thority that condemns as immoral an opinion which in most of the States is simply acquiescence in the laws of the land? Is the fatal anathema to be found in the decalogue, or the sermon on the mount? Has one of the prophets spoken, or which of the apostles? The deliverance of the Journal on this subject, like most other oracular utterances, is all too brief. It leaves a harrowing uncertainty whether the newly found immorality is a mortal or a venial sin, and how it can be best atoned for. We tremble to think of the myriads of lawyers who in past ages have gone to their account with this sin standing against them, as unconscious of its existence as we are of Wiggins' dark moon, and all because they lived and died before the fourth quarter of the nineteenth century, in which was promulgated the new conjoint system of law, logic and morality.

The solicitude of the Albany Law Journal for the welfare of St. Louis is positively touching. It says: "At our last accounts there was no community in this country more in need of strict and severe criminal justice than St. Louis. A score of alleged murderers were in her jail awaiting trial or under sentence. We are sorry to hear a voice from St. Louis against any measure tending to ascertain truth and effect justice." So should we be, from St. Louis, or from anywhere else. Let the Journal be comforted, some of these prisoners are under sentence, in the course of time, perhaps, others may be, and at all events people who are in jail are for the time being out of mischief. Of the precise population of the St. Louis jail we cannot speak with any confidence, never having visited that institution, nor, we may add, have we ever entered a criminal court room in this city. If the jail is very full, as the Journal intimates, it seems, to our unassisted reason, a very favorable indication, for the more people there are in jail the fewer, by that precise number, are those outside who ought to be inside.

TACT OUT OF COURT.-"Why don't you write us something of tact out of court, as well as in court?" asked a bright young attorney, recently, and here it is: Just before Just before the court battle both sides are too confident

to learn much. After the conflict they listen better. Only a few men take advice kindly, most of them prefer to give counsel rather than receive it; still, if it comes in the form of a story or incident, as by surprise, it compels attention. To illustrate: Take the case that you took a retainer in lately, and omitted to enter the residence of your client on the file cover, and the other one where you trusted to the client to prepare the testimony, will trouble you all the more for the omissions. The witness whose whole story you relied upon for evidence will prove a large delusion on trial day. The busy little fellow who knows less law than practice is using his tact to be ready in the court room. He has sent out a carpenter to measure every part of the building, and add up the extra work done to the last fraction. He has had the open book account admitted, and noted when, where, and under what circumstances all filled away for ready reference. He has agreed with his client in advance about what the fees shall be, and made a safe contract. He has tested the temper of his witnesses and told them that anger "only rests in the bosom of fools" and law suits are not won by ever so many people coming to swear of the adversary, that "he is one of the hardest cases in the whole country!" or of how many men he has swindled in business, or how many failures he has settled up and compromised. All this is old-fashioned foreign matter that clients are foolish about, and don't win law suits any longer.

What does win them? Different men win by different methods, assuming the case is nearly evenly balanced as to the merits, the best plea on the most reasonable theory will win oftenest. Some men are actually indifferent of facts and win by wearing out an adversary. Other rely entirely on the fact and save legal questions for higher courts, and still another class get a good ready all around. One of the best advocates considers it of vital importance that the order of testimony, and the measure of its reason are consistant, and likely to be believed. He wins his case within his own heart first, and mixing his powerful belief with the magnetism of his nature, throws it to the jury with relentless force like a charge of Napoleon's cavalry. He sometimes finds a sunken road, and meets a Wellington but

wins almost every battle. Measured by the standard of any other undertaking, like the case in tempering steel, the highest speed of sail yachts, the greatest skill of base ball playing, or the fine training and endurance of racers, very few law suits are brought to court with the real issue as firmly fixed, and perfectly realized, as these lesser matters in business of less importance.

J. W. DONOVAN.

NOTES OF RECENT DECISIONS.

