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and charged therefor $1.50 to the town of Roxbury, which was paid to him by the town, September 29, 1865. On the 16th of July, 1866, the doctor rendered a like attendance upon Patty while sick, and charged therefor $1.50, which the town paid him in 1867, she having no property."

The question whether medical aid was needed and furnished being a question of fact exclusively for the trial court, has thus been settled. Whether the evidence was of sufficient weight to justify such finding is not a question which this court can review at this proceeding, but the admissibility of the evidence, if objected to, is properly before thie court.

To prove the facts found by the court the defendant offered as a witness one who was a selectman of the defendant town for the years 1865 and 1866, who testified in substance that he was selectman during those years, and that he gave instructions to Dr. Downs to doctor Patty during that time; that the doctor came to him in 1865 or 1866, he thought it was in 1865, and stated that Patty was sick, and that he could no longer attend upon her without pay for further services, and that thereupon he directed the doctor to attend her, and told him the town would pay him; that the doctor brought in the bili afterward for the year, and it was paid; that the selectman had no record of it, but that he thought the bill was $1.50. No error was predicated upon the admission of this evidence. But the defendant further offered, and the court admitted against the plaintiff's objection, the entries in the account books of Dr. Downs, after proving that the doctor, at the time of trial, had become mentally incompetent to testify or transact any business, and that the books offered wore his books, kept by him in his own hand, aud that the charges were made in the regular order and course of business, with like charges and credits against divers other persons and patients; that the charges were entered first in a day-book and posted into a ledger; that the entries in question were:

"April 25, 1865. Town of Roxbury, Dr. To visit Patty Wilmot and med., $1.50

"Sept. 29, 1865. Cr. By town board to balance account to this day, $16.98."

Also:

"July 16, 1866. Town of Roxbury, Dr. To visit Patty Wilmot, $1.50.

"1867. Cr. By town order, $8."

Were these entries admissible? We think they were-First, to show the time when the services were rendered, and the fact and date of payment. In these respects it was necessary to supplement the testimony of the selectman, who left the date uncertain even as to the year. The time was quite important in order to break the six-years' self-supporting commorancy after May, 1850, and again before March 27, 1871. Second. It was admissible to corroborate the testimony of the selectinan. Suppose the defendant had rested upon the testimony of the selectman alone, and there had been no such entries on the doctor's books, would not the absence of such entries furnish very strong inferential evidence that there was no such medical attendance ever rendered or paid for? Morrow v. Ostrander, 13 Hun, 219. It then the absence of such entries would greatly impair their selectman's testimony, their existence must necessarily furnish strong support. If the evidence was admissible for either of these purposes, the ruling of the court is sufficiently vindicated. But the question discussed by counsel was whether these entries were admissible as tending to show the fact that medical services were rendered to Patty Wilmot and paid for by the town? It is highly probable that the court below gave effect to the

evidence, as the question assumes, and therefore we will discuss it as if it was of controlling importance. We think the evidence was admissible for these purposes, in addition to those mentioned previously.

In Abel v. Fitch, 20 Conn. 96, this court (Ellsworth, J., delivering he opinion) stated the rule as follows: "Entries by persons since deceased, having full and peculiar means of knowledge, made at the time, in the regular course of business, in the usual and proper place and manner, especially if in the discharge of one's duty, are admissible to the jury as part of the res gesta."

In Abbott's Trial Evidence, 322, it is said: "An entry or memorandum, whether in a book or any other form, made in the usual course of business, and at about the time of the transaction, by a person not a party to the action, who is shown to have had means of personal knowledge of the fact recorded, is competent evidence of such fact, (1) if the person who made it is produced and verifies the handwriting as his own and testifies that it was so made, and correct when made, although he may have no present recollection whatever of the transaction; or (2) if the person who made it is dead, and his signature and handwriting is proved, and he does not appear to have had any interest to falsify."

A distinction applicable to this last qualification will be referred to hereafter. See also 1 Greeul. Ev., $116.

There is some disagreement in the authorities as to the necessity of calling the person who made the entries, if he is living, though he may be without the jurisdiction. But in this State, and in several other jurisdictions, the reasonable rule has been adopted that if the person making the entries is beyond the reach of process, or is incompetent to testify, it is the same as if he were dead. Bartholomew v. Farwell, 41 Conn. 109; New Haven & Northampton Co. v. Goodwin, 42 id. 230; Livingston v. Tyler, 14 id. 499; Alter v. Berghaus, 8 Watts, 77; Crouse v. Miller, 10 Serg. & R. 158. do not see why the case at bar does not fall directly within the rules referred to.

