1148

AIVIERICAN RAILROAD ‘JOURNAL.

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Journal of Rail:-oml Law.
RAILROAD COMPANIES--'I'}1EIR norms A0 are MAN-

NER or LAYING TRACKS--—PRI-JSUMPTION or unc-

LIGENCE.

The recent case of Worster vs. The Forty
Second Street and Grand Street Ferry Railroad
Company (50 N. Y., 208), was auaction brought.
to recover damages forinjurics sustained by a
horse of plaintiffs, occasioned by an alleged defect
in defend aut’s track. ’

Defendant owns and operates a railroad running

through and over Houston Street in the City of
New York. On the 12th of April, 18(54,plaintifl‘
was driving a pair of horses, belonging to him
over tho track, one horse stepped into a hole, was
thrown down and injured, and in consequence
died.

The court dismissed the complaint upon the
ground that there was no evidence showing do
fendnnt was aware of the bad condition of its
track, or_,that the, same was in such a condition
for a. length of time that would imply knowledge.

The General Term reversed this decision.

The following is the opinion of the court de-
livered by—-

CHURGH, CH. J.——We are to assume that the de-
endants had a lawful right to lay their tracks in
the street, where the injury occurred, but this
right carries with it the obligation to lay the
tracks in a proper manner, and keep them in re-
pair, and if an injury occurs by reason of neglect
in either of these respects the defendants are lia-
ble iu damages. (Flash vs. The Third Ave. E. R.,
00., 1 Daly, 148., 11 Pt‘.‘ilIl., 141). The defect was
immediately connected with the track and was
plainly visible to the employees of the defendants
who were constantly operating, the road. The
duty of remedying the defect was affirmative and
absolute. Notice to the defendants of the defect
was not necesssary. (35 N. Y., 58). It was their
duty to know it. It waspatent and an omission
to know that such a defectlexisted was prima.faoz'a
negligence as much as an omission to repair after
notice. The facts tended to prove that the de-
ect had existed for some days. The learned

judge who presided non suited the plaintiff be-
cause the dcfendants had no notice of the defects,
and because they had not existed for such a length
of’ timepas to create the presumption of.know-
ledge. The‘ ruling was erroneous. The pre-
sumption of knowledge arises from the existence
of the defects themselves. The plaintiff was only
required to show-that the injury resulted from the
road being out of repair, and if circumstances
existed showing absence of negligence it was for
the defendant to prove them. The presumption
of negligence was complete when it appeared that
the defects existed and an inquiry was caused
thereby. In some cases notice to municipal cor-
porations, express or implied, of defects or ob-
structions in the streets, is requisite to create a
liability foran injury produced by reason of them,
but the authority of these cases has no applica-
tion here, (Hudson vs. Mayor, &.c., 9 N. Y., 163).
udgment of reversal must be affirmed.
Judgment afiirmecl.

E’ The Harsimus branch of the Pennsylvania
Railroad, extending from the railroad cut in Ber-
gen Hill tothe new depot in course of erection in
Harsimus Cove, is completed. It will be used
exclusively for freight trains.

Railways in India.

The annual report of Mr. Juland Danvers, Gov-
ernment Director of Indian Railway Companies,
has been presented to Parliament. The report
contains the following information on the condi-
tion and prospects of Indian Railways:-—

A length of 305 miles was added during the
year 1872 to the 5,089 miles of line which were
open for tralfic at its commencement, and during
the present year 127 miles more have been com-
pleted, so that the railway system now open in
India extends over 5,512 miles. Fair progress has
been made with the works on the State lines, and
during this year between 200 and 300 miles will
probably be opened. An additional length of 150
miles on the Oude and ltohilkund line will also be
finished and opened belore November next. The
works on this line which give most trouble are the
bridges, especially those over the Ganges at Gawa-
pore and at Etajghat. Tlie importance of obtain-
ing good foundations below where the scour can
possibly reach them has been demonstrated by
dearly bought experience. Ilardly a season passes
without bridges breaking down and embankments
being cut through by the streams they were re-
spectively constructed to cross over and to check.
During the floods of last year the Sutlej bridge,
on the Punjab Railway, gave way, and on the
Northern State line the unfinished works on the
Jhelum and Raves bridges were damaged. Seve-
ral bridges on the Bombay, Baroda, and Central
India Railway were also carried away in Septem
her last. “ The fact is, ” says Mr. Danvers, “ that
when railways were first proposed for India, al-
though a great many difiiculties were started
which on near approach disappeared, the great
difficulty of crossing the rivers and of withstand-
ing the force of the floods was not apparently
sufficiently considered or estimated. The rivers
of India, which rise in the various mountain
ranges some thousands of miles from the sea, cut
their way through soils of so soft and shifting a
character that inmany places a new channel,
sometimes miles away from its original course, is
frequently formed, and the old bed is left dry.”
Acuriuus instance of a change of channel oc-
curcd lost your, when anotification appeared in
the Calcutta Gazette, transferring thirteen villages
from one district to another, in consequence of
the Ganges having so changed its course as to
leave them on the south instead of the north bank.
The process of erosion is thus described by the
late Captain Wood in his Joztmey to the Sewer: of
the Oxus .'——“When the waters of the Indus are low,
the noise caused by the tumbling in of its banks
occurs so frequently as to become a characteris-
tic of the river. During the silence of niglit the
ear is assailed by what at first might be mistaken
for the continued discharge of artiller_v; two,
three, and even four reports are often lieard with
in the minute, and even thirteen have been count-
ed in that short space of time." “ The seasons in
India,” Mr. Danvers reminds us, “have a very
different effect upon the water-courses to that
which we generally see in Europe. The rainfall
is confined to certain months, and, in some places,
to certain weeks and days, while the rest of the
year is dry and hot. In many cases river beds
which may be easily forded and even waded at
one season become channels for wide and impet-
uous streams in another. It was, of course, a
part of the engineer's duty to study this charac-
teristic and to provide against the danger. His
investigations were, however, thwarted by imper-
fect data, and what, from recorded information
observation, was considered to be the maxi-
mum volume of water that ever passed through a
certain channel in the height of the floods has
been frequently exceeded.” Major-General Bea-
dle, R. E., writing very recently concerning the
works on the Oude and Rohilkunrl Railway,points
out that in 1870 and 1871 the floods were so ex-
cessive and so entirely unforeseen that the esti-
mates submitted and theproject preparedlhad to
be reconsidered and altogether superseded; the
bank had to be raised and the designs of bridges

