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THE opinion states the case.

house for five years, the whole rent payable at the ex- nstitution, or in some respectable family, and to dis-
piration of the lease, as to find a man loaning $20,000 charge such children from their custody whenever the
for five years with iuterest payable only at the matur- object of their commitment has been accomplished.”
ity of the note. There is therefore no presumption This is not a penal statute, and the commitment to
that the payment of interest in such a case is to be de- the public officers is not in the nature of punishment.
ferred. The presumption is rather the other way. It is a provision by the Commonwealth, as parens

Our conclusion is, that the mortgage as it stands patrire, for the custody and care of neglected children,
secures the payment of interest appually, and that too and is intended only to supply to them the parental
as against subsequent purchasers. That being so, the

custody which they have lost. In this respect the plaintiff is entitled to a decree without a reformation statute manifestly differs from the construction given of the mortgage.

to the statutes under which People v. Turner, 55 Ill. [Omitting another question.]

280; S. C., 8 Am. Rep. 645; and State v. Ray (N. H.,
Judgment for plaintiff.

July, 1885), 32 Alb. L. J. 349, were decided, and resem-
bles more the statutes considered in Milwaukee Indus-
trial School v. Supervisors, 40 Wis. 328; S. C., 22 Am.

Rep. 702; Farrier's Petition, 103 111. 367; McLean Co.
PARENT AND CHILD-STATUTE AWARDING CUS-

v. Humphreys, 104 id. 378; Prescott v. State, 19 Ohio St.
TODY TO OVERSEERS OF POOR-CON-

184; S. C., 2 Am. Rep. 388; House of Refuge v. Ryan, STITUTIONALITY-RESTOR

37 Ohio St. 197; Ex parte Crouse, 4 Whart. 9; and ING CUSTODY.

Roth v. House of Refuge, 31 Md. 329.

It does not punish the infant by confinement nor
MASSACHUSETTS SUPREME JUDICIAL COURT. deprive him of his liberty; it only recoguizes and reg.
FEBRUARY 1886.

ulates, as in providing for guardianship and apprentice

ship, the parental custody which is an incident of inFARNHAM V. PIERCE.*

fancy.

It is argued that the right of the father to the soA statute authorizing courts and magistrates to award to the

ciety, education and earnings of his child is takeu overseers of poor the custody of children found to be neg.

from him by a summary proceeding, without notice or lected by their parents, and growing up without educa

trial. If the statute is to be construed as authorizing tion or salutary control, and in circumstances exposing

a final adjudication upon the rights of the father, takthem to lead idle or dissolute Jives, is constitutional,

ing from him the custody and care of his child, it but such adjudication is not conclusive, and on habeas

would be a grave question whether it could be suscorpus the custody may be restored on showing the re

tained. But we do not so construe the statute. moval of the cause and the parents' competency and fit

It provides custody for a child who is suffering for

the need of it in consequence of the death or unfitness .

of its parent. The fact of the death or neglect or

crime or vice of the parent shows the condition of the G. E. Williams, for petitioner.

child-that he is in need of parental custody. The F. V. Fuller, for respondents.

fact that he is suffering morally for want of parental

restraint calls for immediate and appropriate relief as W. ALLEN, J. The father of an infant four years of would the want of food or shelter. The inability or age, who has been committed to the custody of

failure of the parent to furnish the relief is intended the of the poor of the city of Taun

to show the need of the child, not to be the basis of a ton by the First District Court of Bristol

decree against the parent. Milwaukee Industrial School findings that she was, by the neglect of her parent,

v. Supervisors, ubi supra. growing up without education or salutary control, and

It is argued that the statute authorizes the commitin circumstances exposing her to lead an idle and dis.

ment of the child to custody until his majority, and solute life, and that she had a settlement in Taunton,

only gives the board to which he is committed discreseeks her discharge from custody on a writ of habeas

tionary authority to discharge him, and that it thus corpus, on the ground that the statute of 1882, ch. 181,

wholly deprives the parent of the right to the custody. $ 3, under which the court acted, is contrary to article

The answer is that the father is not bound by the ad12 of the Declaration of Rights of this State.

judication, and his rights are not affected by it, except The section of the statute is as follows:

