It strikes the mind as wholly unjust and un-gon R. & Nav. Co. 17 Or. 13; Columbus & W. reasonable to say that the mere fact that the plaintiff casually laid his arm on the window sill, possibly projecting slightly, is such wanton carelessness as to justify withdrawing his case from the jury and nonsuiting him without regard to the other circumstances of the case and notwithstanding gross and inexcusable carelessness on the part of the defendant.

window," and that the "elbow was outside" of | jects. It was so treated at the argument, and the window a few inches. Looking at the it will be so considered by us. whole of the evidence, and the manner in which he says the injury occurred, it was probably the elbow to which he referred; and this, too, is consistent with the testimony of the plaintiff, who succeeded him as a witness. After some preliminary matters, the plaintiff testified:

In Pittsburg & C. R. Co. v. Andrews, 39 Md. 342, the court says: "It is admitted his arm at the time was out of the window," and that "it is perfectly clear he would have received no injury if his arm had not been in this position."

of the arm which were struck with the stick | plaintiff's arm was projecting out of the winwere within the window. The facts concede dow of the coach in which he rode, in consethat an injury would be likely to happen if the quence of which it came in contact with some elbow had not been exposed, while the arm object outside, probably a timber frame supcontinued to rest upon the window-sill in the porting a water-tank." same relative position. By merely changing the angle of the inclination of the arm, so that the elbow would not be exposed, leaving the arm otherwise in the same relative position, a similar injury would have likely happened or resulted, upon the facts. But in neither case, whether the elbow was inside or outside of the window, is the injury occasioned by or the result of its contact with external objects. Yet this judgment punishes the plaintiff with the same consequences as if the injury resulted from exposing the arm outside of the window to contact with external objects. In that view it makes no difference whether the arm or elbow was inside or outside of the window when the injury occurred,-the same legal consequences ensue; but this cannot be, unless it be a negligent act to rest the arm on the windowsill of the car, irrespective of the fact whether the injury occurred to the exposed part of the

arm or not.

The counsel for the defendant insists that the plaintiff, by exposing his elbow two or three inches out of the window, contributed to produce the injury of which he complains, and that without it he would not have been injured. He places the injury upon the same footing as if it had occurred in consequence of the elbow being struck by reason of its exposure to passing objects external to the car, and, as a consequence, asserts that the conduct of the plaintiff was negligence in se, and, as such, that it was the undoubted duty of the trial court to grant the nonsuit. In support of this position, he cites Pittsburg & C. R. Co. v. McClurg, 56 Pa. 294: Pittsburg & C. R. Co. v. Andrews, 39 Md. 329; Indianapolis & C. R. Co. v. Rutherford, 29 Ind. 82; Todd v. Old Colony R. Co. 3 Allen, 18; Dun v. Seaboard & R. R. Co. 78 Va. 645; Louisville & N. R. Co. v. Sickings, 5 Bush, 1.

It will be best to ascertain the facts upon which the law is predicated in these cases, to understand the reason of it and the principle applied.

In Pittsburg & C. R. Co. v. McClurg the plaintiff was injured "while a passenger in the cars of the defendant, by reason of the protrusion of his elbow beyond the sill of the car window next to which he sat during the journey, or part of it, coming in contact with a car standing on a switch on the defendant's road."

In Todd v. Old Colony R. Co. 3 Allen, 18, the court says that "the only error in the instructions of the court related to that part of the case which involved an inquiry into the position of the plaintiff's arm at the time of the accident. If he was then riding in the car with his elbow or arm projecting out of the window, by reason of which he sustained an injury, he was guilty of a want of due care, which would prevent him from maintaining his action."

In Indianapolis & C. R. Co. v. Rutherford, 29 Ind. 83, "the evidence showed," says the court, "that the injury received was a broken arm, and that at the time of the accident the

Without further reference, it is enough to say that the plain result of these cases is that if a passenger is riding in a car, with his elbow or arm projecting out of the window, by reason of which he sustains an injury, it is such a clear act of contributory negligence on his part as will prevent a recovery, and make it the duty of the court to so declare, as a matter of law, notwithstanding the negligence of the defendant in permitting obstacles to be placed too near the track of the passing train.

