carriage, or a traveler on horeseback or on foot, and also the disobedience by such drivers of the common law of the road, in overrunning and striking any such like carriage traveling in the same course, and that the offense which subjected any such driver to the penalty of triple damages was committed-First, when the "drivers of any such stage shall by negligence or carelessness, contrary to the true intent and meaning of this act, run against or strike any other such like carriage," or "shall in any manner as aforesaid [i. e. by negligence or carelessness contrary to the true intent and meaning of this act] run upon, hit and hurt or injure any person traveling on horseback or on foot, who shall not by any blamable conduct, have occasioned such hurt or damage; and, second, when any such driver shall overrun any other like carriage, traveling in the same course, and shall run against and strike the same." If such is the true meaning of the original act, it would be a serious question whether the changes occasioned by repeated revisions of the General Statutes should be held to have so essentially altered its meaning as the plaintiff's claim indicates. But we do not pursue the discussion, as a decision is not required for the disposition of this case, and the question has heretofore never been a practical one. Since the passage of the act, in 1797, the plaintiff's claim has not been presented to this court, and, so far as our means of information extend, has never been raised in any trial at nisi prius. It is enough for the purposes of this case that, whatever may be the elements of the offense for which triple damages may be imposed, it is certain that those elements must be alleged and proved in order to justify a judgment for such damages; and it is equally certain that an element essential to the offense, without which it is impossible for the offense to be committed, is the driving of a stage, etc., for the conveyance of persons, as expressed in the act of 1797, or of a "vehicle for the conveyance of persons," as expressed in section 2689. The plaintiff has neither alleged nor proved this essential element; and the record shows that the court, in a common-law action for negligence, has rendered a judgment for $375 upon a verdict that the plaintiff recover $125. The rendition of such a judgment is a fatal error. In Hotchkiss v. Hoy, 41 Conn. 568, 576, it is held that the complaint may allege the vehicle was one for the conveyance of persons, without using the exact words of the statute, but the allegation must be sufficient to bring the vehicle within the description of those mentioned in the statute. As was said by Judge Loomis in delivering the opinion of the court in Broschart v. Tuttle: "Whether, in order to recover the extraordinary damages given by the statute, it is necessary to refer to it specifically in the complaint, we will not determine, but it is con

ceded to be necessary to state such facts in the complaint as will clearly bring the defendant within the provisions of the statute. The plaintiff may have an election between his remedy at common law and the one given by statute, but the court has no election, and can only render such judgment in damages as the record calls for." 59 Conn. 1, 8, 21 Atl. 925. In that case the plaintiff and defendant were each driving a vehicle, and going in opposite directions; and, as in this case, there was a verdict for the plaintiff, and a motion for triple damages. This court held that the motion was properly denied, and judgment properly given for the damages assessed by the jury. The plaintiff claimed that the allegation in his complaint that the parties were driving in opposite directions was sufficient to bring the case within that clause of the statute relating to injuries caused by not turning to the right, etc., but the court held that all the conditions contemplated by that clause must be specifically and clearly stated. Apparently, the complaint was also defective in not alleging that the defendant was driving a vehicle for the conveyance of persons, although the opinion deals only with the other defects. The principle, however, applied to the complaint in that case, is clear, and must control in this.

The defendant also, in his reasons of appeal, assigns certain errors claimed to have arisen in the charge of the court. So far as the alleged errors consist in the comments of the court upon the statute, they were induced by the defendant's own erroneous request, and, with the view we take of the complaint, did not injuriously affect him. Of such errors he cannot complain. So far as the alleged errors consist in the comments of the court upon the plaintiff's right to recover damages for negligence as alleged in the complaint, we do not think the errors specially assigned, taken in connection with the rest of the charge, are such as to justify a new trial. The conditions of the evidence, as recited in the finding, were, on the whole, fairly met in the charge, and no legal principle which the defendant was entitled to have stated was actually omitted. The real ground of complaint lies in the piecemeal statement of rules that, taking the whole charge together, were stated with substantial correctness. Such a course is not to be commended, but does not call for a new trial, unless followed in such manner as to indicate that the jury might have been misled.

The motion for a new trial must be denied. The point principally argued is that the evidence did not identify the defendant as the person who was driving the horse which was driven against and injured the plaintiff. There was testimony tending to show this, and, as the defendant offered no testimony, such evidence, in connection with the fact that the defendant did not deny it, is sufficient to prevent the court from holding that

the jury were not warranted in finding that he was the man. In Blatch v. Archer, 1 Cowp. 63-65, Lord Mansfield said, "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." McDonough v. O'Niel, 113 Mass. 92; Simes v. Rockwell, 156 Mass. 372, 31 N. E. 484; 2 Whart. Ev. § 1136. So much of the judgment as includes damages exceeding the sum of $125 is erroneous, and is set aside. The judgment is affirmed as to the residue. The motion for new trial is denied. The other judges concurred.

