Flemming v. Railroad Co., 49 Cal. 256. "But aside from this fact," said FIELD, J., "the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's servants in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others." Railroad Co. v. Huston, 95 U. S. 697. “A railroad crossing is a place of danger, and common prudence requires that a traveler on the highway, as he approaches one, should use the precaution of looking to see if a train is approaching. If he fails to do so, the general knowledge and experience of men at once condemn his conduct as careless." Allyn v. Railroad Co., 105 Mass. 79. Again, it is said that "a traveler should always approach a railway crossing under the apprehension that a train is liable to come at any moment, and while he may presume that those in charge of it will obey the law by giving the signals, the law will nevertheless require that he obey the instincts of self-preservation, and not thrust himself into a situation of danger, which, notwithstanding the failure of the railroad, he might have avoided by the careful use of his senses." Railroad Co. v. Butler, 2 N. E. Rep. 138. See, also, Railroad Co. v. Righter, 42 N. J. Law, 180, note, and cases cited on page 226, 2 Amer. & Eng. R. Cas.; Payne v. Railway Co., 13 Lea, 522; Schaefert v. Railway Co., 62 Iowa, 624, 17 N. W. Rep. 893; Henze v. Railway Co., 71 Mo. 636; Railway Co. v. Beale, 73 Pa. St. 504; Railroad Co. v. Clark, 73 Ind. 168; Haas v. Railroad Co., 47 Mich. 401, 11 N. W. Rep. 216; Tucker v. Duncan, 9 Fed. Rep. 867; Railroad Co. v. Adams, 33 Kan. 427, 6 Pac. Rep. 529; Railroad Co. v. Ritchie, 102 Pa. St. 425; Railroad Co. v. Newbern, 19 Amer. & Eng. R. Cas. 261; 1 Thomp. Neg. 424, 426. and cases cited; and also Beach, Contrib. Neg. § 63; Ry. Accident Law, 168. It thus appears to be a duty imposed by the law upon a person about to cross a railroad to use his eyes and ears; to look out for sign-boards and signals; to listen for bell or whistle; and if the view of the road is obstructed it does not relieve him of the obligation to listen and ascertain, if he can, whether there is an approaching train. Nor will the fact that the train is behind time, (Salter v. Railroad Co., 75 N. Y. 273; State v. Railroad Co., 47 Md. 76,) or that it was a special train, (Schofield v. Railroad Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125;) or the failure of the railway to give the signal of its approach at the crossing, (see cases supra,) excuse the non-performance of this duty. In many of the cases the measure of duty goes to the extent of requiring the traveler to stop in order to look or listen; but he is not required to get out of his wagon and go forward, on foot, for the purpose of looking, (Stackus v. Railroad Co., 79 N. Y. 467; Davis v. Railroad Co., 47 N. Y. 400; Railroad Co. v. Wright, 80 Ind. 182,) unless there are some peculiar circumstances requiring it, (Railroad Co. v. Beale, 73 Pa. St. 509.)

Now, the plaintiff was a competent person to take care of herself, was familiar with the road and its intersection with the railroad, and fully understood from the obstructed view the danger and risk incurred in attempting to cross it without listening. There is no pretense that her team was or became unmanageable or unduly excited; or that there were any circumstances embarrassing or perturbing her judgment; or that she was in the presence of any entangling influences or conditions to perplex and confuse her mind. She was in the full possession of all her faculties, and if she had listened could have heard the train; yet, relying on the fact that the passenger train had passed, and that no other train was due for some time, she relaxed her

vigilance, and drove on the track, and in collision with the train. "If the obstruction had been such," said JOHNSON, J., "as to prevent her from seeing the track or train, then, in the exercise of ordinary care, she should have listened for the train." Railroad Co. v. Adams, 33 Kan. 431, 6 Pac. Rep. 529. Upon this state of facts, what doubtful or qualifying circumstances does the conduct of the plaintiff present which excuses her from the plain consequences of her negligent acts? The duty which the law imposed for her own safety as well as the lives of passengers on trains, she neglected and disregarded, under circumstances which demanded the exercise of prudence and caution. It is true that negligence is ordinarily a question of fact for the jury to determine from all the circumstances of the case, and that the cases where a nonsuit is allowed are exceptional and confined to those as here, where the uncontradicted facts show the omission of acts which the law adjudges negligent. In such cases, where the measure of duty is defined by law, "then," says Mr. Beach, “a failure to attain that standard is negligence in law, and a matter with which a jury can properly have nothing to do." Beach, Contrib. Neg. § 163. This is the principle upon which Cogswell v. Railroad Co., 6 Or. 417, was decided by BOISE, J.

We think, upon the undisputed facts of this case as made by the plaintiff, her own negligent act contributed to produce the injury which she sustained by the collision, and that the motion for nonsuit ought to have been allowed. It follows that the judgment must be reveised, with directions that a judgment for nonsuit be entered.