We

As a case analogous in principle, and illustrative of the application of the rule in this jurisdiction, we cite Ashmead v. Colby, 26 Conn. 289, where the petitioners claimed that the respondents had combined to defraud them in the sale of land in Virginia as containing gold, and that B., one of the respondents, at different times when the petitioners were about to examine the tract, had mingled gold-dust with the soil in particular places, and then caused them to examine the soil in those places, and find the gold thus placed there. As a part of the evidence going to establish this fact, they offered an account-book kept at a neighboring mine by a clerk since deceased, containing entries of sales of gold-dust to B. just before the times when they made the examinations, for the purpose of showing that B. had gold-dust in his possession at those times which he might have so used. Now if the entries on the book of this mining company, of which the respondents had no control, containing charges of the sale of gold-dust, would prove the delivery to and possession of the gold-dust by the person referred to, why will not the charges for medical attendance and medicine furnished to Patty Wilmot prove that she was the recipient of these things.

But we are here reminded of one of the claims in behalf of the plaintiff, that this kind of proof can only apply where the transaction is between the original debtor and creditor. This limitation however was first made in one of the numerous rules that have obtained in the United States regulating the admission of the party's own entries in his own books, which

were to be supported by the suppletory oath of the party himself, in cases where originally he could not otherwise testify in his own behalf. See Poultney v. Ross, 1 Dall. 238, decided by the Court of Common Pleas in Pennsylvania in 1788, and Deas v. Darby, 1 Nott & McC. 436, decided in 1819. The principle can have no proper application to contemporaneous entries by third parties in the usual course of business. But even under the former system, if an order to deliver goods to a third person was proved by evidence aliunde, the delivery could be proved by the books and suppletory oath. Mitchell v. Belknap, 23 Me. 475. In the case at bar there was independent evidence as to the order to render medical service and medicine to Patty Wilmot; and moreover it was the statutory duty of the selectmen to order such relief if she was a pauper. Welton v. Wolcott, 45 Conn. 329.

In Coffin v. Cross, 3 Dane Abr. 322, decided in Massachusetts in 1800, the plaintiff's books and oath were held admissible to prove the fact that medicine and medical attendance were furnished to a third person not the defendant.

In Bay v. Cook, 22 N. J. L. 343, a suit was brought by a physician to recover for medicine and attendance for one Sharp, a pauper of the township of Washington, who fell sick in the town of Independence. The defendant was overseer of the poor for the township of Washington, and employed the plaintiff to administer to the pauper's necessities. The plaintiff

could not recover of the town because no order for relief had been obtained, as specially required by a statute then in force. Upon the trial it was held that the physician's book of accounts was admissible, even where the items on the face of the book were not charged on the same day when the services were rendered.

In Leland v. Cameron, 31 N. Y. 115, it became important to prove that an execution in a certain case had been delivered to the sheriff, who was dead, and whose papers had all been burned with his house. The only evidence was the entry by an attorney in his register, which was held to be competent evidence to prove the fact.

In Warren v. Greenville, 2 Strange, 1129, the book of a deceased attorney containing charges relating to a common recovery was admitted as tending to prove a life estate, where it appeared by the book that the charges had been paid.

In Doe v. Robson, 15 East, 32, entries of charges made by an attorney in his books, showing the time when a certain lease, prepared for a client of his, was executed, which charges were shown to have been paid, were held to be evidence, after the attorney's death, to show that the lease (executed under a power to lease in possession, and not in reversion, which lease bore date of the 31st of August, 1770, and purported to grant a term from the 29th of September then next ensuing) was not in fact executed till after the 29th of September, inasmuch as the charge for drawing and engrossing the lease was under date of October, 1770. This entry was considered as one against interest, and put upon this ground by Lord Ellenborough, C. J., and Bailey, J., who delivered the opinions, and it was found to be against interest because the attorney who entered the charge had also entered a credit showing that a debt to him from another was discharged.

Upon the same ground the entries of Dr. Downs might be treated as against interest. There is however the other fact that he was an inhabitant of the defendant town, which we will advert to in another conuection. But it must not be supposed that the admissibility of the entries in question depends on the fact that they were against interest. Many cases give

great prominence to this fact because they belonged to that class of entries; but a clear distinction was long ago made, as laid down by Parke, B., in Doe v. Turford, 3 Barn. & Adol. 890, to this effect; in case of an entry against interest, proof of the handwriting of the party, and his death, is enough to authorize its reception. At whatever time it is made it is admissible. But in the other case (namely, an entry in the course of business) it is essential to prove that it was made at the time of the transaction to which it relates. In 1 Greenl., § 120. the same distinction is more elaborately treated and explained.