In re WESTCOTT.

(Supreme Court of Errors of Connecticut. Nov.

1, 1895.)

ATTORNEYS-DISBARMENT-PROCEDURE-APPEAL.

1. The superior court of Connecticut has jurisdiction over ll attorneys admitted to practice before it, and may make an order disbarring one from practicing as an attorney at law in the courts of this state.

2. Where there is no objection made on the record, an appeal may be entertained from an order disbarring an attorney at law, but such an order has in it so much that is of a discretionary nature that the revising tribunal will interfere only in a plain case.

3. An attorney who has been found guilty of a wrongful conversion of the money of his client, and for that offense has been disbarred, cannot urge the interference of a revising tribunal.

Appeal from superior court, Hartford county; Thayer, Judge.

Edwin S. Westcott was disbarred in the superior court, and appeals. Affirmed.

Edwin S. Westcott, in pro. per. John H. Buck, Asst. State's Atty.

FENN, J. The appellant, Edwin S. Westcott, an attorney at law residing in Glastonbury, and practicing in Hartford county, in this state, was, by the superior court in and for said county, upon proceedings had in strict accordance with the provisions of the rules regulating the suspension and displacement of attorneys (58 Conn. 592, 26 Atl. xix.), displaced from the bar, and disbarred and prohibited from practicing as an attorney at law in the courts of this state. Two reasons of appeal from said judgment are assigned. The first reason is in these words: "That the said court had no jurisdiction of the matters alleged in said entitled cause: (1) Because that for a time before which the memory of man runneth not to the contrary, up to September 1, 1890, when the last rules were adopted to take effect, every lawyer or attorney against whom charges have been preferred has been tried by his brother lawyers of the bar of the county to which he belonged; (2) that the bar to which such an attorney belonged has, during all this long time, been the only court before whom, on any charges of misconduct, an at

torney could be tried; (3) that the judges of the state could not, by any such adoption of rules, so change the law and custom of Connecticut with respect to any attorney admitted to the bar before the adoption of said rules of September 1, 1890, and said Westcott was admitted to practice before said date; (4) that the said Edwin S. Westcott should have been tried by the members of the bar where he was admitted, by his peers." It is difficult to treat such claims as the above seriously. But, if an answer is necessary, it may be found in the ruling and language of this court in County Bar v. Taylor, 60 Conn. 12, 22 Atl. 441. There is no truth whatever in the averments made as to previous practice in this state. Attorneys have never been tried by the bar for misconduct. The bar, as such, is neither a court nor a jury. "Only the superior court can make an order of total expulsion or displacement. In the absence of specific provisions to the contrary, the power of removal is, from its nature, commensurate with the power of appointment."

The appellant's second reason of appeal is that "the matters, as reported by the committee and in evidence before the court, were not sufficient to empower the court to disbar the said Edwin S. Westcott from practice before the courts of the state." From the finding made by the court, it appears that on the day when the hearing was ordered the state's attorney for Hartford county appeared to prosecute the complaint, and said Westcott appeared for himself, and moved that the hearing be postponed, which motion was overruled by the court, and the parties were ordered to proceed with the hearing. And thereupon said Westcott, in a rude and contemptuous manner, left the court room, and indicated by his language and manner, and by his refusal to reply when asked by the court if he desired to be further heard, that he did not intend to be further heard in the matter. The court thereupon heard the state's attorney, and his evidence and witnesses in support of the complaint, and found that said Westcott, as the attorney of John Hooker, Esq., of Hartford, did in December, 1892, collect the sum of $200 due to said Hooker, $90 of which, by the terms of his employment, he was bound to account for and pay over to said Hooker immediately upon its collection; that, though payment had often been demanded, he had never paid the same, but, upon its receipt by him, had converted and disposed of the same to his own use; and that by reason thereof the said Westcott was an unfit person to be a member of the bar of this state. In County Bar v. Taylor, supra, where, as in the present case, no objection was made upon the record, this court, while entertaining a similar appeal for the purpose of examining the case, expressly referred to the fact that no statute authorized and no usage permitted it. The reasons for this were given. It was

