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term of office of an incumbent of the office of city marshal begins, and rule that the office of city marshal begins the 1st day of April of the even year; but it was not necessary to decide that question to dispose of the case, and there was a dissenting opinion filed upon that branch of the case. And the respondent contends that, so far as French v. Cowan holds, the term of office of the city marshal begins April 1st of the even year, and continues until the last day of March of the succeeding year; it not being necessary for the decision of the case that the question should be re-examined.

The Opinion of the Justices, 61 Me. 602, holds that judges and registers of probate, who are elected to those offices, are entitled to hold them for a term of four years from the 1st day of January next succeeding their election, although their elected predecessors may have vacated their offices before the expiration of the full term for which they were chosen. The opinion shows the distinction between the case of a person holding an office for a definite term and where the office holder is a member of a board whose terms expire at different times, and holds that the court of county commissioners consists of a board of officers, the election of whom was so fixed by law as to occur upon different years. There was to be an annual election of one of its members. The mere expiration of time did not and could not leave the court vacant. Vacancies might occur in the board by death or resignation. To meet this contingency, and still preserve the annual election of one of its members, the statute provided for a choice to fill the place that was vacant, explaining the Opinion of the Justices in 50 Me. 608.

The case of Hale v. Brown, 59 N. H. 555, 47 Am. Rep. 224, cited in French v. Cowan, was an action of assumpsit in which a contractor sought to enforce a lien upon timber and lumber that the complainant had cut and hauled by himself and servants in his employ, and it was sought to enforce the lien both for his services and of the men in his employ, and does not bear upon the question in issue in this case.

In People v. McClave, 99 N. Y. 83, 1 N. E. 235, cited in French v. Cowan, the question in issue was the term of office of a person appointed as police commissioner of the city of New York. Section 25 of the act (Laws 1873, c. 335) in question

The person first appointed shall take office on the expiration of the term of office of the presination or election to fill any vacancy which ent incumbent, and further provided any nomshall hereafter occur by reason of the expiration of the term of one officer, or from any by anything in this act providing for the terother cause, and which shall not be created mination of the term of office of any person, or persons, now in office, shall be made to the board of aldermen within ten days from the day of the date of any such vacancy, and any person who shall be appointed to fill any such vacancy shall hold his office for the unexpired term of his predecessor.'

The court say:

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"This clause places it beyond doubt that an appointee to fill a vacancy caused by the death, resignation, or removal of an incumbent dursuch term or period, which, of course, may be ing his term, holds only for the remainder of much less than six years."

In that case the act expressly provided that a person appointed to fill a vacancy should only hold for the unexpired term, while the act of the Legislature of 1880, now under consideration, does not contain any such language, but does provide that the city marshal shall hold his office for the term or two years, which is clearly distinguishable from the New York case, as is the case of State v. Mayor of La Porte, 28 Ind. 248, in which case the act of incorporation provided "that, after the first general election, said officers shall respectively hold their offices for two years each," and that annually there shall be chosen, by the legal voters of their respective wards, "one councilman to be determined by lot at the first regular meeting after the election, shall hold his office for two years, and the other, to be determined in like manner, shall hold his office for four years; and biannually thereafter, one councilman shall be elected by the voters of each ward"; and the court held the evident intent of the section cited was that only one councilman for each ward should be elected every two years for a period of four years, not the case of an officer appointed to the office for a definite term, but the case of one member of a board going out of office, and, as it was the evident intent of the Legislature that it shall be a continuing board, it is clearly distinguishable from this case, as clearly explained in the Opinion of the Justices, 61 Me. 602, holding that judges and registers of probate are appointed to hold their offices for the term of four years, in the following language:

"It will be perceived that no other limitations than four years is imposed, except in the case of executive appointments. This term seems to be a fixed and positive term attached to an election. The only mode of permanently filling the office, however it becomes vacant, is by election, in which case the Constitution says they shall hold their office for four years. These provisions are clear and unambiguous."

