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that respondent alighted from the train while in motion, there was some evidence in the cose tending to show that the train did not stop at the station a sufficient length of time to enable passengers to alight with safety; that the respondent was upon the lower step of the coach, preparatory to alighting, when the train started, and that the train had traveled a distance of less than 100 feet when she jumped, conceding that she did jump. No evidence is disclosed by the record as to the rate of speed the train was traveling at that moment, and upon this state of facts the court gave the jury the following instruction: "Ordinarily a passenger would be held not to be justified in getting off the train while it is in motion, except at his own risk. Unless the train is moving very slowly, and the circumstances are specially favorable, it would be deemed prima facie negligence. It is not necessarily so, however, and, if you believe from the evidence that the plaintiff stepped from the defendant's train while in motion, you are to determine the question of negligence on her part from all the evidence and circumstances in the case. If you believe from the evidence that the defendant's train did not stop a reasonable time to allow her to get off, and started while she was in the act of alighting, and that she jumped from the steps of the car while the train was leaving the station, and in motion, and under such circumstances that an ordinarily cautious, careful, and prudent person would not have apprehended danger therefrom, then you will find for the plaintiff; but if you find from the evidence that sufficient time was not allowed her to get off the car, and that she jumped from the steps of the car while the train was leaving the station, and in motion, and under such circumstances that an ordinarily cautious, careful, and prudent person would have apprehended danger therefrom, then it was such an act of carelessness as would relieve the defendant from the responsibility otherwise resting upon it, and your verdict will be for the defendant." The legal principle enunciated in this instruction is attacked as not sound; appellant's position being that the act of a passenger in jumping from a moving train is negligence per se, with the exception that by the act of the carrier the passenger has been placed between two dangers, or that some situation was created by the carrier which interfered with his free agency, and created in his mind a confidence that the attempt to leave the moving train could be made in safety. There is nothing in the record involving the question of the exercise of an immediate judgment upon the part of the respondent as to the choice of one of two impending dangers, and therefore we eliminate that element from the case.

The remaining exception stated by appellant to the general rule upon which he relies is not made plain to us by counsel; neither do we find it recognized in the books. Appellant's claims

in this regard are drawn from the facts of cer tain cases, where the passenger has been injured in alighting from a train at the suggestion of the brakeman or conductor. Such was the case of Filer v. Railroad Co., 49 N. Y. 47; but that case and others, which as to the facts are found in company, do not recognize the rule of negligence per se by reason of alighting from or boarding a moving train, and do not base their respective decisions upon an exception to such rule by reason of the advice or suggestion of one of the employes of the company. A passenger's act in jumping from a moving train may be grossly negligent, and thereby release the carrier from all liability, notwithstanding it was done at the suggestion or upon the assurance of safety by the employe. The employe's advice at the moment is in no sense conclusive upon the passenger as to his negligence or nonnegligence in jumping from the train. Like every other circumstance surrounding the transaction, it casts some light upon the scene, and thereby aids the court, according to the power and brilliancy of its light in each particular case, to determine what a careful, prudent man would have done, placed in the position of the unfortunate passenger. This is all that is decided in the Filer Case, and in no sense does the doctrine there declared form an exception to any general principle found in the law of negligence. The earlier cases in many instances recognize the principle of negligence per se in alighting from a moving train, but modern authority to a great extent has supplanted that doctrine with broader views upon the question. In this case the court carefully and fairly stated to the jurors what in law would constitute "negligence" and "contributory negligence" upon the part of the respondent, and with that law in their possession remanded them to the jury room to find the facts, and apply the law to the facts. Under the conditions surrounding respondent immediately prior to the injury, and to which we have already adverted, conceding the company's claims that respondent jumped from a moving train, still we think the case without question justified the instructions of which complaint is now made. No trial court would be authorized to grant a nonsuit upon the facts, and such being the case the instruction was properly given. Volume 2 of the American and English Encyclopedia of Law (page 762) says: "When a passenger, on having been set down or taken up at the station to or from which the railroad has contracted to carry him, is injured in the attempt to board or leave a moving train, the railway is liable if the person injured in getting on or off the train did not incur a danger obviously apparent to the mind of a reasonable man." In the Filer Case the court supports the foregoing doctrine as follows: "That there was more hazard in leaving a car while in motion, although moving ever so slowly, than when

