A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, and of the Rights and Liabilities Incident to the Location, Construction and Operation of Railroads; Together with Their Duties, Rights and Liabilities as Carriers, Including Both Street and Interurban Railways, Volume 3

Byron Kosciusko Elliott, William Frederick Elliott

Bobbs-Merrill Company, 1921

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CHAPTER XLIII	1

When company is liable for acts of contractor	2

SECTION	3

Location of round houses shops cattle yards	4

Connection of tracks with those of other railroads	7

Mandamus to compel the restoration of and maintenance of aban doned railroads	10

Liability for injuries caused by constructionConsequential damages 1385 Liability for injuries caused by blasting	16

Raising grade so as to necessitate changes in adjoining warehouses and business buildings 1387 Excavation for right of way injuring lateral support	19

Enforcing agreement as to crossing	417

Crossings secured under statutory authority	419

Location of crossing	423

Franchise must not be impaired	425

Crossings at grade	428

Interlocking devices	430

Crossings above or below grade	431

Number of crossings	432

Bridges over navigable waters	23

Obstruction of stream by bridges trestles and culverts	24

Artificial channel where natural channel is closed	30

Embankments and structures interfering with flow of surface water 1392 Further of obstruction of surface water 1393 Obstruction or diversion of wa...	35

Duty of landowners to prevent or minimize damages 1395 Hastening the flow of surface water so as to injure land above	40

Injuries from stagnant waters 1397 Other acts constituting a nuisance	41

Construction contractsInvalid when made by directors with them selves	44

Construction contractsAcceptanceRepudiationConstruction 1400 Construction of particular terms	49

Engineers estimates and certificates	50

Engineers decisionFraudWhat is covered 1403 Extra work	59

Bonds of contractorsRights and liabilities of sureties	61

Subcontractors	62

Breach of contractRemedies	66

Company generally not liable for injuries resulting from negligence of independent contractor or his servants	70

Liability of contractorJoint liability	78

Rights of laborers	80

Guaranty of payment of claims by railroad company	83

Mechanics liensGeneral laws do not include railroads 1413 Statutes authorizing liensRailroads and street railways 1414 For what lien may be obtained	86

Upon what lien may be acquired	90

Who may acquire lien	91

Mode of acquiring lien	94

Priority of liens	96

Assignability of lien	99

Enforcement of lien	100

Further of enforcement of lien	102

Waiver of lien	103

CHAPTER XLIV	108

Implied authority of municipalities to grant right to use streets	113

How and by whom grant should be made or consent given	115

Nature and effect of grant by municipality	116

Construction of grantIllustrative cases	117

Right of municipality to impose conditions	119

Municipal regulation and control	121

Conformity to gradeChange of grade	126

Rights of rival companies in streets	127

Right of one company to use anothers track	129

Rights of abuttersGenerally	130

Rights of landowners other than abutters	134

Commercial railroad is an additional burden	137

Change of tracks or useAdditional	141

Railroads in narrow streets	142

Obstruction of highwaysNuisance	144

Bridges viaducts and approaches	146

Duty of company to restore and repair street	148

Respective rights of the company and of the public	151

Duty to travelers upon the street	153

Liability for negligence	154

Contributory negligence	158

Remedies for unlawful use of street	159

CHAPTER XLV	163

Definition and characteristics	164

IncorporationCharterPowers	166

Street railway not ordinarily an additional burden	168

When street railway is an additional burden	171

Street railways as highways	174

Right to take property under eminent domain	175

Legislative sanction required to use streets	176

Delegation to municipality of right to authorize use of streets 1458 Consent of municipality or local authorities	180

Consent of property owners	182

Selling franchise to bidder 1461 Time for which franchise may be granted	184

Extension of term	188

Ordinance granting the right is a contract 1464 Contract is subject to police power	191

Terms and conditions	194

Motive power confined to that specified	195

Motive power where kind is not specified 1468 Exclusive rightMonopoly	199

Physical monopoly	201

Limitation of power to create monopoly	203

General grant does not exclude other companies	204

Effect of taking possession	205

When grants may be made to other companies 1474 Effect of commencing work by company having prior grant 1475 Conflicting claims	207