But why is it contributory negligence, within the reason of these cases? The answer is, because, in projecting his elbow or arm out of the window, he was bound to know, as a reasonable man, in the exercise of ordinary care and foresight, that there was liability to injury from the exposed condition of the arm coming in contact with some external obstacle or force. He ought to know, to expose his arm or elbow under the surrounding circumstances, that it was dangerous, and liable to result in injury to it, because a prudent man might well foresee the possibility of such an occurrence; and, if he do not avoid it by the exercise of such reasonable foresight, he may justly be held to have taken upon himself the risk of such a peril. It is therefore considered in these cases to be a want of ordinary care for a passenger riding in a car to protrude his arm or elbow out of the window, and if he does, and is injured by reason thereof, it results, as a consequence, that his own want of ordinary care has contributed directly to produce such injury as the proximate cause thereof.

But how is this to apply to the facts in the case at bar? It was not the elbow of the plaintiff, or any part of his arm, that was exposed to injury from outside obstacles, that caused the injury. His elbow, or the part of the arm outside of the window, was not hit. The stick of wood struck the palm of his hand, or so near it as to catch in the mouth of the coat-sleeve, which was inside of the window, and not exposed to external objects, unless they came inside of the window, as the evidence here shows. The cases referred to, and relied upon by counsel, proceed upon the hypothesis that the injury occurred because the elbow or arm which was exposed out of the window came in contact with some external obstacle or force, and produced the injury.

In the strongest of these cases, Pittsburg & C. R. Co. v. McClurg, and often cited, Thompson, Ch. J., said: "If he allow it [arm] to protrude out, and is injured, is this due care?"which Bigelow, Ch. J., had previously answered in Todd v. Old Colony R. Co. supra, saying: "If he was riding in the car with his elbow or arm projecting out of the window, by reason of which he sustained an injury, he was guilty of a want of due care."

The due care here required to be exercised is | side of the window, yet if that did not cause not to expose the arm out of the window, as the injury, and the result was the same as there is liability that it may come in contact though he exercised the care required, and with outside obstacles. It is based on the idea kept his arm inside, then such want of care, as that, when an arm is thus exposed, the injury was said in Walker v. Westfield, 39 Vt. 246, did which may result may be foreseen and avoided not contribute to produce such injury, and it is by the exercise of ordinary circumspection. the same as though he was without fault. It has no reference to risks or injuries which, according to common experience, and in the exercise of reasonable care and foresight, could not have been anticipated, or their consequences avoided. "We are not to link together," said Agnew, J., "as cause and effect, events having no probable connection in the mind, and which could not, by prudent circumspection and ordinary thoughtfulness, be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without the concurrence of our act with the event which immediately caused the injury; but we are not justly called to suffer for it, unless the other event was the effect of our act, or was within the probable range of ordinary circumspection, when engaged in the act.” Fairbanks v. Kerr, 70 Pa. 86.

Sitting, as he was, with his arm resting on the window-sill, and his elbow projecting out, especially in view of the fact that a similar injury would have probably occurred whether the elbow was inside or outside of the window, was it within the range of ordinary circumspection and foresight to have anticipated, as likely to happen, the event which occurred and produced his injury,-to have anticipated that a stick of wood should fall through the open window, and inside of it, and strike his palm, or so near it as to produce the injury admitted, in consequence of the act in which he was engaged? Under the circumstances of this case, are we authorized to say, as a matter of law, that by the exercise of ordinary care and prudence he could have foreseen that there was liability to injury in the way in which it occurred, as the consequence of his act?

Be it remembered that the injury did not arise because the elbow projected, but because the stick struck the palm or wrist inside of the window, where it had a right to be, and worked its injury, and the case, upon its facts, would seem to stand precisely as if the arm rested on the window-sill entirely within the car. The law is well established that this cannot be declared to be negligence in se.

