(For Index to Notes see ante, p. xiii.)

EVIDENCE (Continued).

therefore, a statement by an expert that headaches subsequent to the in-
jury might have been caused thereby is inadmissible. Huba v. Schenec-
tady Ry. Co., 592.

LANGUAGE OF COUNSEL IN REGARD TO INADMISSIBLE EVIDENCE.- In this ac-
tion the counsel for the plaintiff attempted to introduce in evidence a
letter written by plaintiff's son-in-law to the company the day after the
accident, describing the circumstances of the accident. The counsel de-
scribed in detail the contents of the letter. The letter was not admit-
ted in evidence. The court instructed the jury that they should disregard
all that the counsel said disclosing the character or contents of the
letter. The court held that since in its opinion the remarks of the
counsel did not influence the jury there was no reversible error. Connolly
v. Brooklyn Hts. Railroad Co., 627.

AS TO SPEED.-A civil engineer of eleven years' experience, accustomed
to time the speed of cars by the watch, who was a passenger on the
car at the time of the accident, is competent to testify to the speed
of such car. Fisher v. Union Railway Co., 635.

-

PHYSICAL EXAMINATION OF PLAINTIFF BY SURGEON IN EMPLOY OF DEFEND-
ANT; CROSS-EXAMINATION.- The plaintiff, who was injured by the
alleged negligence of the defendant, called upon the surgeon of the de-
fendant company for treatment. The surgeon withheld from the plain-
tiff the knowledge that he was the company's surgeon. Upon the trial
the surgeon testified for the defendant as to the nature of the injuries.
Upon cross-examination the surgeon was asked if he did not deny in the
presence of the plaintiff that he was the surgeon of the company. The
question was objected to by the defendant, but was admitted under an
exception. The same question was then asked the plaintiff and she con-
tradicted the defendant and testified that the conversation did take place.
It was held that the question to the surgeon was proper upon cross-
examination since it tended to impeach his credibility and impartiality.
Glenn v. Philadelphia & Westchester Traction Co., 731.

FAILURE TO RING BELL; EVIDENCE.- Evidence as to failure to ring bell
at other street crossings than that where accident occurred is not ad-
missible. Dyer v. Union Railway Co., 759.

EVIDENCE TENDING TO SHOW WHY PLAINTIFF ALIGHTED FROM CAR WHILE
IN MOTION.- Testimony to the effect that the plaintiff and the motor-
man had a controversy as to the payment of fare by the plaintiff, and
that the motorman wrongfully demanded a fare which the plaintiff had
already paid, and that when refused, the motorman appeared to be
angry, is admissible as tending to show that there was ground for the
plaintiff's belief that the motorman would carry him beyond the place
where he desired to get off, and as justifying him in leaving the car at
the time and in the manner he did. Fuller v. Dennison & Sherman Rail-
way Co., 780.

EVIDENCE

-

(For Index to Notes see ante, p. xiii.)
(Continued).

ORDER OF INTRODUCTION.- The order in which evidence is introduced is
a matter largely in the discretion of the trial court, and the appel-
late court will not reverse merely because evidence proper in chief
was introduced in rebuttal. Norfolk & Atlantic Terminal Co. v. Morris'
Administratrix, 793.

EVIDENCE CONFLICTING.-'Upon every point of interest in this case the
testimony was conflicting; not only as to all facts relied upon to es-
tablish the negligence of the company, but also as to the evidence
tending to prove the contributory negligence of the plaintiff's intestate.
In such a case all that the court can do is to see that the jury is prop-
erly instructed, and that testimony, considered as upon a demurrer to
the evidence, is sufficient to support the verdict. Norfolk & Atlantic
Terminal Co. v. Morris' Administratrix, 793.

AS TO SPEED OF CAR.-It was not error to permit cross-examination of
the motorman as to whether the car in question was not a specially
rapid one, he finally stating that while not the most rapid, there were
only two others which excelled it. Hanlon v. Milwaukee Electric Railway
& Light Co., 821.

RULE DIRECTING OPERATION OF STREET CARS; EVIDENCE.- On the trial of
a charge of negligence in the operation of a street car, a rule of the
company which directs the method of operation in respect to which
complaint is made, is competent evidence. Frizzell v. Omaha St. Ry. Co.,
854.
REJECTION OF RULES WHEN OFFERED IN EVIDENCE; ERROR NOT PREJUDICIAL.
- Error without prejudice is no ground for reversal. The court erro-
neously rejected two rules of the defendant company which were offered
by the plaintiff, to the effect that after a car is stopped it should not be
started when any passenger is alighting, or attempting to do so, and
that it should be only sent forward on a signal from the conductor.
Held, that this error did not prejudice, and could not have prejudiced,
the cause of the plaintiff, in view of the fact that the court peremptorily
instructed the jury, as a matter of law, that if the car was started after
it had stopped, and while the plaintiff was alighting, she was entitled to
their verdict. Frizzell v. Omaha St. Ry. Co., 854.