Grant must be accepted as an entirety	208

Mandamus against municipal officers 1478 Railway must be constructed within time specified	210

Transfer of companys rights	212

Police power	215

Municipal control	216

Illustrative cases	219

Regulation of fare	221

Duty of company to repair	223

Liability of company for failure to repair	225

When company is bound to improve	227

Company not generally bound to improve	229

Conflict of authority 1489 Duty to improve or repairConclusion	232

Limitation of rights of company	233

Illustrative cases	234

Rights of company superior to those of travelers	236

Liability of persons who injure the tracks	238

Liability of traveler for injuring cars	239

Right of travelersRival companies 1496 Right of one company to use anothers track	241

CHAPTER XLVI	243

Nature and characteristics	244

Mixed natureIllustrative cases	246

Statutory classification	248

Whether an additional burden	249

Incorporation and franchises 1506 IncorporationWhen under railroad	255

IncorporationWhen under street railway law 1508 FranchisesRight to use streets and highways 1509 Forfeiture of charter or franchise	260

Collateral attack	261

Consolidation leases and mortgages	262

Eminent domain	266

FencesKilling stock	267

When traveler may use trackRelative rights and duties	270

Crossing other roads or highwaysSignals	272

Duty of traveler in crossingWhether look and listen rules applies 1517 Crossing tracksMiscalculation of chances	276

Duty after travelers peril is discovered	278

CarriersRights duties and liabilities	279

Power to make traffic arrangementsConnections with other roads 1521 Action for death caused by negligence of employeStatute applied to electric r...	284

Employes and injuries to themEmployers liability acts 1523 Miscellaneous	286

CHAPTER XLVII	288

Injuries caused by obstructions or failure to repair	294

Duty as to employment of servants and equipment of cars	297

Speed lookout signals and warnings	298

Violation of ordinances	303

Injuries by collision between cars and vehicles or travelers on street Generally	305

Vehicles going in same directionRunning down vehicles from be hind	306

Injuries to persons crossing tracks	310

Crossing street railway tracksLook and listen rule	313

Injury to person on street while car is rounding curve	315

Collisions between street cars and railroad trains	317

Injuries to children	319

Injuries from wires or electricity	322

Frightening horses	326

Contributory negligence 1541 Illustrative cases on contributory negligence	327

Proximate causeLast clear chance	331

Street railways as carriers	335

Who are passengers	337

Care as to premises tracks and places for getting on and	340

Care as to cars and appliances	342

Care in operation of cars	343

Collisions or derailment	344

Injuries received while on cars	345

Injuries received in getting on or off cars	348

Injury to alighting passenger by car on parallel track	351

Riding on running board or in exposed or dangerous place	353

Making change and giving transfers	356

TransfersStatutes and rules and regulations	360

Liability for wilful acts of employes 1556 Care as to persons at work on streets	363

Deaf blind and aged persons on the track	365

CHAPTER XLVIII	367

Right to lay out highway across railway	369

Right to construct railway across highway	371

Proceedings by municipality	373

Proceedings by railway company	374

Construction of crossing	375

Damages where highway is opened across a railroad	379

Impairing rights of railway company	383

Restoring condition of highway	385

Mandamus to compel restoration	388

Approaches embankments and other structures 1576 Grade crossings	392

Crossings above grade	394

Crossings below grade	396

Mandamus to compel construction of viaduct	398

Keeping crossing in repair	399

Rights of abutters	401

Gates watchmen and signals at crossings	403

Lights at crossings	406

Bell signals	408

Duty to maintain crossings as between lessor and lessee	409

Maintenance where different railroads cross at grade 1587 Width of crossings to be maintained	410

