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a restriction upon her power to ,encumber or assumpsit on the husband's contract. 11 It alienate the same; when, therefore, an im- will be sufficient, however, if the husband's provement upon her estate is necessary and agency to contract in her behalf and to charge proper for a full and complete enjoyment of her estate is clearly shown, or if some fraud such estate, she can charge her separate imputable to her has induced the plaintiff to property with debts created in making the part with value. 12 In Penusylvania a further improvement.5

limitation is imposed, viz. : that a married 2. Husband's Power in this Regard.-It is woman is not liable for a debt contracted for settled beyond all question that the courts the avowed purpose of improving her sepawill not recognize any right in a husband to rate estate, unless it is shown that the money charge the separate real estate of his wife by was in fact applied to that object. 13 And alhis contracts for its improvement against (or though a debt contracted in this manner, and without) her consent; he has no more author- for this purpose, will constitute an equitable ity to do so than a mere stranger would have. charge upon her separate estate, yet a judgAnd it seems that a wife's merely joining with ment given by her for such debt is null and her husband in a promissory note given for void ; it was so at common law, and the rule labor and material bestowed upon her real has not been changed by the enabling acts. 14 property cannot create a charge upon the 3. Liability to Mechanic's Liens.—It is land.? It is sometimes stated that a wife may held in several of the States that a mechanics' be bound by the acts of her husband, in ref- lien can be created in the usual manner, noterence to her separate property, when they withstanding the owner of the property is a are performed by her authority and approved married woman, if the labor and materials are by her 8 And in one case, where a husband furnished at her request, for the improvegave his individual notes for the value of im- ment of her individual estate, or upon her provements made upon his wife's separate husband's request, with her consent, and by estate, which he held in charge and trust, and her express authority. 15 And it is said that the wife assented to and acknowledged the even without the enabling statutes she would improvements and the debts, and the hus- be able thus to subject her property to meband became insolvent, it was held, in equity, chanic's liens. 16 But in certain other States that the separate estate of the wife was liable this power is rigorously denied ; and it is for the debts, and that the creditors of the held that no contract or agreement for matehusband were entitled to the same equity rials, or work and labor, upon a building, can which he would have had, had he paid the be entered into with a married woman, so as debts. And we find it decided that evidence to enable a mechanic to enforce a lien upon that the work was done with her knowledge, the building for the materials found and work may warrant the jury in finding that she and labor done. 1 Because, as stated iħ these agreed to pay for it, although it raises no States, her ability to contract in reference to such presumption of law as will authorize the her separate estate must be strictly confined judge to direct a verdict for the plaintiff. 10 to the objects and the manner prescribed by But the better rule seems to be, that the ex- be statute, and if the statute is silent as to press contract of the wife is necessary in order to bind her property. And the mere

n Wagner v. Henderson, 3 Pennyhacker (Pa.) 248. fact that she had knowledge of the use, in the 12 Ainsley v. Mead, 3 Lans. 116. improvement of her separate estate, of build

13 Heugh v. Jones, 32 Pa. St. 432.

14 Brunner's Appeal, 47 Pa. St. 67. Nor can she ing materials which had been contracted for bind herself by a bond for money borrowed to be ap. by her husband, will not render her liable in plied, and which was applied, to the improvement of

her separate real estate. Vandyke v. Wells, 103 Pa.

St. 49. 5 Lindley v. Cross, 31 Ind. 106.

15 Greenleaf v. Beebe, 80 Ill. 520; Littlejohn v. Mill6 Johnson v. Tutewiler, 35 Ind. 353; Hughes v. Pe- irons, 7 Ind. 125; Tucker v. Gest, 46 Mo. 339: Husted ters, 1 Cold. (Tenn.) 67; Barto's Appeal, 55 Pa. St. v. Mathes, 77 N. Y. 388; Hauptman v. Catlin, 20 N. Y. 386.

247; Lloyd v. Hibbs, 81 Pa. St. 306. 7 Johnson v. Tutewiler, 35 Ind. 353. But see Marsh 16 Hauptman v. Catlin, 20 N. Y. 247. v. Alford, 5 Bush, 392.

17 Rogers v. Phillips, 3 Eng. 366; Selph v. Howland, 8 Baker v. Roberts, 14 Ind. 552.

23 Miss. 264; Gray v. Pope, 35 Miss. 116; O'Neil v. 9 Smith v. Poythress,!2 Fla. 92.

Percival, 20 Fla. 937. And see Kirby v. Tead, 13 Met. 10 Westgate v. Munroe, 100 Mass. 227.

