MINES AND MINERS. WEIGHING COAL AT THE MINES. Continued.
coal at the mines," of the laws of 1883, is not open to the constitutional
objection of depriving coal operators of their right to make special con-
tracts. That section does not require that the wages under all contracts
shall be computed upon the basis of the weight of the coal mined. It
only applies to cases where, by contract, the wages are to be paid accord-
ing to the weight of coal mined. Jones v. The People, 590.
2. That act leaves it free for the owner or operator of a coal mine to
make contracts with his employes to mine coal for whatever may be
agreed upon between them,-by the day, week, month, year, or by the
box, or in any other manner that may be agreed upon between them.
Where the contract is for the paying of wages in some other way than
according to the weight of the coal dug, the purpose of the act would
seem to fail, and its provisions do not apply. Ibid. 590.
3. On the trial of an operator of a coal mine for not providing a "track
scale," etc., so that the weight of coal of each miner might be ascertained,
the court refused to allow the defendant to prove that for nine years prior
thereto the corporation owning and operating the mine had a contract
with all the men employed to mine coal during that period, to receive as
the wages for their labor from the coal company forty cents for each box
of coal mined and taken from the mine; that the miners had always been,
and were then, satisfied to work under such contract, and that they did not
want the coal weighed, as a basis upon which to compute their wages, etc.:
Held, that it was error to exclude the proposed evidence, as its admission
would have shown a case to which the statute did not apply. Ibid. 590.
REFORMING deeds, etc., IN EQUITY.
1. Generally. See CHANCERY, 11, 12, 13.
2. Admissible to show a mistake in a deed. See EVIDENCE, 3.
DEGREE OF EVIDENCE REQUIRED.
3. To show such mistake. Same title, 14.
MORTGAGES AND DEEDS OF TRUST.
WHAT AMOUNTS TO A MORTGAGE.
1. Any conveyance of an estate to secure a debt or the performance
of some act, such as the payment of money or the furnishing of indem-
nity, subject to be defeated by the performance of the act agreed to be
done, is a mortgage. Fitch v. Wetherbee et al. 475.
2. Deeds of trust by a corporation upon its lands, to trustees, to
secure the performance of an undertaking of the company to pay divi-
dends, or interest, on guaranteed and preferred stock issued and sold,
and ultimately to pay for the stock itself, are in the strictest sense mort-
gages. Ibid. 475.
MORTGAGES AND DEEDS OF TRUST. Continued.
OF A DEED ABSOLUTE IN FORM.
3. Whether a mortgage. The owner of city real estate, after making
default of interest on a loan secured by trust deed on the same, turned
over the possession of such property to his creditor, who, from that time,
received the rents on the same; and after the advertisement of the prem-
ises for sale by the trustee, it was agreed that the creditor should bid in
the same, and hold it in trust for the debtor until an accounting could
be had, when, if the debtor was still owing the creditor anything, a new
loan was to be made upon the property. The property was so purchased
by the creditor, who shortly afterward caused a judgment by confession
to be entered against the debtor for an alleged deficiency between the
sum due on the loan and the amount of the bid, upon which an execu-
tion was issued, and levied upon other property of the debtor, which was
also sold, and bought by such creditor: Held, that the trustee's deed to
the creditor was in equity a mortgage, and that the debtor had the right
to redeem. Union Mutual Life Ins. Co. v. Slee, 35.
SALE UNDER DEED OF TRUST.
4. Notice thereof-sufficiency, as showing amount due. A notice of
sale under a deed of trust contained this clause: "Default has been
made in the payment of part of the interest note due November 22, 1876,
and the whole of the interest note due May 22, 1877; and whereas, the
legal holder of said note and unpaid interest coupons (the Pawtucket
Institution for Savings) has thereupon exercised its option of declaring
the whole principal sum, and the interest thereon, due and payable; and
whereas, default has been made in the payment of the principal and
interest so become due and payable," etc.: Held, that the notice showed,
with reasonable certainty, that the amount claimed to be due was the
principal sum, the interest note due May 22, 1877, and part of the inter-
est note due November 22, 1876, and stated substantially the amount
due. As to the part due on the latter note the notice was indefinite, but,
considering the amounts involved, (the principal being $5000, and the
interest notes $250,) and the smallness of the sum due on such interest
note, the notice was held substantially good. Hoyt et al. v. Pawtucket
Institution for Savings et al. 390.