“Whenever

incidentally and to a limited extent, necessary for the it shall be made to appear to any court or magistrate

good of the child. that within his jurisdiction any child under fourteen

It would be an entirely natural and proper provision years of age, by reason of orphanage, or of the neg

in a commitment intended to bind the child and lect, crime, drunkenness, or other vice of his parents,

strangers only, that it should be during minority, or is growing up without education or salutary control,

for a shorter time, in the discretion of the commitand in circumstances exposing him to lead an idle and dissolute life, or is dependent upon public charity,

ting magistrate; and it is not necessary to infer from

such a provision an intention that the rights of the such court or magistrate shall, after notice to the State board of health, lunacy and charity, commit such

father should be adjudicated and determined wbich

would not have been found without it. That that was child, if he has no kuown settlement in this Common

not the intention of the Legislature appears from vawealth, to the custody of said board, and if he has a kuown settlement then to the overseers of the poor of

rious considerations besides those already referred to. the city or town in which he has such settlement, ex

The proceeding is intended to be summary. Any cept in the city of Boston, and if he has a settlement

magistrate is authorized to act when it shall be made in said city, then to the directors of public institutions

to appear to him, etc. No complaint or written appli. of said city, until he arrives at the age of twenty-one

cation to the magistrate is required, and no notice to years, or for any less time; and the said board, over

any one except to the State board of health,lunacy and seers and directors are authorized to make all needful

charity after it shall have been “made to appear.” arrangements for the care and maintenance of chil

No trial is required, and it might be “made to apdren so committed in some State, municipal or town

pear” by inspection of the child and his surroundings

without any other proceeding. The statute not only * 141 Mass. 203.

requires no notice to the parent, but does not make

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THE ALBANY LAW JOURNAL.

213

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him a party, and gives him no right to be heard, even CHITTY, J. This is an application to strike out the if present; and it does not prescribe a fact as constitu- registration of a trade-mark which was obtained by ting the unfitness of the parent-as support as a pau- the respoudents on the 8th of April, 1885. The regisper or sevtence to the State prison for instance-buttered trade-mark consists of these words,

“ Hand leaves the question of unfitness, in the respects speci- Grenade Fire Extinguisher." Under the Patents, fied, to the summary determination of any magistrate Designs and Trade-marks Act, 1882, $ 64, there may without revisiou or appeal. As a proceeding to ascer- be registered as a trade-mark" a faucy word or words tain whether a child, who is growing up without salu- not in common use." Every one of these four words tary control, and exposed to vicious habits, is in that are words in common use - -"hand," "grenade," condition, in spite of proper parental control, or for “fire," "extinguisher"--and they are all ordinary want of it, with a view of supplying the control, if words to b3 found in any dictionary, and well underneeded, the meaning of the statute is plain, and in the stood by any person moderately acquainted with the liue of legislative precedent; as a proceeding to deter- English language. Mr. Aston says that the term, mine the fact of the father's unfitness and consequent taken as a whole, is a fancy term; and he has endeayforfeiture of his parental rights, and to adjudicate ored, by an ingenious argument, to support that propupon his right to the custody of the child, it lacks es- osition. In order to draw forth the strength or weaksential features which we are accustomed to find in ness of his argument, I asked him what term he him. all legislation affecting rights of property or persons; self, after having carefully considered the matter, and we do not think that the necessity of construc- would be able to propose to the court as a term which tion requires us to give that meaning to the language of would better denote the article in question than the the statute.