it is at rest, is self-evident; but whether it is imprudent and careless to make the attempt depends upon circumstances; and where a party, by the wrongful act of another, has been placed in circumstances calling for an election between leaving the cars or submitting to an inconvenience and a further wrong, it is a proper question for a jury whether it was a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard." In the well-considered case of Johnson v. Railroad Co., 70 Pa. St. 357, the trial court indorsed the principle of negligence per se, and the supreme court said: "Instead, therefore, of the rule laid down by the learned judge, he should have left it to the jury to say, under all the circumstances in evidence, whether the danger of boarding the train when in motion was so apparent as to have made it the duty of the plaintiff to desist from the attempt." To the same effect is Railroad Co. v. Crunk, 119 Ind. 542, 21 N. E. Rep. 31, where the party jumped from a train moving at the rate of 41⁄2 miles per hour, and that was held not to be negligence per se. See, also, Banking Co. v. Miles, 88 Ala. 256, 6 South. Rep. 696; Nichols v. Railway Co., 68 Iowa, 732, 28 N. W. Rep. 44; Pennsylvania Co. v. Marion, 123 Ind. 422, 23 N. E. Rep. 973. Among other cases relied upon to support appellant's position is Jewell v. Railway Co., 54 Wis. 610, 12 N. W. Rep. 83. That case is opposed to the views we have expressed and to the authorities we have cited. It does not state the better doctrine, and many of the decisions from other courts upon which it relies for support are not in line with it upon the facts. We notice no other matters in the record demanding our attention. For the foregoing reasons let the judgment and order be affirmed.

We concur: HARRISON, J.; PATERSON, J.

(98 Cal. 352)

PEOPLE v. WESSEL. (No. 20,958.) (Supreme Court of California. May 25, 1893.) RAPE-INFORMATION-TRIAL-INSTRUCTIONS-NEW TRIAL.

1. An information for rape need not allege that defendant was a male, or over the age of 14 years, or, if under that age, that he possessed physical ability, as required by Pen. Code, § 262, to commit the offense, since defendant's want of ability to commit the crime is a matter of defense.

2. On a prosecution for rape on a child 11 years old. where defendant has read her testimony given before the committing magistrate to contradict her evidence at the trial, she may be recalled to explain the discrepancies.

3. An instruction that, "while it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict; and if you believe the prosecutrix it is your duty to render a verdict accordingly,"-is not equivalent to telling the jury that they should convict if they believe the prosecutrix, regardless of

whether her testimony is sufficient to establish the offense, but only means that the offense may be proven by the testimony of the prosecutrix.

4. In a criminal case, where defendant's motion for a new trial is denied, and judgment is pronounced, his application for leave to amend the motion, made nearly a year later, is properly denied, since no motion for a new trial is pending, and there is nothing to amend.

Commissioners' decision. Department 1. Appeal from superior court, Santa Cruz county; F. J. McCann, Judge.

Frederick Wessel, Jr., was convicted of rape, and appeals. Affirmed.

L. F. Smith and P. B. Tully, for appellant. Carl E. Lindsay, for respondent.

TEMPLE, C. The defendant was convicted of the crime of rape, and sentenced to the penitentiary for 10 years.

The first point made is that the court erred in overruling defendant's demurrer to the information on the ground that it did not state facts sufficient to constitute a public offense. The information charges rape upon the person of a female child under the age of 14 years, but does not state that the defendant was a male, or over the age of 14 years, or, if under that age, that he possessed physical ability, as required by section 262 of the Penal Code, to commit the offense. This is not necessary. If the defendant was incapable of committing the offense, such fact may be shown in defense; but the averment that he was capable is implied in the charge that he willfully and feloniously committed the act. People v. Ah Yek, 29 Cal. 576; Com. v. Sugland, 4 Gray, 7; Com. v. Sullivan, 6 Gray, 479; Com. v. Scannel, 11 Cush. 548.

It is next contended that the court erred in overruling defendant's objections to certain testimony. To contradict the testimony of the prosecutrix, who was a child of 11 years, the defense read her testimony before the committing magistrate, in which it was claimed that she had made statements inconsistent with her evidence on the trial. Thereupon the prosecution recalled the pros ecutrix, and asked her to explain the discrepancies. This course was too plainly proper, and of too common practice, to justify the presentation of the question here. The court instructed the jury as follows: "While it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict. If you believe the prosecutrix, it is your duty to render a verdict accordingly." It is contended that this is telling the jury that they may act on the testimony if they believe it, although it may not be sufficient in substance, though true, to establish the offense. I cannot understand the instruction as equivalent to telling the jury that they should convict if they believe the prosecutrix. It is simply saying that if they believe it they should

act upon it as establishing the facts proved by it; that is, that the offense may be proven by the testimony of the prosecutrix. The jury was fully instructed as to the elements of the crime. Defendant copied from Ram on Facts a long statement as to the testimony of children, and asked the court to give it as an instruction. To have given it would have been clearly erroneous, and is inhibited by section 19, art. 6, of the constitution.