5. Inadequacy of price-whether so regarded. In August, 1877,
real estate was sold under a deed of trust for $5250, which the witnesses
placed in value at $15,000 at that time, which it appeared was much more
than the property could then have been sold for, there being no market
for the property at the latter price, and no demand for such property;
and it appeared that in August, 1881, when the prices had advanced, it
was sold for only $12,000, and that at the time of the sale there was
some $2000 of unpaid taxes against the land: Held, that there was no
such gross inadequacy of price as should lend much additional strength
to any alleged irregularity in the sale. Ibid. 390.
MORTGAGES AND DEEDS OF TRUST. Continued.
EQUITABLE DEFENCES TO MORTGAGE.
6. Although given to secure negotiable paper which has been as-
signed before maturity. See ASSIGNMENT, 1 to 4.
MUNICIPAL CORPORATIONS. See CORPORATIONS, 11 to 14.
MUNICIPAL TAXATION. See TAXATION, 1 to 6.
AS TO THE ELEMENT OF DUE CARE.
1. On the part of the plaintiff. In an action on the case against a
city and the owner of premises in the city, to recover for an injury
received from a neglect to keep the sidewalk in front of the premises in
repair, the court instructed the jury that "when a city is vested, under the
provisions of its charter, with the charge of its streets, roads, alleys and
sidewalks, said city is bound to see that the same are kept in a reason-
ably safe state of repair; and such city is liable to parties injured by its
negligence in so doing:" Held, that the instruction lacked the essential
qualification that the plaintiff was, at the time of the injury, observing
that due care and caution for his personal safety a reasonable person
would do under the same circumstances. City of Peoria et al. v. Simp-
son, 294.
OF JOINT AND SEVERAL LIABILITY.
2. Distinction in this regard between a trespass and a neglect of
duty. For separate acts of trespass separately done, or for positive acts
negligently done, although a single injury is inflicted, the parties can not
be jointly held liable to the party injured. If there is no concert of
action, or no common intent, there is no joint liability. But a different
principle applies when the injury is the result of a neglect to perform a
common duty resting on two or more persons, although there may be no
concert of action between them. In such cases the injured party may
have his election to sue all parties owing the common duty, or each sepa-
rately, treating the liability as joint or separate. Ibid. 294.
IN CASE OF SIDEWALKS OUT OF REPAIR.
3. Liability of the city and of the private owner of adjacent prem-
ises. Where a duty rests upon both a city and the owner of premises
within the city to keep the sidewalk in repair fronting the premises, and
over an excavation, a failure to do so is a common neglect of duty, and
both will be liable, either jointly or severally, to one injured in conse-
quence of such neglect, who has himself exercised due care. Ibid. 294.
IN CASE OF LEASED PREMISES.
4. Liability as between landlord and tenant. The tenant in posses-
sion, and not the landlord, is responsible to third persons for injuries
occasioned by a failure to keep the demised premises in repair, unless
NEGLIGENCE. IN CASE OF LEASED PREMISES.
the owner has agreed to keep them in repair, or when the premises were
let with the alleged nuisance upon them, in which case the owner, and
not the tenant, is responsible for injuries caused by the nuisance. City
of Peoria et al. v. Simpson, 294.
DEPOT GROUNDS USED IN COMMON.
5. By servants of two railroad companies-reciprocal duties of the
companies towards each other's servants. Where two railroad com-
panies have, by agreement, a joint occupancy of depot grounds, in which
their respective tracks are so situated and used that the servants of the
two companies must necessarily, in the proper discharge of their duties,
pass over each other's tracks, each company will owe the same duty to
the servants of the other company, in the matter of observing proper care
for their safety when crossing its tracks in the regular discharge of their
duties, that it does to its own servants when crossing the same tracks.
