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dividuals who have sold the property are compelled to pay in consequence of the alike warrantors, and can as well defend the wrongful act or default of the former. Thus, title in the suit against the last purchaser as where judgment is recovered against a town in a suit against themselves, if they have no for injuries caused by a defective highway,

and a certain railroad corporation is responAn obligation to indemnify upon notice that sible over to the municipality for the damages suit has been brought, is also an obligation to so recovered, by reason of the fact that the defend the suit or to abide the consequences defect in the highway was caused by the of a judgment, and the judgment will bind alteration thereof by the railway, the comthe indemnitor when the latter is notified to pany, if notified of the pendency of the defend and fails to do so. 18 The most famil action and requested to

the deiar example of this species of responsibility fence, are bound by the judgment, and is the case where the plaintiff in an execution it is conclusive upon them as to the cause gives the sheriff a bond conditioned to hold of the injury and the extent of the damhim harmless for selling property levied on ages, whether they appear in the case or under the execution and claimed by a stran

Such is also the case where a person ger, and where the sale is made, and the real who places an obstruction in the public road owner then recovers judgment against the is, by statute, liable over to the town for officer for the property or its value. Under damages recovered by a traveller who was these circumstances, the judgment against injured by such obstruction. 22 And in the the sheriff will be competent evidence, in a case of Robbins v. Chicago, 28 it was held that subsequent action by him against the indem it is not necessary that express notice should nitor, that the plaintiff in the former suit has have been given to the party secondarily liaasserted his claim to the property in question ble to defend the suit against the municipal in due form of law, and that what the sheriff corporation, in order to make the judgment has paid he was compelled to pay by legal in such suit conclusive upon him ; it is suffiproceedings; but it will not be evidence that cient if he knew that the suit was pending, the claimant against the sheriff, was, in fact,

and could have defended it, Clifford, J., saythe real owner of the property and entitled ing: The legal presumption is that he knew to its possession, unless the indemnitor had that he was answerable over to the corporanotice of the suit and an opportunity to de tion, and if so, it must also be presumed that fend. 19 But here, again, we find certain de he knew he had a right to defend the suit.” fences open to the person responsible over

In Churchill v. Holt, 24 it appeared that A. which were not included in the grounds of the was the occupant of a building connected former judgment, or are not inconsistent with with which there was a hatchway in the street it. Thus the indemnitor, though notified of leading into the basement. The hatchway the action against the sheriff and participat was once left open and unguarded, and M., ing in its defence, will not be estopped to a passenger in the street, fell into it and was show that the verdict against the officer was injured. M. sued A. for damages and rerendered on account of his illegal conduct covered a judgment, which A. paid. A. then subsequent to the attachment of the proper sued B. for indemnity, alleging that the danty, or on account of his proceedings under gerous condition of the hatchway, on that other writs than that in which the indemnitor occasion, was due to the negligent act of B.'s was plaintiff.20

servant. On this state of facts it was held Another class of cases which furnish fre that the judgment in the suit of M. against quent opportunity for the application of the the plaintiff was not conclusive against his rule we are now considering, is that where an

right to maintain this action, Morton, J., individual is liable over to a municipal corpo- saying: "Under the pleadings in that suit, ration for damages which the latter has been the judgment may have been rendered on the

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

18 Troy v. Troy, etc. R. R. 3 Lans. 270; Kip v. Brigham, 6 Johns. 158.

19 Burrill v. West, 2 N. H. 190.
20 Boynton v. Morrill, 111 Mass. 4.

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

32 Littleton y. Richardson, 31 N. H. 179.
23 4 Wall. 657.
24 127 Mass, 105.

ground that the plaintiffs were liable as occu- they are perfectly unfit for it. But whatpants of the building, without any regard to ever the principle may mean I am no ex

example the question whether they or a stranger to the of it. For in this single respect I am like suit removed the cover, or negligently left it

Burke. I was not, as he said of himself : unguarded. It conclusively shows that they

“Swathed and dandled into a legislator.” I were guilty of negligence in law as to the

did not inherit the peerage, and I have gathperson injured, but it does not show that they

ered that a large section of the constituency were participes criminis with the defendants, and is not inconsistent with their right to

of this great town of Sheffield is prepared to maintain this action."

abolish the House of Lords, and I suppose On a principle closely allied to those al- me with it. Furthermore, as during the thirready discussed, it is held that a person who

teen years which have passed away since I attends to the trial of a cause, not as a par

first entered into that ancient and august asty, but upon notice by the defendant, on ac

sembly I cannot remember one single solitary count of a liability of his, the amount of

occasion upon which upon any party and politwhich will be affected by the judgment, may

ical question I have had the good fortune to give evidence to lessen or defeat a recovery ;

vote in the majority in that House; and as for and if he neglects to do so, he will not after

five years before that time I was the law officer wards be permitted to give such evidence in

to a Government which had not the good foran action directly against himself by the de

tune to agree with the majority in that House fendant in the first suit. 25

either, I cannot be expected in candor to speak H. CAMPBELL BLACK.

with fanatical or even enthusiastic admiration Williamsport, Pa.

of the course which their lordships have

thought fit to pursue in the last twenty years. 25 Mehaffy v. Lytle, 1 Watts, 314.

