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was improperly delayedj at the time!whenit should hav,e been in ;Lqlldq:q;ll.J)d when itWRSin faot 'delirered, which, yerdict for r.· 1.. 1.
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TO CROSS PR'Il!MlSES-LIABiLITY OF LicENsOR. , lipense create any ohliga, tiol1jliPQJi theP11rt prQvideagAinst dallger or aooi· deJ;lt to , , ' ",
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TIle, D\erefact',that a t>alty, the Dature his, 8uthoriz'lld to cross 'the' tracldS oCa raUroad, WIll ,not warrant such croiSing at a' place,otber than that provided by ,the rallrolid,-,-{EDo, ' · i.
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J>ft the Ws verdict, fQr defendant. ,lp-oyes For the, purposes pJ{tipijff. ,to the, of ,which the .jury in: action is Jo,r byJHe unpropj,t, 19p.ated, road. ,and I by for 4l:1wpin.s! ashes of ,The, pit, upon pf Jy,ing alld o,ccq.. if> Vit ,the: . a.liep..."·r.rJIe . ,'V:"'<s .in.t .!ffll f!.. ,tq tCf.tPiY Sj ireight.Jto and, at:8o}tp. whad ,io; i tl;1e
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ettlillded to :the:Nbttl{: l'ivi:ir; 'j The tracb we're on' tht!' bppdsit-e; side of th(rfrJighf1ehedfrOM 'ilie' rivet<. no warjof i of egressdr6m';' the freight-shed'to any 'street(or public :la'na,*Hhout tracks of the defendla.'nt, "except: wal:er; the Height-shed the for ingress alid sO that the flhed 'ctl'Md' reach street terminating near ihltt'poiUt' Without etdssirig lLs'many tracks lLS thete the dioss. On' the occasion in qM'Sflon, 'came' lit nightfalfwitha wliieh;i1l wa,s'inMhded to loafd' with freight the and, after mooring the barge, started to ttacksin: ordeii'td iell.ch his home; bntiristead 'Of :goihg by the way:provided by the defendant, he crossedtlte tracks '!ita di'ftetenV !place,1ah\d; while thus of,the i 'dMbi1aant;:felll int&- the pit' and was ili:'jhred'. lit was)ll'Oved thafthe: 'Plain:': tIff j h'8.d frequently:e're8sed the trackEf' before; MOT same place, alid that 'btherhiMl'etiHnn.ployed the fraight1' i sliM had alsofrequentiy dOlil3 ad, thereby 'sating Some 'time and distance over that, teqU:ir&dto lly'the defendant, '," , ,: " 'I ',' ," J ,"" ' ,"I' ; -,LUporr this case the (lonft rilled,ihS:sfuuch' view of the ev'idetidetnost votable t<fifihe plailitfl:1f; ,rtdthriIg i clOre i thana er\permlsilit)ll,to f :Uieplaintiff ti);'c'fusS' where he did was sho\rn: tiff no duty and eotiia i riot be liWble fOr, negiigence. " it: waIf conceded' on'the argu'tnent 'th'ltt',this 'rUling if 'fIle! plaintiff was crossing the defendant's'pr/:rmliSel'piIi>y: :a,LUcl!tise: metely, arid not by'ilivitati6ii1 i,.., th'Ki' a naked license or will not create l a'dtIty 'of'impUllEiian pa-rt of! l' the ,owner towartfsthe 'p'rovidtl·, aigdil1gt; ra8irigt,rdf accident, 'is 'so 'he' 1< 'J', , 'What is 'thei-em ,bI'inclieatlflanytiiWIg beyond a passive parttif' the custom of the
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80 tracks at, other p1l:tcesthan t1;l.at which provided for the purpose? If ,th,e defendant has directly" Of by invited a, UEle of as waft attempted by the must be found in its cond5lCt in, others to .,do tl;1.esame thing. _ in the nature of the, defendBjD,t's employment a,t the freight-shed him to ,cross the defendant's, traQ.k atall. As ll.n the 4.e w.ll.s to his employer wppld have the latter had aJ;l instead ofa ratiop.;a;eb,aq. ,a rig4t wuae and tlW for thl'l purposes iJ;J.qide:p.t and, fll,ecessary for the: loadiug,. loading, and oCtile a!