"vested in the mayor the power to nominate and, with the consent of the board of aldermen, to appoint heads of departments and all commissioners, including the commissioners of police (with certain exceptions not material here), but provided that the officers of all such heads of departments, and persons other than those first appointed, shall commence on the first day of May, but the heads of departments, There is no provision of the law of 1889 to consisting of a board of commissioners first appointed after the passage of this act shall, fill the office of city marshal of Lewiston, exexcept as herein otherwise expressly provided, cept by the mayor and aldermen of the city, be two, four and six years, respectively, and and the law states, in clear and unambiguous the board of commissioners of police first appointed as aforesaid, shall hold their offices, language, that the marshal shall hold his, ofone, two, three and four years, respectively. fice for the term of two years. There is no

different rule of construction of that act of | no grounds for inferring an exception in case

the Legislature than of the Constitution; they both speak in clear and unambiguous language.

The petition urges upon our attention the case of Baker, Governor, v. Kirk, 33 Ind. 523, but an examination of the case shows that it is not a similar case to the case at bar, and that the principles of law governing the case are the same that this court applied to the board of county commissioners. In that case the question was when the term of office of one member of the board of prison directors began, and the court uses this language:

"It is very manifest that the term of office of a prison director, as fixed by the above law, after the expiration of the term of office of the person first elected, is for a period of four years. It is equally plain that the object of the Legislature in providing that one of the directors first elected under this law should serve for two years, and that two of them should serve for four years, was to prevent the directors from all going out of office at the same time."

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The same question in this case was passed upon in Smith v. Cosgrove, 71 Vt. 196, 44 Atl 73, and the case is so similar that we quote: "Section 215 of the charter, as amended by the act of 1896, provides for a regular police force for the city, consisting of a chief of police, who shall be appointed by the mayor and shall hold his office for three years, unless sooner removed, and such number of other police officers as the mayor shall deem necessary for the welfare of the city, who shall hold office for such term, not exceeding three years nor less than one year, as shall be designated by the mayor in his appointment. By this section it is clear that, whenever a chief of police is first appointed, under the charter, he holds his office for three years from the date of his appointment, unless sooner removed; and we look in vain for any authority in the charter, as made to read by the act of 1896, for appointing a chief of police for a shorter period. Section 277 of the act provides, in part, that the city officials holding office therein under and by virtue of the general law of the state, or the acts or parts of acts thereby amended or repealed, shall hold office till the expiration of their current term. * When it becomes necessary to appoint a chief of police under the new charter by reason of death, removal, resignation, or to fill the place of one whose term has expired, the appointee holds his office for three years from the date of his appointment, unless sooner removed. The language of this section is plain and unmistakable, and there is nothing in the charter relating to the filling of a vacancy in the office of chief, or appointment to that office, that in any way limits or qualifies its provisions. The charter, as amended by the act of 1896, does not fix the time when the term of office of the chief of police shall commence. It only provides for his appointment, and that he shall hold the office for three years, unless sooner removed. In the absence of any provision of the charter fixing the time when his term shall commence, it must be held that his term begins when he is appointed and qualified, and continues for three years, unless he be sooner removed. When a statute creates an office and provides that it shall be filled by election or appointment for a term of years, and is silent in regard to when the term shall commence, and makes no special provision for filling a vacancy in the office or respecting the term for which one appointed to fill a vacancy shall hold the office, and there are no general provisions of the statute that are applicable, there are

of a person elected or appointed to the office death, resignation, or removal of his predeceswhen it has become vacant by reason of the

sor."

The court cites People v. Green, 2 Wend. (N. Y.) 266, Crowell v. Lambert, 9 Minn. 283 (Gil. 267), People v. Burbank, 12 Cal. 378, People v. Townsend, 102 N. Y. 430, 7 N. E. 360, and Sansbury v. Middleton, 11 Md. 296, as holding to the same effect.