149.

17

19

mechanic's liens, it is not in her power to do her name, and she knew it, or had reason to anything which will give rise to one.

suspect it, she should have expressly notified But even where such a lien on a married

the plaintiffs that she repudiated the assumed woman's property is allowed, its validity and

agency. But it was not bought in her name. regularity are closely scrutinized, and the

The husband bought it ostensibly for himlaw still extends its jealous care to the pro self, as he had a right to do. The plaintiffs tection of the wife's interests. For example, extended credit to him alone, and took his the rule established in Pennsylvania is as note, as was their right, whatever he might follows: . To charge the separate property wish to do with the lumber, and we think of a married woman with a mechanic's lien their remedy must be confined to a personal for work and labor done or materials fur judgment against him, as the court held. It nished, it must be alleged in the claim and is claimed that they ought to have a lien at proved on the trial, that the work and labor least against the addition [built with the lumor materials were necessary for the reasona ber in question,] and have a right to go upon ble improvement or repair of such separate the premises and detach and remove it, but estate, and substantially that they were so it appears to us otherwise. The lien could applied, and that the same was done and fur attach only upon the husband's interest. But nished by her authority and consent.13 For the moment the improvement was made it bethe divestiture of a wife's title under a me came an integral part of the entire structure, chanic's lien depends (in that State at least) the title to which was in the wife. He had on what appears on the record, not on proof seen fit to make it for her benefit, and the that she consented to the contract; and hence lumber which he had owned as a chattel, he if the claim of lien does not set out all things had transferred to her by the act by which necessary to bind the wife's estate, it is void he made it a part of her realty.” 23 But it and cannot be helped by extrinsic evidence.

appears that in Alabama, by statute, the husIn Rhode Island it is now necessary that the band may contract for the erection or repair contract or request of a married woman, for of buildings situated on lands forming part the performance of work upon her estate, of the wife's separate estate, and the lien of a should be in writing, in order to subject her mechanic or material-man for work done or property to the lien of a mechanic ; 20 this is material furnished in the erection of such a new rule introduced by the revised statutes buildings attaches to the property, without the of that State. 21

participation of the wife in, the making of the 4. Husband has no Power to raise mechanic's contract. 24 Lien. It is certain that a mechanic's lien cannot It seems reasonable to hold, however, that be created upon the separate real estate of a the wife's estate will be bound by a mechanmarried woman, for work done or materials ic's lien for work or materials engaged by the furnished in erecting improvements thereon, husband alone, if the latter acts with her under a contract with her husband, against knowledge and consent, and if she so bears her wish, or without her implied assent. 22 herself with reference to the work as to show As remarked by Adams, J., in a recent that she approves it and intends to become Iowa decision : “We know of no rule by responsible for it. And we find a number of which a wife's premises can be charged with cases taking this view. 25

So where a building a lien for improvements erected thereon by is erected on land belonging to a married an improvident husband against her protest. woman in her separate right, upon a contract Possibly, if the lumber had been bought in made by her husband, with her full knowl

edge and assent, and she does not disclose 18 Einstein v. Jamison, 95 Pa. St. 403.

her interest, or take steps to prevent the 19 Lloyd y. Hibbs, 81 Pa. St. 306; Schriffer v. Saum, building, she will be estopped to set up her 81 Pa. St. 385, 2 Briggs v. Titus, 7 R. I. 441. 21 Bliss v. Patten, 5 R. I. 377; Rev. Stat. R. I., c: 150, 23 Getty v. Framel (S. C. Iowa, October, 1885), 21 $ 1.

Reporter, 80. * Spinning v. Blackburn, 13 Ohio St. 131; Johnson 24 Exp. Schmidt, 62 Ala. 232; Ala. Code, 1876, $ 3440. v. Parker, 27 N. J. L. 239; Garnett v. Berry, 3 Mo. 25 Collins v. Megraw, 47 Mo. 495; Burdick v. Moon, App. 197; Esslinger v. Huebner, 22 Wis. 632; Dearie 24 Iowa, 418; Forrester v. Preston, 2 Pittsb. 298; v. Martin, 78 Pa. St. 55.

