Talcott v. Wabash Railroad

This action was brought to recover the value of certain property destroyed while in transit from Chicago to Eew York under contracts made by Frederick H. Cullom, the plaintiff’s agent and assignor, with the Wabash Western Eailway Company, the defendant’s predecessor.

The complaint sets forth four causes of action, but the third

The defendant was organized after May 1st, 1889, by the consolidation of several railroad corporations, including the Wabash Western Eailway Company, and by virtue of the consolidation the defendant assumed all the debts and obligations of the constituent corporations. Prior to April 27th, 1889, the Wabash Western was a common carrier operating a line of railroad between Chicago and Detroit and doing business as such by its own and connecting lines for the carriage of passengers and their baggage. It sold through tickets to New York, and sleeping cars always went through to New York over the Grand Trunk and West Shore, its connecting lines, and sometimes, hut not generally, baggage cars also went through without change.

Prior to said consolidation, and' on the 7th of April, 1889, Mr. Cullom, who was a commercial traveler in the employ of the plaintiff, went to the office of the Wabash Western Eailway Company in Chicago and purchased from it a round trip excursion ticket to New York and return and paid therefor the sum of $25.00, which was a special and reduced rate. The ticket purported to have been issued by the Wabash, St. Louis & Pacific Eailway, a predecessor of the Wabash Western. It was an old form at one time used by the former company, which once operated the line between Chicago and Detroit. At its head it contained the words, “ Special Excursion Ticket. Tourist Contract. Good for one first-class passage to New York, N. Y., and return. .Subject to following contract. In consideration of the reduced rate at which- this ticket is sold the bearer or holder of the same agrees to and with the several companies over whose lines this ticket entitles him to be carried, as follows, to wit: J?irst. That in selling this ticket the Wabash, St. Louis & Pacific Eailway Company acts as agent and is not responsible beyond its own linq.” The rest of the purported contract is not now important. Six

The provisions of the ticket were not brought to the attention of Mr. Cullom by the person selling it, nor did he read them until after the accident which resulted in the destruction of the property in question. Nothing appears to have been said by Cullom or the ticket agent, except by the former, that he wanted a ticket to New York, and by the latter, that the price was $25.00. Sometime after buying the ticket Mr. Cullom proceeded to the baggage room of the Wabash Western Eailway'Company and delivered four trunks, containing the articles for the value of which recovery is ■sought, to the baggage agent in charge. The trunks were of the. kind in ordinary use by commercial travelers to carry ■samples. He handed the ticket to the agent who asked him “ where to,” and was told New York. The agent then weighed the trunks and said they weighed light, when Cullom replied “ yes, they contain samples of underwear.” The agent, as Cullom1 testified, “ checked free up to 150 lbs., and the trunks weighed much more than that, and he told me that I would have to pay $16.00, and five or ten cents to have the trunks checked ” from Chicago to New York. Mr. Cullom paid the amount asked, and received from the agent three brass checks and one cardboard check, which was as follows :

“ The Wab. West’h E’y Co

Foreign Excess Baggage

Duplicate Check

Date, 4-27,1889,

From Chicago to New York.

Eoute, G. T. W. S.

No. of Tickets, 1.

Excess Wt. 570, amt. $16.00

2802

On reverse side:

To Baggage Agents.

This is a duplicate check, and also a receipt for excess, charges paid for baggage bearing numbers of checks as shown on face of strap check of corresponding number.

Beceiving agent will forward this duplicate and receipt to-general baggage agent or auditor of his company to be held as a check against the company issuing same.

Beceiving agents will certify to the total weight of the baggage as covered by the check numbers shown on the face of strap check of corresponding number.

SAH. A. OYEBHOLT,

G-eril Bag. Agt.,

The Wabash Western By. Oo.

Gross weight................................. lbs.

Signed..........................”