In Winter v. Sayre, 118 Ala. upon page 61, 24 South. 98, McClellan, J., says:

"For what the Legislature has done, as clearly shown by the act, is this: They have provided that each incumbent by executive and senatorial appointment shall hold his office for six years, not that each term shall endure for six years (the word 'term' is not used in the act, except in reference to the then incumbent who was in for a fixed term of six years), not that the incumbency of the office shall be divided into terms of six years each, but that each judge so appointed shall be entitled to hold the office for that period. The Legislature could not make him hold it for that period; it could not keep him from dying or resigning; but it could secure to him the right to hold for that length of time if he chose, and lived, to exercise it. And that is what they have done and all they *They intended to do in this statute. have not marked the office off into fixed terms * ** of election with equal periods between. They have secured to the incumbent the right to serve for a given period. If he serves that period, it is all well and good. If he dies, or resigns, or is removed, the period ceases; and the appointee who comes after him takes for a like period, not for so much of the time his in fact hold, but for the full period of six years predecessor was entitled to hold as he did not initiated upon his confirmation by the Senate."

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*

In Hoke v. Richie, 100 Ky. 66, 37 S. W. 266, 38 S. W. 132, it was held that where by statute an inspector of illuminating oil "shall remain in office for four years," and the incumbent dies during that period, the appointment of his successor is only for the unex. pired part of the term, and not for a full term of four years, although the order of appointment so recited. The opinion in the above case cites no cases to support the position taken by the court, and it says, "It is conceded that the apparent weight of authority is against the conclusion we have reached," and quotes from Troop on Public Officers, § 319:

"The authorities are not entirely harmonious respecting the duration of the term of an officer elected by the people or appointed by the Governor, or some other officer or board of officers, to fill a vacancy, where the Constitution has failed to specify the duration of his term, or where a provision upon that subject is of doubtful construction; but the weight of authorities is decidedly in favor of the proposition that a person so chosen holds for a full term, and not merely for the unexpired term of his predecessor's term."

It is to be noticed that in the above case the court said:

"We have concluded, though with some hesitation, that the apparent purport of the peculiar language of the statute must yield to the general legislative purpose prevalent in this state."

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The following cases are to the same effect as the Opinion of the Justices, 61 Me. 602:

Attorney General v. Brunst, 3 Wis. 787; Peo- | ple v. Coutant, 11 Wend. (N. Y.) 132; Keys v. Mason, 3 Sneed (Tenn.) 6.

In Mechem on Public Officers, § 386, it is stated:

"The statutes creating public officers usually prescribe the limits of the terms provided for, fixing the dates at which they will begin and end. The date of the commencement of the term is ordinarily fixed for some appreciable period after election or appointment, in order to give the newly chosen officer time to arrange his affairs and to qualify in the manner prescribed. Where, however, no time is fixed, the term will begin on the date of the election in the case of an elective officer, and at the date of appointment where the officer is appointed."

The words of the act of 1880, in fixing the term of the office of marshal, are: "The city marshal shall hold his office for the term of two years."

In State v. Tallman, 24 Wash. 426, page 430, 64 Pac. 759, 760, the court, in discussing the meaning of the word "term," as applied to an office, says:

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"Term,' as applied to time, signifies a fixed period, a determined or prescribed duration. A term of office is a fixed period prescribed for holding office. People v. Brundage, 78 N. Y. 403. The word 'term,' when used with reference to the tenure of office, ordinarily refers to a fixed and definite time. Mechem, Public Officers, $ 385. In fact, the expression 'term of office' so clearly defines itself, the words used are so well understood, and their meaning so generally accepted, that it is useless to attempt to further define it."

Webster's Dictionary defines "term" "as a limited or definite extent of time; the time for which anything lasts, as a term of five years, the term of life, a presidential term." If the marshal should die, resign, or be removed one week before his term expired, if the petitioner's contention is right, then his successor, if appointed within the week, would only hold the office for the balance of the week, although the statute under which he was appointed expressly states, "The city marshal shall hold his office for the term of two years." He could not have held it before his appointment, and during the legal term of his predecessor. If we give to the language of the act the obvious import of the words, the ordinary popular significance of which is that the marshal holds his office for the term of two years from his appointment, if he so long live, unless he resigns, is removed, or the Legislature changes the law.

The word "term" used in the act of 1880, describing the term of the city marshal, was used to designate a fixed, definite period of time that a person appointed to the office should hold the office.