It is next argued that the testimony of the prosecutrix, if true, fails to show that there was sexual penetration. The child was naturally averse to calling some things by their names, and the prosecuting attorney was considerate, but the testimony is not of doubtful import on this point.

The testimony was ample as to the identity of the defendant. On this subject the witness made some rather inconsistent and unintelligible statements, but that was for the jury.

On the 28th day of August, 1891, the defendant submitted a motion for a new trial, which was then denied, and the court on the same day proceeded to pronounce judgment. On the 25th of June, 1892, the defendant gave notice that he would ask leave to amend his motion for a new trial by adding the ground of newly-discovered evidence, and he served certain affidavits showing the nature of the, alleged newly-discovered evidence. The defendant at that time had no motion for a new trial pending. There was, therefore, nothing to amend. It was too late to institute such motion. Section 1182, Pen. Code.

The judgment and order should be affirmed. We concur: SEARLS, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(8 Utah, 488)

DE FREES v. CARR et al. (Supreme Court of Utah. April 15, 1893.) EQUITY RESCISSION OF CONTRACT-FRAUD.

One whose mind has become enfeebled by epileptic attacks, and who has been induced to exchange land for stock in an insolvent corporation by false representations by the owner of the stock, who was the general manager of the corporation, as to the profits made by it, is entitled to a rescission of the contract, though he had an opportunity to examine the books of the corporation before the trade.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by Charles H. De Frees against George W. Carr and Thomas H. Carr for the rescission of a sale of land. From a judgment in plaintiff's favor, defendants appeal. Affirmed.

Evans & Rogers, for appellants. Maloney & Perkins and Jacob S. Boreman, for respondent.

BARTCH, J. This was a proceeding in equity, tried in the district court for the fourth judicial district. It is shown by the record in this case that on the 11th of November, 1891, the plaintiff was the owner of certain real estate situate in the city of Ogden, Utah, and that the defendant George W. Carr owned 35 shares of the capital stock of the Consolidated Lumber & Milling Company, of the par value of $100 per share; that on said date the plaintiff sold, and conveyed by deed, the said property to the defendant George W. Carr, and received as payment therefor the 35 shares of stock, and was also to receive a certain sum of money alleged to be then due as profits from said stock; that defendant George W. Carr sold the said property to his son Thomas H. Carr, one of the said defendants, on the 13th day of November, 1891; that some time after the first sale or trade had been consummated, upon the investigation of the affairs of said company, the plaintiff became dissatisfied with his bargain, claimed that he had been misled as to the value of the shares of stock, etc., by the representations of defendant George W. Carr, and others mentioned in the record; that then he tendered back to defendant George W. Carr the said stock, and demanded of him a reconveyance of said property, which reconveyance having been refused, the plaintiff brought his action, alleging that certain statements and representations made to him by the defendant George W. Carr and others above referred to, be fore and at the time the said transaction took place, in regard to the value of the said stock, etc., were false and fraudulent, and made with the intent to cheat and defraud the plaintiff, and prayed that the said deed from plaintiff to defendant George W. Carr be canceled, etc. After the trial the court rendered judgment in favor of the plaintiff, and thereupon the defendants appealed to this court, assigning as error the overruling of a motion for nonsuit, and various other rulings made during the trial of the case.

The evidence shows that the plaintiff for some years has been a sufferer from epilepsy, and that as a result his mind has become weakened; that this was known at least to one of defendants previous to the transaction; that defendant George W. Carr stated to the plaintiff that the said company was worth $50,000, and had only $9,000 liabilities, that it made $5,659.70 clear gain from the 14th of February to the 1st of October, 1891, that his share of the profits would be $943.28, and that the 35 shares of stock were worth $3,500, etc.; and that these statements were corroborated by employes and others interested in the company, in the presence of said defendant; that the defendants then knew that said company was wholly insolvent, and that the said shares of stock had no actual value;

