The town was not a party to this contract, signed by the plaintiff and other citizens. The plaintiff and other citizens were interested in having the bridge built, and, as an inducement to Chamberlin & Co. to take the contract, they agreed to indemnify them against loss; but the fact that Chamberlin & Co. were thus indemnified by citizens of the defendant town against loss, had no tendency to show that they were agents or servants of the defendant. The undertaking of Chamberlin & Co. with the defendant was an absolute undertaking to furnish material and build the bridge for forty thousand dollars. There was no evidence in the case that tended to show that the defendant ever released Chamberlin & Co. from this undertaking, nor that the relation that they sustained to the defendant ever changed from that of contractors to that of agents or servants of the defendant; and the plaintiff had no right to understand or believe that there was such a change. He received payments towards the rubble from time to time from Chamberlin & Co., and, during the progress of the work, made a written contract with them, whereby they were to take rubble from his ledge for the construction of the bridge. Under these circumstances the plaintiff cannot be heard to say that he believed, and was justified in believing, that rubble was being taken from his ledge by Chamberlin & Co. under his claimed contract with the selectmen. He had no right to assume that Chamberlin & Co. were the agents or servants of the defendant. His knowledge of Chamberlin & Co.'s relation to the work was such that he could not remain passive, and assume that he was delivering rubble under his contract with the defendant. His knowledge was such that he was put upon inquiry; and, if he did not know that Chamberlin & Co. were building the bridge upon their own credit, he ought to have known it. The knowledge that he had would have put any reasonably prudent man upon inquiry. By inquiry he could have learned that Chamberlin

& Co. had taken the contract to furnish the material and build the bridge; but no inquiry was necessary. A prudent man, with his knowledge, would not be deceived or misled. He knew that, by the terms of his claimed contract with the selectmen, the defendant was to pay him only for such rubble as was used by the selectmen in the construction of the bridge; he knew he had signed a contract to indemnify Chamberlin & Co. against loss that should accrue to them by reason of taking the contract to build the bridge; he knew that Chamberlin & Co. were in charge of the work and taking rubble from his ledge; that he was receiving pay for the same from time to time from them, and that during the progress of the work he made a contract in writing with Chamberlin & Co., by which they were to take rubble from his ledge for the.construction of the bridge. Under these circumstances he was bound to know to whom, and upon whose credit, his rubble was being delivered; and the law charges him with the knowledge that it was not being taken by the defendant, nor upon its credit.

The view we have thus taken of the facts confessedly within the knowledge of the plaintiff, renders it unnecessary to pass upon the questions raised upon the admission and rejection of testimony.

Judgment affirmed.

ORRIN MAGOON

V.

BOSTON & MAINE RD. CO. ET AL.

MAY TERM, 1894.

Contributory negligence. Passing between stationary cars. Exception to argument of counsel.

I.

2.

3.

One who attempts to pass between freight cars by climbing over the buffers is guilty, as a matter of law, of contributory negligence, although the cars have been unnecessarily left standing across a public highway for a long time, and although no engine is attached or in sight.

Held, that there was no evidence tending to show that the servants of the defendant in charge of the train knew or ought to have known the perilous position of the plaintiff in time to have prevented the injury.

That the defendant failed to blow the whistle, or ring the bell, or give some other warning of its intention to move the cars, did not excuse the plaintiff from due diligence on his own part.

4. If counsel transcends the right of argument it is the duty of the trial court to stop him; and if it omits to do so, that is tantamount to a ruling that the remarks are warranted, to which an exception will lie, without in terms asking and obtaining such ruling.