CONTEMPT OF COURT-POWER OF COURTS TO PUNISH PROCEDURE. The Supreme Court of New Jersey has recently had under consideration a case, involving the right of nisi prius courts in that State to punish for contempt of court. The facts were, that John Cheesman was indicted, it does not appear for what offense, and tried; that there was a mistrial in January, 1885; that, on the 30th of that month, being rash, imprudent and, presumably, very angry, he published in his newspaper an article intended to cast discredit upon the members of the grand jury that had indicted him, the sheriff who had summoned the jury, and the judge who had tried, and would again try him. For this article the court fined him a hundred dollars and he appealed.

The supreme court held, that the superior courts of New Jersey, being modelled upon the English common law courts, have the same power possessed by their prototypes to punish, by fine and imprisonment, publications designed to bring into contempt the administration of the law. That the English courts had, and very freely exercised this power, the court demonstrates by along and, we conceive, superfluous array of authorities.2

The court proceeds to insist that the usual platitudes concerning the liberty of the press cannot be permitted to justify unbridled tongues or unbridled pens, and sanctify slander and libel. It holds that the power to

1 In re Cheesman, 6 Atl. Rep. 513.

2 Rex v. Jones, Strange, 185; Rex v. Unitt, Strange, 567; North v. Wiggnis, Strange, 1068; Pool v. Sacheverell, 1 Peere Wms. 675; Rex v. University of Cambridge, Strange, 557, 565; Roach v. Garvan, 3 Atk. 60.

maintain the dignity of the court and the majesty of the law is inherent in the very nature of courts, and that the exercise of that power on those who offend by publications, designed to bring in contempt the officers of the law and the administration of justice, is not inconsistent with the spirit of our institutions. So far as the reports indicate this case is the first that has occurred in the State, but, as the court remarks, the power has no doubt been frequently exercised by courts, the decisions of which have not been reported, and from which, until 1884, no appeal in cases of this character was permitted. The court holds that the proceedings should be initiated by a rule to show cause, but that no antecedent affidavit is essential. If no sufficient cause be shown to the contrary an attachment issues, and the accused is held to bail or committed to answer, and upon his answer and a full hearing he is either punished or discharged. The forms of the procedure seem to be immaterial, the indispensible part is that the accused should have his "day in court" and be allowed full facilities to purge his contempt.

2. Risks.-The servant when he engages to the master undertakes, as between himself and employer, to run all the ordinary risks of the service, including the risks of negligence upon the part of a fellow-servant when he is working as a servant of him who is a common master. The employee cannot be excepted from the risks arising from the carelessless and negligence of those who are in the same service. ant must know, and, guard against them. to the employment are known by the employee and are provided for in the rate of compensation like any other arrangement.

These hazards the servhence, can effectually The dangers incident

The running of trains on railroads is a dangerous business, and the employees, when they engage with the railroad corporations to do service, know the hazard incident to such employment, and take upon themselves the ordinary dangers found in this business.1

3. Railroad Companies' Obligations.While the employee assumes to run the ordinary risks of his employment, the railroad company, on the other hand, undertakes and agrees to exercise reasonable and ordinary care and diligence in furnishing reasonably safe machinery and instrumentalities for operating its railroad. It must use ordinary care and diligence in selecting its servants who must be possessed of ordinary skill and care. The machinery is not required to be of the most improved kind nor absolutely safe.2

4. Introduction of New Machinery. Railroad corporations are not required to discard their machinery in use, in order to introduce new inventions which are supposed to be an improvement over the old." A late

1 Morgan v. Vale, L. R. 1 Q. B. 149; Railroad Co. v. Wagner (Kans.), 21 Cent. L. J. 51; Railroad Co. v. Loudergan (Ill.), 7 N. E. Rep. 55; Coombs v. Cordage Co., 102 Mass. 572; Sullivan v. India Co., 113 Mass. 396; Madden v. Railroad Co., 20 N. W. Rep. 317; Wood's Master and Servant, § 382.

