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thority that condemns as immoral an opinion to learn much. After the conflict they listen which in most of the States is simply acqui- better. Only a few men take advice kindly, escence in the laws of the land ? Is the fatal most of them prefer to give counsel rather anathema to be found in the decalogue, or than receive it; still, if it comes in the form the sermon on the mount? Has one of the of a story or incident, as by surprise, it comprophets spoken, or which of the apostles? | pels attention. To illustrate: Take the case The deliverance of the Journal on this sub- that you took a retainer in lately, and omitted ject, like most other oracular utterances, is to enter the residence of your client on the all too brief. It leaves a harrowing uncer- file cover, and the other one where you tainty whether the newly found immorality is trusted to the client to prepare the testimony, a mortal or a venial sin, and how it can be will trouble you all the more for the omissions. best atoned for. We tremble to think of the The witness whose whole story you relied myriads of lawyers who in past ages have upon for evidence will prove a large delusion gone to their account with this sin standing on trial day. The busy little fellow who against them, as unconscious of its existence knows less law than practice is using his tact as we are of Wiggins' dark moon, and all be- to be ready in the court room. He has sent cause they lived and died before the fourth out a carpenter to measure every part of the quarter of the nineteenth century, in which building, and add up the extra work done to was promulgated the new conjoint system of the last fraction. He has had the open book law, logic and morality.

account admitted, and noted when, where, The solicitude of the Albany Law Journal

and under what circumstances all filled for the welfare of St. Louis is positively away for ready reference. He has agreed touching. It says: " At our last accounts with his client in advance about what the fees there was no community in this country more shall be, and made a safe contract. He has in need of strict and severe criminal justice tested the temper of his witnesses and told than St. Louis. A score of alleged murderers them that anger "only rests in the bosom of were in her jail awaiting trial or under sent- fools” and law suits are not won by ever so ence. We are sorry to hear a voice from St. many people coming to swear of the adverLouis against any measure tending to ascer- sary, that “he is one of the hardest cases in tain truth and effect justice.” So should we the whole country!” or of how many men he be, from St. Louis, or from anywhere else.

has swindled in business, or how many

failLet the Journal be comforted, some of these ures he has settled up and compromised. All prisoners are under sentence, in the course this is old-fashioned foreign matter that of time, perhaps, others may be, and at all clients are foolish about, and don't win law events people who are in jail are for the time suits any longer. being out of mischief. Of the precise popu

What does win them? Different men win lation of the St. Louis jail we cannot speak by different methods, assuming the case is with any confidence, never having visited that nearly evenly balanced as to the merits, the institution, nor, we may add, have we ever best plea on the most reasonable theory will entered a criminal court room in this city. If

win oftenest. Some

actually the jail is very full, as the Journal intimates, indifferent of facts and win by wearing it seems, to our unassisted reason, a very

vut an adversary. Other rely entirely favorable indication, for the more people

on the fact and

save legal questions for there are in jail the fewer, by that precise higher courts, and still another class get a number, are those outside who ought to be good ready a!l around. One of the best adinside.

vocates considers it of vital importance that the order of testimony, and the measure of its reason are consistant, and likely to be be

lieved. He wins his case within his own Tact OUT OF COURT.—“Why don't you heart first, and mixing his powerful belief write us something of tact out of court, as with the magnetism of his nature, throws it to well as in court?”' asked a bright young at- the jury with relentless force like a charge of torney, recently, and here it is: Just before Napoleon's cavalry. He sometimes finds a the court battle both sides are too confident sunken road, and meets a Wellington but



wins almost every battle. Measured by the maintain the dignity of the court and the standard of any other undertaking, like the majesty of the law is inherent in the very case in tempering steel, the highest speed of nature of courts, and that the exercise of that sail yachts, the greatest skill of baseball power on those who offend by publications, playing, or the fine training and endurance designed to bring in contempt the officers of of racers, very few law suits are brought to the law and the administration of justice, is court with the real issue as firmly fixed, and not inconsistent with the spirit of our instituperfectly realized, as these lesser matters in tions. So far as the reports indicate this business of less importance.

case is the first that has occurred in the J. W. DONOVAN. 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 apNOTES OF RECENT DECISIONS.

peal in cases of this character was permitted.