Cullom saw his trunks put on the Wabash Western train and took his place in the sleeper which was to go through to-New York without change. The next morning, between Dundas and Hammond, Ontario, on the line of the Grand Trunk railway, an accident occurred and the most of the property contained in the trunks was destroyed by fire. The property destroyed, so far as it belonged to the plaintiff, was worth about $350.00, and about $300.00 so far as it belonged to Cullom, who assigned his claim to the plaintiff before . "s action was commenced. He was a commercial traveler, familiar with the course of business and general practice of railroads with reference to selling tickets and checking baggage over their own and connecting lines. The defendant’s predecessor carried this baggage safely to the terminus of its road at Detroit and delivered it to the Grand Trunk, the connecting carrier, whereupon it was transferred into the baggage car of that company and carried in its train until the accident happened. The sleeping car, which Cullom entered at Chicago, was attached to the Grand Trunk train at Detroit. It also-appeared, as was stated by the referee, “that a very large pro

The plaintiff claims that the contract made by his agent with the Wabash Western Eailway Company was for through transportation of the passenger and his baggage by that company from Chicago to ¡New York and return, while the defendant claims that the contract of said company, as principal, was for transportation from Chicago to ¡Detroit, and that the remainder of the contract was made by it as agent of the various connecting lines for transportation over their respective routes. This fundamental question was decided by the learned referee as a question of law, so far as it related to the cause of action relating to the samples owned by the plaintiff, and as a question of fact so far as it related to the personal effects of Cullom, the plaintiff’s assignor, for he granted a nonsuit as to the former and dismissed the complaint upon the merits as to the latter.

It is clear that the plaintiff’s agent made two contracts, one for the transportation of himself and not to exceed 150 pounds of baggage, and the other for the transportation of merchandise. (Millard v. Missouri, Kansas & Texas R. R. Co., 86 N. Y. 441 .) This case leaves no room for discussion as“to the

We will first endeavor to ascertain what the contract was in relation to the samples. The contract made by the purchase of the ticket bears but slightly upon the contract made several hours later for the transportation of the baggage, as the function of the ticket, so far as the checking of the trunks was concerned, was exhausted by checking Mr. Cullom’s personal effects.

A man with the words “ Baggage Agent ” on his cap was behind the counter of the Wabash Western Bailway Company, in the baggageroom of its passenger depot at Chicago, engaged in checking baggage, when Mr. Cnllom, after waiting for his turn, presented his ticket and the four trunks. The railroad company by placing that man as baggage agent in its baggageroom and furnishing him with checks, held out to the public that he had general authority to check the ordinary baggage of passengers. By furnishing him with blank cardboard checks for “ excess baggage,” stamped “ From Chicago to Hew York,” and signed by its “ general baggage agent,” it further held out to the public that he had authority to contract for the transportation of extra baggage from Chicago to Hew York, and, necessarily, to decide what kind of goods should be included under the head of extra baggage, at least to the extent of including the samples of commercial travelers, owned by their employers, in view of the universal custom proved in that regard. (Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y. 278 ; Sloman v. Great Western Ry. Co., 67 N. Y. 208 ; Perley v. N. Y. C. & H. R. R. R. Co., 65 N. Y. 374 ; Stoneman v. Erie Ry. Co., 52 N. Y. 429 ; Millard v. Missouri, K. & T. R. R. Co., 20 Hun, 191 ; affirmed, 86 N. Y. 441 ; Wheeler v. Oceanic S. P. Co., 125 N. Y. 155 ; Strouss v. Wabash, St. L. & Pacific Ry. Co., 17 Fed. Rep. 209 ; Fetters Carriers of Passengers, §§ 605, 606.)

In the Sloman case a commercial traveler had two large trunks containing samples, differing in appearance from ordinary traveling trunks, and a valise for his personal baggage. He had the trunks checked from Flint, Michigan, to Rochester, N. Y. In conversing with the baggagemaster, he spoke about his customers, which fact, together with the appearance of the trunks, warranted the jury, as the court held, in con-eluding “that the baggagemaster understood that the agent was traveling for the purpose of selling goods, and that these trunks contained his wares.” He paid for and received a receipt ticket for extra baggage. It was held that where a railroad company receives trunks of a passenger with notice that they contain property other than his baggage, and charges and receives extra compensation for their transportation, an agreement to carry the property as freight may be inferred therefrom, and that proof of these facts will sustain a recovery for loss of the property; that in such case, where the property is not that of a passenger, but it is in his hands as agent only, and he makes the contract and pays the compensation for its carriage on account of and in the conduct of the business of his principal, an action is properly brought in the name of the latter to recover for the loss.

