McDonald v. Chicago and Northwestern R. R. Co.

they knew, or from the circumstances ought to have known, the company did not allow passengers to enter, the company would not be liable as common carriers upon their contract-however it might be if they had not been declared against in this capacity-for an injury happening in the prosecution of such an attempt. Why? The answer is, that, in making such an attempt, the plaintiffs would not be in the line of their duty, or in the exercise of any right conferred upon them by their contract with the company.

8.- injury from defective

Applying the general principles before expressed to the charge of the court, and it is obvious that the minds of the jury were not directed to the proper platform: lia- grounds on which the defendant's liability or non-liability would depend. The jury should have been directed to ascertain from the evidence whether the railroad company had designated or set apart the platform as the place where it required all passengers to enter the cars.

bility of company as common carriers.

If so, and this was known to the plaintiffs, and they in disregard of such requirement, and in advance of time, and without justification for so doing, sought to enter the cars at another place, and in so doing, the wife met with the injury for which she sues, the company is not liable in this action as common carriers; and this is the capacity in which it is sued.

If, on the other hand, there was no rule or regulation known to the plaintiffs requiring them to enter at the platform, and they in good faith, and using reasonable care were seeking to find and enter the cars, the defendant would be liable for an injury caused by the defective platform or steps leading to it, since the plaintiffs, it being dark or nearly so, would have a right to presume that the platform and its approaches were in a safe condition. We will not undertake to lay down any rule applicable

10.

general rule.

McDonald v. Chicago and Northwestern R. R. Co.

to the ever varied circumstances of all cases which may arise. The gist of such an action as the present, if no known rule or regulation of the company, reasonable in its character, has been violated, is negligence; and what constitutes negligence so as to give an action, it is impossible to define in a rule which shall comprehend all cases.

The recent adjudications in the cases below cited, have been carefully examined, and they warrant us in laying down the general principles before expressed. Upon reason, that is, enlightened common sense, applied to the relation which railway companies sustain to the public, and applied to the nature of man and the mode in which the business of carrying passengers is practically and usually transacted, and upon the authority of decided cases, we are justified in laying down the following general rule as to the duty of such companies, to wit, that they are bound to keep in a safe condition all portions of their platforms and approaches thereto to which the public do or would naturally resort, and all portions of their station grounds reasonably near to the platforms, where passengers or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go.

Burgess v. R. R. Co., unfenced hole in station ground near depot building (95 Eng. C. L. 923, 1858); Martin v. R. R. Co., defective light in station grounds where passengers would naturally go (81 id. 179, 1855); Cormman v. R. R. Co. (4 Hurlstone & Nor. 781, 1859), remarks of MARTIN, B., and WATSON, B., as to open place in platform; Crafter v. R. R. Co., 12 Jur. N. S. 272; S. C., 1 Law R. C. P. 300, 1866; Longmore v. R. R. Co., 19 C. B., N. S. 183; S. C., 115 Eng. C. L. 183, 1865; Sawyer v. R. R. Co., 27 Verm. 377; Murch v. R. R. Co., 9 Foster, 9, 39, 40, remarks of BELL, J.; Frost v. R. R. Co., 10 Allen, 387, 1865. VOL. XXVI. — 19

Sacket v. Osborn.

For the error before mentioned in the instructions of the court, the judgment is reversed, and the cause remanded for a new trial in accordance with the rules and principles of law herein expressed.

Reversed.

SACKETT V. OSBORN et al.

1. Taxes: WHEN A LIEN: WARRANTY DEED. Under chapter ten, acts of the ninth general assembly, taxes for the current year are not, as between the vendor and purchaser, a lien upon real estate sold under contract made prior to the 1st of November of such year; and the vendor is not liable upon the covenants of his deed for the premises, executed after that time, but in pursuance of such contract, made before.

2. Contract: RATIFICATION. Where persons claiming an interest in real estate, do not join in a contract for the sale thereof, made by another, but subsequently unite in the execution of a deed for the premises, made pursuant to and in ratification of such contract, such ratification relates back to the execution of the contract, and gives to it the same force and effect as if they had signed it when made.

ACTION upon the covenants of warranty contained in a deed executed by defendants. The breach alleged is the non-payment of taxes falling due upon the land. Trial by the court without a jury, and judgment for plaintiff. Defendants appeal.

Richard Wilbur for the appellants.

Reuben Noble for the appellee.

BECK, J.-On the 9th day of July, 1867, plaintiff, and defendant Osborn entered into a written agreement,

1. TAXES:

warranty

deed.

Sackett v. Osborn.

whereby Osborn undertook to convey to

when a lien: plaintiff a certain town lot by deed of warranty to be executed and delivered on the first day of November following. Plaintiff paid a part of the purchase-money on the day of the execution of the contract, and agreed to pay the balance in installments, one on the 1st of November, 1867. The installments to be paid after that day, to be secured by mortgage upon the lot. By the terms of the instrument, plaintiff was to have immediate possession of the property, except certain rooms in a house thereon. A stable upon the premises was to be occupied jointly by the parties. Under this agreement plaintiff went into the possession of part of the property as stipulated, and collected the rents for other portions not occupied by him or Osborn, from the 9th of July, 1867, the date of the execution of the instrument. On the 17th of October following, he obtained full possession. Osborn moving out of the part he occupied. On the 1st of November, 1867, defendants, Osborn's wife uniting therein, executed a deed for the lot to plaintiff, which contained the usual covenants against incumbrances.

The deed recites that it is given "in affirmance of and pursuant to a contract made between Charles L. Osborn and said D. H. Sackett, on the 9th day of July, A. D. 1867." The property at the date of the execution of the contract was the homestead of Osborn.

Chapter 10, acts ninth general assembly, provides, that "all taxes upon real estate shall, as between vendor and purchaser, become a lien upon real estate on and after November 1st of each year."

The contract of July 9th, with the payment of a part of the purchase-money, and possession of the premises by 2. CONTRACT: plaintiff on the 17th of October, was indisputably a valid sale of the property, leaving out

ratification.

26 148 104 387

26 148 118 242

of view the rights of the wife of Osborn and his co-tenant, Wilbur. These parties, however, by the execution of the deed, and under its express terms, adopted and ratified the contract. Such ratification related back to the date of the contract, and gave it the same force and effect as though it had been executed by them. Attex, Noyes & Co. v. Phelan & Anderson, 5 Iowa, 341; Dubuque Female College v. Dist. Township of Dubuque, 13 id. 561; Story's Agency, § 244. The property having been sold to plaintiff prior to the first of November, the taxes, as against the vendor, were not, at the date of the sale, a lien thereon, against which the covenants of defendants' deed operates.

The statute above cited, it seems, was intended to remove all doubt in cases like this one under consideration, by so enacting that vendors shall be liable for the taxes of the current year only upon lands sold after the first day of November. The defendants are therefore not liable for the taxes, and the action cannot be sustained against them.

Reversed.

BAKER V. WASHINGTON COUNTY.

1. Swamp lands: cOUNTY AGENTS: ACT OF 1862. While it is competent for the board of supervisors of a county to employ an agent to do the home work in the selection of swamp lands, such as procuring witnesses, taking and preparing proofs showing the swampy character of the land, and the like, it has no power, in view of chapter 160, acts of 1862, to bind the county by the employment of an agent to attend upon the federal departments for the purpose of securing the allowance of the county's claim.

2.

The provisions of said chapter contemplate that this business at the federal departments is to be transacted by State agents alone, appointed as provided in said act.