term that I have just read. His answer I will menThe finding of the District Court must be taken to tion in a moment. The instrument or implement, or be that the child was in the condition which required whatever I ought to call it, consists of a bottle which the custody of the overseers of the poor according to contains a liquid. The bottle is thrown, and the bottle the statute, and she was given into their custody for being thrown, breaks, the liquid escapes, and the efthat reason, and not because the fatber was ad judged fect produced, or alleged to be produced-for I am not to have forfeited his right. The commitment is valid, concerned with whether it is successful or not-is that and the custody in which the child is held is lawful, it extinguishes fire. The four words appear to me to and subject to the rights of the father. The statute indicate with very considerable precision, and with does not provide any way in which the father can much greater precision than I am accustomed to find maintain his rights. He can apply to overseers of the in matters of this kind, the nature of the article itself; poor to discharge the child, for the reason that the ob- and I should hold, as a mere general proposition, withject of the commitment has been accomplished, and out regard to the evidence, which I shall discuss in a on showing his ability and fitness to take charge of moment, that these words, which the respondents call the child, she should be discharged to them. The fancy words, are merely descriptive of the article statute leaves that in their discretion, it is true, and -"hand," "grenade," "fire," "extinguisher." The as to matters other than the right of the parent, their bottle is something like the pomegranate from which discretion may be absolute; but the rights of the pa- the military instrument or weapon called a grenade is rent can be protected on habeas corpus by this court. taken; and everybody who understands the English Milwaukee Industrial School v. Supervisors and House language knows than a grenade is a thing intended of Refuge v. Ryan, ubi supra.

to be thrown, and it is knowu that it contains someWe think that the commitment is evidence of the thing inside it, and that when thrown, there being a condition of the child, as in need of restraint on ac- fuse, the fuse will iguite aud the thing'will explode. count of the neglect of the parent, at the time of the Breaking is part of the notion therefore to be found commitment; but that it is not binding upon the in the use of the term “grenade," and the bottle, of father as an adjudication upon his rights, and that he which there are several specimens here in court, is not has a right to show that the cause stated for the com- unlike a grenade with a fuse in it. “ Hand”- this mitment does not now exist, that he is competent and grenade is to be used by throwing it by the hand; it is fit to have the care of the child, and that the welfare not shot from a gun, or any thing of that kind, and it of the child will permit of her removal from her pres- does serve to extinguish the fire by breaking the glass ent custody.

bottle and allowing the contents to escape. The case should be remitted for further hearing be- These are questions of trade terms, and it is a great fore a single judge.

mistake to suppose that in trade terms are found great Ordered accordingly.

accuracy. On the contrary, there is a very considerable looseness allowed. This is not a question-and I say this emphatically-for a grammarian or philologist. It is a question of the ordinary fair meaning of

the terms to any ordinary Englishman; and there are TRADE-MARK "HAND GRENADE FIRE EXTIN- many illustrations I could give-some of which I gave GUISHER."

in the course of the argument—where words have got

into the language, and pass current, and are very good CHANCERY DIVISION, APRIL 15, 1886.

words, which do not please the philologist, who never

would be satisfied. Of course after a time the learned RE HARDEN STAR HAND GRENADE FIRE Extin-philologist accepts them, and takes them as part of

our ordinary stock of the English language. Professor GUISHER Co., LIMITED.*

Henry Morley, of whom I dosire to speak with the The words "Hand Grenade Fire Extinguisher" are merely greatest respeet, has stated in substance in his affidadescriptive, and not a valid trade-mark.

vit that he considers this a fancy term, and that the

term--as a whole, he must mean-is not in common Romer, Q. C., and Royer Wallace, in support of the use. There is another learned professor who takes a motion.

view which is wholly opposed to this. He considers

the term not fanciful, and considers the words in com. Aston, Q. C., and R. Vaughan Williams, for respond

mon use; and they certainly were in use about two

years before he made his affidavit. It is the first time *54 L, T. Rep. (N. S.) 834.

I remember any affidavits being filed to explain the

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English language, but I accept them, aud I have no applicant's grenade, as a “ Hand Grenade Fire Extindoubt both these gentlemen do state their own view guisher." Then I have a provisional specification, with perfect accuracy.