In the Strouss case the court said : “ The company is liable as a common carrier to the owners of extra baggage, where it is shown that the baggagemaster accepted it with the knowl

The baggage agent in question, therefore, stood as to Mr. Cullom in the place of the railroad company. The number and appearance of the trunks was some evidence that they contained merchandise, and the agent was expressly told that

We now come to the second cause of action relating to the-personal baggage of the passenger. The referee did not non-suit as to this, but retained the case, and, after considering the evidence, found as a fact that the defendant’s predecessor “ did not on or about the 27th day of April, 1889, agree to carry said Cullom from Chicago, Ill., to New York city.” If this finding rests on a conflict of evidence or upon uncontradicted evidence permitting diverse inferences, it is beyond our-power of review and is conclusive upon the question now under consideration. ( White v. Benjamin, 150 N. Y. 258 .)

The company had the power to contract for through transportation, for it has long been settled that an owner of one of several lines for the transportation of passengers, running in connection over different portions of a route of travel, may

The ticket delivered to Mr. Cullom was an old form, at one time used by the Wabash, St. Louis & Pacific Eailway Company, still such tickets were used occasionally by the Wabash Western, which succeeded to the ownership of the line from Chicago to Detroit. While we regard the ticket as a voucher and not a contract with the Wabash Western, because its name does not appear therein, still, it was a coupon ticket with the names of the connecting lines printed upon the face of the coupons. Mr. Oullpm knew what a coupon ticket meant, and he intended to purchase a ticket that would take him over the West Shore and another connecting line. This warranted the inference of notice to him of what was stated at the head of the ticket, to wit, that the company “selling this ticket” acted “as agent,” and that it did not intend to become “ responsible beyond its own line.” This is true, even if the name of the company was not correctly given. While not controlling, it was a circumstance of importance to be considered in connection with the other important fact that Cullom paid through fare to New York, and received a through ticket to that place. Upon all the evidence we think it became a question of fact whether the contract was for through transportation or not, and that the referee was not bound, as matter of law, to find in accordance with the plaintiffs theory. (Milnor v. N. Y. & N. H. R. R. Co., 53 N. Y. 363 ; Kessler v. N. Y. C. & H. R. R. R. Co., 61 N. Y. 538 ; Auerbach v. N. Y. C. & H. R. R. R. Co., 89 N. Y. 281 ; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y. 283 ; Root v. Great Western R. R. Co., 45 N. Y. 524 ; Thomas on Negligence, 194 ; Hutchinson on Carriers [2d ed.], 822.)

The plaintiff having failed to establish such a contract as

The judgment below should, therefore, be reversed and a new trial granted as to the first cause of action set forth in the complaint, and in all other respects affirmed, without .costs in this court to either party.

If the referee had found the facts upon the first cause of action the same as he did with reference to the second, there would have been no trouble with this case. Instead of doing that he improperly granted a nonsuit. (Scofield v. Hernandez, 47 N. Y. 313 .) For this reason I concur for reversal as to the first cause of action, and for affirmance as to the second cause of action, but do not agree with Yahst,J., with reference to the other matters discussed in his opinion.

(dissenting only as to the first cause of action). This action was commenced to recover the value of property, which was destroyed while in transit from Chicago to Hew York. But two of the four causes of action set forth in the complaint remain for consideration; inasmuch as, on the trial before the referee, the plaintiff elected to suffer a nonsuit as to the third and fourth causes of action. Of the two causes of action thus remaining, the first is asserted by the plaintiff on his own behalf, as owner of certain samples of merchandise, packed in the trunks of one Cullom; who was employed by him as a commercial traveler and who was a passenger between the two cities mentioned, upon a ticket purchased at an office of the Wabash Western Eailway Company in Chicago.

The second of these causes of action is for the value of Cullom’s, the plaintiff’s assignor’s, personal baggage; the claim for which Cullom had assigned to the plaintiff. The plaintiff was nonsuited, upon the trial, upon both causes of action and the judgment upon the referee’s report having been affirmed at the General Term, the plaintiff now appeals to this court, A brief reference to the material facts disclosed in the record