2 Hutchinson v. York, etc., 5 Exch. 343; Priestley v. Fowler, 3 M. W. 1; Payne v. Reese, 100 Pa. St. 306; Simons v. Railroad Co. 110 Ill. 340; Railroad Co. v. McCormick, 74 Ind. 445; Smith v. Railroad Co., 69 Mo. 32; McGinniss v. Bridge Co., 49 Mich. 466; Railroad Co. v. Holt, 29 Kans. 149; Condon v. Railroad Co. 78 Mo. 567; Kirkpatrick v. Railroad Co., 79 N. Y. 240; Dana v. Railroad Co., 92 N. Y. 642; Smith v. Railroad Co., 42 Wis. 526; Johnson v. Tow Boat, 135 Mass. 209; Rodgers v. Railroad Co. 8 Pac. Rep. 377; Gravelle v. Railroad Co., 11 Fed. Rep. 509.

3 Whart. Neg., 213; Wonder v. Railroad Co., 32 Md. 411.

decision on this point has been rendered by the Illinois supreme court.* In this case the plaintiff averred that he was injured by his foot being caught in a switch joint, because said joint was not blocked. It appears that a new device for blocking a switch joint had been used by some of the railroads. The invention is new, and is used by less than one-half of the railroads. It was held that before the defendant could be made liable, it must be shown that the switch or turn-out, "as constructed and used, was not reasonably safe, or that it was not constructed with the usual care and skill;" that the company was not obliged to introduce a new invention, and especially when the device was as yet an experiment.

It is required that the machinery and appliances be suitable and reasonably safe; that the railroad company use due diligence to keep its machinery in good repair by frequent inspections."

5. Unusual Risks.-It must be understood that the employee, when he engages with the railroad company does not take upon himself extraordinary hazards. And if the employee is ignorant of the risks incident to his work, the employer is obliged to inform him of all the facts concerned in operating the machinery, concerning the safety of the servant, and especially when the service is hazardous to a degree beyond what appears to the ordinary intelligence of an employee.

6

The employer must also give all the facts if the employee is young and his judgment does not comprehend the dangers, or if the employee is inexperienced, and cannot therefore be fully cognizant of the dangers.7

The employer must never expose his servant to any unreasonable or extraordinary danger or peril in the course of his employment, and against which, the employee, for want of knowledge or skill, cannot, by using reasonable care and diligence, protect himself.8

4 Railroad Co. v. Loudergan, supra.

5 Railroad Co. v. Jackson, 55 Ill. 493; Condon v. Railroad Co., supra.

6 Barton v. Roberts, 44 Cal. 187; Browne's Dom. Rel. 126; Strahlendorf v. Rosenthal, 30 Wis. 675. 7 Dowling v. Allen, 74 Mo. 13; Sullivan v. India Co., supra.

8 Wonder v. Railroad Co., supra; Hutchinson v. York, etc., supra; Hough v. Railroad Co., 100 U. S.

213.

6. Who Are Fellow-Servants or Consociates? -FIRST: Fellow-servants or consociates must be servants of the same master, employed in doing parts of the same work, and shall be at the time of the injury directly co-operating with each other in that particular business in hand; or their duties shall bring them into habitual consociation, so that they influence each other promotive of proper caution."

SECOND: Are all who are controlled by the зame master, engaged in the same general employment, and who derive authority and compensation from the same source, though it may be in different departments, and who habitually consociate in the performance of their customary duties, so that their safety depends upon the care of each other, and who can report negligence of duty to a common master, and who take the risks of each other's negligence, are fellow-servants or consociates ?10

THIRD: Other authority, however, makes a broader distinction in defining fellow-servant. It is held by some courts that fellowservants include all who are engaged in accomplishing one and the same object, under the same master, deriving authority and compensation from the same source; all employees from the highest to the lowest are fellowservants, no matter how remote from each other they may be usually engaged, or how distinct in character and nature may be their respective duties and employment, and without any difference in rank or authority, it not being necessary, it would seem, to be engaged in the same common service, under the same general control.11

7. Fellow-Servants Distinguished. -Employees of railroad companies, though of different grades, when working in a common service are fellow-servants. An engineer on a moving passenger train and a brakeman on a freight train of the same company, at a station, who is ordered by the conductor of his train to go along the line of the road to

9 Railroad Co. v. Moranda, 108 Ill. 576. 10 Thomp. Neg. 969, note 2 and 1026, § 31; Wood's Master and Servant, 837; Addison on Torts, § 565, note; Moak's Underhill on Torts (ed. 1880), 52; Morgan v. Railroad Co., L. R. 1 Q. B. 149; Railroad Co. v. Ranney, 37 Ohio St. 665; Howland v. Railroad Co., 54 Wis. 226; Granelle v. Railroad Co., 10 Fed. Rep. 711; Railroad Co. v. Rider, 4 Texas L. R. 293.