EXTENSION. (See Consents of Abutting Owners.)

EXTENSION OF STREET RAILWAY; FILING EXEMPLIFICATION.- The Act of
May 14, 1889 (P. L. 212), as amended by the Act of June 7, 1901 (P. L.
518), requires that an exemplification of the record authorizing the
extension of a street railway shall be filed; such filing is a condition
precedent to the construction of such extension. Coatesville & Dowington
St. Ry. Co. v. Westchester St. Ry. Co., 721.

CONSTRUCTION OF TRACKS IN STREETS WHERE TRACKS ARE ALREADY Au-
THORIZED.— The Act of June 7, 1901, amending the General Street Rail-

66

(For Index to Notes see ante, p. xiii.)
(Continued).

way Act of 1889, authorizes street railway companies to lay tracks in
any street, "upon which no track is iaid under any existing charter,
and in constant daily use for the transportation of passengers at the
time of the application by another company for a charter to use such
street." The object of this statute was to cut off the exclusive privileges
of mere
authorized" or paper roads, and to open the streets not already
actually occupied to new companies as well as to old. This act dealt
primarily with existing companies. But under section 1 of the Act of
1901 a period of two years is allowed to companies organized after the
passage of the act for the construction of their tracks. Under such sec-
tion if municipal consent has been promptly applied for, the want of it
cannot be taken advantage of in any way to the prejudice of the com-
pany until the two-year limit has expired. During such period the
franchise of a street railway company on a street so authorized to be
occupied cannot be interfered with by later charters or later extensions.
Coatesville & Dowington St. Ry. Co. v. Westchester St. Ry. Co., 721.

FENDERS.

Evidence as to use of, see Zimmerman v. Denver Consol. Tram. Co., 21.
Duty of company to provide, see Henderson v. Durham Trac. Co., 649.

FIRE APPARATUS.

INJURY TO FIREMAN RIDING ON HOOK AND LADDER TRUCK BY COLLISION;
CONTRIBUTORY NEGLIGENCE.- The plaintiff was an employee of the city
fire department and was riding upon a hook and ladder truck on the
footboard, immediately in front of the rear wheel. The truck, while
crossing the tracks of the defendant, was struck by a street-car, and
the plaintiff was thrown from the truck and injured. From the testi-
mony it appeared that the driver of the truck did not notice the car
coming, although he looked and listened, until the horses were about to
go upon the track. The plaintiff did not turn around to observe the
approach of the car in time to jump from the truck and avoid injury.
It was held that the question of whether the driver of the truck was at
fault was an issue to be submitted to the jury, as was also the question
as to whether the plaintiff was negligent in not turning around to
watch for the approaching car. Quinn v. Dubuque Street Railway Co.,

198.
COLLISION BETWEEN A HOOK AND LADDER TRUCK AND STREET CAR IN NEW
YORK CITY; INJURY TO FIREMAN; RIGHT OF WAY.-Section 748 of the
Greater New York Charter (Laws 1897, chap. 378) gives vehicles of
the fire department in answering an alarm of fire the right of way upon
streets over all other vehicles except those carrying United States mail.
The plaintiff's intestate was a member of the New York city fire de-
partment, and was killed while riding upon a hook and ladder truck,