to be revised, increasing largely the waterway,

These floods fortunately occurred before the
works were much advanced. This, however, has
not been the case in other places. Disasters have
accordingly occurred, and much damage has been
inflicted on several railway bridges.’ Now that
more is known more will be done to avert the mis-
chief, but, after taking every precaution, there will
always be considerable difficulty where shifting
streams have to be encountered, and where founl
dations have to be laid in soil subject to a scour
of 50 and 00 feet in depth. The only approach
in Europe to this condition of things is in the
northern plains of Italy, and last year we had an
example of how human ingenuity and skill have
been unable to cope with the streams which rush
down from the Alps in the autumn and early win.
ter. With regard to future extensions we are in.
formed that no new undertakings were sanctioned
during the past year. In the present circumstan-
ces of railway enterprise in India it is not surpris-
ing that the policy of Government in regard to
future extensions should be marked by caution.
So long as industrial works in India must be un-
dertaken by Govermncnt, or, what amounts to the
same thing so far as financial risk is concerned,
by guaranteed companies, and so long as the re-
sult of the working of existing lines involves a.
contribution from the revenue of the country to
make up the amount due for interest on the out-
lay, the Government is right in requiring proof, or
the strongest evidence in support of the belief,
that future railways, whether undertaken by gov-
ernment or companies, will turn out to be remun-
erativc in one shape or another. Indirect as well
as direct gains, of course, enter into the calcula-
tion. The improvement of the material prosperi-
ty of the country is the end aimed at througli all
such works. But if the revenue of the country‘
will not be increased, directly, by rcmunerative
profits from the new lines themselves, or indirect-
ly, by augmented receipts from existing lines, by
saving the national expenditure or by improving
the national resources, the Government naturally
pauses before encouraging fresh works.” As re-
gards capital outlay, we find that the total amount
of capital which, on the 31st of March last had
been advanced for expenditure on the guaranteed
railways was .£91,686,025, of which £1,556,440
was expended during the past olficial year. The
outlay in England for stores and -materials was
£822,994 ; in India, for construction purposes,
£679,446. The expenditure on the State lines is
brought down only to the 31st of December, 1872.
It had then amounted to £3,492,323, of which
£708,827 had been expendml in England. A sum-
of £3,37l,‘2.l3 had been advanced or appropriated
to the various undertakings, leaving £121,105 out
of the amount expended in this country on stores,
&c._. to be appropriated in India. The amount
appropriated to the State lines during the year
1872 was £1,658,836. The whole capital expen-
diture on railways in India thus accounted for
(which is exclusive of the land for the guaranteed
lines and the loss of exchange borne by Govern-
ment) is in round numbers £l)4,500,000. Attention
is drawn to the allegation, the truth of which is not
denied, that railways in India have cost a great
deal more than was expected and more than they
will cost in future. The guarantee system, which
should only be applied in exceptional circumstan-
ces on grounds of necessity, is not admitted to be
the cause, and after investing the capital expen-
diture of the East Indian Railway, the most im-
portant and costly of the lines, the following con-
clusions are arrived at :—-“ An analysis of the cost
of the East Indian Railway main line, the average
of which was £21,100 per mile, shows that a
great part of the outlay arose from causes which
were unavoidable and of an extraordinary char-
acter, such as the mutiny (which, directly and in-
directly, is estimated to have added £3,000,000 to
the capital outlay), the Southal rebellion, the plan
of commencing operations at various parts of the
line simultaneously, and the great difliculty con-
sequent thereon ol‘ transporting materials by the
road or river. The stupendous bridges and the
large extent of flood openings, the length of dou-
ble way constructed, as well as the general firm