The contemporaneous character of the entries in question appears on the face of the books, the original entries being made daily in a regular day-book, in which were entered daily visits and charges coming up on both sides to the dates in question.

In a note by Mr. Hare, the American editor of the Exchequer Reports, to the case of Percival v. Nanson, 7 Exch. 4, it is said: "Entries by a third person in the course of business are in general admissible in the country [United States] after his death, whether they were for or against his interest when made; and the entries of a deceased agent may consequently be read in support of a suit brought by the principal, even where they are of payments made by and not to the principal."

This proposition is fully supported by the case of Dow v. Sawyer, 29 Me. 117.

In Inhabitants of Augusta v. Inhabitants of Windsor, 19 Me. 317, it was held that entries by a deceased physician in the regular course of his business are admissible in evidence when corroborated by other circumstances to render them probable, and that it was not recessary that entries, to be admissible, should be against the interest of the deceased person making them.

We discover a tendency to more liberality in the courts respecting the admission of entries by both parties and third persons.

In 1 Whart. Ev., § 246, it is said :" Original entries of deceased parties in their own books are held (in several jurisdictions of the United States) admissible, even though self-serving, when contemporaneous, and when confined to a transaction within the business of the party."

The distinction previously adverted to disposes of any objection arising from the fact that Dr. Downs was interested as an inhabitant of the defendant town. But we do not think, under any rule that has ever obtained in this State, that the court, upon this finding, could say that the deceased physician had such an interest to pervert the fact as ought to exclude his entries. No controversy with any other town respecting this pauper had arisen or was contemplated. The acts of both the selectman and the physician are consistent with a belief on their part that Patty belonged to the defendant town to support, and that no other town could be compelled to reimburse it. Indeed the expense at the time was apparently against the interest of the town. True, some twenty years later, in a controversy with the plaintiff town respecting the settlement of a child and grandchildren of this pauper, the facts became important to exempt the defendant from liability; but is it reasonable to suppose that the physician made those entries in anticipation of any such resulting benefit to the town? A possibility of a corrupt motive always exists in respect to human acts, but some probability of it ought to appear in order to exclude entries fairly and regularly made, as these

were.

There was no error in the judgment complained of. The other judges concurred.

EXTRADITION— PRISONER KIDNAPPED.

SUPREME COURT OF THE UNITED STATES, DECEMBER 6, 1885.

senting them to any officer of the Peruvian government, or making any demand on that government for the surrender of Ker, forcibly and with violence arrested him, placed him on board the United States vessel Essex, in the harbor of Callao, kept him a close prisoner until the arrival of that vessel at Honolulu, where, after some detention, he was transferred in the same forcible manner on board another vessel, towit, the City of Sydney, in which he was carried a prisoner to San Francisco, in the State of California. The plea then states, that before his arrival in that city Governor Hamilton had made a requisition on the governor of California, under the laws and Constitution of the United States, for the delivery up of the defendant as a fugitive from justice, who bad escaped to that State on account of the same offenses charged in the requisition on Peru and in the indictment in this case. This requisition arrived, as the plea states, and was presented to the governor of Cali

KER V. PEOPLE OF THE STATE OF ILLINOIS.* 1. A plea to an indictment in a State court, that the defendant has been brought from a foreign country to this country by proceedings which are a violation of a treaty between that country and the United States, and which are forbidden by that treaty, raises a question, if the right asserted by the plea is denied, on which this court can review, by writ of error, the judgment of the State court. 2. But where the prisoner has been kidnapped in the foreign country and brought by force against his will within the jurisdiction of the State whose law he has violated, with no reference to the extradition treaty, though one existed, and no proceeding or attempt to proceed under the treaty, this court can give no relief, for these facts do not establish any right under the Constitution, or laws, or treatiesfornia, who made his order for the surrender of the of the United States.

3. The treaties of extradition to which the United States are parties do not guarantee a fugitive from the justice of one of the countries an asylum in the other. They do not give such person any greater or more sacred right of asyJum than he had before. They only make provision that for certain crimes he shall be deprived of that asylum and surrendered to justice, and they prescribe the mode in which this shall be done.

4. The trespass of a kidnapper, unauthorized by either of the governments, and not professing to act under authority of either, is not a case provided for in the treaty, and the remedy is by a proceeding against him by the government whose laws he violates, or by the party injured.

