owner, and, in the discharge of its obligations as such, it is bound to present the same for acceptance without unreasonable delay, and to present the same for payment at its maturity; and, if not accepted, or not paid when presented, it must take such steps, by protest and notice, as are necessary to charge the drawer and indorser. Upon failure to discharge this duty, the receiving bank becomes liable as for negligence, for any damages resulting from the default. Woolen v. New York and Erie Bank, 12 Blatchf. (C. C.) 359. And see Bank of Delaware County v. Broomhall, 38 Penn. St. 135. On the other hand, a bank receiving for collection a check payable at a subsequent date, and presenting the same for payment upon the day named without allowing days of grace, is liable to an action by the owner of the check for its negligence in making demand. Ivory v. Bank of the State, 36 Mo. 475.

§ 5. Bridges. See Vol. 1, pp. 732, 733, and see also, ante, 595, tit. Municipal Corporations. The owner of a bridge franchise is bound to exercise only such care and diligence in the construction of the bridge, and keeping it in proper order, as a prudent man would, in view of the object and purpose for which it is erected and used. Tift v. Towns, 53 Ga. 47.

In an action against a municipal corporation for damages, resulting from the giving way of a bridge in consequence of latent defects, it appeared that the duty to repair was imposed upon the corporation by statute, and it was held that as the latent defect causing the injury could have been detected by proper and careful examination, by skilled persons employed by the authorities, the corporation was liable. Rapho v. Moore, 68 Penn. St. 404; S. C., 8 Am. Rep. 202. And it is held that the absence of any guards or railing at the side of a bridge forming part of a highway, is a fact from which the jury may find that the bridge was defective, within the meaning of the statute rendering towns liable for injuries resulting from defective highways. Houfe v. Town of Fulton, 29 Wis. 296; S. C., 9 Am. Rep. 568; Woodman v. Nottingham, 49 N. H. 387; S. C., 6 Am. Rep. 526. But a town is not liable in damages to one who, while stopping in the highway for the purpose of conversation, leans against a defective railing and is injured by reason of its insufficiency. Stickney v. City of Salem, 3 Allen, 374. See Lay v. Midland Railway Co., 34 L. T. (N. S.) 30.

The plaintiff was driving over a defective bridge, and without his fault the horse broke through the bridge and fell. Immediately thereupon the plaintiff undertook to extricate the horse, and while so doing was injured by a blow from the horse's head, and it was held that the defect in the bridge was the proximate cause of the injury, and

that the town was liable therefor. Page v. Bucksport, 64 Me. 54; S. C., 18 Am. Rep. 239.

§ 6. Canals. See ante, Vol. 1, 738, 739.

§ 7. Carriers of passengers. Carriers of passengers are not bound at the common law to insure the absolule safety of their passengers, but they are required to exercise the strictest care consistent with the reasonable performance of their contract of transportation. And to render them liable for any injury to a passenger while under their charge, it is enough if it was caused solely by any negligence on their part, however slight, if, by the exercise of the strictest care and precaution, reasonably within their power, the injury would not have been sustained. See ante, Vol. 2, pp. 63-98, and cases cited.

The gravamen of the action in such case is the breach of the duty imposed by law upon the carrier, to carry safely, so far as human skill and foresight can go, the persons it undertakes to carry. This duty exists independently of contract, and although there is no contract in a legal sense between the parties. Whether there is a contract to carry, or the service undertaken is gratuitous, an action lies against the carrier for a negligent injury to a passenger. Carroll v. Staten Island R. R. Co., 65 Barb. 32; S. C, affirmed, 58 N. Y. (13 Sick.) 126; S. C., 17 Am. Rep. 221. See Vol. 2, 85.

So, the liability of carriers depends not upon the physical ability of the passengers, but upon their own conduct. And where a stage coach was so carelessly driven by a drunken driver that he capsized the coach and greatly injured a female passenger, causing her to miscarry, the carrier was held liable for all the immediate results, and he was not permitted to complain that such passenger was not in a condition to have a stage upset. Sawyer v. Dulany, 30 Tex. 479. And a person may recover of a carrier for an injury done to his person, although not without fault himself, if the mischief was the result of gross negligence on the part of the carrier, and could have been avoided by the exercise of ordinary care. Ante, Vol. 2, 75. Thus, a passenger who insisted on riding on the outside of a coach, though requested by the driver to take his seat inside, was held entitled to recover for injuries caused by the negligence of the driver, the position of the plaintiff not having contributed to the accident. Keith v. Pinkham, 43 Me. 501.