In French v. Cowan, in discussing the question of successive terms, the court considered both the office of marshal and of police officers, as if their terms were the same, as appears from the following from page 433 of 79 Me., page 338 of 10 Atl.:

"In the case before us, the statute, it is true, does not designate any definite point of time from which the terms of the several officers therein mentioned shall commence. Yet the evident purpose of the statute requires, for the police force at least, that a definite time be fixed from which the several terms shall begin." And at page 433 of 79 Me., at page 337 of 10 Atl., the opinion reads:

"If we were to give any other construction to this statute in relation to commencement and duration of the terms of office of the marshal and the policemen the terms of service of the appointees might soon become such as to entirely destroy the force of the provision that one-third, as near as may be, shall be appointed each year."

While the above statement as to the police officers may be the accurate interpretation of the law as to those officers, it is not applicable to the office of city marshal, which, by the statute, is for a fixed and definite term of years. There is nothing in the act of 1880 providing that one appointed city mar

shal to succeed one who had not served a full two years shall only serve out the unexpired term of his predecessor.

The opinion does not notice the distinction between the terms of "office of the city marshal," which is for a fixed and definite term, with authority in the appointing power to fill a vacancy in the office by appointment, and that in the office of policemen, who are members of a continuing board of public officers, and the plain intent of the act being that one-third of the members of the police officers should be appointed each year, so that always the board should consist of at least twothirds of experienced officers, a distinction fully explained in the Opinion of the Justices, 61 Me. 602. As the act of 1880 provides that the city marshal shall hold his office for the term of two years, and does not provide that the person appointed to that office to succeed one who did not serve out the full term for which he was appointed, shall serve only the unexpired term of his predecessor, the plain and obvious meaning of the act, as well as the weight of authority, is that, whenever there is a vacancy caused by death, removal, resignation, or the failure of the mayor to appoint, or the board of aldermen to confirm an appointment, to that position, there is a vacancy in the office and not in the term, and that, when Arsene Callier was appointed and confirmed as city marshal on April 1, 1911, he was entitled to hold the office, by virtue of that appointment, for the term of two years from his appointment (that is, to April 1, 1913), and when the respondent was appointed city marshal and confirmed March 18, 1913, for the term of two years from the 1st day of April, 1913, he became entitled to hold the office for the full term of two years (that is, to April 1, 1915), and the respondent is entitled to judgment.

Petition dismissed, with costs.

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Where a rule of reference contains a stipulation that the judgment rendered on the referee's report shall be final and conclusive, the referee has full power to decide all questions of law and fact, and in the absence of fraud, prejudice, or mistake on the referee's part, to which objections must be raised when the report is offered for acceptance, the decision is final.

[Ed. Note.-For other cases, see Reference, Cent. Dig. §§ 148-156; Dec. Dig. § 99.*] 2. REFERENCE (§ 100*)-SUBMISSION.

Though a rule of reference provided that the judgment rendered on the referee's report should be final and conclusive, it was nevertheless proper for the referee, in advising a judgment for plaintiff, to reserve to defendant a right of exception in order that questions of law might be submitted to the Supreme Judicial Court.

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[Ed. Note. For other cases, see Reference, Cent. Dig. §§ 157-168; Dec. Dig. § 100.*] 3. APPEAL AND ERROR (§ 1018*)-REVIEWFINDINGS-EXCEPTION.

Where there is evidence to support the findings of fact of a referee, and his findings of fact support his conclusions of law, neither are subject to exception.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4006, 4007; Dec. Dig. § 1018.*]

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by Ivory A. Hovey against Burnham J. Bell. A judgment was rendered in favor of plaintiff on a referee's report, and defendant brings exceptions. Overruled. Argued before SAVAGE, C. J., and HALEY, HANSON, and PHILBROOK, JJ.

Harry M. Briggs and Willard S. Lewin, both of Houlton, for plaintiff. Shaw, Burleigh & Shaw, of Houlton, for defendant.

PHILBROOK, J. This is an action in assumpsit on the following account annexed: Burnham J. Bell, to Ivory A. Hovey, Dr. 1911, June 1.