5. How far such forcible transfer of the defendant, so as to bring him within the jurisdiction of the State where the offense was committed, may be set up against the right to try him, is the province of the State court to decide, and presents no question in which this court can review its decision.

IN error to the Supreme Court of the State of Illi

nois.

MILLER, J. This case is brought here by a writ of error to the Supreme Court of Illinois. The plaintiff in error, Frederick M. Kerr, was indicted, tried and convicted in the Criminal Court of Cook county, in that State, for larceny. The indictment also included charges of embezzlement. During the proceedings connected with the trial the defendant presented a plea in abatement, which on demurrer was overruled, and the de

fendant refusing to plead further, a plea of not guilty was entered for him, according to the statute of that State, by order of the court, on which the trial and conviction took place.

The substance of the plea in abatement, which is a very long one, is that the defendant, being in the city of Lima, in Peru, after the offenses were charged to have been committed, was in fact kidnapped and brought to this country against his will. His statement is, that application having been made by the parties who were injured, Governor Hamilton, of Illinois, made his requisition in writing to the secretary of state of the United States, for a warrant requesting the extradition of the defendant, by the executive of the Republic of Peru, from that country to Cook county; that on the first day of March, 1883, the presi

dent of the United States issued his warrant in due form, directed to Henry G. Julian, as messenger, to receive the defendant from the authorities of Peru, upon a charge of larceny, fin compliance with the treaty between the United States and Peru on that subject; that the said Julian, having the necessary papers with him, arrived in Lima, but without pre110 Ill. 627; S. C., 51 Am. Rep. 706.

defendant to the person appointed by the governor of Illinois, namely, one Frank Warner, on the 25th day of June, 1883. The defendant arrived in the city of San Francisco on the 9th day of July thereafter, and was immediately placed in the custody of Warner, under the order of the governor of California, and still a prisoner, was transferred by him to Cook county, where the process of the Criminal Court was served upon him, and he was held to answer the indictment already mentioned.

The plea is very full of averments that the defendant protested, and was refused any opportunity whatever, from the time of his arrest in Lima until he was delivered over to the authorities of Cook county, of communicating with any person or seeking any advice or assistance in regard to procuring his release by legal process or otherwise; and he alleges that this proceeding is a violation of the provisions of the treaty between the United States and Peru, negotiated in 1870, which was finally ratified by the two governments, and proclaimed by the president of the United States, July 27, 1874. 18 U. S. Stat. at Large, part 3, page 719.

The judgment of the Criminal Court of Cook county, Illinois, was carried by writ of error to the Supreme Court of that State, aud there affirmed, to which judg ment the present writ of error is directed. The assignments of error made here are as follows:

"First. That said Supreme Court of Illinois erred in affirming the judgment of said Criminal Court of error's plea to the jurisdiction of said Criminal Court. Cook county, sustaining the demurrer to plaintiff in

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Second. That said Supreme Court of Illinois erred in its judgment aforesaid, in failing to enforce the full faith and credit of the Federal treaty with the republic of Peru, invoked by plaintiff in error in his said plea to the jurisdiction of said Criminal Court."

The grounds upon which the jurisdiction of this court is invoked may be said to be three, though from the briefs and arguments of counsel it is doubtful whether in point of fact more than one is relied upon. It is contended in several places in the brief that the proceedings in the arrest in Peru, and the extradition and delivery to the authorities of Cook county, were not "due process of law." and we may suppose, although it is not so alleged, that this reference is to

that clause of article 14 of the amendments to the Constitution of the United States which declares that no State shall deprive any person of life, liberty or property" without due process of law." The "due process of law" here guaranteed is complied with when the party is regularly indicted by the proper grand jury in the State court, has a trial according to the forms and modes prescribed for such trials, and when, in that trial and proceedings, he is deprived of no rights to

which he is lawfully entitled. We do not intend to say that there may not be proceedings previous to the trial, in regard to which the prisoner could invoke in some manner the provisions of this clause of the Constitution, but for mere irregularities in the manner in which he may be brought into the custody of the law, we do not think he is entitled to say that he should not be tried at all for the crime with which he is charged in a regular indictment. He may be arrested for a very heinous offense by persons without any warrant, or without any previous complaint, and brought before a proper officer, and this may be in some sense said to be without due process of law." But it would hardly be claimed, that after the case had been investigated and the defendant held by the proper authorities to answer for the crime, he could plead that he was first arrested "without due process of law." So here, when found within the jurisdiction of the State of Illinois and liable to answer for a crime against the laws of that State, unless there was some positive provision of the Constitution or of the laws of this country violated in bringing him into court, it is not easy to see how he can say that he is there without due process of law," within the meaning of the constitutional provision.