Where steam conveyances are used by carriers the care must increase in proportion to the risk. See ante, Vol. 2, 64. It is the duty of a railroad company to use due care, not only in conveying its passengers upon the journey, but also in providing for their accommodation while they are waiting for its trains, and it is held liable for the consequences of a neglect to properly direct passengers respecting the

mode of entering its cars. Allender v. C. R. I. & P. R. Co., 43 Iowa, 276. Whether or not it is the duty of a railway company's employees to assist a passenger in getting upon a car must be determined by the circumstances of each particular case, and, therefore, the question may be left to the jury. Id.

On the part of a person about to take passage on a railway train, it is his duty to inform himself when, where and how he can go or stop, according to the regulations of the railway company, and if he make a mistake, not induced by the company, against which ordinary diligence would have protected him, he has no remedy against the company for the consequences. Ohio, etc., Railway Co. v. Applewhite, 52 Ind. 540. And see Vol. 2, 67. But it is the duty of the company to use the utmost care and diligence in providing for the passenger a safe and convenient way and manner of access to its trains, and in preventing the interposition of any obstacle which would unreasonably impede him or expose him to harm while proceeding to take his seat in the cars, in order to prevent those injuries which human care and foresight can guard against. Warren v. Fitchburg R. R. Co., 8 Allen, 227. And see Allender v. C. R. I. & P. R. Co., 37 Iowa, 269; S. C. affirmed, 43 id. 276. See post, 684, § 17. And see tit. Railroads. § 8. Clerks and recording officers. Clerks of courts, registers of deeds, and other like ministerial officers are, independently of statute, liable in damages to any one who sustains a special injury by their omission to perform, or by their negligent performance of a duty imposed upon them. See Morange v. Mix, 44 N. Y. (4 Hand) 315; Kimball v. Connolly, 33 How. (N. Y.) 247; S. C., 2 Abb. Ct. App. 504; 3 Keyes, 57; Bevins v. Ramsey, 15 How. (U. S.) 179. And such officers are likewise liable for the default or negligence of their deputies within the ordinary course of their business. Welddes v. Edsell, 2 McLean (C. C.), 366.

The clerk of a court has been held liable for neglecting to enter a cause on the docket, the plaintiff in the action having been thereby damaged (Brown v. Lester, 13 Sm. & M. [Miss.] 392); so, he is liable to a person damaged by his failure to require security for costs in a proper case on issuing a writ (Wright v. Wheeler, 8 Ired. [N. C.] L. 184); or for negligently accepting a bond with insufficient sureties, it being his duty to inquire into their sufficiency (McNutt v. Livingston, 7 Sm. & M. [Miss.] 641); or for refusing or neglecting to issue a writ in a proper case. Anderson v. Johett, 14 La. Ann. 614. And he incurs the same liability for negligent certificates. Work v. Hoofnagle, 1 Yeates (Penn.), 506; Williams v. Hart, 17 Ala. 102; Barnes v. Smith, 3 Humph. (Tenn.) 82. But he is not liable for an omission

to do an act which is not required of him by law. Robinson v. Gell, 12 C. B. 191. See, also, State v. Ruland, 12 Mo. 264.

9. Death. As to this branch of the subject, see ante, tit. Death, Vol. 2.

At common law, no right of action accrued to any one for personal injuries resulting in instant death, but if there was an appreciable interval of suffering a right of action did accrue to the person injured, and that right of action is made to survive to his personal representative by statute in Kentucky. Hansford v. Payne & Co., 11 Bush (Ky.), 380.

In order to maintain an action under the Illinois statute for wrongfully causing the death of a human being, there must be a wrongful act, neglect or default of the defendant, causing the death of the intestate under such circumstances as would entitle him to maintain an action if death had not ensued, and he must have left a widow or next of kin. Where these are shown, the plaintiff is entitled to nominal damages at least. Quincy Coal Co. v. Hood, 77 Ill. 68.