Schwartz v. Saunders, 46 Ill. 18.

tract, 26

For ex

right in defense to an action to enforce a me rule that if a husband expends time and chanic's lien for work done under the con money in improving his wife's individual es

A more stringent rule obtains in In tate, but has no agreement with her, through diana. It is there held that a wife may have trustees or otherwise, that his labor and full knowledge that her hnsband is about means so used shall vest in him any interest building a house upon her land, and she may in such estate, or entitle him to any claim consent thereto and approve thereof, but that against or compensation from her property, does not bind her property, nor give the he gains no right or title thereto which his builder a right to acquire a lien upon it; a general creditors can reach by attachment or fair test whether a wife has done such acts as by the aid of a court of equity.33 will bind her property, or enable a mechanic ample, where a lot of land, with a log house or material-man to acquire a lien thereon, upon it, was granted to 'the wife by her would be to inquire whether the acts done by mother, and the husband, at his own expense, her would bind her personally if she were but with materials furnished mostly from the free from coverture.27 By the laws of Ken estate of the mother, made repairs, requisite tucky the estate of a married woman will be to render the premises habitable, it was held liable for necessaries furnished to her or her that a judgment creditor of the husband had family when the indebtedness is evidenced by no claim for the satisfaction of his judgment writing signed by her and her husband; and upon such improvements.34 However, if the a note executed jointly by husband and wife husband is in embarrassed circumstances, his in payment for lumber used in repairing their money expended in improving his wife's eshouse, which belonged to the wife, is suffi tate may amount to a gift to the wife in fraud cient "evidence in writing to support a me

of his creditors, and they might thus far chanic's lien on the house. 28 A similar re make the wife's estate liable to pay their dequirment exists, as we have already seen, in mands; but this can never be true of his Rhode Island. 29

mere personal labor. 35 Where a building is erected, or improve

H. CAMPBELL BLACK. ments made, on the wife's separate property, under a contract with the husband which is 33 Webster v. Hildreth, 33 Vt. 457; White v. Hil

dreth, 32 Vt. 265; Corning y. Fowler, 24 Iowa, 084; invalid as against her, there seems to be au

Hoot v. Sorrell, 11 Ala. 386. thority for holding that the builder's lien may 34 Robinson v. Huffman, 15 B. Mon. 80. nevertheless attach to the husband's' life in

35 Hoot v. Sorrell, 11 Ala. 386. terest or tenancy by the curtesy in the land. 30 Thus it is said: "A mechanic's lien in many respects resembles a mortgage. Neither will NEGLIGENCE-DEFECTIVE MACHINERYaffect the rights of the wife unless she so co DAMAGES-PLEADING-CONTRIBUTORY operates with her husband as to bind her es

NEGLIGENCE. tate. But so far as the interest of the hus

WOODWARD IRON COMPANY V. JONES. band extends, it will be as much bound in the one case as in the other.” 31

Supreme Court of Alabama. Where husband and wife jointly contract 1. Notice of Defect in Machinery to Employerfor building a house on her land, a mechan

Contributory Negligence. When a workman or ser

vant gives notice to his employer of a defest in the ic's lien will be valid against the property.32 machinery wbich he is required to use, and, relying on 5. Claim of Ilusband's Creditors against the employer's promise to have the defect remedied,

continues in the service, he is not guilty of contributImprovements Made by Him.It is a general

ory negligence, "at least until a reasonable time

elapses within which to make the repairs." 26 Schwartz v. Saunders, 46 Ill. 18.

2. Action for Damages-- Averment of Complaint.27 Capp v. Stewart, 38 Ind. 479.

In an action to recover kamages on account of injuries 28 Marsh v. Alford, 5 Bush, 392.

afterwards sustained, it is not necessary to aver in the 29 Cameron v. McCullough, 11 R. I. 173; Briggs v. Ti

complaint that the employer had had reasonable time tus, 7 R. I. 441.

to remedy the defect after the notice was given. 30 Flannery v. Rohrmayer, 46 Conn. 558; Fitch v. Baker, 23 Conn. 569; Washburn v. Burns, 34 N. J. L. 3. Contributory Negligence-Facts which will Sus. 18.

tain Defense of.–When the plaintiff was working in s1 Fitch v. Baker, 23 Conn. 569.

the shaft of a coal mine, through which ran two rail32 Greenough v. Wigginton, 2 Greene (Iowa), 435. road tracks, over which cars descended and brought

up coal, the motive power being supplied by a station. ary steam-engine above ground; and had charge of a switch at a resting place along the line of the shaft, where descending cars could be turned off or placed back on the track, and of an adjacent "sump" in which the water was accumulated, and from which it was pumped to the surface by an engine; and while standing on track, repairing the water pipe which had become clogged, was struck by a descending car, which he did not see or hear until too late, on account of the noise and steam in the shaft, the steam having escaped from a defective joint in the pipe, to which he had called the attention of the superintendent two days before held, that the plaintiff knowing that the empty car was above, and having neglected

hav

the switch turned by his assistant, whom he had sent up to that point for another purpose, and being cognizant of the noise and steam which filled the shaft, was guilty of contributory negligence, and was not entitled to recover, although the general order was that a descending car should not be stopped at the switch until a full car was ready to be carried back.