•Among the findings of fact, made by the referee, before whom the trial was had, were these, namely: “ That the Wahash Western Railway Company was not, and did not represent itself to be, a common carrier of passengers and their baggage between Chicago and blew York, nor did it do business as such; that that company, in its operation of that portion of its road to Detroit, sometimes used the name of the Wabash, St. Louis and Pacific Railway Company, (its predecessor in interest), on passenger tickets and on baggage checks, and that the depot in Chicago was used jointly by several railroad companies; the baggagemaster of the Chicago and Western Indiana R. R. Co., one of them, having charge of the checking of the baggage upon the different roads and to points upon their several connecting lines. It appears that the form of ticket, which Cullom purchased, was the only one in use by the Wabash Western Railway Company from Chicago to bTew York and that the sum paid for it was apportioned among the three lines, over which the latter city was reached by the passenger, according to the length of the respective portions of the route. It, also, appeared that Cullom had been a commercial traveler for years and was familiar with the system by which railroad companies would sell tickets over their own and connecting lines, by means of coupons attached and designed for use upon the particular road over which the passenger would be carried, and he knew the ticket

Ihe claim of the plaintiff is that the Wabash Western Eailway Company contracted with his assignor, Cullom, to carry the property in question from Chicago through to Hew York and that, by the contract for transportation, the company became responsible for the safe delivery of Oullom’s personal baggage and for the plaintiff’s merchandise in Cullom’s trunks. He rests the contract for transportation upon what was implied in the transaction of the purchase of a ticket to Hew York from the Wabash Western Eailway Company and claims that the ticket received at the time did not affect the contract, but was a mere token.

Considering the first cause of action sued upon, the argument is that, because tire company had notice that the trunks contained samples of merchandise and undertook, through the ag'ency of its baggagemaster, to carry the same for the plaintiff’s agent, it became responsible for its safe delivery and that it was, therefore, error to nonsuit him as to the claim. The evidence shows that the baggagemaster was informed by Cullom that the trunks contained samples of underwear at the time they were checked; but he was not informed that Cullom was not their owner. Much evidence was offered by the plaintiff to show the extent to which it is customary in the community for merchants, in the conduct of their business, to send out commercial travelers; who carry with them samples belonging to their employers, upon which orders are to be solicited by them. Evidence was, also, adduced to show a custom by some railroad companies to check for a commercial traveler trunks containing such samples, in the same manner as trunks containing personal effects.

Whatever the contract between Cullom and the company, it was, at most, a contract to carry him and his personal baggage ; with the limitation that for all weight of baggage in excess of 150 pounds he should pay an additional compensation at a certain rate, based upon the ticket rate. There was

Assuming, as we must, that Cullom, the plaintiff’s assignor, informed the defendant’s baggage agent that his trunks contained other articles than personal effects, that fact only goes to show, at the furthest, that the latter undertook to check for Cullom trunks containing other property of his than what

. The case of Sloman v. Great Western Ry. Co. ( 67 N. Y. 208 ), has no application to the facts of this case. There the evidence was of such a character, respecting the knowledge possessed by the defendant’s “ agent and baggagemaster ” as to the nature of the contents of the trunks, for the transportation of which a charge was made, as to make it a question for the jury to determine -whether he did not understand that the trunks contained the plaintiff’s wares and whether he had not agreed to carry them as freight, ifo point was made at the trial as to his not having authority to take them as freight.

I think that the judgment of nonsuit as to this cause of action was correct.

The other cause of action is to recover for the loss of Cullom’s personal baggage, the claim for which he had assigned to plaintiff, and that involves the question of the- extent to which the contract with the defendant made it responsible for its safe delivery at the place for which checked. That a railroad company may contract for the carriage of passengers and

“ Q. What did you say to the ticket agent?

“A. I wanted a ticket to Hew York.”

He paid the fare for an excursion ticket, and received the ticket above described, whose printed matter gave notice that the Wabash, St. Louis and Pacific Eailway Company acted as agent and was not responsible beyond its own line and whose coupons referred to that notice and bore upon each the name of the railroad company carrying the holder between the places named therein. Thus, there is nothing to evidence any particular engagement of the defendant towards Cullom, except what the ticket showed. As we have seen, he knew of the printed matter upon his ticket; but did not pay any attention to it, until after the accident happened, and he knew that it was usual for railroad companies, in selling tickets to points beyond their line, to issue that sort of a coupon ticket.