there said: "Such an order, although it is a judicial act, has in it so much that is of a discretionary nature as to suggest great difficulties in an appeal. It is discretion, too, that ought to be exercised with great moderation and care. But sometimes it must be exercised, and no other tribunal can decide, in a case of removal from the bar, with the same measure of information as the court itself. A revising tribunal, if there be such an one, would feel the delicacy of interposing its authority, and do so only in a plain case." When an attorney does that of which the appellant was charged in the complaint, and of which he was found guilty by the court, that is, collects a considerable sum of money for a client, and then neglects, notwithstanding frequent demands upon him by the client, to pay over the client's part, and converts it to his own use, without the consent or knowledge of said client,-under such circumstances, such an attorney has no "plain case" upon which to ask the interference of a revising tribunal, in order to permit him to remain a member of the bar. There is no error. The other judges concurred.

MURRAY v. LEHIGH VAL. R. CO. (Supreme Court of Errors of Connecticut. July 19, 1895.)

MASTER AND SERVANT - WHEN RELATION EXISTS -APPEAL-HARMLESS ERROR.

1. In an action for injuries received while a passenger on defendant's train, there was evidence that defendant ran its trains over the track of another company at the place where plaintiff was injured; that defendant was bound by its agreement with such other company to obey the orders and signals given by the servants of that company; and that the injury was caused by the negligence of servants of the latter company in the management of one of its trains. Held, that it was not error to charge that the servants of such other company, while operating its trains on that part of the track used in common by both companies, might, for the purposes of the case, be regarded as the servants of defendant. Baldwin and Torrance, JJ., dissenting.

2. Where, in such case, the verdict established that the injury was caused by the negligence of defendant's servants, because the employés of such other company were, for the purposes of the case, defendant's servants, the exclusion of evidence to show unfriendly feelings by the employés of such other company towards defendant's employés was immaterial. Baldwin and Torrance, JJ., dissenting.

Appeal from superior court, New Haven county; Ralph Wheeler, Judge.

Action by Joseph H. Murray against the Lehigh Valley Railroad Company for personal injuries caused by defendant's negligence. From a judgment entered on the verdict of the jury in favor of plaintiff, defendant appeals. Affirmed.

There was evidence that plaintiff was a passenger on defendant's train on December 3, 1893, from Allentown, Pa., to Jersey City, N. J.; that defendant ran its trains between

such cities a portion of the way over the track of the Central Railroad Company of New Jersey; that the latter company's trains ran over the same track; that there was a contract between the companies which required defendant's trains, while on that part of the track, to be under the rules and orders and control of the Central Railroad Company of New Jersey, and to be bound to obey the orders and signals of said company; that the signal man at the junction where defendant's trains go on such portion of the Central Railroad Company's track, and under whose orders they were admitted on such track, was in the employ of the latter company, and gave directions for the trains of both companies; that the train on which plaintiff was a passenger was admitted on such portion of the track by order of such employé; that, shortly afterwards, the Central Railroad Company's regular train was admitted by such employé on the same track, and approached so near to the train on which defendant was a passenger as to put him in peril of his life; and that he jumped from such train, and was injured.

The court instructed the jury as follows: "If these facts be found proved, then I instruct you that the plaintiff, being a passenger on the Lehigh Valley Railroad, is legally entitled to the same degree of safety upon this portion of the track as upon any other portion; and that it was the duty of the defendant, the Lehigh Valley Railroad Company, by its contract with the Central Railroad Company, to provide for its trains and its passengers that degree of skill and care and diligence which common carriers of passengers are by law required to exercise. For this purpose the Central Railroad Company may be regarded as itself one of the servants of the defendant, the Lehigh Valley Railroad Company. The servants of the Central Railroad Company operating trains upon this portion of the track may be considered the servants of the Lehigh Valley Company. The track, for the purpose of operating its trains, must be regarded as the track of the Lehigh Valley Company; and both trains may be regarded as the trains of the Lehigh Valley Company, for the purposes of this case. This defendant cannot, by a contract with another company, escape any of the duties or responsibilities which the law imposes upon the carriers of passengers. It is under the same obligation whether it owns a track or hires one, whether it exercises control over its own track and its own trains, or contracts with another to furnish a track and to exercise the control which it is itself bound to exercise. To entitle him to a verdict, the plaintiff must prove that the defendant, the Lehigh Valley Company, was guilty of negligence which was the approximate cause of injury to the plaintiff; and, in determining this question of negligence,

you are to take into consideration the facts to which I have already referred, and the law applicable thereto, and all the other testimony in the case. Upon this question of the negligence of the defendant, you may regard the Lehigh Valley Company as responsible, not only for the presence of its own train upon that track at that time, but also for the presence of the other train on the same track at the same time and in the place in which it was, provided the trains were there by reason of the failure of the Lehigh Valley Company, through its servants, or of the failure of the Central Railroad Company, by its servants, while executing their employer's business within the duty and scope of their employment, to exercise that degree of care and diligence required of carriers of passengers for hire."