Accidents and injuries at crossings	411

CHAPTER XLIX	412

Crossings secured by agreement of companies	415

Enjoining construction of crossings	433

CompensationTaking property	435

DamagesElements	437

Expense of constructing crossings 1609 Watchmen and flagmen at crossings 1610 Stopping at crossingsDuty imposed by contract 1611 Stopping at ...	444

Collisions at crossings	446

Priority of passage	447

Maintenance and repair of crossings	448

Street railways crossing steam railroads	451

Further of street railways crossing steam railroads	453

CHAPTER L	457

Who entitled	458

Effect of conveyance of right of way by landowner	459

Right to crossing where right of way has been condemned	461

Private crossings by prescription	462

Private crossings by necessity	463

Private crossings by agreement	464

Parol agreement for crossingStatute of frauds 1628 Private crossings under statutory authority	467

Location and number of crossings	470

Construction of crossingSufficiency 1631 Enforcing construction	473

Repair and maintenance	475

Passways and subways under the tracks	476

Damages for destruction or impairment of crossing by railway com pany 1635 When right to private crossing runs with the land	478

Care required on part of railway company at private crossings	479

Accidents and injuries at private crossings	482

Care at traveled places	484

CHAPTER LI	487

Introductory	488

Mutual rights and duties of company and traveler at crossings Generally	489

Duty of company at private crossings and at crossings by custom or license	494

Statutory duties of company at crossingsViolation as negligence 1649 Commonlaw duty of company at crossingsDegree of care	506

Sign boards and gates at crossings 1651 Flagmen at crossings	514

Signals on approach to crossings	519

SignalsStatutes and ordinances	522

Duty of company to keep a lookoutLights	525

Rate of speedWhen negligence	527

Duty of company where view is obstructed	531

Backing and kicking cars	533

Contributory negligence of travelers at railroad crossingsGenerally 1659 Contributory negligence at crossingsIllustrative cases 1660 Duty of traveler...	543

Duty of the traveler to look and listen	548

Rule requiring traveler to look and listen not invariable and arbi trary as to time and place	554

Duty of traveler to stop look and listen 1664 Attempting to cross in front of an approaching engine or train 1665 Passing under over or between cars	560

Smoke and like obstructions to view 1667 Misleading travelerInvitation to cross	565

Children and infirm persons	568

Sudden peril as affecting the duty of the traveler 1670 Negligence of driver of vehicle not imputed to passenger therein	576

Negligence after discovery of travelers dangerLast clear chance Wilfulness 1672 Last clear chanceWilfulness	580

Injuries at defective crossings	585

Evidence of subsequent repairs and other accidents at the same place	588

Collisions with street cars	590

Directing a verdict in crossing cases	593

Question of contributory negligence left to the jury	595

Question of contributory negligence decided by court	599

Collision with traction engines	602

Injuries to bicyclists at crossings	603

Collision with automobile	604

Leaving objects on or near highway calculated to frighten horses 1683 Horses frightened by the operation of handcars 1684 Acts of intermeddlers	609

Closing without warning a train open at crossing 1686 Travelers struck by trains on parallel tracks	610

Traveler struck by train closely following another	613

CHAPTER LII	614

Commonlaw rule	616

Statutory duty to fence	619

Statutes rest upon police powers	623

Constitutionality of statutes imposing duty to fence	625

Kind of fence required	628

Repair of fencesCasualties and trespassers	631

Transfer of duty to fence	636

Fence erected by landowner	637

Agreement to fence	638

Waiver of duty to fence	641

To whom duty to fence is owing	642

Injuries to passengers resulting from neglect of duty to fence	648

Injuries to employes resulting from neglect of duty to fence	649

Places allowed to remain unfencedHighways and crossings	652

Fences at depot and station grounds	655

Fences in cities towns and villages 1711 Fences at embankments	661

Fences at oblique approaches to highways	662

Cattleguards	663

CattleguardsSufficiency	667

Wing fences	668

Gates and bars	670

Place of entry of animals on railway track	672

Determining places where fences are requiredQuestion of law and fact	674

Injuries to animals on highway	675

Rate of speedStopping train	678

Duty to look out for animals	683

Signals	687

Actual collision with animalsInjuries caused by fright	689

Liability of lessees mortgagees and receivers	692

Contributory negligence	696

Animals abandoned by their owner	701

Animals attracted to railroad tracks	702

Ownership of animals	704

Presumption of negligence	705

Burden of proofEvidence	708

Pleading and practice	713

Notice and demand for damages	715

Appraisement of damages 1734 Measure of damages	717

Double damages	722

Attorneys fees	725

Expense of preventing further injuries as element of damages 1738 Statutory duty of railroad company to advertise or report fact of killing	727