Illinois Central Railroad Co. v. Frelka, 498.
SIGNALS AT ROAD CROSSINGS.
6. The statute (chapter 114, section 43,) requires every railroad cor-
poration to cause a bell of at least thirty pounds weight to be rung or a
steam whistle to be sounded at the distance of at least eighty rods before
a public highway is reached by a train or locomotive, and kept so ringing
or being sounded until the highway is reached; and when this is done,
the railroad company has discharged its duty imposed by the statute,
whether such signal given is heard or not. The statute does not require
the giving of such signals of the approach of a train as to enable others
absolutely to ascertain its approach and avoid being injured. Chicago,
Burlington and Quincy Railroad Co. v. Dougherty, 521.
7. If a railway company has such a bell on an engine attached to a
train as the statute requires, and it is rung in the manner required, then,
so far as giving signals before the train reaches a public highway cross-
ing is concerned, the company is without blame, whether the signal so
given is observed or heeded, or not, by one attempting to cross the rail-
road track on the public highway. Ibid. 521.
8. Where the evidence is conflicting as to the fact whether a railway
company, on the approach of one of its trains to a public road crossing,
gave the statutory signals, it is error to state in an instruction, in a suit
to recover damages for a personal injury to one while crossing the rail-
road track on a public highway, that if the defendant failed to give such
signals of the approach of the train as to enable the person injured or
killed to ascertain its approach and avoid injury, the company is liable.
Ibid. 521.
9. Communicated by locomotive engine — burden of proof as to the
The statute which declares that in actions for damages for injury
to property "occasioned by fire communicated by any locomotive engine
NEGLIGENCE. INJURY FROM FIRE.
while passing along any railroad," shall be prima facie evidence "to
charge with negligence" the owner or operator of the road at the time,
was intended to charge upon the company using the locomotive all injuries
which are shown to have resulted from fire from a passing train, unless
the company defendant can rebut such conclusion by proof showing that
the loss was not occasioned by its negligence. Chicago and Alton Rail-
road Co. v. Pennell, 435.
REMOTE AND PROXIMATE CAUSE.
10. Where a railway company, through negligence by the escape of
fire from its locomotive engine, sets fire to a depot, from which a hotel
in the vicinity is destroyed, to make the company liable to the owner of
the hotel it is not necessary that the burning of the hotel should be so
certain to result from the burning of the depot that a reasonable person
could have foreseen that the hotel would burn, or that it probably would.
It is enough if it be a consequence so natural and direct that a reasonable
person might, and naturally would, see that it was liable to result from
the burning of the depot. Ibid. 435.
CONTRIBUTORY AND COMPARATIVE.
11. Of the degree of care required, under different circumstances.
Although a railway company may omit the statutory duty of ringing a
bell or sounding a whistle at a public road crossing, still a party claiming
to recover for an injury in consequence of such omission of duty, must
have used due care and caution. The negligence of the company does
not absolve him from all care. The plaintiff in such case, to recover, is
required to exercise such care as might be expected of prudent men gen-
erally, under like circumstances. Wabash, St. Louis and Pacific Ry.
12. Where it is well known to the servants of a railway company and
a person injured at a road crossing, that such place is unusually hazard-
ous, it is the duty of both parties to use more care than at ordinary cross-
ings where the danger is not so great. In such case the servants of the
company should ring the bell and sound the whistle to the full extent of
the statutory requirement. Ibid. 114.
13. If a plaintiff who is injured at a highway crossing by a railway
train does omit some slight precaution for his safety, and the railway
company omits all care on its part, the plaintiff will not be without
remedy. If the plaintiff's negligence is slight, and that of the company,
when compared with that of the plaintiff, is gross, a recovery may be
had. Ibid. 114.
14. What is prudence and proper care under some circumstances may
be negligence in others; and so, negligence in danger under some cir-
cumstances might be regarded as prudence under others. Each case
must depend largely on its own facts. Ibid. 114.
|