So also the objection is made that the proceedings between the authorities of the State of Illinois and those of the State of California were not in accordance with the act of Congress on that subject, and especially that at the time the papers and warrants were issued from the governors of California and Illinois, the defendant was not within the State of California, and was not there a fugitive from justice. This argument is not much pressed by counsel, and was scarcely noticed by the Supreme Court of Illinois, but the effort here is to connect it as a part of the continued trespass and violation of law which accompanied the transfer from Peru to Illinois. It is sufficient to say in regard to that part of this case, that when the governor of one State voluntarily surrenders a fugitive from the justice of another State to answer for his alleged offenses, it is hardly a proper subject of inquiry on the trial of the case to examine into the details of the proceedings by which the demand was made by the one State and the manner in which it was responded to by the other. The case does not stand, when the party is in court and required to plead to an indictment, as it would have stood upon a writ of habeas corpus in California, or in any of the States through which he was carried in the progress of his extradition, to test the authority by which he was held; and we can see in the mere fact that the papers under which he was taken into custody in California were prepared and ready for him on his arrival from Peru, no sufficient reason for an abatement of the indictment against him in Cook county, or why he should be discharged from custody without a trial. But the main proposition insisted on by counsel for plaintiff in error in this court is that by virtue of the treaty of extradition with Peru the defendant acquired by his residence in that country a right of asylum, a right to be free from molestation for the crime committed in Illinois, a positive right in him that he should only be forcibly removed from Peru to the State of Illinois in accordance with the provisions of the treaty, and that this right is one which he can assert in the courts of the United States in all cases, whether the removal took place under proceedings sanctioned by the treaty, or under proceedings which were in total disregard of that treaty amounting to an unlawful and unauthorized kidnapping.

This view of the subject is presented in various forms and repeated in various shapes in the argument of counsel. The fact that this question was raised in the Supreme Court of Illinois may be said to confer

jurisdiction on this court, because in making this claim the defendant asserted a right under a treaty of the United States, and whether the assertion was well founded or not, this court has jurisdiction to decide it; and we proceed to inquire into it.

There is no language in this treaty or in any other treaty made by this country on the subject of extradition of which we are aware which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It will not be for a moment contended that the government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. If this could be done, what becomes of his right of asylum?

Nor can it be doubted that the government of Peru could of its own accord, without any demand from the United States, have surrendered Ker to an agent of the State of Illinois, and that such surrender would have been valid within the dominions of Peru. It is idle therefore to claim that either by express terms or by implication there is given to a fugitive from justice in one of these countries any right to remain and reside in the other; and if the right of asylum means any thing, it must mean this. The right of the government of Peru voluntarily to give a party in Ker's condition an asylum in that country is quite a different thing from the right in him to demand and insist upon security in such an asylum. The treaty, so far as it regulates the right of asylum at all, is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice, so that! on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal therefrom.

In the case before us the plea shows, that although Julian went to Peru with the necessary papers to procure the extradition of Ker under the treaty, those papers remained in his pocket, and were never brought to light in Peru; that no steps were taken under them; and that Julian, in seizing upon the person of Ker, and carrying him out of the territory of Peru into the United States, did not act, nor profess to act, under the treaty. In fact that treaty was not called into operation, was not relied upon, and was not made the pretext of arrest, and the facts show that it was a clear case of kidnapping within the dominion of Peru without any pretense of authority under the treaty or from the government of the United States.

In the case of United States v. Rauscher, just decided, and considered with this, the effect of extradition proceedings under a treaty was very fully consid ered, and it was there held that when a party was duly surrendered by proper proceedings under the treaty of 1842 with Great Britain, he came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him.

One of the rights with which he was thus clothed, both in regard to himself and in good faith to the country which had sent him here, was that he should be tried for no other offense than the one for which he was delivered under the extradition proceedings. If Ker had been brought to this country by proceedings under the treaty of 1870-74 with Peru, it seems probable, from the statement of the case in the record, that he might have successfully pleaded that he was extradited for larceny and convicted by the verdict of a

jury of embezzlement; for the statement in the plea is that the demand made by the president of the United States, if it had been put in operation, was for an extradition for larceny, although some forms of embezzlement are mentioned in the treaty as subjects of extradition. But it is quite a different case when the plaintiff in error comes to this country in the manner in which he was brought here, clothed with no rights which a proceeding under the treaty could have given him, and no duty which this country owes to Peru or to him under the treaty.