NOTE.

RAILROAD CROSSINGS-DUTY OF TRAVELER TO LOOK AND LISTEN. It is the duty of a person about to cross a railroad track to make a vigilant use of his senses, as far as there is an opportunity, in order to ascertain if there is a present danger in crossing. Railway Co. v. Adams, (Kan.) 6 Pac. Rep. 529; Starry v. Railroad Co., (Iowa,) 1 N. W. Rep. 605; Abbott v. Railway Co., (Minn.) 16 N. W. Rep. 266; Clark v. Railway Co., (Kan.) 11 Pac. Rep. 134; Railroad Co. v. Davis, (Kan.) 16 Pac. Rep. 78; Donohue v. Railway Co., (Mo.) 2 S. W. Rep. 424; Mynning v. Railroad Co., (Mich.) 31 N. W. Rep. 147; Harris v. Railway Co., (Minn.) 33 N. W. Rep. 12; Pennsylvania Co. v. Marshall, (Ill.) 10 N. E. Rep. 220; Glascock v. Railroad Co., (Cal.) 14 Pac. Rep. 518; Young v. Railway Co., (N. Y.) 14 N. E. Rep. 434. A failure to listen or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give signal, contributed to the injury. Railway Co. v. Adams, (Kan.) supra; Schofield v. Railway Co., 8 Fed. Rep. 488; Holland v. Railroad Co., 18 Fed. Rep. 243; Mynning v. Railroad Co., supra. The diligence required of the traveler in ascertaining the approach of a train ta highway crossing must be greater accordingly as the peculiar locality and the circumstances of the case seem to require greater caution. Morris v. Railroad Co., 26 Fed. Rep. 22. The fact that the approach of a railroad to a highway is obstructed from view imposes upon travelers by the highway special care to avoid collisions. Haas v. Railroad Co., (Mich.) 11 N. W. Rep. 216: Schaefert v. Railway Co., (Iowa,) 17 N. W. Rep. 893; Burns v. Rolling-Mill Co., (Wis.) 19 N. W. Rep. 380; Pence v. Railroad Co., (Iowa,) 19 N. W. Rep. 785. Where a crossing is particularly dangerous, and requires extraordinary effort to ascertain whether it is safe to attempt to cross, one familar with the locality and the danger surrounding it must use care proportioned to the probable danger. Railroad Co. v. Butler, (Ind.) 2 N. E. Rep. 138; Merkle v. Railroad Co., (N. J.) 9 Atl. Rep. 680; Seefeld v. Railway Co., (Wis.) 35 N. W. Rep. 278. Where the driver of a team brought his horses to a walk, but did not stop and leave his wagon, and go forward where he could see a train obstructed by cars standing on a side track, held not to be contributory negligence. Kelly v. Railway Co., (Minn.) 11 N. W. Rep. 67; Guggenheim v. Railway Co., (Mich.) 33 N. W. Rep. 161. Where the approach to a crossing was obstructed, and the plaintiff's attention was required in one direction, held, under the circumstances, he was not negligent for failing to look in the opposite direction, from which a train was rapidly approaching, without signal, bell, or whistle. Loucks v. Railway Co., (Minn.) 18 N. W. Rep. 651. Where one knows the dangerous condition of a crossing, that the approach of a train would be obstructed to both sight and sound, and also knew, or had reason to know, that a train is due, it is his duty to both look and listen, and, if need be, to stop for that purpose. Tucker v. Duncan, 9 Fed. Rep. 867. But there may be circumstances which will excuse the traveler from taking the usually necessary precaution of looking and listening. Railroad Co. v. Hedges, (Ind.) 7 N. E. Rep. 801; Abbot v. Railway Co., supra.

(2 Ariz. 383)

TERRITORY v. COOK et al.

(Supreme Court of Arizona. March 13, 1888.)

1. BONDS-ACTIONS ON-ESTOPPEL OF SURETIES.

The sureties as well as the principal on a treasurer's bond are estopped to deny that the treasurer had in his hands moneys that he reported he had.

2. SAME.

Where a county treasurer is his own successor, and he reports from time to time during his terms the amount of money he has in his hands, in a suit on the last bond given, sureties cannot set up that his reports during last term are untrue, and so prove that deficit occurred in former term.

(Syllabus by the Court.)

Appeal from district court, Yavapai county; before Justice WRIGHT.

Action by the territory of Arizona on the official bond of Ed. J. Cook as treasurer of Yavapai county. Judgment for plaintiff, and defendants appeal. Briggs Goodrich, Atty. Gen., for plaintiff. Rush, Wells & Howard and E. M. Sanford, for defendants.

