Under

An obligation to indemnify upon notice that suit has been brought, is also an obligation to defend the suit or to abide the consequences of a judgment, and the judgment will bind the indemnitor when the latter is notified to defend and fails to do so.18 The most familiar example of this species of responsibility is the case where the plaintiff in an execution gives the sheriff a bond conditioned to hold him harmless for selling property levied on under the execution and claimed by a stranger, and where the sale is made, and the real owner then recovers judgment against the officer for the property or its value. these circumstances, the judgment against the sheriff will be competent evidence, in a subsequent action by him against the indemnitor, that the plaintiff in the former suit has asserted his claim to the property in question in due form of law, and that what the sheriff has paid he was compelled to pay by legal proceedings; but it will not be evidence that the claimant against the sheriff, was, in fact, the real owner of the property and entitled to its possession, unless the indemnitor had notice of the suit and an opportunity to defend. 19 But here, again, we find certain defences open to the person responsible over which were not included in the grounds of the former judgment, or are not inconsistent with it. Thus the indemnitor, though notified of the action against the sheriff and participating in its defence, will not be estopped to show that the verdict against the officer was rendered on account of his illegal conduct subsequent to the attachment of the property, or on account of his proceedings under other writs than that in which the indemnitor was plaintiff.20

Another class of cases which furnish frequent opportunity for the application of the rule we are now considering, is that where an individual is liable over to a municipal corporation for damages which the latter has been

17 Kent, J., in Thurston v. Spratt, 52 Me. 204.

18 Troy v. Troy, etc. R. R. 8 Lans. 270; Kip v. Brig. ham, 6 Johns. 158.

19 Burrill v. West, 2 N. H. 190.

20 Boynton v. Morrill, 111 Mass. 4.

compelled to pay in consequence of the wrongful act or default of the former. Thus, where judgment is recovered against a town for injuries caused by a defective highway, and a certain railroad corporation is responsible over to the municipality for the damages so recovered, by reason of the fact that the defect in the highway was caused by the alteration thereof by the railway, the company, if notified of the pendency of the action and requested to assume the defence, are bound by the judgment, and it is conclusive upon them as to the cause of the injury and the extent of the damages, whether they appear in the case or not. 21 Such is also the case where a person who places an obstruction in the public road is, by statute, liable over to the town for damages recovered by a traveller who was injured by such obstruction. 22 And in the case of Robbins v. Chicago, it was held that it is not necessary that express notice should have been given to the party secondarily liable to defend the suit against the municipal corporation, in order to make the judgment in such suit conclusive upon him; it is sufficient if he knew that the suit was pending, and could have defended it, Clifford, J., saying: The legal presumption is that he knew that he was answerable over to the corporation, and if so, it must also be presumed that he knew he had a right to defend the suit." In Churchill v. Holt, it appeared that A. was the occupant of a building connected with which there was a hatchway in the street leading into the basement. The hatchway was once left open and unguarded, and M., a passenger in the street, fell into it and was injured. M. sued A. for damages and recovered a judgment, which A. paid. A. then sued B. for indemnity, alleging that the dangerous condition of the hatchway, on that occasion, was due to the negligent act of B.'s servant. On this state of facts it was held that the judgment in the suit of M. against the plaintiff was not conclusive against his right to maintain this action, Morton, J., saying: "Under the pleadings in that suit, the judgment may have been rendered on the

21 Veazie v. Railroad, 49 Me. 119; Portland v. Richardson, 54 Me. 46.

22 Littleton v. Richardson, 34 N. H. 179. 23 4 Wall. 657.

24 127 Mass. 165.

ground that the plaintiffs were liable as occupants of the building, without any regard to the question whether they or a stranger to the suit removed the cover, or negligently left it unguarded. It conclusively shows that they were guilty of negligence in law as to the person injured, but it does not show that they were participes criminis with the defendants, and is not inconsistent with their right to maintain this action."