In an action on the case, under the Colorado statute, for injuries occasioned by negligence and resulting in the death of the party injured, the existence of any of the descendants or kin named in the statute is sufficient to maintain the action. Kansas Pacific R. R. Co. v. Miller, 2 Col. T. 442.

The rule that personal actions die with the persons is peculiar to the common law, traceable to the feudal system and its forfeitures, and does not obtain in admiralty. And it is held that a husband can recover by a proceeding in rem against the vessel which caused the death of his wife, for the injury suffered by him thereby. The Sea Gull, Chase's Dec. 145. So, the widow and son of an employee, killed on a steamboat by the negligence of an engineer, have suffered an injury for which they have a remedy against the owners of the vessel. The Highland Light, id. 150. See ante, 390, tit. Master and Servant. § 10. Driving and riding. It is the general rule that one who fails to exercise ordinary care in riding or driving is liable for all damages thereby occasioned. Strohl v. Levan, 39 Penn. St. 177; Bishop v. Ely, 9 Johns. 294; Barnes v. Hurd, 11 Mass. 57; Tucker v. Henniker, 41 N. H. 317; Foster v. Goddard, 40 Me. 64. And it is no defense to an action to recover damages for an injury received from the running of the defendant's horse against the plaintiff, on the highway, that the plaintiff was in a use of the highway not justified by law, provided no negligence, or want of ordinary care on his part, contributed to produce the injury. Bigelow v. Reed, 51 id. 325. And see Davies v. Mann, 10 Mees. & W. 545.

One who undertakes to drive a carriage in a crowded street must exercise a diligence proportionate to the dangerous nature of that employ. ment. Garmon v. Bangor, 38 Me. 443; Williams v. Richards, 3 Carr. & K. 81. And a driver, who sees a child lacking discretion in the street, should exert more care to avoid doing an injury, than he would use for the safety of a person whose presumed age and experience would prompt him to take steps necessary for his own security. Vaughn v. Scade, 30 Mo. 600; Edsall v. Vandemark, 39 Barb. 589. So, persons who are driving over a crossing for foot-passengers should drive slowly, cautiously, and carefully. Cotton v. Wood, 8 C. B. (N. S., 571. And there can be no doubt that driving in a public street at the rate of a mile in three minutes and ten seconds, when the law limits driving to a mile in eleven minutes, is amply sufficient to charge the driver with the consequences that follow from such driving. Moody v. Osgood, 60 Barb. 644; S. C. affirmed, 54 N. Y. (9 Sick.) 48

It is an instance of culpable negligence to whip violently, while close behind another traveler, a horse which has already shown itself restive and vicious (Center v. Finney, 17 Barb. 94; S. C. affirmed, 2 Seld. Notes, 44); or to ride or drive at such a rapid rate of speed as will render it impossible to check the horse in time to avoid obstacles which may reasonably be anticipated on the way, or to turn it aside upon meeting or passing other travelers who are themselves acting prudently (Payne v. Smith, 4 Dana [Ky.], 497); or to put a spur into a horse when close by any person (North v. Smith, 10 C. B. [N. S.] 572); or to permit a horse and vehicle to go unattended on the highway. Welling v. Judge, 40 Barb. 193; Tenney v. Tuttle, 1 Allen, 185; Park v. O'Brien, 23 Conn. 339. And reckless and noisy driving, which so frightens a horse on or near the highway that he runs away, to the injury of the plaintiff's property, is actionable negligence though no collision has occurred. Howe v. Young, 16 Ind. 312; Burnham v. Butler, 31 N. Y. (4 Tiff.) 480. So, if the owner of a horse has notice that his horse when at large is in the habit of running and kicking upon the sidewalk, it is such negligence for him to turn him. loose in the streets of a city as will render him liable for any injury done to persons or property by such horse. Dickson v. McCoy, 39 N. Y. (12 Tiff.) 400.

A person is responsible for an accident which results from his prior negligence. Kennedy v. Way, Bright. 168.

Where a horse, not properly secured, is frightened and runs away, the neglect of the owner to guard against such an accident renders him liable for the consequences, as well as the person causing the fright.