BARNES, J. This was a suit by plaintiff upon the official bond of defendant Cook as treasurer of the county of Yavapai. It appears that he has been such treasurer for five successive terms of two years each. That at the expiration of the term ending December 31, 1884, he, as such treasurer, as required by law, (chapter 6, and amendment of October 4, 1867, Comp. Laws,) had and filed with the board of supervisors of Yavapai county, his regular quarterly and annual settlements. That in such settlements he charged himself with the sum of $46,026.23, as being the balance in his hands as such treasurer. That such settlements were duly examined and approved by the said board of supervisors. That thereafter, during his last term of office, and at his first quarterly settlement as such treasurer, he charged himself with said balance as having actually come to his hands from himself as his predecessor, and continued afterwards from time to time, at each annual and quarterly settlement, to report the same in his hands, or using said balance in his first quarterly settlement, and then the balance from each settlement as made and shown therein. That each settlement commenced with the statement of the balance in treasury or on hand at last settlement, and ended with a statement of bal-. ance in treasury. That each and every of said settlements were duly approved by the said board of supervisors, except the last statement of account, which was also approved after some corrections, and changes were made in the same by said Cook and said board of supervisors. That the books of said E. J. Cook as such treasurer show the same balances and amounts as the settlements made by him. It was made to appear that at the time of his final settlement the amount of money which his last approved statement showed to be in his hands as such treasurer was not there; in fact that the treasury was short the amount of money sued for. The bond sued on is the official bond for the term 1885 and 1886, and the suit is for money which his statements and settlements represented as being in the treasury at the end of that term. Defendants asked to be allowed to introduce evidence as to what had occurred before the board of supervisors at the times of the successive settlements of his accounts; to ask whether the money in the treasury was actually counted; to ask whether, at the time of the settlement in December, 1884, and before this bond was given, he actually had in the treasury the money his statements showed, and so as to the succeeding statements; to ask whether he did not produce certificates of deposits upon various banks as cash in the treasury. This evidence the court refused to allow. These rulings present the question asked by the appellants: "Are the sureties permitted to go behind the settlements made by the board of supervisors with the treasurer, and show that the default charged occurred before the commencement of their liabilities?" They

urge with great force and ability that they should be allowed to show that the statements by the treasurer of the amount of money on hand were false, and that the defalcation occurred before this bond was executed, and that the shortage in the cash was continued down to the end of this last term.

66

The obligation of this bond, among other things, was that the treasurer should faithfully discharge the duties of his office. One of his duties was to correctly report to the board of supervisors the amount of money in the treasury. To falsely report was a breach of his duty, for which his sureties were liable on this bond. It is conceded that the sureties on this bond are not liable for breaches of duty during the former term of office. The cases cited upon this point will not be questioned. The question here is this: May he and his sureties dispute that he had in the treasury the money that he reported from time to time that he had, and on the faith of which reports his settlements were made and approved? It is admitted by appellants that the treasurer is estopped, but they insist that the sureties are not, and that they may show that the statement of money on hand December, 1884, just before the term covered by their bond began, was false, and that the treasurer did not then have the money. They permitted him, from time to time thereafter, to report the amount of money on hand. They could, before they executed the bond, and at any time thereafter, have ascertained the amount of cash in the treasury, and so verify his reports. His sureties had notice, or are charged with notice, of the amount of money he reported as in his hands at the beginning of his last term. They obligated themselves that he should "pay over all money then in his hands." They, as well as he, are estopped to deny that that money was in his hands. The same point was urged in Morley v. Town of Metamora, 78 Ill. 394, 20 Amer. Rep. 266, and the sureties were held liable. "The supervisor was his own successor in office. He had made his annual report, in which he charged himself with having a certain amount of money in his hands. That report was approved, and we must presume it was true." 'Conceding that fact, (that default occurred in former term,) we do not think it relieves the sureties on the bond upon which this action is brought from liability." To the same effect is Pinkstaff v. People, 59 Ill. 148. In Roper v. Lodge, 91 Ill. 518, it was urged "that the court should have admitted evidence that the defalcation occurred the term before appellants became sureties on this bond." Upon the authority of the foregoing cases, judgment was affirmed. In Chicago v. Gage, 95 Ill. 593, 35 Amer. Rep. 182, the court say: "Gage was his own successor in office. It was his duty, as incoming treasurer, to receive the treasury balance from his predecessor. If he entered it in his treasury books after the beginning of his second term as having actually come to his hands from his predecessor, and continued afterwards, from time to time, to return and report the same as in his hands, both he and his sureties, we think, should now be concluded from denying that this balance did actually come into Gage's hands as treasurer." It was his duty to keep such accounts, and make such reports; and to "falsify them, and show that these balances, etc., were not at the time actually in the treasury, would be inadmissible, as we conceive, upon sound legal principle." And we are of opinion that the sureties should be equally concluded here with Gage himself." The court cites Commissioners v. Mayrant, 2 Brev. 228; McCabe v. Raney, 32 Ind. 309; Stovall v. Banks, 10 Wall. 583; Baker v. Preston, 1 Gilmer, 235; U. S. v. Girault, 11 How. 27; Evans v. Keeland, 9 Ala. 42. In Insurance Co. v. Simmons, 131 Mass. 85, 41 Amer. Rep. 196, the court held the sureties were not discharged by laches of creditor in not compelling payment after knowledge of default. "It is the business of the surety to see that his principal performs the duty which he has guarantied, and not that of the creditor." Wright v. Simpson, 6 Ves. 714; Bank v. Anthony, 18 Pick. 238; Telegraph Co. v. Barnes, 64 N. Y. 385; McKecknie v. Ward, 58 N. Y. 541. In Boone v. Jones, 54 Iowa, 699, 2 N. W. Rep. 987, 7 N. W.

