280
FEDERAL REPORTER,
vol. 40.
, to the extent 80 permitted. In the case of Runyan v. Glster's Lessee, 14 Pet. 122', and.in Bank v. Earle, 13 Pet. 519, the supreme court of the United States said: "Every power which a corporation exercises in anotber state depends for its validity upon tbe laws of the sovereignty in which it is exercised." It was further held, in the above cases, that a corporation can make ao valid contract without the sanction, express or implied, of the laws of such sovereignty. It is decided in Bank v. Earle, 13 Pet. 524, that courts of justice have always expoundedaud executed contracts according to the law of the place in which they were'made, provided that the law was notrept'lgnant to the laws or policy of their own country. The court, in the above case, held the rule to be "that, by the comity of nations, foreign corporations are allowed to make contracts under their respective limits not contrary to the known policy of stich nations, or injurious to their -interests. » This gives a railrooo corpOration the' right to exercise all its ordinary powers growing out of.its franchise, such as making contracts in regard to the transaction of its business, as was the case in Railroad 00. v. ,Gebhard, 109 U. S. 527,' 3 Sup. Ct. Rep. 363. But when it undertakes by a lease of its road to get rid of its responsibility or liabilities to the public, which it assumed when it accepted the franchise, it would be exercising an extraordinary power, which may be greatly' prejudicial to the public, and therefore is contrary to the known policy of a sta.te, and injurious t6 its interests, and cannot be exercised unless the state, by express authority conferred, authorizes it to be done. The execution of Ii' contract of lease by the defendant by which it parted with its franchise for three generations is not, among its ordinary :powers. I take the rule to be, in this country, that the ordinary powera vested by the law of its oreation may be exercised anywhere by the rule of comity. The granting of this franchise in the Indian country by congress was the granting of a right in which the public has a large interest. Railroad companies being public corporations so far as to be subjected to control by legislation, they can do no ,act which, would amount to a ,renunciation of their duty to the public, or and necessarily disable them from performing it. They cannot, therefore, , convey away their franchise,s and corporate rights. :But they may "contract debts,purchase on mortgage their personal property not affixed to the road, though used in operating it,"as these would be but the exercise of their ordinary powers. 1 Wat. Corp. 589. There is nothing in theac! of congress authorizing the defendant to build its road permitting it to, lease it. The laws of Kansas granting the extraordinary power to defendant to lease its road cannot operate beyond the sovereigntyof Kansas. Before defendant could lease its road in the Indian 'country it must have the consent of the other party to the contract,the United States. This consent must be expressly given. It might be given :by the act ofcongress directly, by the use of appropriate words in the act, or by the adoption of the power in the Kansas charter; but it has done neither, and therefore, as far as the public is concerned, it does not . eXist., I am not deciding what these two companies may do as affecting
JONES
v.
BOND.
281
each other, but simply, as far as the public is concerned, this act of leasing is an unauthurized lease. This beihg so, the defendant company is liable to third parties for damages occasioned by the tortious acts of the lessee of defendant. The motion for new trial. for the reasons above given, must be overruled; and it is so ordered.
JONES V. BOND.
(Circuit Court, 8. D. Mississippi, E. D.
September 25, 1889.)
1.
RAILROAD COMPANIEs-NEGLIGENCE-RUNNING .OVllR DoG.
In an action for damages for the killing of a dog by a railway train, the engineer testified that while ronnding a curveJ in a deep cut, on a down grade, he saw the dog ahead, and immediately reversea his engine, sounded the alarm whistle, and did all he could to avert the accident, and the fireman corroborated him. Witnesses for the plaintiff testified that they heard the whistle, but supposed it to be for the town the train was approaching. The only witness on the part of the plaintiff who saw the accident, testlfied that the dog was running along the track. The engineer testified that she was crossing the track. The dog was cut in two parts about the middle of the body. /leW, that plaintiff was not entitled to recover. . .
SAME-EVIDENCE.
Under Code Miss. § 1059, providing that, in actioDs against railroad companies for injuries to person or property, proof of the injury inflicted by the running of locomotives of cars of such company shall be prima!acLe evidence of the want of reasonable skill and care on the part of its employes, the presumption created by the statute ceases when the prima jacLe case made out by proof of injury is rebUoted by evidence on the part of defendant.