>Bu,ming that it ,was ,4om ,that the the lighterl!>ge company Illigla;tgo- to or; ir<;>;Ol the over, the lands oftl;1.e defendapt to ,reach ,the highways 'iH, vicinity of the freight-shed, if convenien.ce should it certainly was not iIllplied that the !employesmigb;t "CpOOE\8 their owp. place for crossing t4e,defenda.n,fl3 lands whep,the defendant had already provided a place for ,crossing. The case is not as' strong fOr the plaintiff, as the common one where the owner lands has allowed such persons as chp,se to do so, for their own convenience, to pass over them without hindrance. One who thus uses another's lands cannot complain if he perils. Hounsell v. $mitk" 97 Eng., Com. Law, 731 ; Balch v. Smith, 7 H. & N. 732; Nicholson: v. Erie Ry. Co. 4:1 N. Y. 525. In this case .the plaintiff and all who used,the place: wh t3 re plMntiff was injured knew it was devoted py the defendanMo purposes which necessarily it dangerous to ·others. The Case is destitute, sin,gl&; Qjr9!1m!i1tance t1;om .whieh it can he- inferred,that was in}\ited or induce.d by to croEis·w.he:W;6 .he did. "There .was In,erely,a ,:p.ak.ed, license to; from. previous escencegn .the part :oJ the.d lfen4ant.,; Jfthe,l\ was ,an .invil tation .to tpe place defendfl.nthad p:repared for. . The motion f()r a new trial irs, :
, ORA'! V. HINTON.
81
GRAY
v.
HINTON
and others. February 25, 1881.) ""
(aircuit Oourt, D. Nebraska. 1. ENTIRE CONTRACT-WANT OF
The defendants agreed with iil consideration of one dollar, 'I ' '" '" ' and the advaniagesthereiitter to accrue by the construction of said railway th'rougl1" precincts, they would pay the a certain sum\vhen the had, been graded, and a'certain further, sum when' 'the', paityhad tied and its roadwa:y throPRhthe precincts; i.&a proposition.which p'rovided, ',other, things,thatthe should be c,onstructed before a certain 'date. Alter the time f&' con!. stl-uetion had suit WltS on. :the'c<rntract; alleging thlrt the company had graded its road, but there was no allegationtlili'i the road: had beencomplet,ed" and,\1pon; demurrer to held' , , , (1) being of entirety, and the plaintM could Jibt'rtJ!cover for the gradi'rl.g Witb'out alleging the completion of the road,or offering some sufficient' extluse for the failure to do so (2) That there being nothing in the contract tQbind t:pe cOIJlp/lon,'{ to complete the road, it did not originally bind the defendants, for want of mutuality, and wOilldbecCime binding on them only bya full performance of the agreement' of .the company; part perforIl1ance would not be sufficient.
Demurrer to Petition. The facts, as they appear by the allegations of the 'petition, are as follows: The Nebraska Railway Company was a corporatiop organized for the purpose of constructing a road from Brownsville to, Lake Vity. 'l'he cincts of Ohio and Falls City, in the couniy of RfCliardson, had to subscribe for a certAinamouIlt of the oapital stock of said railway company,'1'o,rthepurpose of aiding the construction of said The railway company for the construction road throngh the said precincts of Ohio and Falls City. Litigationbeip.g threatcmed by parties adverse to the policy of granting aid -by the prl!cincts aboVe men· tioned, the defendants in this suit, 150 'in,nuII\ber, signed'tbe.'CoI1tract upon which this suit is brought. . '
The contract, in'Bo far as it; is material, to be oonsidered, is as follows: for its execution on the part of thedefetldant stated to be "the sum of one dollar', to us in hand paid ':N'ebraskA RailWay
v.7,no.1-6