On a principle closely allied to those already discussed, it is held that a person who attends to the trial of a cause, not as a party, but upon notice by the defendant, on account of a liability of his, the amount of which will be affected by the judgment, may give evidence to lessen or defeat a recovery; and if he neglects to do so, he will not afterwards be permitted to give such evidence in an action directly against himself by the defendant in the first suit. 2

Williamsport, Pa.

H. CAMPBELL BLACK.

25 Mehaffy v. Lytle, 1 Watts, 314.

LORD CHIEF JUSTICE COLERIDGE ON THE HOUSE OF LORDS.

At the Cutler's Feast, Lord Coleridge, C. J., responding to the toast of the "Houses of Parliament," said: "I thank you heartily for the gracious and cordial reception which you have been pleased to give to my name. But why I have been selected on the present occasion to return thanks for the toast which the Master Cutler has assigned to me, passes my imagination to conceive. I have always understood that the House of Lords represents, or is supposed to represent, what is called the principle of hereditary legislation. Now, what exactly that principle is, I will confess to you that from a very early period of my life I have never been able to comprehend, unless, indeed, it does rise to the dignity of a principle, that persons should be intrusted with the lawful and sacred power of making laws for one of the greatest and most magnificent empires upon which the sun has ever shone, not only when nobody knows that they are fit for it, but when everybody oftentimes knows. that

they are perfectly unfit for it. But whatever the principle may mean I am no example of it. For in this single respect I am like Burke. I was not, as he said of himself: "Swathed and dandled into a legislator." I did not inherit the peerage, and I have gathered that a large section of the constituency of this great town of Sheffield is prepared to abolish the House of Lords, and I suppose me with it. Furthermore, as during the thirteen years which have passed away since I first entered into that ancient and august assembly I cannot remember one single solitary occasion upon which upon any party and political question I have had the good fortune to vote in the majority in that House; and as for five years before that time I was the law officer to a Government which had not the good fortune to agree with the majority in that House either, I cannot be expected in candor to speak with fanatical or even enthusiastic admiration of the course which their lordships have thought fit to pursue in the last twenty years. But I am told that politics are unknown in these walls. I believe it because I am told it. I believe it in faith. Faith is the substance of things hoped for; faith is the evidence of things not seen; and therefore I face the situation, and I am to return thanks for a most ancient and venerable assembly of which I am a very recent and a very obscure member. What can I say? Well, one thing I can say with perfect truth. In these days of change and flux, when the great wave of popular opinion is ever heaving and never continuing in one state, it is a comfort to some minds to be able to contemplate something fixed, immovable, unchanged, unaffected by the shock of circumstances or the lapse of time, which, braving the respectful, sometimes the disrespectful, curiosity of the nineteenth century, stands with exactly the same coolness and courage with which it confronted the inquiring reverence of the thirteenth and fourteenth centuries. It is certain that in that time empires have risen and have fallen; dynasties have waxed and waned in this country; religion has been changed more than once; one king has lost his head upon the scaffold, another been dethroned and banished by Act of Parliament; the science of political economy has been born, and from all I can learn seems about to die. The

franchise has been revolutionised, the House of Commons has been reformed again and again, and almost every municipal institution in the country has been either created or at all events recreated. Two institutions, and only two, remain as they were 500 or 600 years ago the House of Lords and the Corporation of London. Alas, alas, for the instability of human affairs!—the Lord Mayor himself has been nibbled at; and the House of Lords has been told by him whom I follow Sir Michael Hicks-Beach in calling the most powerful statesman of the age that he is going to think three times before he abolishes it. It is pretty certain that, if not to him, at any rate to some one sooner or later will go forth that mandate "mandate" is my noble friend's word, and I take it with great satisfaction that mandate to which all politicians of all sides bow down, to subject the great assembly for which I am returning thanks to that process of inquiry and of subsequent change which it does seem that every human institution of this country in this century is doomed to undergo. I have not disguised—why should I disguise?—that I am of opinion, with thirteen years experience of its working, and of the renewed flow of things that goes on all around us, that it cannot be expected that the House of Lords, any more than any other institution in this country, should be saved forever from change and reconstruction. But I will be equally frank, and I would say that I do hope that it will be dealt with in the way of change and reconstruction, and not by way of abolition. In every free country, I believe I am sure in most—it is found necessary, or it is believed to be necessary, to have a second Chamber in the legislative machinery of the State, and I am certain that in the English House of Lords there is the most admirable material for the reconstruction of the Chamber. The English House of Lords never did want, and does not now want, grand commanding ability. A debate in which to go no further than four namesa debate in which the Duke of Argyll, Lord Salisbury, and Lord Selborne, and the Bishop of Peterborough mingled is a thing, let me tell you, worth a man's while to go many miles to listen to; and we find that still to great men of all sorts, to great contractors, to