11 Railroad Co. v. Fort, 17 Wall. 553: Blake v. Railroad Co., 70 Me. 60; Gillshannon v. Railroad Co., 10 Cush. 228.

display a signal to the passenger train, are fellow-servants for the purpose of bringing the train safely to the station. 12 A brakeman making a switch for his train on a track in a railroad yard, is a fellow-servant with an engine-man of another train of the same corporation upon an adjacent track. 13 Inspectors of cars in the yard of the company and a brakeman on its trains are fellowservants in the same employment.14 A fore man who directs the moving of cars to be repaired is a fellow-servant with the brakeman. 15 So is a conductor a fellow-servant with a brakeman.1 It has been decided that a conductor and an engineer are not fellow-servants. 17 Conductors of constructive trains and laborers on same trains are not fellow-servants.18 Boss of car repairers and laborers under his supervision are not fellow-servants.19 Roadmasters and laborers are not. 20

When a company has several shops, and used for the same general purpose, and employ several gangs of laborers in and about the shops, a workman employed in taking material in and out of the shop, is a fellowservant with a gas-fitter in the employ of the same company running a pipe into one of the shops at an improper height. Otherwise, however, if the master mechanic had ordered the placing of the pipe in such a place. 21

Its

A railroad company is bound to inspect foreign cars that it hauls over its road, just as it is obligated to inspect its own cars. employees take only the same risks in handling these cars as they do in those belonging to the company. Where a brakeman was injured in coupling by reason of a defective bumper on a foreign car, a defect that could have been seen by ordinary inspection, the company for whom he was working, was held liable.22 A general manager who makes

12 Railroad Co. v. Rush, (Tenn.) 21 Cent. L. J. 369. 13 Randall v. Railroad Co., 3 Sup. Ct. Rep. 322. 14 Railroad Co. v. Webb, 12 Ohio St. 475: Mackin v. Railroad Co., 135 Mass. 201; Smith v. Potter, 9 N. W. Rep. 273.

15 Fraker v. Railroad Co., 19 N. W. Rep. 349. 16 Pease v. Railroad Co., 20 N. W. Rep 908.

17 Ross v. Railroad Co., 8 Fed. Rep. 544. See Railroad Co. v. Ross, 5 Sup. Ct. Rep. 184; s. C., 112 U. S. 877.

18 Railroad Co. v. Lundstrum, 20 N. W. Rep. 198. 19 Railroad Co. v. Fox, 3 Pac. Rep. 320.

20 Railroad Co. v. Moore, 1 Pac. Rep. 644. For general discussion, see Pierce's Railroad Law, 299. 21 Railroad Co. v. Bell, 21 Reportér, 698.

22 Railroad Co. v. Gottlieb, (N. Y.) 3 N. E. 344.

rules, and a train dispatcher who gives special orders for the running of trains, and a head brakeman on a freight train, are not fellow-servants.23 A railroad laborer engaged in distributing rails along the track, under the control of a boss, is not in the same employment as a man controlling and managing a switch engine not used in carrying those rails, and in moving cars not used in laying the rails along the track.24 If a railroad company draws over its road foreign cars, and an accident occurs from their not being reasonably safe, under any circumstances, for the business for which they are used, and there is no negligence on the part of the employee, the company is liable.25 The Kentucky Court of Appeals have decided in a recent case, that if a conductor causes injury to a brakeman by gross negligence the company is liable, the conductor and the brakeman not being fellow-servants.26

8. Negligence of Fellow-Servants. The employer is not liable to the employee for any injury resulting from the negligence of a fellow-servant in the same department of service, provided the master has exercised due care and diligence in the selection and retention of co-servants. When the employee engaged in the service he took upon himself the risk of injury from his fellow-servant.27

