a noise which prevented the exercise of that faculty. If his warnings and expostulations had no effect upon the driver or the company, it was his duty to look out for his personal safety, and escape, if he reasonably might, from an environment so fraught with danger to himself. And this, it would seem, he could easily have done, because, as he testifies, the horses were going at a walk, and he was seated immediately at the door in the rear end of the vehicle, — in the last seat on the south side, next the top of the steps by which passengers alighted. We think the defendant is entitled to an instruction to the jury, to the effect that if the plaintiff permitted himself, under the cir cumstances of this case, to be carried upon that crossing in a noise of singing and shouting, which prevented him from exercising his sense of hearing to discover the ap proach of the train, he was guilty of negligence which contributed to produce the casualty of which he complains, whether he was engaged in making the noise or not."
REMEDY OF PASSENGER EJECTED FOR WANT OF TICKET. — In a recent Michigan case (Mahoney v. Detroit City Railway), the defendant's street car in which plaintiff was riding did not go to the end of their line,— plaintiffs destination. The conductor informed him when the car stopped he could take another car to the end of the line. Plaintiff had paid his fare in the first car, but had no transfer or any evidence, except his own statement, that he was entitled to ride on the second car without paying. On his refusal to pay the fare demanded, he was ejected, and brought an action for damages. It was held that he could not recover, even if he had a contract with defendant for a ride to the end of the line, because the conduc tor was not bound to accept his statement that he had such a contract; it was plaintiffs duty to pav his fare, and seek redress for violation of contract. The "Canada Law Journal " very pertinently observes : — "There was either a contract to carry the plaintiff, or there was not If there was, was it not the duty of the company to carry out that contract, and if necessary pro vide transfer tickets, or, as is done in some cities, have a transfer agent? And why should the plaintiff be put to the expense of a suit to establish his rights? Why should the company seek to shelter itself by the ignorance of its agent? As far as this passenger was concerned, the con ductor was the company."
This is good sense. Common people do not know the fine distinction between an action for ejection and an action for breach of contract to carry. There ought not to beany. The sufferer ought to be able to recover on pleading and proving the precise facts, and not to be bothered with forms of action.
"VISIBLE SIGNS " — An interesting point of ncci dent insurance was recently decided by the Supreme Court of New York, in Gale v. Mut. Aid and Acci26
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dent Association. 47 Albany Law Journal. I5y the" terms of the policy the company was not to be lia ble for any disability caused by an injury of which there should be no " external or visible signs." The plaintiff strained his recti muscles in lifting. There was no injury apparent to or ascertainable by the eye; but the injury was ascertainable by manipulation, showing rigidity and tenseness of a painful dcscription. This was held to be a " visible injury." The court said : — "The evidence of the injury must be external, objective, but it need not be visible to the eye. . . . Information de rived through the sense of feeling may be quite as satis factory and convincing as that derived by sight. The word ' visible ' is defined by Webster to mean, ' noticeable, apparent, open, conspicuous.' In the Century Dictionary, 'as apparent, open, conspicuous, as a man with no visible means of support, discernible, in sight, obvious, manifest, clear, distinct, plain, patent, unmistakable.' An object that is noticeable, apparent to the touch, may be said to be visible. The surgeons testified that a fracture of a rib would not be visible to the eye, but could be easily as certained by the use of the hand."
This reasoning is satisfactory as to "visible," butit seems to us that a plausible argument might be made upon " external." Was there any " external sign "? The sign, to be sure, was discovered exter nally, but was it not internal? Suppose a lawyer puts his shingle only upon the interior wall of his office, but so that it can be seen through the window. Is that an " external sign "?
LOST AND MISLAID PROPERTY. — In Loucks v. Gallogly, i- Misc. Rep. (N. Y.), 22, Wilkinson. J., of the Albany City Court, very clearly points out the distinction between lost property, to which the finder has title except as against the owner, and mislaid property, to which he gets no title. He says: — "But it is held that articles left by strangers or custom ers in a shop or other place of business where it is probable they will return and claim them, and where the situation of the articles indicates that they were voluntarilv placed where found, and inadvertently left or forgotten, are not considered as lost within the rule stated; and the proprie tor of the premises where the property is found is held to have the better right to hold the same for the owner. Lawrence v. State, i Humph. 228; 34 Am. Dec. 644; McAvoy 7'. Medina, n Allen, 548; N7 Am. Dec. 733; Kincaid 7'. Eaton, 98 Mass. 139. The question here is whether the money found by plaintiff was 'lost property' in the legal sense of the term. It has been held that in order to constitute legal losing, the thing must have been actually iost by the owner, and not merely mislaid; that is, he must not voluntarily and purposely have laid it away in a certain place, for a time, with the intention of retaking it, and then have forgotten where he had placed it; but it must have involuntarily and accidentally, as respects the owner, gotten out of his possession. In the case of McAvoy,'.