great brewers, to great bankers, to great men of commerce, to great soldiers and sailors, and may I say, excluding myself, great lawyers, not only to men who are rema kable for nothing but the number of acres and the quantity of stock or consols they may own, the position of a seat in the House of Lords is still an object of ambition; and I would undertake to say, speaking with all reverence in presence of some of the foremost men in the House of Commons, that a man might now take up fifty men out of the House of Lords who, man for man, would be the equals in ability, with perhaps one enormous exception that will occur to every one, on whichever side of politics he may sit-absolute equals of any fifty men in the House of Commons. It is not in eloquence, it is not in learning and ability, it is not in knowledge, it is not in high character and noble ambitionnay, it is not in a certain sense in currency with affairs that the House of Lords is deficient. The House of Lords has lost its weight in the country, if it has lost it, from other causes-because, unfortunately, a vast ma

jority of the peers never come near the House of Lords at all, and never take any part in its business; because those who do take part come there because they choose to come, and are responsible to no one but themselves, and it is impossible with all their ability that they should not to some extent lose touch of the people and get out of harmony with the times. But let this be altered. Let men sit in the House of Lords because some one thinks them fit to sit there; let them be sent there by some system of choice, some mode of election-I do not say necessarily directly from the people, but, speaking roughly and offhand, and, I pray you remember, after dinner, by some system as is so successful in the American Senate, and I will venture to say that the English House of Lords would be not only the most ancient, the most venerable, the most illustrious body, but one of the most powerful and the most popular legislative assemblies which the world has ever

seen.

ACTION AGAINST RAILROAD COMPANY BY ADMINISTRATOR OF EMPLOYE, ON ACCOUNT OF DEATH FROM EXPLOSION OF LOCOMOTIVE BOILER.

THE LOUISVILLE & NASHVILLE RAILROAD CO. V. ALLEN.

Supreme Court of Alabama, June, 1886.

1. Railroad Company-Neither Warrants nor Insures Against Accidents.—A railroad company is not required to warrant the perfection of its machinery or appliances, nor to insure its employes against injury from boiler explosions, or other like accidents; it is only bound to use due care and diligence-that is, the care and diligence which a man of ordinary prudence, engaged in a like business, would exercise for his own protection and the protection of his property: first, to furnish a safe and suitable engine, and then to keep it in that condition.

2. Negligence. When Question for Jury and When for Court.-In cases of doubt-when the facts are disputed, or when different minds may reasonably draw different conclusions from the same undisputed facts -the question of negligence is a question of fact for the determination of the jury; but, when the facts are undisputed, and the inference to be drawn from them is clear and certain, it is a question of law for the decision of the court.

3. Latent Defects-Not Liable for Injuries from Unless Negligent.-For injuries suffered from the explosion of an engine, caused by a latent defect, which was not visible or capable of discovery by the closest inspection from within or without, and which was in fact not known to the defendant or any of its servants, the railroad company is not liable to an action, unless it was guilty of negligence in failing to discover the defects.