filed in November, 1884, for “ Improvement in hand But it is really a question, as I have said, which does grenades or chemical fire extinguishing devices," with pot depend on expert evidence. I remember po case a description. I have another one on the 7th of Octoin which, in order to explain the English language, ber in the same year for “[mprovements in hand expert evidence has been allowed to be adduced. Of grenades for fire extinguishing purposes," and another course there are many cases in which experts in the one in February, 1885, “Improvements relating to market are allowed to come forward and explain the hand grenades for extinguishing fire." But really it market terms or the like, such as the terms of a is not necessary to go further through the evidence. charter-party or any other mercantile document, But There is a considerable body of evidence beyond what however this may be, without pressing this too far, it I have mentioned. I am satisfied that in this country is for the court to decide; and I do consider these the term was well known and in common use at the words to be merely descriptive. I hold that as a gen- | time the respondents on this motion applied for this eral proposition. But before I will go to another point registration. What has been done really is with a I will mention Mr. Aston's answer to me when he was view to prevent the rival licensee-that is, Hayward or endeavoring with all his skill, all his knowledge of the those claiming under him-from selling his hand grenEnglish language, all his ability, and all his versatility ades made after the same pattern in this country; and in questious of this kind, to give me a better descrip- that is plain from a letter that was written by Mr. tion of the article, and I got from him as the result, Royce, the manager or secretary of the respondent first, “ a bottle extinguisher." Mr. Aton, no doubt, company, who in terms shows that his object was to meant to bave inserted another word, as he said he obtain a monopoly for the sale under their license of did. Then he inserted the word “fire.” Thus I got the same patent; because both the respondents and "bottle fire extinguisher." With the assistance of Mr. Sinclair have claimed under the same American some gentleman who was in the court, learned in the patent, and their title is apparently, as far as the arlaw and also in the language, he afterward suggested ticle goes, derived from the same source. That letter “bottled fire." That of course is equally absurd. contains a passage which I read for the purposo of Then I got from him “bottled fire annihilator,” and showing with what intention this registration took then as the last, "decanter fire annihilator.” If I may place, premising that no notice was given to the apsay so, I think that that reduces the question to an plicant or to any agent of Hayward in this country of absurdity. The decanter of course is quite wrong, be- the intention to register, and that the registration was cause the decanter is that out of which you pour a either kept secret or at least remained unknowy for a thing. The action of decanting is to empty one and very considerable time afterward. What Mr. Royce pour it into another. “Decanter" would have been a says in his letter of the 13th of March, 1885, material to miserable term to apply. It is hardly worth while this point, is this: " I also note your efforts in keeppursuing this part of the case with seriousness. The ing the agents in good trim, and glad to see you are result of Mr. Aston's labors in the matter would not confident of so doing. I expect Mr. Hayward will have conveyed the notion of this instrument or imple- I have a hard time in getting his grenades into this marment so well to the ordinary mind as the terms which ket." are here used.

Here is the agent or secretary or officer of the reNow I will go to the evidence, which I will deal with spondent company using this term “grenades" about very shortly. In America the name was used and well which alone there could have been, to my mind, the know. I have the description in the Scientific Ameri. slightest contest as to whether the word was fanciful can of the Harden Hand Grenade Fire Extinguisher or not, in the ordinary sense of a word well known: and the article is published in a magazine that came "In getting his grenades into this market,” that is, out on the 12th of July, 1884, and was in this country into England. “I have just applied for a trade-mark by the end of the month, and this article speaks of in the word 'grenade,' as applied to band fire extinthese things in general terms. I will explain what I guishers, and shall probably get it, as it was discussed mean a little more fully. It is headed “ Harden Hand quite exteusively before we filed our claim. I have Grenade Fire Extinguisher," which for argument also taken out the words "The Harden’as a tradesake, I will allow for the moment might be taken to mark, which will bar Mr. Harden," that is another be the description oply of the Harden implement. claimant, “and his lovely grevade;" and then he says: But the article goes on to speak of these as distin- “I have also taken out a design upon the Hayward guished from others. In small type it says: “These bottle. It is really our property, as he stole it from little band grenades extinguish fire on the same prin- us." Upon that part of the case I make no observaciple.” What an admirable commentary that passage tions beyond this: The motion did refer to the I have just read is on the question of whether these registration of the design. But Mr. Aston submitted words are descriptive or not. "These little hand upon that, and he tells me, though he has not given grenades extinguish fire.” It is almost as short and any evidence to justify the statement, that Mr. Hay. as neat as the term which he has registered. Then ward stole the design of the bottle from them; he has there is a license which was granted to Mr. Hay- not gone into evidence upon the point, because he has ward in 1884, in which I have the term used as an or- substantially submitted to the demand. dinary term. It was a license to sell “fire extinguish. There is evidence on the other side to the effect that ers and hand grenade fire extinguishers.” In the pat- most unscrupulously the design of the Hayward botent of 1883 which canie over to this country, the head. tle was taken by the Harden company and registered ; ing is “ Hand Grenade for Fire Extinguishers.” That but I pronounce no opinion upon that. I consider it is not quite so neat as the term that has been regis- quite unnecessary for the purpose of my judgment on tered. “Hand Grenade for Fire Extinguishers seems the other part of the case, and moreover this part of to me to be not so terse nor so well formed a phrase as the case has been withdrawn; but the letter itself the phrase wbich has been submitted for registration. speaks volumes, and it shows that that is being done Then I have in this country, besides what the respond- which I have known attempted to be done on other ents themselves did before registration, Harper's occasions by registering a name, namely, attempting Magazine, which came into this country in December, to get a monopoly really of the article, and to prevent 1884, describing Hayward's, that is in substance, the others selling the same article in the market.