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 sub

stance of things hoped for; faith is the eviLORD CHIEF JUSTICE COLERIDGE ON dence of things not seen; and therefore I THE HOUSE OF LORDS.

face the situation, and I am to return thanks

for a most ancient and venerable assembly of At the Cutler's Feast, Lord Coleridge, C. which I am a very recent and a very obscure J., responding to the toast of the "Houses of member. What can I say? Well, one thing Parliament,” said: "I thank you heartily for I can say with perfect truth.

In these days the gracious and cordial reception which you of change and flux, when the great wave of have been pleased to give to my name. But popular opinion is ever heaving and never why I have been selected on the present oc- continuing in one state, it is a comfort to casion to return thanks for the toast which some minds to be able to contemplate somethe Master Cutler has assigned to me, passes thing fixed, immovable, unchanged, unafmy imagination to conceive.

I have always fected by the shock of circumstances or the understood that the House of Lords repre- lapse of time, which, braving the respectful, sents, or is supposed to represent, what is sometimes the disrespectful, curiosity of the called the principle of hereditary legislation. nineteenth century, stands with exactly the Now, what exactly that principle is, I will same coolness and courage with which it conconfess to you that from a very early period fronted the inquiring reverence of the thirof my life I have never been able to compre- teenth and fourteenth centuries.

It is cerhend, unless, indeed, it does rise to the dig- tain that in that time empires have risen and nity of a principle, that persons should be have fallen; dynasties have waxed and waned intrusted with the lawful and sacred power of in this country; religion has been changed making laws for one of the greatest and most more than once; one king has lost his head magnificent empires upon which the

upon the scaffold, another been dethroned has ever shone, not only when nobody and banished by Act of Parliament; the sciknows that they

fit for it, but ence of political economy has been born, and when everybody oftentimes knows that from all I can learn seems about to die. The

sun

are

mons.

franchise has been revolutionised, the House great brewers, to great bankers, to great of Commons has been reformed again and men of commerce, to great soldiers and sailagain, and almost every municipal institution

ors, and may I say, excluding myself, great in the country has been either created or at

lawyers, not only to men who are rema kable all events recreated. Two institutions, and

for nothing but the number of acres and the

quantity of stock or consols they may own, only two, remain as they were 500 or 600

the position of a seat in the House of Lords years ago—the House of Lords and the Cor

is still an object of ambition; and I would poration of London. Alas, alas, for the instability of human affairs !--the Lord Mayor

undertake to say, speaking with all reverence himself has been nibbled at; and the House

in presence of some of the foremost men in

the House of Commons, that a man might of Lords has been told by him whom I fol

now take up fifty men out of the House of low Sir Michael Hicks-Beach in calling the

Lords who, man for man, would be the equals most powerful statesman of the age that he is

in ability, with perhaps one enormous excepgoing to think three times before he abolishes

tion that will occur to every one, on whichit. It is pretty certain that, if not to him, at

ever side of politics he may sit—absolute any rate to some one sooner or later will go forth that mandate "mandate” is my

equals of any fifty men in the House of Com

It is not in eloquence, it is not in noble friend's word, and I take it with

learning and ability, it is not in knowledge, it great satisfaction that mandate to

is not in high character and noble ambitionwhich all politicians of all sides buw

nay, it is not in a certain sense in currency down, to subject the great assembly for

with affairs that the House of Lords is deficwhich I am returning thanks to that process

ient. The House of Lords has lost its weight of inquiry and of subsequent change which it

in the country, if it has lost it, from other does seem that every human institution of this country in this century is doomed to

causes—because, unfortunately, a vast maundergo. I have not disguised—why should jority of the peers never come near the House

of Lords at all, and never take any part in its I disguise?-that I am of opinion, with thirteen years experience of its working, and of

business; because those who do take part the renewed flow of things that goes on all

come there because they choose to come, and around us, that it cannot be expected that

are responsible to no one but themselves, the House of Lords, any more than any other

and it is impossible with all their ability that

they should not to some extent lose touch of institution in this country, should be saved

the people and get out of harmony with the forever from change and reconstruction.

times. But let this be altered. Let men sit But I will be equally frank, and I would say

in the House of Lords because some one that I do hope that it will be dealt with in the

thinks them fit to sit there; let them be sent way of change and reconstruction, and not by way of abolition. In every free country, I

there by some system of choice, some mode

of election- I do not say necessarily directly believe-I am sure in most-it is found nec

from the people, but, speaking roughly and essary, or it is believed to be necessary, to

offband, and, I pray you remember, after have a second Chamber in the legislative machinery of the State, and I am certain that

dinner, by some system as is so successful in

the American Senate, and I will venture to in the English House of Lords there is the

say that the English House of Lords would most admirable material for the reconstruc

be not only the most ancient, the most venertion of the Chamber. The English House

able, the most illustrious body, but one of of Lords never did want, and does not now

the most powerful and the most popular legiswant, grand commanding ability. A debate

lative assemblies which the world has ever 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

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.

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 hydraulic test to the engine when it was last overhauled at the shops, ten months before the explosion, when the evidence shows that the defect bad not existed longer than from two to six months.

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 us: due care and diligence-that is, the care and diligence wbich a man of ordinary prudence, engaged in a like business, would exercise for bis 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 detects.

ܙ

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, be 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 bave 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 com pany 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

4. Negligence-Of Fellovo-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.

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 Nero 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

was

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. & 0. R. 1o. 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 coine 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 plaiutiff 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 beld 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, 382-353; Illinois Central R. Co. v. Housk, 72 Ill. 285.

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