It is said that this ticket is not to be given the force of a contract, because it purported to be issued by a company of another name and because it was a mere token or voucher in the passenger’s hands. Whether a ticket is a contract or not depends upon the circumstances. Where a person receives, upon paying his fare, a simple ticket to the point of his destination, it may well be that it is the mere token of the carrier’s contract to carry him and his baggage to that point; as in Burnell v. N. Y. C. R. R. Co. ( 45 N. Y. 184 ) where

It is not necessary that the printed matter upon the ticket should constitute a contract, in order that the defendant should have its benefit. It was a form of notice to the holder that it was not intended to assume any other responsibility, than what would ordinarily belong to it as a carrier between its terminal points. If the. question might be considered to be an open one, I do not think, upon well-settled principles, or under such circumstances, that there is any justification for our extending

In Milnor v. N. Y. & N. H. R. R. Co. ( 53 N. Y. 363 ), a person bought a ticket of the defendant from New York city to Sheffield, Mass. He received a slip of paper upon which were printed two detachable tickets; one purporting to be the defendant’s ticket from New York to Bridgeport, and the other purporting to be the ticket of the Housatonic Eailroad Company from Bridgeport to Sheffield. After his arrival at Sheffield, but before the baggage could be delivered, it was destroyed by fire. The action,was commenced by the plaintiff, as his assignee, to recover damages of the defendant for the loss of the baggage. A judgment in favor of the defendant was affirmed by this court. In the course of his opinion, Church, Ch. J., after adverting to the rule that a railroad corporation may bind itself, by contract, beyond its line, said: “ The importance to the public of holding the first company liable was pressed upon us upon the argument. It was conceded that it is competent for one company to sell tickets as the agent of another, in which case the company selling would not be liable where it appeared, as in this case, that the injury was caused by the neglect of another company. We can see no propriety in straining the rules of law or overturning ordinary presumptions of fact upon the supposed ground that the public will be benefited thereby. It is conceded that a notice upon the ticket, that the defendant acted as agent in the sale of the Housatonic ticket, would have relieved it of responsibility. The effect therefore of a decision against it, instead of benefiting the traveling public, would only lead to a slight change in the form of the tickets.” He observed that he had been “ unable to find any authority in this country which holds that the facts in this case constitute in law a contract on the part of the company selling the tickets for the entire route. The decided tendency of the authorities is the other way.” (Citing cases in this and in other states:) He, also, observed that the facts proved, with respect to the sale of the ticket

In Kessler v. N. Y. C. & H. R. R. R. Co., ( 6 N. Y. 538 ), the plaintiff purchased at the office of the Baltimore and Ohio R. R. Co., in Washington, a coupon ticket from Washington to Buffalo, over several connecting railroads ; the last of which was that of the defendant. She received a check for her baggage, with the names of all the roads stamped upon it. Upon arriving at Buffalo, she demanded her baggage; but it could not be found nor any trace of it, after being checked. The action was to recover for the loss. Earl, 0., speaking for the court, said : “ Either the Baltimore and Ohio Eailroad Company made an entire contract to transport the plaintiff, with her baggage, to Buffalo, employing the other companies to perform the contract over their roads: or, which is most probable, each company was the agent of the others to sell tickets -and check baggage over the other roads. Upon neither theory is the defendant liable in this case. * * * Upon the second theory, the agency would be to bind each of the other companies to transport the passenger and baggage over its road, and each road would alone be responsible for the safety of the passengers and baggage upon its road. It is true that the baggage was checked through to Buffalo. While there was but one check with the names of all the railroads upon it, it is the same as if there had been a separate check upon the baggage for each road; and the responsibility of neither road commenced until it received the baggage. These views are fully sustained by the opinion of Church, Oh. J., in the case of Milnor v. N. Y. & N. H. R. R. Co., ( 53 N. Y. 363 ). * * * According to the law of that case, if this action had been brought against the Baltimore & Ohio Eailroad Company, which sold the ticket and checked the

In Auerbach v. N. Y. C. & H. R. R. R. Co., ( 89 N. Y. 281 ), the passenger held a coupon ticket for passage from St. Louis to Rew York over several lines of railroad; the ticket being by its terms good for one continuous passage and reciting that the company selling the ticket acted only as agent for the other roads, etc. The plaintiff sued for damages for his wrongful removal from the defendant’s train between Buffalo and Rew York. It was held that “the contract at St. Louis, evidenced by the ticket and coupons there sold, was not a contract by any one company or by all the companies named in the coupons jointly for a continuous passage from St. Louis to Rew York. A separate contract was made for a continuous passage over each of the roads mentioned in the several coupons. Each company through the agent selling the ticket made a contract for a passage over its road, and each company assumed responsibility for the passenger only over its road. Ro company was liable for any accident or default upon any road but its own.”