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I bold therefore that the applicant is entitled to suc- furnish such advantage, At one time it was held that ceed on the only point that has been contested, and the proprietors of public conveyances which carried therefore he gets the costs of the motion.

passengers were not responsible as common carriers for the baggage or luggage of passengers, unless a distinot price was paid for its carriage. It is said in

Hutch. Carr. however, sectiou 678: “But now it is too CARRIERS - OF PASSENGERS LOSS OF BAG- well established to be controverted, that in the carGAGE IN SLEEPING CAR.

riage of the passenger's baggage, the carrier incurs the

full responsibility of the common carrier of goods, and SUPREME COURT OF TENNESSEE, JUNE 10, 1886. becomes an insurer of its safety against every accident

which is not the act of God, or the public enemy, or L. & N. & G. S. R. Co. v. KATZENBERGER.* the fault of the owner or passenger himself." For this

are cited numerous cases. A railway company insures the safety of each passenger's 6 Q. B. 612; Great Western Ry. Co. v. Goodman, 12 C.

Macrow v. Ry. Co., L. R., baggage, even when the passenger takes his baggage into a sleeping car, and gives it in charge of the porter thereof,

B. 313; Marshall v. Ry. Co., 11 id. 655; Butcher v. Ry. and the company cannot limit its liability by any special

Co., 16 id. 13; Story Bailm., § 499. This doctrine, we arrangement with the sleeping car company.

take it, is not controverted by the learned counsel as

the settled law of this country as well as of England. A PPEAL from Cirouit Court, Shelby county.

"The general adoption of the rule,” says Mr. Hutch

inson in a note to page 535 of his work on Carriers," is Action to recover the value of plaintiff's baggage, un doubt attributable to evident necessity which those lost from a sleeping car forming part of the defend who travel are under to carry baggage, and to the ant's train, in which plaintiff was a passenger at the fact that the contract to carry the passenger at all adtime. Verdict and judgment for plaintiff, and appeal vantageous. Nor can there be any hardship or injustherefrom by defendant.

tice in such a rule, as it is in the power of the carrier Estes & Ellett, for plaintiff.

to charge such rate for passage as will com peusate him

for the responsibility he assumes of the passenger's L. & E. Lehman, for defendant,

baggage.” We add, a very small charge would prove,

in the long run, profitable to the railroad, losses from FREEMAN, J. Katzenberger, the plaintiff below, this

source not being great, and the articles embraced purchased a ticket at Cincinnati, Ohio, and got on the

in the term “luggage" not generally of great value. cars at Louisville Junction, in Kentucky,on the defend

It is also well settled, and that in accord with the ant company's road, for the city of Memphis. He also

nature of the contract, that all reasonable liberality is purchased a ticket entitling to a berth from the conduc allowed to the passenger in control of his luggage, torin charge of the Pullman sleeper attached to the train on which he was to travel. Hegave his satchel or valise releasing the carrier from his obligation to see to its

for the purpose of its use upon the journey, without to the porter of the sleeper on entering the car; had

safety. Especially would this be true as to the charachis berth made down. On retiring he gave his sleep- ter of luggage involved in this case-a valise containing car ticket to the porter, it being about 1 o'clock at

ing clothing for use on the journey. Hutch. Carr., night. At this time the porter informed him the