We think it very clear therefore that in invoking the jurisdiction of this court, upon the ground that the prisoner was denied a right conferred upon him by a treaty of the United States, he has failed to establish the existence of any such right.

The question of how far his forcible seizure in another country, and transfer by violence, force or fraud to this country, could be made available to resist trial in the State court, for the offense now charged upon him is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution or laws or treaties of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense, and presents no valid objection to his trial in such court. Among the authorities which support the proposition are the following: Ex parte Scott, 9 Barn. & Cress. 446 (1820); Lopez & Sattler's case. 1 Dearsly & Bell Crown Cas. 525; State v. Smith, 1 Bail. (So. Car.), L. R., 283 (1829); State v. Brewster. 7 Vt. 118 (1835); Dow's case, 18 Penn. St. 37 (1851); State v. Ross, 21 Iowa, 467 (1866); Ship Richmond v. United States, 9 Cranch, 102.

However this may be, the decision of that question is as much within the province of the State court, as a question of common law, or of the law of nations, of which that court is bound) to take notice, as it is of the courts of the United States. And though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision.

It must be remembered that this view of the subject does not leave the prisoner or the government of Peru without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnapping, and on demand from Peru, Julian, the party who is guilty of it, could be surrendered and tried in its courts for this violation of its laws. The party himself would probably not be without redress, for he could sue Julian in an action of trespass and false imprisonment, and the facts set out in the plea would without doubt sustain the action. Whether he could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case, which we cannot here consider.

We must therefore hold that so far as any question in which this court can revise the judgment of the Supreme Court of the State of Illinois is presented to us, the judgment must be affirmed.

CARRIERS-LIMITATION OF LIABILITY BY CONTRACT-FREE PASS-ORDINARY NEG

LIGENCE.

WISCONSIN SUPREME COURT, NOVEMBER 3, 1886.

ANNES V. MILWAUKEE & N. R. Co. Where the acceptor of a gratuitous pass from a railroad company "assumes all risks of accident, and especially

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Hudd v. Wigman, for respondent.

George H. Noyes, for appellant.

TAYLOR, J. This action was brought by the respondent to recover damages for the death of her husband, which she alleges was caused by the negligence of the appellant, its servants, agents, or employees; he being at the time he received the injuries which caused his death, a passenger on one of the appellant's trains, and being transported, as such passenger, from De Pere to the city of Green Bay, this State. The material facts in the case are the following:

First. The deceased, at the time he received his injuries, was riding in the caboose attached to a freight train, and was being carried from De Pere to Green Bay.

Second. He was travelling upon a free pass, and had paid no consideration for such transportation by the company. On the back of the pass, signed by the deceased, was the following agreement, plainly printed thereon:

"The person accepting this pass assumes all risk of accident, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence of their agents or otherwise, for any injury to the person, or any loss or damage to the property, of the passenger using this pass. This pass will be forfeited if presented by any other than the person named thereon. I accept all the above conditions.

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Third. That after the train had left De Pere, and proceeded on its way toward Green Bay about a mile and a half, it was stalled in the snow, and could proceed no further. Thereupon a brakeman was sent back toward De Pere to procure aid to relieve the train. This brakeman met an engine, with a snowplow attached, on the road between the stalled train and De Pere, or at De Pere. He communicated the fact that the train was stalled in the snow, and undertook to inform the conductor and engineer where the stalled train was located. He then got on the engine with the snow-plow attached. That engine then ran north toward the stalled train, and without stopping, ran into the rear end of the caboose attached to the stalled train, breaking the rear end of the caboose, and injuring the deceased so that he died a short time thereafter.

Fourth. That it was snowing at the time the accident took place, and the wind was blowing so as to render it difficult, if not impossible, for those on the engine behind the snow-plow to see the stalled train, toward which they were approaching, when such engine was in motion; that there was no flagman placed on the track behind the stalled train to give warning to the approaching engine and snow-plow, nor was there any bell rung or whistle sounded on the stalled train. The brakeman who went back for the snowplow says he placed three torpedoes on the track behind the stalled train, but the evidence shows that these were entirely inadequate to give warning to the approaching engine, and were probably swept off by the snow plow and not exploded, or if exploded, the wind and drifting snow prevented those on the en. gine behind the snow-plow from hearing the explo

sion.

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