Appeal from Birmingham City Court.
Tried before Hon. H. A. Sharpe.

Hewitt, Walker & Porter, counsel for appellants; Smith & Lowe, for defendants.

The opinion of the court states the facts of the

case.

STONE, C. J. delivered the opinion of the court.

The Woodward Iron Company, appellant in this cause, was engaged in mining coal, as one line of its business. The coal was reached by a shaft sunk in the earth; and extending down the shaft were two lines of railroad track, over which cars descended and brought up the coal. he cars were moved up and down the tracks by a steam engine which was above ground, and stationary. The force was applied to the cars by means of an iron rope. The cars were let down empty, and drawn back loaded. There were rents, or stopping points along the line of the shaft, styled in the testimony “lifts,” and at these "lifts” there were switches on the track, by wbich the descending cars could be turned off, or placed back on the track. These switches were so arranged and distributed up and down the shaft, as to be connected with the rooms or excavations, from which the coal was mined. There were also along the line of the shaft what are in mining phrases, called "sumps"—rude wells or cisterns, in which the water in the mine was trained to collect; and from which it was pumped out of the mine by the steam engine which moved the cars in the shaft. One, Harrison, was the superintendent of the entire works, representing and performing the functions of the Iron Company,and Jones was an employe and laborer, under his direction. Corcoran v. Holbrook, 59 N. Y. 517; Ford v. Fischburg R. R. Co., 110 Mass. 240. The first “lift” or rest on the line of the shaft, and first switch, were about seventy-five yards below the surface, or entrance, to the shaft. Above this switch, and near the entrance, was the first pump. Below the switch, some seventy-five feet, was a “sump," near the line of the track. A steam-pipe extended down the shaft, through

which the hot steam passed from the engine. The business assigned to Jones was to superintend the switch, attach and detach cars, superirtend the pump, and the cistern or "sump,” in which the water collected. He had an assistant, a colored man, under his control; but he was under the control of Harrison, the superintendent.

The present suit is for the recovery of damages of the Woodward Iron Company, for an injury alleged to have been suffered through the negligence of Harrison, its superintendent. The averment of the complaint on which the right of action is based is in the following language: “The plaintiff, being then and there, on, to-wit, the 10th day of March, 1884, a servant of the defendant, engaged'in keeping said pumps in operation, and in attaching loaded cars to the train operated in said mines as aforesaid, was engaged in relieving the water pipes of said pumps of mud that had accumnlated therein, and was obstructing the passage of water therein; and while so engaged at the place where he was obliged to do said work, was stricken by one of defendant's cars operating in said mine as aforesaid, and badly bruised and injured; and at the time plaintiff was stricken as aforesaid, he did not see the said car, and was unable to see and get out of the way of the same, in consequence of the steam that had accumulated in said tunnel or slope between him and the said cars. And the plaintiff avers that said steam had escaped from said steam-pipe at a joint thereof, and that he had called the attention of the defendant to said joint, and that the same was out of repair, and the defendant had promised the plaintiff to have the same repaired at night when the said mines were not being operated, but negligently omitted to do so; and relying on the promise of the defendant, the plaintiff thereafter continued to perform his duties as aforesaid, and was injured as aforesaid." There was a demurrer to the complaint, assigning, among others, the ground that “there is no allegation that the defendant had had time to repair the same from said notice prior to the alleged injury.” The court overruled the demurrer.

The demurrer raises the question squarely, what change, if any, is wrought in the status of the parties, by a notice given to the employer of a defect in the machinery, and his promise to have the same remedied. If the employe, after such notice and promise, remain in the service, is this an implied agreement on his part to take the risk on himself, or is the effect to continue or revive the liability of the employer, and to absolve the employes from the imputation of contributory negligence, springing out of the continued service? The authorities are overwhelmingly in favor of the latter of these propositions, at least, until a reasonable time elapses within which to make the repairs. Waiting such reasonable time, it would seem, if the repairs are not made, the employe should quit the service, if perilous; avd failing to do so, is it illogical to presume he agrees to in

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cur the risk? And would he not thereby be guilty of proximate contributory negligence. We propound these inquiries, with no intention of answering them, as this phase of the question is not raised by this record. Our purpose is to prevent a misinterpretation of our ruling. Beach Con. Neg. $ 140; Holmes v. Clark, 6 Hurlst. & Nor., 340, S. C. Ib. 937; Snow v. H. R. R. Co. 8 Allen, 441; Patterson v. P. & C. R. R. Co. 76 Penn. St. 389; S. C. 18 Amer. Rep. 412; Kroy v. Chicago, R. I. & P. R. R. Co. 32 Iowa, 357; Greenleaf v. Dub. & S. C. R. R. VO. 33 Ib. 52; 2 Thompson Neg. 1010; Buzzel v. L. Manfg. Co., 48 Me. 113.