The weight of authority is, that if the employer is not negligent in hiring and retaining workmen who will use ordinary care and prudence, and furnishes them suitable tools and appliances to perform the work for which the servants are engaged, he is not liable for injuries resulting from negligence of fellow-servants in the same service. 28

It has been held, however, that if a fellowservant is injured by the negligence of his

23 Phillips v. Railroad Co., (Wis.) N. W. Rep. Dec. 12, 1885.

24 Garrahy v. Railroad Co., (Kans. U. S. Cir. Ct.) 18 Chi. Legal News, 81, Nov. 14, 1885.

25 O'Neil v. Railroad Co., 9 Fed. Rep. 337.. 26 Railroad Co. v. Moore, Ky. L. Rep., April, 1886. 27 Railroad Co. v. Moranda, 93 Ill. 302; Railroad Co. v. Geary, 110 Ill. 383; Railroad Co. v. Fitzpatrick, 2 Am. L. J. 60; Crew v. Railread Co., 20 Fed. Rep. 87; Luce v. Railroad Co., 24 N. W. Rep. 600.

28 Hugh v. Railroad Co., 6 La. Ann. 495; Railroad Co. v. Dolan, 32 Mich. 510; Howd v. Railroad Co., 50 Miss. 178; Railroad Co. v. Thomas, 51 Miss. 637; Carle v. Railroad Co. 43 Me. 269; Weger v. Railroad Co., 23 Wis. 668; Laler v. Railroad Co., 52 Ill. 401; Hogan v. Railroad Co., 49 Cal. 129; Warner v. Railroad Co., 39 N. Y. 468; Laning v. Railroad Co., 49 N. Y. 521; Summerhays v. Railroad Co., 2 Colo. 484.

consociate, and said injury could have been avoided by ordinary care on the part of the co-servant, the common employer will be liable.29

A railroad company is liable to a father for injury to a minor son, who is engaged as brakeman or in other dangerous capacity, without the consent of his father, in the course of his employment, though the injury is caused by the minor's own negligence. When the minor was injured he was voluntarily acting as brakeman with the consent of the train conductor.30

9. Superior Servants.-Some authorities hold that the employee assumes all the risks growing out of the negligence of superior servants even in different departments of service so long as both are in the same general employment, and the negligence of one contributes to the danger of the other.31 But this is not the general doctrine on this point. The employer is liable for the negligence of the superior servant, whose orders the injured employee is bound to obey, even though he is in the same general line of employment. If the inferior servant, in obeying the superior's orders, causes other injury to employees or himself, the master is liable. 82

10. Discovery of Defective Machinery by Employee. The general doctrine is, that when the employee discovers that the service has become more dangerous than usual by reason of defective machinery, or that the employer is retaining unfaithful servants, or from any cause, he must at once cease to work and leave the service. But in case the employee notifies the master of the defects that render the service more hazardous, and then the master promises to make the needed repairs, or remove the defect, the employee may continue a reasonable time thereafter in order to

29 Railroad Co. v. Robinson, 4 Bush. 507; Railroad Co. v. O'Connor, 77 Ill. 391.

30 Railroad Co. v. Willis, 6 Ky. L. Rep. 754.

31 Laning v. Railroad Co., supra; Railroad Co. v. Murphy, 53 Ill. 336; Browne's Dom. Rel. 121; Lawler v. Railroad Co., 62 Me. 463; Lewis v. Railroad Co., 59 Mo. 495.

32 Whart. Neg. 232; Mullen v. Philadelphia Co., 78 Pa. St. 25; Gunter v. Graniteville, 18 S. C. 262; Brothers v. Carter, 52 Mo. 372; Railroad Co. v. Stevens, 20 Ohio St. 415; Cowles v. Railroad Co., 84 N. C. 309; Railroad Co. v. Delahunty, 53 Texas, 206; Patterson v. Railroad Co., 76 Pa. St. 389; Ford v. Railroad Co., 110 Mass. 240.