Release of damages	728

CHAPTER LIII	729

Commonlaw liability 1746 Statutory liability	733

Constitutionality of statutes imposing liability	734

EquipmentSpark arresters ashpansFuel	738

Management of engines	744

Duty as to right of wayCombustible material	746

Fires set to burn off right of	750

Extra precautionsDry seasonsWindExposed property 1753 Fires started on right of	755

Fires started off the right of	756

Remote fires	757

Duty to extinguish fires	761

Ownership of property burned	762

Effect of insurance on property burned	765

Property on right of	768

Contracts limiting liability	770

Liability where road is operated under lease	773

Contributory negligence of owner	775

Measure of damages for property destroyed by fire	783

PleadingParties 1765 PleadingSufficiency of complaint	790

Burden of proofPresumption of negligence	793

Proof that company set out fire	798

Evidence of emission of sparks or setting of fires by same or other engines	800

Proof that company negligently set out fire	806

Evidence to rebut presumption of negligence	810

Evidence to rebut presumptionConflicting authorities	813

Instructions to juries	815

Attorneys fees 1774 Personal and other injuries caused by fires	817

Negligence of persons using fire about cars by permission of rail road company 1776 Liability for fire set out on lands of railroad company let to oth...	819

Liability where railroad is operated by purchaser at foreclosure sale mortgage trustees in possession receiver	820

CHAPTER LIV	821

Difference between invitation and license	827

Duty to licenseesGenerally no special duty to make safe	829

Duty to licenseesConflicting views	832

Liability for injuries to licensees	834

Who are trespassers	838

Duty to trespassers	842

Liability for injuries to trespassers	844

Trespassers on cars	845

Strangers at stations	850

Injuries to trespassers upon track	854

Presumption that person will get off trackDiscovery of peril Wilfulness	858

Injuries to persons in companys yards	863

Liability for injury to trespassing childrenTurntable cases	866

Injury to trespassing childrenAttractive nuisanceIllustrative and conflicting cases	870

Contributory negligence of children	874

Imputable negligence	880

Liability for injury to persons on adjacent highway	884

Liability for frightening horses	887

Frightening horsesObjects left on or near highway	890

Liability to strangers for wilful acts of employes	892

Liability for wrongful arrest or the like	896

Care in the operation of handcar toward trespassers 1808 Care towards persons lawfully at work on the track	899

Persons engaged in loading and unloading cars	900

Injuries to employes of independent contractors	903

Care required of deaf blind and other defective persons 1812 Persons injured while drunk and asleep on railroad track	906

Injuries in making running or flying switches	907

Persons injured while attempting rescues	909

Whether railroad company required to care for trespasser after injury	911

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A Treatise on the Law of Railroads: Containing a Consideration of ..., Volume 3
Byron Kosciusko Elliott,William Frederick Elliott
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Title	A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, and of the Rights and Liabilities Incident to the Location, Construction and Operation of Railroads; Together with Their Duties, Rights and Liabilities as ..., Volume 3 Volume 3 of A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, William Frederick Elliot A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, and of the Rights and Liabilities Incident to the Location, Construction and Operation of Railroads; Together with Their Duties, Rights and Liabilities as Carriers, Including Both Street and Interurban Railways, William Frederick Elliott
Authors	Byron Kosciusko Elliott, William Frederick Elliott
Edition	3
Publisher	Bobbs-Merrill Company, 1921
Original from	Harvard University
Digitized	8 May 2008

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