The city court did not err in overruling the de

murer.

We have stated above that the only negligence with which the defendant is charged was the failure to repair the defective joint in the steam-pipe. The accident and consequent injury occurred about two days after the superintendent was notified of the defective joint. The testimony most favorable to plaintiff-his own testimony-shows the following state of facts at, and immediately preceding the injury: Plaintiff Jones, with his colored assistant were at their post at the first lift and switch, and together went down to the sump. They found the sump full of water and overtlowing-the nozzle of the hose connected with the pump above being so choked with mud, that the pump lifted no water. Plaintiff immediately set to work to clear the pipe of mud, and was thus engaged twenty or thirty minutes when the descending car struck him. Plaintiff while so engaged was standing on the track of the railroad, and must so stand to do the work. He knew that a car was above him, and was liable to come down at any moment. He knew the switch at the first lift was not turned, and if the car came down, it would follow, without obstruction, the line of the track on which he was standing until it reached him. While engaged in removing the mud from the nozzle of the hose, he sent his colored assistant up to the switch, but gave him no instructions to turn the switch, nor to intercept the descending car, unless there was a loaded car at the lift to be attached. The superintendent's instructions were that a descending empty car was not to be stopped by turning the switch, unless there was at the time and place a loaded car to be drawn to the surface. There was no loaded car at thc place. One in the shaft or slope could ordinarily hear a descending car for a distance of seventy-five yards, and by the light of his miner's lamp, could see it seventyfive feet before it reached him. At the time of the accident there was such a noise in the shaft, not made by plaintiff, that he conld not hear the approaching car; and the shaft was so choked with the escaped steam that he could not see the car until it got within three feet of him; but he did not know this until the car struck him. The record discloses no proof that the persons operating the engine, or any others except plaintiff and his assistant knew that anything was disordered at

the sump, or that plaintiff was away from his post at the switch. And there is no proof that plaintiff gave any directions, or took any precautions to have himself notified of the approaching car. Plaintiff had been employed about the mine for some months, and in his present line of duty for three weeks. The defense made was that the plaintiff had, by his own negligence, contributed proximately to the injury he complained of.

In Central, etc. Co. v. Letcher, 69 Ala. 106, this count, quoting from the language of Black, C. J., in R. R. Co. v. Aspell, 23 Penn. St. 117, said: "It has been a rule of law from time immemorial, and it is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained." So, in Gothard v. Alabama, etc. R. Co., 67 Ala. 114, this court said : “When contributory negligence is relied on as a defense to an action for damages, it is not essential that the plaintiff should have been the cause of the injury; for if his negligence contributed proximately to an injury which he could have avoided by the use of ordinary care or diligence, he cannot recover.” In Gonzales v. New York, etc. R. Co., 38 N. Y. 140, it was said to be “the duty of the injured party, who knew a train was just due, to look in the direction from which it should come, before attempting to cross the railroad track, and that if he omitted to do so, he was guilty of negligence which precluded a recovery." In Houston, etc. R. Co. y. Fowler, 56 Tex. 452; s. C., S Amer. & Eng. R. Cas. 504, it is said: “If the employee had the opportunity to observe the degree of danger attending the performance of the service, damages cannot be recovered of the company on the ground that the latter knew the danger, and the former did not.” When a servant is employed upon work which, equally with the knowledge of the master and the servant, is of a dangerous nature, the master is not liable for the consequences of an accident occurring to the servant in the course of that employment, unless there be negligence on the part of the master, and the absence of rashness on the part of the servant."

In Whart. Neg., $ 221, it is said to be the rule in this country "that a servant does not, by remaining in his master's employ, with knowledge of defects in machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified the employer of such defects, or protested against them, in such a way as to induce a confidence that they will be remedied. The only ground on which this exception can be justified is, that in the ordinary course of events the employee, supposing the employer would right matters, would remain in the employer's service, and that it would be reasonable to expect such continuance. But this reasoning does not apply

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