4. Negligence-Of Fellow-Servants-Special Statute. If the injury occurred prior to the passage of the Act approved February 15, 1885 (Sess. Acts, 1884-85, p. 115), changing the rule as to the liability of the employer to one of his servants for injuries resulting from the negligence of other fellow-servants, the fact that a circumstance pointing to the defect discovered a few hours before the explosion, by other workmen, who failed to report it, would not render the corporation or employer liable.

was

5. Negligence-Onus of Proof-Rule When Employe and When Passenger.—In an action by an employe or servant for a railroad company, to recover damages for injuries caused by the explosion of an engine, the onus of proving negligence is on him, and it is not enough to prove the fact of injury from the explosion; but the rule is different when the action is brought by a passenger.

6. Railroad Company-Rule as to Adoption of New Inventions.-A railroad company is not required by its duty to its employes and servants to adopt every new invention or appliance which may be useful in its business, and which may serve to diminish the risks to life, limb or property, incident to its service; it is sufficient to adopt such as are ordinarily used by prudently conducted roads engaged in like business, and surrounded by like circumstances.

7. Negligence-Tests to Discover Latent Defects.The application of the steam test for boilers being shown to be neither practicable nor approved, on ac

count of its danger; and the hydraulic test, as shown by the evidence, being extraordinary and rarely used, except when engines are first used, or fail to work well, or when they are overhauled periodically; the failure to apply either or both of these tests to the defective boiler is not negligence.

8 Negligence-When not Imputable for Failure to Apply Tests.--Nor can negligence be imputed to the company, on account of the failure to apply the bydraulic test to the engine when it was last overhauled at the shops, ten months before the explosion, when the evidence shows that the defect had not existed longer than from two to six months.

Appeal from Montgomery Circuit Court.
Tried before Hon. John Hubbard.

Thos. G. Jones, and J. M. Falkner, counsel for appellant, Watts & Son, contra.

The appellee, Flora A. Allen, administratrix of Daniel M. Allen, deceased, brought this action against the appellant, to recover damages for the killing of her intestate, while in the service of the appellant, by the explosion of the boiler of one of its engines. There was judgment in her favor in the court below for $10,000,00.

The evidence was voluminous for and against the defendant, and it is unnecessary to set it out. Numerous exceptions were reserved, and the chief of which was the refusal of the court below to charge the jury, at the request of defendant, that "if the jury believe the evidence they must find for the defendant."

SOMERVILLE, J., delivered the opinion of the

court:

The intestate of the plaintiff was accidentally killed in December, 1883, by the explosion of the boiler of a steam-engine, he being at the time in the employment of the defendant railroad company, and this action is brought to recover damages of the company for its alleged negligence as the proximate cause of the injury.

The whole controversy is, in our judgment, reduced to one single issue—that of negligence vel non on the part of the railroad company.

The defect in the boiler, which was the cause of the explosion, was a latent or secret one, not visible or capable of discovery by the closest inspection from within or without—being a flaw or crack in the upper part of one of the boiler sheets, between two plates where they overlapped. Neither the removal of the flues, nor the stripping of the outside of the boiler of the jacket and lagging, would have discovered it. Nor could it have been discovered by hammering on the boiler or from the sound of the hammering. It is shown that both the outer and inner sheets of the boiler were in apparently good condition. The existence of the fact was, for those reasons, unknown in fact to the defendant or any of its servants or employes.

It is insisted, however, that the railroad company was guilty of negligence in failing to keep the engine in proper repair, or rather in failing to discover the flaw or defect, which was the cause of the explosion, and upon the discovery of which

r

the duty to repair would depend; that there was evidence tending to prove this negligence, and that the question was one for the determination of the jury.

There was no absolute duty resting on the railroad to furnish a safe engine to be used in its service. It was not required to warrant the perfection of its machinery or appliances, or to insure its employes against injury from boiler explosions or other like accidents. Its duty to employes was only to use due care and diligence, first-to furnish a suitable and safe engine and then like care and dilligence to keep it in that condition. And by due care and diligence we mean "the care and diligence which a man of ordinary prudence, engaged in a like business, would exercise for his own protection, and the protection of his property," a care which must be reasonably commensurate with the nature and hazards attending the particular business, Mobile & Ohio R. R Co. v. Thomas, 42 Ala. 672; 713; Smoot v. M. & M. R. R. Co. 67 Ala. 18; Pierce on Railroade, 370-373.