To 222 barrels of potatoes, sold and delivered you at $1.00 per bbl....... $222 00 To interest since due and demanded.. 23 00

$245 00

The cause was sent to a referee who reported as follows:

"In this case I find as a matter of fact that Ivory A. Hovey, the plaintiff, was a bona fide lessee of Ulmont H. Hovey, of the five acres which he claims to have planted to potatoes upon the Pennington farm, and that the 200 barrels of potatoes harvested by him therefrom were his property, as between him and his son, Ulmont. In other words, I find that the plaintiff's claim was not a fraudulent one set up for the purpose of preventing these potatoes from becoming an asset of Ulmont's bankrupt estate.

"But as a matter of law the defendant claims, even admitting the plaintiff's good faith, that the title is prevented from vesting in him by

the terms of the lease, which 'reserved the title to said crops to secure the payment of the said rent,' etc. Under this reservation the defendant contends that all the crops by whomsoever cultivated became the property of the lessor, George L. Pennington, through whom the defendant, though nominal, derived his title.

"The defendant further contends that the fact that the plaintiff was sublessee, without the written consent of the lessor, as required by the terms of the lease, left the plaintiff without any rights greater than those of the lessee, Ulmont. Upon this contention I find two things: First, that the lessor had no knowledge of the operation of the plaintiff as sublessee; and, second, that the lessor had no title to the premises when he executed the lease to the lessee, Ulmont.

"Without going into further details, I rule as a matter of law, upon the facts found, that the plaintiff is entitled to recover the sum of $245, and interest from the date of the writ. Upon this ruling I reserve the right of exception to the defendant."

Upon motion of plaintiff's counsel the justice at nisi prius accepted the report and ordered judgment for the plaintiff. Thereupon the defendant presented the following bill of exceptions, which was allowed, and the case is before us upon these exceptions:

"The referee found the facts upon hearing, which are set forth in his finding and ruled, as a matter of law, that upon the facts found, the plaintiff is entitled to recover.

the presiding justice ruled that the ruling of "The report was submitted to the court and the referee was right, and ordered judgment and order of the presiding justice the defor plaintiff, upon the report, to which ruling fendant excepts, and prays that the exceptions may be allowed.

"The finding of the referee is made a part of the bill of exceptions."

The record presented to this court consists only of copies: (1) Of the writ; (2) of a lease from George L. Pennington to Ulmont H. Hovey of a certain piece of land in Houlton; (3) of a paper signed by said Pennington acknowledging receipt from Burnham J. Bell, the defendant, of $222, "the same being the value of 222 barrels of potatoes raised on land leased by me to one Ulmont Hovey, and sold to said Bell by Ivory A. Hovey, the title to which said potatoes are in dispute," the paper also containing an agreement by Pennington to hold Bell harmless from loss by reason of the claim of any other person to the proceeds of the potatoes; (4) copy of rule of reference; (5) copy of findings of the referee; (6) bill of exceptions. In the plaintiff's brief he says that the evidence given before the referee, "though taken by a stenographer, is not before this court," and no such evidence is contained in the record.

[1, 2] The rule of reference contains the stipulation that judgment rendered on the report of the referee shall be final and conclusive, and the law is well settled that in such a case the referee has full power to decide all questions arising, both of law and fact, and in the absence of fraud, prejudice, or mistake, on the part of the referee,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

objections to which should be made when the tempting the crossing, and there was evidence report is offered for acceptance, his decision that the car was suddenly set in motion withis final. Piscataquis Savings Bank v. Her-out warning, when he was on the crossing, the questions of negligence and contributory negligence were for the jury.

rick, 100 Me. 494, 62 Atl. 214; Armstrong v. Munster, 103 Me. 29, 67 Atl. 573. The powers of the referee were unrestricted. The whole case, both as to law and fact, was submitted to his determination. Hooper v. Taylor, 39 Me. 224. In the case at bar the referee did not exercise his full powers, for, by reserving right of exception to the defendant, he virtually gave the defendant an opportunity to submit questions of law to this court. This course was legitimate and proper. Hooper v. Taylor, supra. The difficulty here is to ascertain precisely what questions of law are properly presented by the bill of exceptions.