$ 694, et seq. valise was too large to go under the seat, and he left it

There appears no special custody of the baggage in where he had seen it placed by the porter of the train

this case more than the fact of taking it into the Pullon entering, to-wit, on a beat near the middle of the

man car, and delivering it to the porter, who placed it car, the conductor sitting beside it. When the car

on a seat opposite the owner. reached Guthrie, on or near the line between Tennes

But the main argument of the learned counsel in see and Kentucky, the valise was missed, and could

this case is based on the contract with the Pullman not be found. The valise contained various articles

Car Company exempting it from liability for baggage, of wearing apparel, and the jury have found a verdict and also that the couductor and porter were prohibfor plaintiff below for $100.

ited by a regulation of the sleeping car company from It is proper to state that the ticket given for the taking charge of, or assuming responsibility for, such berth by the conductor of the Pullmun car had in luggage. As we have said, we do not see that this conprint on the face of it, the following: “Wearing ap

tract can have any proper bearing on the liability of the parel or baggage placed in the car will be entirely at

railroad company, the general carrier, who had engaged the risk of the owners." This ticket however as

to transport plaintiff and his baggage from the Juncshown, only being the ticket of the Pullman Car Com- tion to Memphis, using as part of the means to do so pany, and the railroad company not being a party to

the sleeper of the Pullman Company provided for its it, or so shown, further than the fact that the sleeper

own advantage by special contract with that company; was part of its traiu, can have no bearing on the pres

and by the contract of carriage by settled law, incurent case, where the suit is against the railroad com

ring all the responsibilities of a common carrier of paspany alone. What effect it might have on a suit

sengers. against the Pullman Car Company we need not dis

The question pressed on us, that the sleeping car in cuss or determine, at least for the present.

question was owned by the Pullman Company, proThe suit being against the railroad company as a car.

vided at its own expense, with a conductor and porrier of passengers, the question is as to the measure of

ter, to whom was committed the immediate control liability incurred by such company, where its passen- of its interior arrangements and management, was ger exercises its option to ride on a sleeper of the Pull thoroughly considered by the Supreme Court of the man Compady, whose car, by contract with the rail

United States in its application to the responsibility road company, makes part of its train, and is thus of the railroad company in the case of Pennsylvania contracted for, in view of the convenience of its pas

Co. v. Roy, 102 U. S. 452, et seq. sengers, as well as the iporeased profit to the company This case, it is true, was an action for injuries susby reason of being able to furnish such a comfort and

tained to the person, but sustained by reason of the convenience, thereby increasing at competing points supposed or assumed defective construction of the at least its patronage over any road that should fail to

sleeper in which the passenger was riding at the time. *1 S. W. Rep'r, 44.

In fact he was riding at the time in a different sleeper

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the train in which the plaintiff and other passengers I banker Appeal from Superior Court, county of

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from the one in which he had his berth, with a friend, LANDLORD AND TENANT- LIABILITY OF and therefore a stronger case than the present. The

LANDLORD FOR NUISANCE. defendant railroad company earnestly pressed the argument that the railroad company was not responsible SUPREME COURT OF CALIFORNIA, MAY 25, 1886. because of the contract of the railroad with the Pullman Company, similar to the one in this case, and that

KALIS V. SHATTUCK.* company was along liable, having independent con

A landlord is not liable for an injury caused to a by-stander trol, to a great extent at least, of its sleepers. The

by the fall of an awning belonging to his building, which Circuit Court of the Northern District of Illinois, be

is in the possession of tenants, if the fall of the awning fore which the case was tried, charged the jury that

was attributable to an improper and negligent use of the “the defendant has offered to prove that the car in

awning by the tenant in permitting crowds of people to go which the plaiutiff was injured was not the actual

upon it, when the only purpose of the awning was as a pro property of the defendant, but was the property of

tection from sun and rain, and when, but for such crowd another corporation; but I instruct you, as part of

upon it, it would not have fallen. the law of this case, that if the car composed part of

Alameda. plaintiff while in that, without any fault of his own, J. C. Martin, A. A. Moore and Sydney V. Smith and and by reason either of the defective construction of son, for appellant. the car, or by some negligence on the part of those

J. B. Lamar, for respondent. having charge of the car, was injured, then the defendant is liable.”

MCKEE, J. Pauline Kalis, the wife of her co-plainThe Supreme Court, Harlan, J., delivering the opin

tiff, while passing along the sidewalk in front of a ion, held this charge correct, saying: "The court only

building on the west side of Broadway, in the city of applied to a new state of facts principles very gener

