that when cars come to it from another road which have defects, visible or discernible by ordinary examination, it must either remedy such defects, or refuse to take them. This duty of examining foreign cars must obviously be performed before such cars are placed in trains upon the defendant's road, or furnished to its employés, for transportation. When so furnished, the employés whose duty it is to manage the trains have a right to assume that, so far as ordinary care can Laning v. N. Y. Cent. R. Co. 49 N. Y. 521; accomplish it, the cars are equipped with Kain v. Smith, 80 N. Y. 458; Flike v. Boston safe and suitable appliances for the discharge & A. R. Co. 53 N. Y. 549; Gottleib v. New | of their duty, and that they are not to be exYork, L. E. &W. R. Co. 29 Hun, 640, 1 Cent.posed to risk or danger through the negligence Rep. 728, 100 N. Y. 466; Ellis v. New York, L. of their employer. The defect complained of E. & W. R. Co. 95 N. Y. 547. See Fuller v. in this case was obvious and discernible to the Jewett, 80 N. Y. 46; Ford v. Fitchburg R. Co. most ordinary inspection, and could have been 110 Mass. 240. easily remedied. It is argued by the defendant that it had fulfilled its duty when it had furnished for the use of its employés crooked links, which could be used in coupling together cars upon which the bumpers were of different heights. We do not think that in this case that fulfilled the measure of defendant's obligation. It could not be so held, unless it was the duty of the plaintiff to examine and inspect the cars to ascertain whether the coupling appliances were in proper condition. The duty of examination, like the duty of furnishing proper maMr. Hamilton Harris, for respondent: chinery and appliances, in the first instance In attempting to make the coupling with a rests upon the master. Fuller v. Jewett, 80 N. straight link, with full knowledge of the situa-Y. 46; Gottlieb v. New York, L. E. & W. R. Co. tion, plaintiff assumed all the risk attending the attempt. When there is any evidence of defendant's negligence and of the absence of contributory negligence on the part of the plaintiff, the case should be submitted to the jury. Pyees v. New York & N. E. R. Co. 20 N. Y. Week. Dig. 394; Fitzpatrick v. New York, N. H. & H. R. Co. 21 N. Y. Week. Dig. 169; Milwaukee Nat. Bank v. City Bank, 103 U. S. 668 (26 L. ed. 417); Ryan v. N. Y. Cent. & II. R. R. Co. 37 Hun, 186; Hart v. Hudson River Bridge Co. 80 N. Y. 622. Gibson v. Erie R. Co. 63 N. Y. 449; De Forest v. Jewett, 88 N. Y. 264; Powers v. New York, L. E. &W. R. Co. 98 N. Y. 274; New York, L. E. & W. R. Co. v. Lyons, 11 Cent. Rep. 834, 119 Pa. 324; Marsh v. Chickering, 2 Cent. Rep. supra. And the degree of vigilance required from a railroad corporation in this respect is measured by the danger to be apprehended and avoided. Ellis v. New York, L. E. & W. R. Co. 95 N. Y. 546; Salters v. Delaware & H. Canal Co. 3 Hun, 338. |