The court holds that the proceedings CONTEMPT OF COURT-POWER OF COURTS should be initiated by a rule to show cause, TO PUNISH PROCEDURE. The Supreme

but that no antecedent affidavit is essential. Court of New Jersey has recently had If no sufficient cause be shown to the conunder consideration a case, involving the trary an attachment issues, and the accused right of nisi prius courts in that State is held to bail or committed to answer, and to punish for contempt of court. The facts

upon his answer and a full hearing he is were, that John Cheesman was indicted, it either punished or discharged. The forms of does not appear for what offense, and tried ;

the procedure seem to be immaterial, the that there was a mistrial in January, 1885; indispensible part is that the accused should that, on the 30th of that month, being rash,

have his “day in court and be allowed full imprudent and, presumably, very angry, he facilities to purge his contempt. 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 LIABILITIES OF RAILROAD COM judge who had tried, and would again try bim. PANIES FOR INJURIES TO THEIR For this article the court fined him a hundred EMPLOYEES. dollars and he appealed. The supreme court held, that the superior

1. Introduction. courts of New Jersey, being modelled upon

2. Risks. the English common law courts, have the 3. Obligations of Railroad Companies. same power possessed by their prototypes to

4. Introduction of New Machinery.

5. Unusual Risks. punish, by fine and imprisonment, publica

6. Who Are Fellow-Servants. tions designed to bring into contempt the ad- 7. Fellow-Servants Distinguished. ministration of the law. That the English

8. Negligence of Fellow-Servants.

9. Superior (Servants. courts had, and very freely exercised this

10. Discovery of Defective Machinery. power, the court demonstrates by along and,

11. Contributory Negligence. we conceive, superfluous array of author- 12. Burden of Proof. ities. 2

13. Who are Fellow-Servants is a Question for the

Jury. The court proceeds to insist that the usual

14. Negligence-Question for the Jury. platitudes concerning the liberty of the press cannot be permitted to justify unbridled 1. Introduction.It is the object of this tongues or unbridled pens, and sanctify article to state briefly the general principles slander and libel. It holds that the power to of law which are applicable to railroad cor

porations and their employees, as regards lia1 In re Cheesman, 6 Atl. Rep. 513.

bility of the former for injuries to the latter. 2 Rex v. Jones, Strange, 185; Rex v. Unitt, Strange,

To attempt an analysis of the numerous and 567; North v. Wiggnis, Strange, 1068; Pool v. Sache

often conflicting cases would be impracticaverell, 1 Peere Wms. 675; Rex v. University of Cam. bridge, Strange, 557, 565; Roach v. Garvan, 3 Atk. 60. ble in a magazine article.

2. Risks.The servant when he engages decision on this point has been rendered to the master undertakes, as between him by the Illinois supreme court.4

In this self and employer, to run all the ordinary risks case the plaintiff averred that he was inof the service, including the risks of negli- jured by his foot being caught in a gence upon the part of a fellow-servant when switch joint, because said joint was not he is working as a servant of him who is a blocked. It appears that a new device for common master. The employee cannot be blocking a switch joint had been used by excepted from the risks arising from the some of the railroads. The invention is new, carelessless and negligence of those who are and is used by less than one-half of the in the same service. These hazards the sery railroads. It was held that before the deant must know, and, hence, can effectually fendant could be made liable, it must be guard against them. The dangers incident shown that the switch or turn-out, "as conto the employment are known by the employee structed and used, was not reasonably safe, and are provided for in the rate of compen or that it was not constructed with the usual sation like any other arrangement.

care and skill;" that the company was not The running of trains on railroads is a dan- obliged to introduce a new invention, and gerous business, and the employees, when

especially when the device was as yet an exthey engage with the railroad corporations to

periment. do service, know the hazard incident to such It is required that the machinery and apemployment, and take upon themselves the pliances be suitable and reasonably safe; ordinary dangers found in this business. 1 that the railroad company use due diligence