Oakland, received personal injuries from the fall of a ally recognized as fundamental in the law of passenger

woodeu awning, which extended, with a slanting dicarriers. Those thus engaged are under an obligation

rection, from the second story of the building for arising out of the nature of their employment, and on

about twenty feet over the sidewalk; and to recover grounds of public policy rigorously enforced, to pro

damages for the injuries sustained, she brought the vide for the safety of passengers, when they have as

action in hand against “F. K. Shattuck, Maria Hillesumed for him to carry from one place to another."

gas, administratrix of the estate of William Hillegas, As between the parties now before the court, the

deceased," and seven other defendants, “ for knowcourt say the agents of the Pullman Company were, ingly, negligently, and carelessly suffering the awning in law, the servants of the railroad company for the

to remain rotten and insufficiently supported, in conpurpose of this contract of transportation. Their neg- eequence of which, and of the “ negligence and careligence, or the negligence of either of them, as to any

lessness of the defendants in maintaining and using it matters involving the safety or security of passe•gers

iu that defective condition," it fell upon the plaintiff while being couveyed, was the negligence of the rail- while lawfully passing on the sidewalk, and inflicted road company. The law will not permit a railroad upon her painful and permanent injuries. On the trial company, engaged in the business of carrying persons of the case nousuits were granted in favor of all the for hire, through any device or arrangement with a

defendants except Shattuck and Maria Hillegas. sleeping-car company, whose cars are used by the rail- Against them a verdiot and judgment for $3,000 were road company, and constitute a part of its train, to

rendered, and from the judgment and an order deny. erade the duty of providing proper means for the safe

ing their motion for a new trial they have appealed. conveyance of those whom it bas agreed to convey.

The statement of the casc upon which the motion Page 457, citing Whart. Neg. and other authorities.

was heard and decided shows that the awning was We think these priuciples sound, and meet the de

constructed “about twelve years ago," by F. K. Shat. mands of a proper public policy in such cases.

tuck and William Hillegas, who were owners of the The carriage of the baggage being but an incident to building. Hillegas, being a tenant in common of the the contract of carriage to the passenger, and part of

building, died in 1876. As constructed, the awning that contract (Hutch. Carr., $ 678), the same principle

consisted of a piece of two by twelve inch timber, there applied is applicable to the incident as to the

bolted to tbe brick wall of the building with bolts principal contract. The defendant company cannot

which were bedded in the wall. From this, timberescape the liability incurred by its contract by any de

rafters, two inches by twelve inches, extended every vices or arrangement with the Pullman Company by

twelve feet from the wall over the sidewalk, and were which its cars are contracted for, in and of the busi

supported by turned posts, in front of which, and to ness of the railroad company.

The latter must re

receive the ends of the rafters, a piece of timber, three spond to its obligations as a carrier of passengers,

inches by twelve inches, was halved on the upper part whether it carry on the sleeper of the Pullmau Com

of the posts, and spiked to them and to the rafters. pany, or in its own coaches provided by itself.

Between the rafters there was laid a two by six inch We do not feel called upon to review the various

cross-rafter, which supported the awning covering, cases cited by defendant's counsel on the liabilities of

made from oue by six inch tongued and grooved sleeping-car companies under their peculiar contract

boards. The awning had a pitch of twelve inches. to furnish a sleeping apartment with certain conven

There was no railing in connection with it; no doors iences. Such cases are of interest, but do not solve the

or steps leading to it. The sole purpose of its construcpresent case, where the carrier of passengers is sued

tion was as a cover for the sidewalk from sunshine and for a breach of his undertaking.

rain. We think we have sorrectly measured his responsi.

The awning fell and injured the plaintiff on the 9th bility as given in this opinion. The court below

of September, 1880. As to the condition of the posts charged in geueral accord with this theory, and the that supported it on that day there was a conflict in referees report in favor of an affirmance.

the evidence; but the evidence given on the part of We affirm the judgment, and approve the conclu

both plaintiffs and defendants tended to show that the sions of the report.

*11 Pac. Rep. 346.

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