George D. Watrous and Edward G. Buckland, for appellant. Tilton E. Doolittle, for appellee

ANDREWS, C. J. The controlling question presented by the appeal in this case arises on the charge of the court to the jury. That being disposed of, the other assignments of error become unimportant. And in the charge that question is narrowed to this: Was the court correct in saying to the jury that the servants of the Central Railroad Company, while operating its trains on that portion of its track used in common by that company and this defendant, might, for the purposes of this case, be regarded as the servants of this defendant? A recurrence to the duties which the law imposes on every railroad company as a carrier of passengers will serve to make the answer to this question more distinct.

A railroad corporation, by the contract for a passage over its road, assumes the obligation to exercise the highest practicable degree of human skill to carry the passenger in safety, and undertakes absolutely to protect him against any injury or willful misconduct of its servants in the performance of its contract; and the obligation in these respects continues until the contract is fully performed. Dwinelle v. Railroad Co., 120 N. Y. 117, 24 N. E. 319. Every carrier of passengers for hire-although not, like a common carrier of goods, an insurer against everything but the act of God and the public enemies is bound to use the utmost care which is consistent with the nature of the business to guard the passenger against all dangers, from whatever source arising, which may reasonably and naturally be expected to occur, in view of all the circumstances, and of the number and character of the persons with whom the passenger will be brought in contact. The carrier must provide safe, sufficient, and suitable vehicles for transportation, and must provide such servants for the management of the same.

and make all such reasonable arrangements therefor, as the highest care of a prudent man would suggest as necessary to a safe passage. Hall v. Steamboat Co., 13 Conn. 319; Fuller v. Naugatuck R. Co., 21 Conn. 557; Flint v. Transportation Co., 34 Conn. 554; Simmons v. Steamboat Co., 87 Mass. 361; Palmeri v. Railway Co., 133 N. Y. 261, 30 N. E. 1001; Pendleton v. Kinsley, 3 Cliff. 416, Fed. Cas. No. 10,922. This duty is imposed by law; and this measure for its performance rests upon a railroad corporation to its full extent. A railroad corporation is a carrier of passengers by virtue of the franchise granted to it by its charter,—a franchise intended to be used for the public good. By asking for and receiving the franchise, the corporation comes under the obligation to answer in damages to every one who may be injured by any negligence in the use of the privilege it has so received. And public policy will not permit the corporation to relieve itself from this obligation by any contract with others. A railroad company entering into contract relations with another company, by which the safety of its own passengers may be affected, is held to have made the other company in this respect its own agent. It is held to the exercise of due care for the safety of all persons, while exercising its franchise, whether on its own road or that of another company. This duty was imposed by law when it received its charter, and this duty holds good at all times and in all places. If the company operates its trains over the road of another company, it must see and know that the track is in good and safe condition, and that the trains of the other company are so ordered as not to interfere with the full discharge of its own duty to its own passengers, because such trains would be a danger against which it would be bound to provide. If a railroad company permits another company to run its trains upon its track, it is liable for any want of care of its lessee, and may be sued therefor, the same as though the trains were its own. If a railroad company leases its entire road and all its rolling stock to another company, it remains liable for all the laches and neglect of its lessee (except in cases where the lease is approved by the legislature), as fully as if it was itself operating its road; on the theory that the lessee, whether a lessee of a part or of the whole, is the agent of the lessor. Driscoll v. Railroad Co., 65 Conn. 230, 32 Atl. 354; Lakin v. Railroad Co., 13 Or. 436, 11 Pac. 68; Railway Co. v. Washington, 86 Va. 629, 10 S. E. 927; Whitney v. Railroad Co., 44 Me. 362; Stearns v. Same, 46 Me. 95, 116; Wyman v. Railroad Co., Id., 162; Nugent v. Railroad Co., 80 Me. 62, 12 Atl. 797; Nelson v. Railroad Co., 26 Vt. 717, 721; Clement v. Canfield, 28 Vt. 302; McElroy v. Railroad Co., 4 Cush. 400; Railroad Co. v. Barron, 5 Wall. 90, 104. And on the other hand, if one rail

road company runs its trains over a portion of the road of another company, pursuant to a contract whereby it is agreed that its trains, while on such leased road, shall be under the control and direction of the servants of the lessor company, then the servants of the lessor company at such place, and for the time being, are the servants of the lessee company, and it will be liable for any injury to a passenger caused by the negligent act of such servant, as though he was its own employé.