3. Railroad Companies' Obligations. to keep its machinery in good repair by freWhile the employee assumes to run the or quent inspections. dinary risks of his employment, the railroad 5. Unusual Risks.-It must be understood company, on the other hand, undertakes and

that the employee, when he engages with the agrees to exercise reasonable and ordinary railroad company does not take upon himcare and diligence in furnishing reasonably self extraordinary hazards. And if the emsafe machinery and instrumentalities for ployee is ignorant of the risks incident to his operating its railroad. It must use ordinary work, the employer is obliged to inform him care and diligence in selecting its servants of all the facts concerned in operating the who must be possessed of ordinary skill and machinery, concerning the safety of the sercare. The machinery is not required to be vant, and especially when the service is of the most improved kind nor absolutely hazardous to a degree beyond what appears safe.2

to the ordinary intelligence of an employee. 4. Introduction of New Machinery. The employer must also give all the facts Railroad corporations are not required to if the employee is young and his judgment discard their machinery in use, in order to does not comprehend the dangers, or if the introduce new inventions which are supposed employee is inexperienced, and cannot thereto be an improvement over the old.3 A late fore be fully cognizaut of the dangers.?

The employer must never expose his seri Morgan v. Vale, L. R. 1 Q. B. 149; Railroad Co. v. vant to any unreasonable or extraordinary Wagner (Kans.), 21 Cent. L. J. 51; Railroad Co. v. Loudergan (III.), 7 N. E. Rep. 55; Coombs v. Cord

danger or peril in the course of his employage Co., 102 Mass. 572; Sullivan v. India Co.,113 Mass. ment, and against which, the employee, for 396; Madden v. Railroad Co., 20 N. W. Rep. 317; want of knowledge or skill, cannot, by using Wood's Master and Servant, $ 382. 2 Hutchinson v. York, etc., '5 Exch. 343; Priest

reasonable care and diligence, protect himley v. Fowler, 3 M. W. 1; Payne v. Reese, 100 Pa. St.

self. 8 306; Simons v. Railroad Co. 110 III. 340; Railroad Co. v. McCormick, 74 Ind. 445; Smith v. Railroad Co., 69 4 Railroad Co. v. Loudergan, supra. Mo. 32; McGinpiss v. Bridge Co., 49 Mich. 466; Rail. 5 Railroad Co. v. Jackson, 55 Ill. 493; Condon v. road Co. v. Holt, 29 Kans. 149; Condon v. Rail.

Railroad Co., supra. road Co. 78 Mo. 567; Kirkpatrick v. Railroad Co., 79 6 Barton v. Roberts, 44 Cal. 187; Browne's Dom. N. Y. 240; Dana v. Railroad Co., 92 N. Y. 642; Smith Rel. 126; Strahlendorf v. Rosenthal, 30 Wis. 675. v. Railroad Co., 42 Wis. 526; Johnson v. Tow Boat, 7 Dowling v. Allen, 74 Mo. 13; Sullivan v. India Co., 135 Mass. 209; Rodgers v. Railroad Co. 8 Pac. Rep. supra. 377; Gravelle v. Railroad Co., 11 Fed. Rep. 509.

8 Wonder v. Railroad Co., supra; Hutchinson v. 9 Whart. Neg., 213; Wonder v. Railroad Co., 32 Md. York, etc., supra; Hough v. Railroad Co., 100 U. S. 411.



are not. 20

6. Who Are Fellow-Servants or Consociates ? display a signal to the passenger train, are FIRST: Fellow-servants or consociates must fellow-servants for the purpose of bringing be servants of the same master, employed in the train safely to the station.2 A brakedoing parts of the same work, and shall be man making a switch for his train on a at the time of the injury directly co-opera- track in a railroad yard, is a fellow-servant ting with each other in that particular business with an engine-man of another train of the in hand; or their duties shall bring them into same corporation upon an adjacent track.13 habitual consociation, so that they influence Inspectors of cars in the yard of the comeach other promotive of proper caution.' pany and a brakeman on its trains are fellow

SECOND: Are all who are controlled by the servants in the same employment.14 A fore zame master, engaged in the same general man who directs the moving of cars to be reemployment, and who derive authority and paired is a fellow-servant with the brakeman.15 compensation from the same source, though So is a conductor a fellow-servant with a it may be in different departments, and who brakeman.1 It has been decided that a conhabitually consociate in the performance of ductor and an engineer are not fellow-sertheir customary duties, so that their safety

vants. 17

Conductors of constructive trains depends upon the care of each other, and and laborers on same trains are not felwho can report negligence of duty to a com- low-servants.18 Boss of car repairers and mon master, and who take the risks of each laborers under his supervision are not felother's negligence, are fellow-servants or low-servants. 19 Roadmasters and laborers consociates ?10