5. Held, that the judgment should be reversed upon the exception taken to the argument of plaintiff's counsel.

Case for personal injuries. Plea, the general issue. Trial by jury at the February term, 1894, Orleans county,

ROWELL, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

The plaintiff was injured while attempting to pass over the buffers and draw bars between two freight cars standing upon a highway crossing in the village of Newport. He testified that the cars were standing there when he first came in sight of the crossing on his way down the street; that he stood beside them for some fifteen minutes before attempting to pass through; that he saw no employee of the defendant in charge of said cars, and neither saw nor heard any engine during all the time that he stood there; that both ends of the train, which consisted of some eight or ten cars, were visible, and that he could see a considerable distance down the track upon which the cars stood towards the south, but owing to a curve could not see a great way towards the north; that another person passed between the cars, and that he, being desirous to pursue his way, stepped back so that he might have a view of the track to the north as well as the south; that from the position in which he was standing he could see up the track a considerable distance, and that he neither saw nor heard any engine, and thereupon attempted to pass over the draw bars.

The remaining facts and the exceptions taken by the defendant sufficiently appear in the opinion.

Di kernan & Young for the defendant.

The plaintiff was guilty of contributory negligence in attempting to pass between the cars. He was familiar with this crossing; knew that cars were frequently left standing upon it, but that they were always finally moved away. The fact that these cars had been standing there a long time made it all the more probable that they would be moved. Indiana, Bloomington, etc., Rd. Co. v. Hammock, 32 Am. & Eng. R. Cas. 129; Renneker v. So. Car. Ry. Co., 20 S. C. 218, (18 E. & A. R. Cas. 149); Simms et al. v. So.

Ga. Ry. Co., 30 A. & E. Ry. Cas. 571-573; Winn v. Lowell, 1 Allen 177; Int. & G. N. Rd. Co. v. Garcia, 42 Am. & Eng. R. Cas. 121; Artusy et al. v. Mo. Pac. Rd. Co., 37 Am. & Eng. R. Cas. 288; Zimmermon v. H. & St. J. Rd. Co., 71 Mo. 476, (2 Am. & Eng. R. Cas. 191); Nichols, Admr., v. L. & N. Rd. Co., 34 Am. & Eng. R. Cas. 37 and note; Andrews v. Central Rd. Co., 45 A. & E. R. Cas. 171; Lake Shore and Michigan Southern Rd. Co. v. Pinchin, 112 Ind. 592, (35 A. & E. R. Cas. 383); Dahlstrom v. St. Louis Rd. Co., 35 A. & E. R. Cas. 389; Howard v. Kansas City R., etc., Co., 37 A. & E. R. Cas. 552; Memphis & Ch. Rd. v. Copeland, 61 Al. 376; Stillson v. Hannibal, etc., Rd. Co., 67 Mo. 671; O'Mara v. Canal Co., 18 Hun. 192; Central Rd. Co. v. Dixon, 42 Ga. 327; Union Pac. Rd. Co. v. Adams, 33 Kan. 427, (19 A. & E. R. Cas. 376); Renner v. Northern Pac. Rd. Co., 46 Fed. Rep. 344; Bird v. Flint & P. M. R. Co., 86 Mich. 79; Corcoran v. St. Louis, I. M. & S. R. Co., 105 Mo. 399, (49 A. & E. R. Cas. 387); Atchison T. & S. R. Co. v. Plaskett, 26 Pac. Rep. 401; Bean v. Employers' Liability Assurance Co., 50 Mo. App. 459; Chicago, Rock Island & Pac. Rd. Co. v. Hamilton Hanson, 95 U. S. 697; Louisville & Nashville Rd. Co. v. Crawford, 44 A. & E. R. Cas. 568-571; Cleary v. Philadelphia & R. Co., 140 Pa. St. 19.

There was no question for the jury, and the court should have directed a verdict. Latremouille v. B. & R. Rd. Co., 63 Vt. 336; Worthington v. Cent. Vt. Rd. Co., 64 Vt. 107; Clark v. Rhode Island Elec. Lt. Co., 16 R. I. 465; New Jersey Ex. Co. v. Nichols, 33 N. J. L. 424; Granger v. Boston & Albany, 146 Mass. 276.

The argument of plaintiff's counsel was unwarranted; and furnishes matter of exception. Perkins v. Burley, 6 N. E. R. 818; Bullard v. Boston & Maine Rd. Co., 64 N. H. 27; Brown v. Swinneford, 44 Wis. 282; Coble v. Coble,