As the injury occurred, then, the plaintiff was under no legal obligation to assume or anticipate that sticks or a stick of falling cordwood would be projected inside of the window, and cause the accident where it happened. To have his hand and wrist where they were, and where the stick struck them, was where they had a right lawfully to be, and raised no presumption of negligence in law. If such is the case, however strictly the rule of contributory negligence may be enforced, can we declare that the negligence of the plaintiff was the proximate cause of the injury, or, in other words, that his want of ordinary care contributed directly to the injury? It is enough to say when the arm is exposed, and the injury occurred on that account, when the facts are admitted, that it is negligence in law. Negligence is generally a question of fact, to be decided by the jury upon all the facts and circumstances, and the court ought not to declare it as a matter of law, unless there is such a plain act of carelessness upon the part of the plaintiff contributing to his injury as makes that a duty. The rule, as it is established by the weight of authority, has not always met with entire approval, and is sufficiently strict and arbitrary, without extending the domain of its operations.

In Spencer v. Milwaukee & P. R. Co. 17 Wis. 487, the opposite view is ably and forcibly presented by a vigor and fitness of reasoning which it is difficult to answer. The truth is that it is an every-day occurrence for passengers to ride with their elbow on the sill, slightly extending out of the window, though not perhaps outside of the sill. We all know in warm weather, when the windows are up, it is the constant and ordinary habit of passengers of all classes and all degrees of intelligence to so ride; and, judged in the light of our general knowledge and experience, it would be difficult to condemn such conduct as an act so plainly and palpably careless as to require the court to declare it negligence as a matter of law. If the rule is to obtain as decided by the weight of authority, let it continue to be confined in its In Farlow v. Kelly, 108 U. S. 288 [27 L. ed. operations to injuries which result from expos726], it was held that it was not contributory ing the arm to outside obstacles; but let it not negligence for a passenger to rest his arm upon be extended to those where the facts are comthe window-sill of a car in which he was rid-plicated, and the injury, although the elbow ing without allowing it to project. Such an act creates no presumption of negligence, and cannot be declared negligence in law. Breen v. New York C. & H. R. R. Co. 109 N. Y. 297; Winters v. Hannibal & St. J. R. Co. 39 Mo. 470.

The inception of the injury being inside of the window, it was not caused by any exposure of the arm outside of it, and can we say, logically or judicially, that the act of the defendant contributed to produce it? It would seem, as to the facts upon which that injury was predicated, that he stood without fault; for although the plaintiff may have been negligent in allowing his elbow slightly to extend out

was slightly out of the window, did not arise from that fact, or if it had been inside, the arm otherwise preserving its relative position, a like injury would probably have happened. In cases of the first sort it may be conceded, when the facts stand confessed or admitted, that the court may declare the act negligence as a matter of law, non constat that it can upon the facts here. In cases of this sort, where the facts are complicated and debatable, where men of ordinary discretion and prudence might differ as to the inferences to be drawn from them in determining the character of the act, it is safer and better to submit them to the jury in connection with all its attendant cir

cumstances, whom the law assumes to be best qualified to dispose of them under proper instructions from the court, than that the court itself should decide them, as a question of law, by allowing a nonsuit. Before the court can do this, and cut off the plaintiff's right to submit his case to the jury, the inferences from the proof ought to be certain and incontrovertible, freeing the mind from all doubt or hesita

tion; for it must always be borne in mind that it is generally for the jury to determine whether the defendant was negligent, or the plaintiff was contributorily negligent, which, as Dr. Wharton has aptly said, is seldom the "subject of direct proof, but an inference from facts put in evidence."

The judgment must be reversed, and the nonsuit set aside.

LOUISIANA SUPREME COURT.

Thomas P. LEATHERS, Appt.,

v.

John JANNEY et al.

(....La. Ann.....)

*1. No law prevents a corporation from
selling any or all of its property, pro-
vided the charter contains no prohibition there-
of, and it acts in accordance with the duly ex-
pressed will of its stockholders and directors.
2. The same person may fill the office of
president of two distinct corporations, and
such identity does not, of itself, invalidate deal-
ings between the two corporations.

3. Where one corporation sells prop-
erty to another for a fixed price, to be paid

*Head notes by FENNER, J.

NOTE.-Private corporations; common-law powers. The common-law powers of a corporation are the same as those possessed by individuals, and may be employed in the same manner, unless restricted by some positive or clearly implied prohibition of law. See De Groff v. American Linen Thread Co. 21 N. Y. 124; Williams v. W. U. Teleg. Co. 9 Abb. N. C. 443; Barry v. Merchants Exch. Co. 1 Sandf. Ch. 280.

in stock of the latter, to be delivered to the former through its designated officer, delivery of the certificates of stock to such officer, or to another by his order, operates a discharge for the price.