and that the property of plaintiff to be exchanged therefor was worth about $4,600. It further appears that on the 13th of November, two days after the said transaction, the defendant George W. Carr conveyed the property to his son Thomas H. Carr, one of the defendants, without security for the consideration except $250 cash, who in turn disposed of a portion of it on the 19th of November. It is also shown that the books of the company were kept in an improper manner, so that it was difficult to obtain accurate information; that defendant George W. Carr was manager of the company; and that plaintiff relied on the said statements of the defendants. These representations having been made before and at the time of the making of the bargain, and being of a positive, and apparently reliable, character, the question is, were they material,-did they furnish such inducements to enter into the transaction as were calculated to mislead the plaintiff ? The evidence does not show that the plaintiff knew the said company was insolvent, or that he had any knowledge of its business or financial responsibility except such as he obtained through the defendants, while it is a fair conclusion to be drawn therefrom that the defenuants did know the company was insolvent, and that the said shares of stock had no actual value. Under these circumstances the representations of the defendants to the plaintiff that the shares were worth $3,500, and their statements as to the profits, etc., were material, and being statements of facts, and of a decided character, the plaintiff had a right to rely on them. If a person makes statements with a view to and for the purpose of influencing the action of another, it is no hardship to hold such person to their truth. If, upon due inquiry, such statements are found to be false, the party making them will be liable to the person who was deceived and injured thereby, and whose action they were intended to influence. Cooley, Torts, (2d Ed.) 577, 580; Drake V. Grant, 36 Hun, 464; Eaton v. Winnie, 20 Mich. 156.

Counsel for defendants contend that the plaintiff had the opportunity to examine the books of the company to ascertain its condition, and satisfy himself as to its responsibility, before the trade was made; but, even if this were the case, it would not license the defendants to lull the plaintiff into a state of security by false but apparently reliable statements of facts, such as are complained of in this case. The defendant George W. Carr was manager of the company, and its condition and financial responsibility will be presumed to have been within his knowledge. He cannot escape from the effects of his statements by saying that the plaintiff could have ascertained its true condition. Where one party to a contract misrepresents a material fact, which

operates as a surprise and as an inducement to the other party, relief will be granted in equity. Miner v. Medbury, 6 Wis. 295; Davis v. Heard, 44 Miss. 50; Smith v. Richards, 13 Pet. 26. The principles of law which govern this case are stated by Justice Story in his work on Equity Jurisprudence (volume 1, § 191) as follows: "One of the largest classes of cases in which courts of equity are accustomed to grant relief is where there has been a misrepresentation or suggestio falsi. It is said, indeed, to be a very old head of equity that, if a representation is made to another person going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good if he knows it to be false. To justify, however, an interposition in such case, it is not only necessary to establish the fact of misrepresentation, but that it is a matter of substance, or important to the interests of the other party, and that it actually does mislead him." And again, in section 192, he says: "Where the party intentionally or by design misrepresents a material fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him, in every such case there is a positive fraud in the truest sense of the terms. There is an evil act with an evil intent, dolum malum ad circumveniendum.' And the misrepresentition may be as well by deeds or acts, as by words; by artifices to mislead, as well as by positive assertions." If these principles apply to the dealings of persons of sound mind and discretion, a fortiori do they apply to cases where the mental faculties have been weakened by disease. Where, as in this case, one undertakes to deal with such a person, he is justly held to the truth of his statements, and is under more than ordinary obligations not to practice deception, and, if he knowingly makes false assertions, it is a positive fraud; and, even it one misrepresents a material fact by mistake, relief will be granted, for the assertion of what he does. not know, or believes to be true, is equally unjustifiable in law as the assertion of that which is known to be false. Cooley, Torts, (2d Ed.) 603; Perkins v. Scott, 23 Iowa, 237; Smith v. Richards, supra. In view of the evidence and circumstances in this case, we think the plaintiff is entitled to the relief prayed for. The motion for nonsuit was rightfully overruled, and the record reveals no reversible error in the other rulings of the trial court. The judgment is affirmed. ZANE, C. J., concurs.

(8 Utah, 480)

BRINTON v. VAN COTT. (Supreme Court of Utah. April 15, 1893.) SPECIFIC PERFORMANCE-PART PERFORMANCE

PERSONAL SERVICES-MUTUALITY.

1. A verbal contract, whereby plaintiff agrees to live with, and take care of, an old

woman, until her death, in consideration of her promise to leave all her property to plaintiff, is taken out of the statute of frauds by the rendition of the services during the lifetime of the woman; and, after her death, equity will specifically enforce the contract, on the theory of part performance, since the services rendered are of a peculiar character, not intended by the parties to be measured by a pecuniary standard.