In this case there neither can be, nor is, any negligence imputed in failing to furnish a good and safe engine originally. This is shown to have been done. The negligence charged is in failing to keep the engine in a safe condition. This charge can be sustained only by showing that there was negligence in failing to discover the defect in the boiler, which is supposed to have existed not longer than from two to six months previous to the date of the explosion.

The question is then resolved into the inquiry. Did the defendant use due care and diligence to discover the latent flaw or crack in the boiler which was the cause of the accident?

The question of negligence is one of fact for the determination of the jury in cases of doubt, either where the facts are disputed, or where different minds may reasonably draw different inferences or conclusions. It is a question of law, however, to be decided by the court, where the facts are undisputed, and the inference to be drawn from them is clear and uncertain. City Council of Montgomery v. Wright, 72 Ala. 411. The court will accordingly give a general charge, on the evidence, when requested, where the evidence bearing on the question of negligence vel non is such as that the court would feel authorized to sustain a demurrer to it. Smoot v. the M. & M. Railway Co. 67 Ala. 13.

The evidence contained in the bill of exceptions tends to show but two grounds upon which it can be claimed with any show of reason, that the defendant was negligent. The first is, the fact that three of the employees of the defendant, the engineer who carried the engine over to the yard, the night hostler whose business it was to look after engines when they come in at night, and the fireman on the engine, had each, a few hours before the explosion, noticed a small leak near the sand box from which there escaped a small amount of steam, which was supposed to be smoke com

ing out of the side of the engine near the dome or sand box. It was no unusual thing for smoke to thus emanate from the lagging or jacket of the engine, and in such cases it could be stopped by pouring a few buckets of water upon it, which, in this case, Hicks, the night hostler, did successfully, and no report was made of the incident. We dispose of this first suggestion of negligence before proceeding to consider the second and more important one. If we admit that the several employees mentioned were negligent in failing to discern the difference between smoke and steam, and in not reporting this discovery to the proper superior officers of the company, the defendant would not be liable for this negligence of co-employees, or fellow-servants, in the same general business.

It was the settled law in this State, prior to the act of February 12, 1885, establishing by statute a contrary rule, that the employer is not liable in damages for an injury suffered by a fellow-servant by reason of the faults or negligence of another fellow-servant or co-employee, in the same general business, unless such employer was chargeable with want of due care in having employed incompetent or unskillful servants in the particular business in which the injury was received; M. & M. Ry. Co. v. Smith, 59 Ala. 248; M. & O. R. Co. v. Thomas, 42 Ala. 672. There is nothing in the record which would tend to challenge the skill, or impugn the competency of the engineer or other employees to whom we have referred. They were all very obviously fellow-servants of the plaintiff's intestate who was injured by their alleged negligence, and, under the rule above stated, no liability would rest on the defendant company for the want of care of their coemployees in this matter.

We now come to the second phase of the alleged negligence of the company in failing to use due care by resorting to proper tests for discovering the flaw in the boiler..

It has been said that this defect was latent, and very manifestly could not have been detected by the most careful inspection. It is shown, moreover, that inspections were made of this and other engines at stated times, and with sufficient frequency, and by competent officials, and they failed to detect the defect. No negligence can be based, therefore, upon the failure to discover it by inspection merely, because, we repeat, it was latent and not so discoverable.

The burden of proof in this case is on the plaintiff to prove negligence, and this is not shifted by proving only the fact of injury from the explosion of the boiler. Such is the rule where an employee or servant sues, although a different principle is held to prevail where an injury is received by a passenger on a railroad in consequence of a defect in any of its machinery or appliances. M. & M. R. Co. v. Thomas, 42 Ala. 672, 715; Pierce on Railroads, 382-383; Illinois Central R. Co. v. Housk, 72 III. 285.