66

Rep. 155, it was held that, "in an action on a county treasurer's bond, the principal's accountings and settlements made in pursuance of law are conclusive against him and his sureties." The court cites, with approval, McCabe v. Raney, Baker v. Preston, Morley v. Metamora, and Chicago v. Gage, supra. On a rehearing the decision was adhered to. The authority of Baker v. Preston has been questioned and the decision criticised. State v. Rhoades, 6 Nev. 352, and State v. Newton, 33 Ark. 276; and see note to Boone v. Jones, 37 Amer. Rep. 234. In State v. Grammer, 29 Ind. 530, the court, of Baker v. Preston, say: "We regard the reasoning in that case as entirely satisfactory, and we know of no case holding a contrary doctrine." We are satisfied that the weight of authority and the better reason sustains that case and Chicago v. Gage, and that the law is that both the principal and sureties are concluded by the report of the principal, made according to law, as to the amount of money in his hands. We therefore see no error in the record. The judgment is affirmed.

(20 Nev. 89)

JERRETT v. MAHAN. (No. 1,266.)

(Supreme Court of Nevada. March 8, 1888.)

1. JUDGMENT-RENDITION AND ENTRY-DELAY-INCAPACITY Of Judge to ENTER. The verdict of the jury and the findings of the trial judge, all in favor of the plaintiff, were filed in the district court in 1881. The plaintiff and defendant each moved for a judgment at once, which motions were taken under advisement by the judge, who shortly afterwards died without disposing of such motions. The plaintiff's attorney succeeded said judge in office, and it was not until 1887 that a judge competent to act was provided. Neither party in the mean time took any steps in the case. Held, the condition of both parties in reference to the controversy remaining the same, that the plaintiff was not barred by his own negligence from taking judgment in 1857.

2. IRRIGATION-RIPARIAN RIGHTS-APPROPRIATION-PRESCRIPTION.

In a suit brought to recover damages for diverting water claimed for irrigating purposes, and for an injunction, defendant made no claim to be the riparian proprietor of the streams, but claimed the waters by prior appropriation and prescription. Held, that to support the claim for damages, the material allegations in the complaint were prior appropriation of the water by the plaintiff, and the diversion thereof by the defendant, and that it was unnecessary to aver riparian ownership in the plaintiff.

3. SAME-DIVERSION OF WATER-INJUNCTION-PLEADING.

Held, further, that to enable plaintiff to obtain the injunction, it was only necessary, in addition to the facts averred in the complaint which were relied upon for a judgment for damages, to aver facts sufficient to obtain equitable relief, without repeating the averments already made.

4. SAME-FINDINGS OF JURY.

Held, further, that the answer of the jury of "We do not know" to the question, "How much of the waters of that stream was required for the proper irrigating of crops growing on that land in 1875?" was immaterial, and their finding that all the waters of said stream were used by plaintiff in irrigating said land, and, if properly used, all was necessary for that purpose, controlled and sustained the verdict for plaintiff.

5. SAME.

Held, further, on the answer of "Yes" by the jury to the question, "Has the defendant since the year 1872 used the waters of Snow creek for the purpose of irrigating, peaceably, openly, notoriously, under claim of right, and adversely to plaintiff and all other persons?" that the trial judge correctly applied this finding to all waters of Snow creek except those naturally flowing in the two south branches (which were claimed by plaintiff), in view of the facts that defendant, from 1873 to 1876, used the waters of said two south branches to irrigate plaintiff's land which he occupied as tenant, and that plaintiff made no claim to the other branches of the same creek which ran through defendant's land.

Appeal from district court, Elko county; A. L. FITZGERALD, Judge. J. W. Dorsey and C. Thornton, for appellant. R. M. Clarke and Talbot & Farrington, for respondent.

LEONARD, C. J. This is an action to recover damages for the alleged wrongful diversion and use of the waters of Niagara creek, and the three