2. A contract by which an old woman, in apparent good health, and having the expectancy of many years of life, agrees to leave all her property, worth about $5,000, to a 16 year old girl, in consideration of the latter's promise to live with and take care of her as long as she lives, is not void for want of mutuality and fairness; and after her death the contract will be specifically enforced in favor of the girl, who performed her part of the agreement, though the woman died within three or four months after the execution of the contract.

Appeal from district court, Salt Lake county; C. S. Zane, Justice.

Action by Minnie Brinton, by W. C. Pavey, her guardian ad litem, against Waldemar Van Cott, administrator of the estate of Lydia Davis, deceased, for the specific performance of a contract whereby deceased agreed to leave all her property to plaintiff in consideration of personal services to be rendered. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Arthur Brown, for appellant. Barlow Ferguson and Waldemar Van Cott, for respondent.

MINER, J. Plaintiff alleges in her complaint that Lydia Davis died at Salt Lake City January 27, 1890, possessed of certain real and personal property situated in Salt Lake county, Utah, and, so far as material to this discussion, further, in substance, alleges that Lydia Davis had no relations closely allied to her, and now living in this country. That she was a very old woman, but in good health, at the time of the contract, and was living alone, and had no one to look after her, care for her, cherish her, or to be cherished and loved by her. That the plaintiff had formerly been with and remained with Lydia Davis at divers times before, and she was well acquainted with the plaintiff. That about the 15th of October, 1889, Lydia Davis proposed to plaintiff, who was then a young girl of 16 years, that if she would come and live with her, and take care of her, until the time of her death, she would leave all her property to the plaintiff, and her property should belong to the plaintiff at the time of her death. The same proposition was made by Lydia Davis to plaintiff's parents, in her behalf. That after considering the matter the said offer was accepted by the plaintiff, and she went and lived with Lydia Davis on the terms of the agreement so made and accepted, became a part of her family, worked for her, lived with her, and did and performed everything that a daughter could do for said Lydia Davis, while she lived. That this agreement was entirely satisfactory to Lydia Davis and

to the plaintiff. That plaintiff continued to perform whatever service the said Lydia Davis desired, as long as she lived. That said Lydia Davis was taken sick in the fall of 1889, and plaintiff remained with her, attended and comforted her, until she died. That all of said work was done upon the faith of the fulfillment of said promise and agreement. "That plaintiff is in possession of the house where she and said Lydia Davis lived. # Wherefore, this plaintiff prays judgment, that it may be decreed that she is entitled to the estate of said Lydia Davis, subject to the payment of other debts; that the said Elizabeth Wilson be entitled only to the household furniture in existence at the time of the execution of the said will; and that the claim of unknown or known heirs may be quieted by the decree of this court in pursuance of the statute in such cases made and provided; and that the said Waldemar Van Cott, administrator, may be required to recognize this plaintiff as entitled to all the residue of the said estate; and for such other and further relief as may be proper in the premises." To this complaint the defendant files his demurrer, and alleges that the same does not state facts sufficient to constitute a cause of action. The court sustained the demurrer. The plaintiff duly excepted, and appeals from the order sustaining the demurrer.

In this territory the statute of frauds is in full force. 2 Comp. Laws, § 2831. It is therefore incumbent upon the appellant to show by her complaint that she has partly or wholly performed her contract, so as to take it out of the statute of frauds. "When the consideration of the agreement consists in work, labor, and services personally done and rendered by the plaintiff, if the value of the same can be ascertained with reasonable accuracy in an action at law, and adequately compensated by the recovery of damages, then neither the services themselves nor the payment for them will avail as a part performance of the verbal agreement. But if the services are of such a peculiar character that it is impossible to estimate their value by any pecuniary standard, and it is evident that the parties did not intend to measure them by any such standard, then the plaintiff, after the performance of these services, could not be restored to the situation in which he was before, or be compensated by any recovery of legal damages." Under these circumstances the rendition of the services is a part performance of a verbal agreement. The act of part performance of a verbal agreement for services must be such that it would be a fraud upon the party performing for the other party to refuse to perform his part as agreed between them. Pom. Cont. § 114. The case of Rhodes v. Rhodes, 3 Sandf. Ch. 279, will illustrate the rule: "A person verbally agreed to convey a tract of land to his brother in consideration that the latter should support, nurse, and take

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