in a collision between such truck and one of the defendant's street cars
at a street intersection. It was held to be the duty of the driver of the
street car, if he discovered, or in the exercise of reasonable care could
have discovered the approach of the truck, to stop his car and accord to
it the right of way; and that it would be presumed that the driver of
the truck and the decedent and other firemen riding upon it were familiar
with the provisions of the statute, and their conduct must be judged in
accordance therewith. Geary v. Metropolitan St. Ry. Co., 581.
COLLISION WITH HOSE CART; NEGLIGENCE OF DRIVER.- The plaintiff was
driving the horses, attached to a hose cart, on a run in accordance with
his duty, but he had them under perfect control so that he might have
stopped them at the time when he sighted the car. There was no evi-
dence of any failure upon his part to look for the approaching car. The
question was whether contributory negligence should be inferred from
the fact that he gave head to his horses and attempted to make the
crossing after he had sighted the car. In view of the fact that as the
driver of a fire apparatus it was necessary for him first of all to seize
every opportunity to make expedition, and, therefore, to take every pos-
sible chance; and that it is the undisputed and uniform custom of op-
erators of street cars to give fire vehicles the right of way and to
slow down and stop to avoid collision; and that it appearing in this
case that the plaintiff in approaching the track sounded a gong at-
tached to the hose cart; it was held that the question of contributory
negligence was properly one for the jury; that although it might have
been negligence for an ordinary traveler to have taken the chance of
crossing ahead of a car in the proximity and at the speed of this one,
still the circumstances surrounding the plaintiff in this case so differed
that reasonable minds might consider the same attempt by him to be
within the bounds of due care. Hanlon v. Milwaukee Electric Railway
& Light Co., 821.

PRESUMPTION IN FAVOR OF DRIVER OF FIRE VEHICLE.-It having been es-
tablished beyond controversy that the custom was uniform for street
cars to stop or slacken speed so as to permit fire vehicles to cross the
streets when their approach was known, the plaintiff has a right to
assume that the servants of the defendant would so conduct themselves,
if they knew, or in the exercise of ordinary care ought to have known,
of his vehicle's approach. Hanlon v. Milwaukee Electric Railway & Light
Co., 821.

SOUND OF GONG ON FIRE VEHICLE.- Evidence of witnesses as to the sound-
ing of the gong by the driver of the fire vehicle is not inadmissible be-
cause the conditions surrounding such witnesses were not identical with
those surrounding the motorman. All the circumstances surrounding
each witness being before the jury, the question of the efficacy of the
sound became a question of fact for the jury to consider as reasonable,
intelligent men. Hanlon v. Milwaukee Electric Railway & Light Co., 821.

FIREMEN.

(For Index to Notes see ante, p. xiii.)

Injury to, because of collision with street car, see Quinn v. Dubuque St. Ry.
Co., 198; Geary v. Metropolitan St. Ry. Co., 581; Hanlon v. Milwaukee
Elec. Ry. & Light Co., 821.

FRANCHISE.

(See Consents of Abutting Owners; Exetnsion.)
CONDITIONS IMPOSED BY VOTE OF TOWN UPON GRANT OF FRANCHISE TO
STREET RAILWAY.-Three propositions were submitted to the electors of
a town, the first requiring the selectmen to insert in a franchise granted
to the railway company conditions prescribing the size and weight of
rail to be laid, the portion of the street and gutter to be paved by the
railway company, and the kind of paving to be used, and requiring that
laborers resident in the town, and citizens owning teams should be
employed in preference to any others, and that there should be but one
fare from any point in such town to any point in a certain city; a sec-
ond vote authorized the appointment of a committee of five to confer
with the board of selectmen as to the location of tracks; a third in-
structed the treasurer to borrow $300 for the employment of counsel.
It was held that the selectmen were not bound to follow the instructions
imposed by the vote of the electors, since in the matter of granting lo-
cations they acted not as agents of the town, but as public officers
specially designated by the law-making power for such purpose, and
that the town by its vote could not bind in any way the company as to
the residence and wages of its laborers, or the rate of fare; and, there-
fore, that the authority to borrow money to carry out the vote of the
town as to the location of the ralway was invalid. Flood v. Leahy, 303.
RATE OF FARE.-A franchise granted to a street railway by a village pro-
vided that the company shall be entitled to charge at the rate of one
and one-half cents per mile between any two points on its line between
the city of Detroit and the city of Ann Arbor. The railway also had a
franchise from a town authorizing it to charge not to exceed five cents
within the limits thereof. It was held that the defendant had obligated
itself to accept as compensation from any passenger to or from the village
granting such franchise not more than one and one-half cents per mile,
notwithstanding the provisions of the franchise granted by the town.
Vining v. Detroit, Ypsilanti, Ann Arbor & Jackson Railway Co., 366.
CONDITION AS TO CONSTRUCTION OF ROAD.-A franchise was granted by the
plaintiff to the defendant authorizing the defendant to construct an ex-
tension of its street railway through certain streets and highways within
the borough. The franchise contained a condition that all rights and
franchises heretofore and hereafter granted to the defendant should be
void unless such extension was constructed within one year from the
acceptance of the franchise. It was held that the condition was a reason-
able one and that upon a failure by the defendant to construct within
the time prescribed, the borough was authorized to require the removal