In Isaacson v. N. Y. C. & H. R. R. R. Co., ( 94 N. Y. 278 ), the question arose as to the authority of a baggagemaster of the defendant. Instead of checking the plaintiff’s baggage to Rew Orleans by a route indicated upon the ticket, as requested by the plaintiff, he gave the plaintiff checks by another route, and, upon his arrival in Rew Orleans, he failed to receive his baggage. -In the course of his opinion, the relations of carrier and passenger -were discussed by Judge Andrews ; who, while holding that for the misdelivery by the defendant of the baggage, contrary to the agreement, to another carrier, it remained liable as insurer for any loss occurring upon the route upon which the baggage was diverted, said: “It will be useful,in determining the principal question, to refer to the obligation which a carrier of

In Pennsylvania R. R. Co. v. Jones (155 N. S. 333), Mr. Justice Shiras, delivered the opinion of the court, and quoting from Railroad Co. v. Manufacturing Co. ( 16 Wall. 318 ), said: “‘It is the duty of the carrier, in the absence of any special contract, to carry safely to the end of his line and deliver to the next carrier in the route beyond. This rule of liability is adopted generally by the courts in this country, and is in itself so just and reasonable that we do not hesitate to give it our sanction.’ And in Railroad Company v. Pratt ( 22 Wall. 123 , 129), it was said: ‘ The fair result of the American cases limits the carrier’s liability as such, when no special contract is made, to his own line.’ These cases are

In Myrick v. Michigan Central R. R. Co., from which Mr. Justice Shiras quoted, the question was one of the liability of a railroad company as a carrier of goods, and it was said by Mr. Justice Field : “ If the road of the company connects with other roads, and goods are received for transportation beyond the termination of its own line, there is super-added to its duty as a common carrier that of a forwarder by the connecting line : that is to deliver safely the goods to such line — the next carrier on the route beyond. This forwarding duty arises from the obligation implied in taking goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company receiving the shipment, there must be a -special agreement for it. This is the doctrine of this court, although a different rule of liability is adopted in England and in some of the states.” He observed that, “ The general doctrine, then, as to transportation by connecting lines, approved by this court, and also by a majority of the state courts, amounts to this: that each road confining itself to its common-law liability, is only bound, in the absence of a special contract, tó safely carry over its own route and safely to deliver to the next connecting carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the absence of a special agreement to that effect, such liability will not attach.” (And see Condict v. Grand Trunk R. Co., 54 N. Y. 500 .)

The clear doctrine of these cases is that a carrier’s responsibility to the passenger does not extend beyond the operation of its own road and cannot be made to so extend, except a. special agreement be shown upon satisfactory evidence. In the early case of Quimby v. Vanderbilt, ( 17 N. Y. 306 ), the

If the plaintiff’s rights are to be measured by the ticket, which, was purchased at the Wabash Western Railroad Company’s agency in Chicago, clearly, the company had limited its responsibility by the language upon the ticket to occurrences upon its own line. It expressly negatived any further assumption of responsibility. There was no implied responsibility on the part of the Wabash Western Railroad Company for occurrences beyond its own line and such a responsibility could not be implied as a term of the oral transaction of the purchase of the ticket.

If the rule should be otherwise held, it must logically follow that a passenger, who has suffered injuries upon a connecting carrier’s route from its negligence, or that of its servants, may hold the corporation which issued his ticket liable in damages to him therefor. I do not think, in the absence of some very clear and express agreement to that effect, that a carrier’s liability as insurer will be held to extend to that extraordinary degree. The rule works no hardship. The passenger is remitted to his remedy against the carrier, upon whose line he has suffered loss, or injury.

I think it of no material importance that the ticket bore upon it the name of the Wabash, St. Louis & Pacific Railroad Company, the predecessor of the Wabash Western Company.

I think the judgment of nonsuit as to this cause of action was correct and, therefore, that the judgment appealed from should be affirmed, with costs.

Bartlett and Martin, JJ., concur with Vann, J., for reversal, etc., and Haight, J., concurs in result hy memorandum ; O’Brien, J., concurs with Gray, J., for affirmance j Parker, Ch. J., not sitting.

Judgment reversed and new trial granted as to the first cause of action alleged in the complaint; in all other respects the judgment is affirmed, without costs of the appeal in this court to either party.