4. Corporate property is held subject to corporate debts, and when a corporation sells its whole property and rights to a purchaser, knowing the fact, equity, in proper cases, will subject the property in the hands of the purchaser to the payment of the debts with which it is charged; but the purchaser of specific property, such as a steamboat, from a corporation, is not bound to follow the price paid into the hands of the selling corporation, and see to its distribution among the latter's stockholders, in the absence of fraudulent connivance between the purchaser and seller to wrong the stockholders.

5. The sale attacked in this case being real and fair, for a sound price, duly paid to the

of their legitimate business, unless expressly prohibited; and until the contrary is shown, the legal presumption is that their acts in that behalf were done in the regular course of their authorized business. Chicago, R. I. & P. R. Co. v. Howard, 74 U. S. 7 Wall. 413 (19 L. ed. 121); White Water Valley Canal Co. v. Vallette, 62 U. S. 21 How. 424 (16 L. ed. 158); Farnum v. Blackstone Canal Corp. 1 Sumn. 46.

Transactions auxiliary to primary business. Corporations may transact all such matters as, being auxiliary to their primary business, are transacted by ordinary individuals under similar circumstances. Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 338; Bissell v. Mich. Southern & N. I.

A corporation, without special authority, may dispose of land, goods and chattels, or of any interest in the same, as it deems expedient, and in the course of its legitimate business may make a bond, mortgage, note or draft; and also may make compositions with creditors, or an assignment for their benefit, with preferences, except when restrained by law. White Water Vailey Canal Co. v. Vallette, 62 U. S. 21 How. 424 (16 L. ed. 158); Partridge v. Bad-R. Co. 22 N. Y. 283.

ger, 25 Barb. 146; Beers v. Phoenix Glass Co. 14 Barb. 358; Dana v. Bank of U.S. 5 Watts & S. 223; Frazier v. Willcox, 4 Rob. (La.) 517; U. S. Bank v. Huth, 4 B. Mon. 423; State v. Bank of Md. 6 Gill & J. 205; Pierce v. Emery, 32 N. H. 486.

May mortgage.

Corporations, unless restrained by their charters, have the power to mortgage their property to secure borrowed money, or their debts. Carpenter v. Black Hawk Gold Min. Co. 65 N. Y. 49; De Ruyter v. St. Peter's Church, 3 N. Y. 238; King v. Merchants Exch. Co. 5 N. Y. 547; Richards v. Merrimack & C. R. R. Co. 44 N. H. 127.

At the common law, a mortgage bona fide made may be for future advances, and liabilities for the mortgagor by the mortgagee, as well as for present debts and liabilities. Truscott v. King, 6 N. Y. 160; Walker v. Snediker, Hoffm. Ch. 145.

May borrow money.

In order to attain its legitimate objects, it may deal precisely as an individual may who seeks to accomplish the same ends. Curtis v. Leavitt, 15 N. Y. 267: Fay v. Noble, 12 Cush. 1; Davis v. Second Universalist Meeting House, 8 Met. 321; Reynolds v. Stark County,5 Ohio, 205; Brady v. Brooklyn, 1 Barb. 584; Madison, W. & M. Plank Road Co. v. Watertown & P. Plank Road Co. 5 Wis. 173; Macon v. Macon & W. R. Co. 7 Ga. 221; Hamilton v. Lycoming Mut. Ins. Co. 5 Pa. 339; King v. Merchants Exch. Co. 2 Sandf. 696.

May make contracts.

Every corporation has power to make all contracts that are necessary and usual in the course of the business it transacts, as means to enable it to effect such object, unless expressly prohibited by law or the provisions of its charter. Deringer v. Deringer, 5 Houst. 528; Farmers Loan & T. Co. v. Perry, 3 Sandf. Ch. 347; Home Ins. Co. v. Northwestern Packet Co. 32 Iowa, 244, 7 Am. Rep. 191; Re Howe, 1 Paige, Ch. 214; Hope Mut. L. Ins. Co. v. Per

Private corporations may borrow money, or be-kins, 38 N. Y. 404; Feeny v. People's F. Ins. Co. 2 come parties to negotiable paper in the transaction Robt. 599.