THIRD: Other authority, however, makes When a company has several shops, and a broader distinction in defining fellow-ser- used for the same general purpose, and emvant. It is held by some courts that fellow- ploy several gangs of laborers in and about servants include all who are engaged in ac- the shops, a workman employed in taking complishing one and the same object, under material in and out of the shop, is a fellowthe same master, deriving authority and com- servant with a gas-fitter in the employ of the pensation from the same source; all employees same company running a pipe into one of the from the highest to the lowest are fellow- shops at an improper height. Otherwise, servants, no matter how remote from each however, if the master mechanic had ordered other they may be usually engaged, or how the placing of the pipe in such a place. 21 distinct in character and nature may be their A railroad company is bound to inspect respective duties and employment, and with- foreign cars that it hauls over its road, just out any difference in rank or authority, it as it is obligated to inspect its own cars. Its not being necessary, it would seem, to be en. employees take only the same risks in handgaged in the same common service, under the ling these cars as they do in those belonging same general control.11

to the company.

Where a brakeman was 7. Fellow-Servants Distinguished. -Em

injured in coupling by reason of a defective ployees of railroad companies, though of dif- bumper on a foreign car, a defect that could ferent grades, when working in a common have been seen by ordinary inspection, the service are fellow-servants. An engineer on company for whom he was working, was held a moving passenger train and a brakeman on liable. 22

A general manager who makes a freight train of the same company, at a 12 Railroad Co. v. Rush, (Tenn.) 21 Cent. L. J. 369. station, who is ordered by the conductor of 18 Randall v. Railroad Co., 3 Sup. Ct. Rep. 322.

14 Railroad Co. v. Webb, 12 Ohio St. 475: Mackin v. his train to go along the line of the road to

Railroad Co., 135 Mass. 201; Smith v. Potter, 9 N. W.

Rep. 273. 9 Railroad Co. v. Moranda, 108 III. 576.

15 Fraker v. Railroad Co., 19 N. W. Rep. 349. 10 Thomp. Neg. 969, note 2 and 1026, § 31; Wood's 16 Pease v. Railroad Co., 20 N. W. Rep 908. Master and Servant, 837; Addison on Torts, $ 565,

17 Ross v. Railroad Co., Fed. Rep. 544. See Railnote; Moak's Underhill on Torts (ed. 1880), 52; Mor- road Co. v. Ross, 5 Sup. Ct. Rep. 184; 8. C., 112 U. S. gan v. Railroad Co., L. R. 1 Q. B. 149; Railroad Co. v. 377. Ranney, 37 Ohio St. 665; Howland v. Railroad Co., 54 18 Railroad Co. v. Lundstrum, 20 N. W. Rep. 198. Wis. 226; Granelle v. Railroad Co., 10 Fed. Rep. 711; 19 Railroad Co. v. Fox, 3 Pac. Rep. 320. Railroad Co. v. Rider, 4 Texas L. R. 293.

20 Railroad Co. v. Moore, 1 Pac. Rep. 644. For gen11 Railroad Co. v. Fort, 17 Wall. 553: Blake v. Rail- eral discussion, see Pierce's Railroad Law, 299. road Co., 70 Me. 60; Gillshannon v. Railroad Co., 10

21 Railroad Co, v. Bell, 21 Reporter, 698. Cush. 228.

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

rules, and a train dispatcher who gives consociate, and said injury could have been special orders for the running of trains, and avoided by ordinary care on the part of the a head brakeman on a freight train, are not co-servant, the common employer will be fellow-servants.23 A railroad laborer engaged

liable. 29 in distributing rails along the track, under A railroad company is liable to a father for the control of a boss, is not in the same injury to a minor son, who is engaged as brakeemployment as a man controlling and man- man or in other dangerous capacity, withaging a switch engine not used in carrying out the consent of his father, in the course of those rails, and in moving cars not used his employment, though the injury is caused in laying the rails along the track.24 by the minor's own negligence. When the

a railroad company draws over its road minor was injured he was voluntarily acting foreign cars, and an accident occurs from as brakeman with the consent of the train their not being reasonably safe, under any conductor. 30 circumstances, for the business for which 9. Superior Servants.-Some authorities they are used, and there is no negligence on hold that the employee assumes all the risks the part of the employee, the company is lia-growing out of the negligence of superior

ble.26 The Kentucky Court of Appeals have servants even in different departments of decided in a recent case, that if a conductor service so long as both are in the same gencauses injury to a brakeman by gross neg- eral employment, and the negligence of one ligence the company is liable, the conductor

contributes to the danger of the other. 31 and the brakeman not being fellow-servants.26"