The case of Railway Co. v. Peyton, 106 Ill. 534, 540, is an application of this rule. That was a case almost exactly like the one now before us. That case was an appeal. In the lower court the appellee had recovered judgment. It was shown that the appellant, by a lease of a portion of the road of the Chicago & Western Indiana Railroad Company, was permitted to run its trains over a portion of the track of the latter company near to a station, to and from which its trains ran and departed. By the terms of the lease, the lessor company had the control of the passenger train of the appellant while on that portion of track, and its servants directed and controlled the trains of the appellant in coming to and going from that station. The appellee was injured while a passenger on a train of the appellant, by the negligence of the yard master of the lessor company. The court said: "The controlling question of the case is whether

*

the appellant is freed from liability by placing, by the lease or agreement, its employés and trains, at the place where the injury occurred, under the control of the road master of the other road. Apppellant did so as a matter of interest or choice, and not from overpowering necessity. When the charter was granted, the corporation became a common carrier of persons and property, and the law imposed the duty of common carrier, with all the liabilities incident to the occupation, and the responsibility was assumed by the corporation, and imposed on it by law. Nor can the corporation exonerate itself from the duty and responsibility by contract with others, nor in any wise escape or free itself from the liability, unless released by the general assembly. Appellant voluntarily placed its engine and cars, at that place, under the control and direction of the employés of the other road; and for the time being, and for that purpose, the road master of the other road became the servant of the appellant. The engine and train belonged to the appellant. The engine driver, the fireman, the -conductor, and the brakeman on board of the train were its servants, under its control; and the yard master, under the agreement, pro hac vice, for the time and place, was its servant. Had the agreement not been made, he would not have controlled the starting of the train. Appellant, by the agreement, authorized him to act as its yard master, and to

act for it at that time and place, and it must be held responsible for his acts. The company cannot escape by saying he was employed and controlled by the other road. He was, as we have seen, the servant of the appellant, to the full extent he acted, in this case." Railway Co. v. Keighron, 74 Pa. St. 316; Vary v. Railroad Co., 42 Iowa, 246; Laugher v. Pointer, 5 Barn. & C. 547, 559; Eaton v. Railroad Co., 11 Allen, 500; Abbott v. Railroad Co., 80 N. Y. 27; Railway Co. v. Curl, 28 Kan. 622; Balsley v. Railroad Co., 119 Ill. 68, 8 N. E. 859; Railway Co. v. Timmons, 51 Ark. 459, 11 S. W. 690.

The

The plaintiff was a passenger on the railroad of the defendant from Allentown to Jersey City. He was entitled to be carried in safety, and it was the duty of the defendant to so carry him the entire journey, whether it carried him over a track owned by itself or over a track hired of another. If the defendant, for its own convenience, chose to carry him a part of the journey over a hired track, it was its duty to make the track hired as safe as the track owned. If, by reason of being carried on a hired track, the plaintiff was exposed to a danger from which he would have been free had the track been owned by the defendant, and suffered injury therefrom, then for such injury the defendant is liable to him. Pierce, R. R. 283. case shows that, in the use of the portion of track owned by the Central Railroad Company, this defendant was bound by its agreement with that company to obey the orders and signals given by the servants of that company. The case shows, then, that to the extent of that agreement, and for the purposes included in it, this defendant had, by the terms of that agreement, made the servants of that company its own servants; and as the case further shows that the train on which the plaintiff was a passenger was upon this portion of track, and was being operated in obedience to the orders of those persons who, by the agreement, were the servants of this defendant, we think the charge was fully justified.

The verdict having established that the danger of collision to which the train of the defendant was exposed was caused by the negligence of the defendant's own servants, the several rulings in respect to the admission of testimony become immaterial. This fact being settled, it matters not whether the men on the trains were friendly or unfriendly to one another, nor whether the train of the defendant was behind time, or the train of the Central Company ahead of time, nor what any person on the rear train may have said, or omitted to say.

The motion for a new trial on the ground that the verdict is against the evidence must be denied. In considering the evidence, the jury was bound to accept the charge of the court as correct; and, in the light of the charge, there was abundant evidence to sup