[3] There are several findings by the refHe finds as matter of fact that Ivory A. Hovey was a bona fide lessee of Ulmont H. Hovey. This finding is not exceptionable if there is any evidence to support it. Palmer's Appeal, 110 Me. 441, 86 Atl. 919. In the case at bar no report of the evidence is furnished, except as above stated, and we find nothing in such as is furnished that will warrant this exception being sustained. After stating certain legal claims made by defendant, the referee finds that the lessor had no knowledge of the operation of the plaintiff as sublessee, and that the lessor had no title to the premises when he executed the lease to Ulmont. These seem to be findings of fact, and for reasons just given are not exceptionable. Finally the referee rules "as a matter of law, upon the facts found, that the plaintiff is entitled to recover," and upon this ruling reserves the right of exception to the defendant. Here again it would appear that in order to sustain his exceptions the defendant must show that the findings of fact by the referee, as preliminary to his ruling of law based upon those facts, are not sustained by any evidence. The burden at this point is upon the defendant. Rawson v. Hall, 56 Me. 142. In our opinion the burden has not been sustained, and the entry must be: Exceptions overruled.

(245 Pa. 489)

KOPOCHIK v. PENNSYLVANIA COAL CO. (Supreme Court of Pennsylvania. May 22, 1914.)

NEGLIGENCE (§ 136*)-INJURY TO LICENSEE QUESTION FOR JURY-EVIDENCE.

Where, in an action for injuries from being struck by a car on defendant's private railroad, maintained in an inclosure surrounded by a high fence containing gates through which it was necessary to pass to reach defendant's office, it appeared that plaintiff went to such of fice seeking work and, under the directions of the foreman, examined certain places in the mine at which he might work, and was returning home over the crossing at the time of his injury, and the testimony was conflicting whether he stopped, looked, and listened before at

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]

Appeal from Court of Common Pleas, Luzerne County.

Trespass by Michael Kopochik against the Pennsylvania Coal Company, for personal injuries. From judgment for plaintiff, defendant appeals. Affirmed.

The facts appear in the following opinion of Strauss, J., refusing motion for judgment n. o. v.:

This is an application for a judgment non obstante veredicto, but not for a new trial. The case has been twice tried, and both times it has resulted in a verdict for the plaintiff. After the first trial this court, upon facts sube stantially the same as appeared at the trial now under consideration, refused to enter judgment non obstante veredicto, but allowed the motion for new trial because the evidence of contributory negligence was so strong that the verdict seemed to be against the plain weight of the evidence. That evidence is again substantially as strong as before. The case in our opinion must always go to the jury so far as this question is concerned. The defendant now presses the motion for judgment non obstante only, and we shall give that somewhat more attention than was given to it at the first trial.

The facts are rather simple as we view them in the light of the verdict. The defendant operates a colliery known as No. 14, where it employs from 1,200 to 1,500 men. A high fence has been built around the works, and entrance to the ground is obtained through gates. Within the grounds a railroad has been established leading from a breaker and washery to weigh scales. Cars filled with coal at the breaker or washery were habitually run by gravity to the scales. Generally these cars were in charge of a brakeman who regulated their running through control furnished by a brake. About 700 employés went daily to and from their work over a road established within the grounds leading from one of the gates across the railroad. Over the railroad a regular crossing from 12 to 14 feet wide had been established in the line of this road for the use of wagons and of employés. a car, standing under the washery to be loaded, This crossing was so close to the washery that would reach, and sometimes encroach upon, the crossing. It seems to have been usual for persons seeking employment to use this road and crossing in going to the place where the foreman having charge of employment of men might be found.

The plaintiff, who for many years worked at this colliery, but who was out of employment on April 3, 1908, went in search of employment over this road and crossing to the foreman, who sent him into the mine to see several places at which he might work. On returning, plaintiff, with eight or ten other men, went from the shaft over this crossing with a view of returning to his home. There is some conflict in the evidence as to whether the plaintiff stopped, looked, and listened, and walked over the crossing, or whether without these precautions ran across the railroad track some distance below the crossing with a view of catching a car that was passing on a public road outside of the fence. That question of fact was duly submitted to the jury. The plaintiff claimed and testified that usually when cars stood under the washery, and projected out towards, or over the crossing, there was a man on the car at the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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