But this is not the general doctrine on this 8. Negligence of Fellow-Servants. - The

point. The employer is liable for the negliemployer is not liable to the employee for any

gence of the superior servant, whose orders injury resulting from the negligence of a

the injured employee is bound to obey, even fellow-servant in the same department of serv

though he is in the same general line of emice, provided the master has exercised due

ployment. If the inferior servant, in obeycare and diligence in the selection and re

ing the superior's orders, causes other intention of co-servants. When the employee

jury to employees or himself, the master is engaged in the service he took upon himself

liable. 82 the risk of injury from his fellow-servant. 27

10. Discovery of Defective Machinery by The weight of authority is, that if the em

Employee.The general doctrine is, that when ployer is not negligent in hiring and retaining

the employee discovers that the service has workmen who will use ordinary care and become more dangerous than usual by reason prudence, and furnishes them suitable tools

of defective machinery, or that the employer and appliances to perform the work for

is retaining unfaithful servants, or from any which the servants are engaged, he is not

cause, he must at once cease to work and liable for injuries resulting from negligence leave the service. But in case the employee of fellow-servants in the same service.28

notifies the master of the defects that render It has been held, however, that if a fellow- the service more hazardous, and then the servant is injured by the negligence of his

master promises to make the needed repairs, 23 Phillips v. Railroad Co., (Wis.) N. W. Rep. Dec. or remove the defect, the employee may con12, 1885.

tinue a reasonable time thereafter in order to 24 Garrahy v. Railroad Co., (Kans. U. S. Cir. Ct.) 18 Chi. Legal News, 81, Nov. 14, 1883. 25 O'Neil v. Railroad Co., 9 Fed. Rep. 337..

29 Railroad Co. v. Robinson, 4 Bush. 507; Railroad 26 Railroad Co. v. Moore, Ky. L. Rep., April, 1886. Co. v. O'Connor, 77 Ill. 391. 27 Railroad Co. v. Moranda, 93 Ill. 302; Railroad Co.

20 Railroad Co. v. Willis, 6 Ky. L. Rep. 754. v. Geary, 110 Ill. 383; Railroad Co. v. Fitzpatrick, 2 31 Laning v. Railroad Co., supra; Railroad Co. v. Am. L. J. 60; Crew v. Railread Co., 20 Fed. Rep. 87; Murphy, 53 Ill. 336; Browne's Dom. Rel. 121; Lawler Luce v. Railroad Co., 24 N. W. Rep. 600.

v. Railroad Co., 62 Me. 463; Lewis v. Railroad Co., 59 28 Hugh v. Railroad Co., 6 La. Ann. 495; Railroad Mo. 495. Co. v. Dolan, 32 Mich. 510; Howd v. Railroad Co., 50 32 Whart. Neg. 232; Mullen v. Philadelphia Co., 78 Miss. 178; Railroad Co. v. Thomas, 51 Miss. 637; Carle Pa. St. 25; Gunter v. Graniteville, 18 S. C. 262; v. Railroad Co. 43 Me. 269; Weger v. Railroad Co., 23 Brothers v. Carter, 52 Mo.372; Railroad Co. v. Stevens, Wis. 668; Laler v. Railroad Co., 52 Ill. 401; Hogan v. 20 Ohio St. 415; Cowles v. Railroad Co., 84 N. C. 309; Railroad Co., 49 Cal. 129; Warner v. Railroad Co., 39 Railroad Co. v. Delahunty, 53 Texas, 206; Patterson N. Y. 468; Laning v. Railroad Co., 49 N. Y. 521; Sum. v. Railroad Co., 76 Pa. St. 389; Ford v. Railroad Co., merhays v. Railroad Co., 2 Colo. 484.

110 Mass. 240.

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