At Law. Action for damages. Harry Peyton, for plaintiff. W. L. Nugent, for defendant. " HILL, J. This cause Was submitted to the court, upon the questions (If fact as well as law, upon petition, answer, and proofs. The petition, in substance, alleges that petitioner was the owner of a very valuable bitch,. of the setter tribe, from which he semi-annually obtained a large number of puppies, that he sold for a large sum; that said bitch was of the value of $150; that on the 19th day of January, 1889, she was on the track of the Vicksburg &Meridian Railroad, then being operated by the defendant as receiver under the orders of this court, and that, through the carelessness and negligence of said employes, the locomotive and . passenger train, then passing OVf'f said road, ran over and killed said bitch, to the damage of petitioner $150. The answer admits the killing of the animal, but denies that it was the result of any want of care (In the part of the engineer, but, on the contrary, that it was unavoidable. Whether it was so or not is the only question to be decided under the proof taken and submitted by both parties. Tlle testimony (If the engineer and fireman running the train, taken together, if true, is Ii clear defense to the clai xn of petitioner. The evidence on the part -of the petitioner makes a pretty strong prima fatie case of liability. The
petiti(jner, by his counsel, relies upon secti6n 1059 of the Code of 1880, reads as follows: . ..In all actions agahist railroad companies for damage done to perSons or properLy, proof of inflicted by the running of the locomotives or cars of such company shall be prima: facie evidence of tbe want of reasonable skill and care upon tbe part of the servants of sucb company in reference to such injury. "
The reason for this exceptional rule of evidence is that these injuries . are often committed (especially on property) when no one else observes them except the employes operating the train; and this is often the case in regard to injuries done to persons. Hence, after the injury is admitted or proved,it is but reasonable the railroad company, or the receiver, (as in this case,) having control of those who have the best opportunity to know, shall be called UpoI\'to explain how the accident or injury curred.nut I believe a fairco!1struction of the statute is that, as soon as the prima facie case thus made out is rebutted by the evidence, on the part ot the defendant,' the whole testimony is considered' as in other cases; thE! presumption created by the statute from the fact of injury ceases, and the controveray is to. be decided by the weight of the evidence on both sides. I am not aware of any ruling of the supreme court of the state.to the contrary.. I have, within my judicial experience, tried quite a number of cases for injuries to persons and property, against railroad companies and receiVers, from alleged carelessness and · negligence on the part of employ.esoperating railroad' trains, and have read the opinions of the courts in many more cases, but this is the first dog case that has been brought to my attention, and therefore I am at a loss to know what rule to apply. I presume the reason that other cases of like kind have not. been before the courts is that dog is very sagacious and watchful against hazards, and possesses greater ability to avert injury than almost any other ani!llalj in other words, takes better care of himself against impending dangers than any other. He can mount an embankment, or escape from dangerous places, where a horse or cow would be altogether helplessj hence the same care to avoid injuries to , an intelligent dog on a railroad is not rt:quired on the part of those operating the trains that is required in regard to other animals. The presumption is thatl:iuch dog has the' instinct and ability to get out of the way of dal1ger,and will do so,' unless its freedom of action is interfered with by other circumstances at the time arid place. The proofs on both sides show that there is a curve in the railroad at, or immediately east of, the place where the bitch was killed, and that the railroad at this· poirit is in a deep cut, so that the engineer could hOt see her at any great distance, and,thatit was on a down grade. The testimony of the engineer is that, as soon as he saw her, he reversed his engine,soundedthe alarm whisUe,and did all he could to avert the accidentj and that the animal attemptedt\) cross the tra.ck, when she was run over and killed. The fireman testifies that he was oiling some part of the machinery, and did not see the accident, but did hear the alarm whistle, and knew that the engine was reversed. The witnesses on the part of the petitioner
GILES tI. PAXSON.
283
testify that they heard the whistle. but thought it was the whistle givingnotice of the approach to the town of Clinton, as it was about the place where such whistle is usually sounded. It is very natural that they should have reached this conclusion. It was the business of the engineer to sound the whistle; and he must be presumed to know more the purpose of sounding it·. than anyone else. The fael about that he was the employe of the defendant is not a sufficient reason fo'l disregarding the weight to be given to his testimony. Besides, the man corroborates him in the statement that he sounded the alarm and. reversed the engine. There is a difference in the testimony of Simpso:Q. the only witne8S on the part of petitioner, who says he witnessed tho accident, and the engineer, as to whether the animal. was running along the track or crossing it when the killing occurred. The undisputed fact. that she was cut in two parts about the middle of her body is stron!t corroborative evidence that she was crossing the track. A careful COD, sideration of the testimony on both sides satisfies me that the petitionnr has not made out, by the proof, a case entitling him to damage as alleged in bis petition. As the case is a novel one, he will not be tll.xed with the defendant's costs, but will pay all the other costs, and hill tion will be dismissed.
GILES '0. PAXSON
et al.
(O£rcutft Oourt, N. D. Iowa, E. D. Ootober 29, 1889.) VBNDOR AND VENDEE-Co:S-TRACT8-I'ERFORlIIANCE.
Under a contraotfor the purchase of an interest in real estate, to the ·arger part of wl:J,ich titles were admitted to be imperfect, reserving to the the privIlege of makjng "a further investigation of the condition of the propeny aforesaid, andU, upon such examination, it is not found satisfactory, and that the representations as made by the parties of the first part are substantially correct, the said purchaser has the privilege of declaring said contract null and vOId" by giving notice within a certain time, it is for the purchaser alone to determine whether he shall complete the purchase, and his right to refuse to complete it is not a1fected by any action of his in pursuance of another and independent provision of the same contract, that all of the parties thereto shall have the option of taking a pro rata share of land subsequently purchased by any of them.
At Law. Action on contract. Adam8 & Mathew8, for plaintiff. H. O. Noyea and Ed. P. Seeda, for defendants. SHffiAS. J. On the 17th day of January. 1887, the parties to this action entered into a contract in writing touching the purchase by plaintiff of anundivided one-third interest in certain lands in the states of Missouri ,and Arkansas, in which the defendants were interested. The contract sets forth at considerable length descriptions of the various tracts ofJandiritended to be included within {he contract; averring that "the said parties of the first part claim ownership to about 22,533 acres of