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by the trial court, or the submission of the same to a jury. The measure of her relief would be the actual damage suffered in consequence of defendant's failure of duty. The case must therefore be reversed.

It was also claimed by plaintiff that she was entitled to the commission received by defendant, Cathcart, her agent, and that the court erred in holding otherwise. It appears, without dispute, that Cathcart did receive from the apartment house company a commission of five hundred dollars for his services in effecting the exchange of properties. We do not concur with plaintiff's counsel, however, that plaintiff is entitled to any portion of it. The evidence disclosed by the record fairly shows that plaintiff contemplated that defendant should receive some sort of a commission, and this is clearly shown by the correspondence between the parties. As a condition to the acceptance of the final offer to exchange the properties, she distinctly stated that it must include all commissions to be received or claimed by Cathcart. It therefore appears from the record that Cathcart was entitled to negotiate for and accept and receive a com. mission for his services in the premises, and this with the knowledge and consent of plaintiff. And having done so with her express consent, he is entitled to retain the same.

Order reversed and new trial granted.

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The Principal Case is supported by Hegenmyer v. Marks, 37 Minn. 6, 5 Am. St. Rep. 808, 52 N, W. 785.

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CURRAN V. OLSON.

[88 Minn, 307, 92 N. W. 1124.) NEGLIGENCE of Saloon-keeper-Injury to Guest.--A saloonkeeper is bound to use reasonable care to protect his guests and patrons from injury at the hands of vicious or lawless persons whom he knowingly permits to be in or about his saloon. Hence, he is liable to a guest who, in his presence, is injured by the act of a third person in pouring alcohol on such guest while he is asleep, and then setting it on fire. (p. 518.)

J. A. Sorley and F. C. Massee, for the appellants.
H. A. Bronson, for the respondent.

307 START, C. J. Action to recover damages for personal injuries sustained by the plaintiff while in the saloon of the de

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fedant. Plaintiff had a verdict in the court below, and de

the is to the effect that the bartender not only knew of these
Type of brutality

, but furnished the alcohol which the cook
Te erikace does not establish the contributory negli-

of the plaintif as a matter of law. The verdict is sus-
is the evidence
Vrier afirmed.

ki i the Duty of the Proprietor of a saloon or tavern to see that
15 a7ons are protected from the wrongdoing of those in his employ
wise whom he chooses to harbor. And he is liable for injuries sus-

ose who comes into his place and becomes intoxicated, by rea-
ad 20: her, who also becomes intoxicated there, and who, in view of
na magneter

, attaches a piece of paper to the former and sets it 1 iz: Bommel v. Sebambacher, 120 Pa. St. 579, 6 Am. St. Rep. 2 li atl 179. See, also, Mastad v. Swedish Brethren, 83 Minn. 4.1. F. 915, 85 Am. St. Rep. 446, and monographic note.

fendants, by reason of their alleged negligence in failing to protect him from an assault by a vicious and lawless person whom they permitted to be in and about their saloon. The answer was a denial. Verdict for the plaintiff in the sum of one hundred dollars, and the defendants appealed from an order denying their alternative motion for judgment or a new trial.

The question presented by the record is whether the verdict is sustained by the evidence. The defendants claim that it is not, because the evidence fails to show any negligence or wrong on their part, but that it does conclusively show that the plaintiff was guilty of contributory negligence. The evidence tends to show that the plaintiff for some days prior to his injury had been a 308 guest and a patron of the defendant: saloon at East Grand Forks; that, having spent all of his money therein, he went, on the night of February 10, 1902, into the saloon to sleep, and at about 1:30 A. M. he fell asleep in his chair; that a cook in a restaurant in the rear of the saloon, belonging to a third party, came into the saloon, got alcohol from the bartender in charge of the room, poured it upon the left foot of the plaintiff

, and set it on fire, whereby he was seriously injured; and, further, that the bartender knew, or might have known by the exercise of the slightest care, what the alcohol was to be used for, and could have prevented the injury to the plaintiff. Neither of the defendants was present at the time.

The defendants were bound to use reasonable care to protect their guests and patrons from injury at the hands of vicious or lawless persons whom they knowingly permitted to be in and about their saloon. If they delegated this duty to their barkeeper, they are responsible for his negligence in the premises : Mastad v. Swedish Brethren, 83 Minn. 40, 85 Am. St. Rep. 446, 85 N. W. 913. The evidence is ample to sustain a finding by the jury that the defendants were guilty of negligence which was the proximate cause of the plaintiff's injury. The claim that the plaintiff was guilty of contributory negli

. gence is based upon the facts that before the plaintiff was in. jured, and during the same night, the cook on two separate occasions came into the saloon, and, finding a guest asleep, got alcohol, poured it upon the feet of the sleeper, and then set fire to it; that the plaintiff witnessed the orgies, and laughed and joked with the other guests over the discomfiture of the sleepers, and said nothing to the bartender about it; that he stayed awake as long as he could, so that alcohol could not be put on his feet and fired, but he at last fell asleep. The great weight of the

FEWINGS 5. MENDENHALL.

[88 Minn. 336, 93 N. W. 127.]
CARRIERS–Duty to Passengers-- Protection Against Strikers.
varier of passengers is not required to exercise the utmost care
au pilian se to protect them from the criminal acts of strikers and
Kangerte

, not under its control nor subject to its orders. As to the
en such persons, carriers of passengers are liable for the exercise
terinary care and prudence only. (p. 524.)

CARRIERS–Protection of Passengers Against Strikers.- A sa of passengers is charged with ordinary care and prudence Las to guard them against the lawless acts of strikers and strangers sa pader its direction or control, and its failure to pull down the heds of the car in which a passenger is riding or to stretch a siy tantas over the windows of the car as a protection against od 37 228 aets, is not negligence for which a recovery can be bad a personal injuries received. (p. 524.) CARRIERS–Protection of Passengers Against Strikers.—A

passengers attempting to operate its cars during a strike is employés is not guilty of negligence in failing to notify its planner of the violent conduct of such strikers and their sym. Lihts, over whom he has no direction or control. (p. 525.) Green & Wood, for the appellant. 1. Jensvold, Jr., for the respondent. ** BROWN, J. Action to recover damages for personal in. phis alleged to have been oecasioned by the negligence of de

evidence is to the effect that the bartender not only knew of these
two cases of brutality, but furnished the alcohol which the cook
used. The evidence does not establish the contributory negli-
gence of the plaintiff as a matter of law. The verdict is sus-
tained by the evidence.

Order affirmed.

It is the Duty of the Proprietor of a saloon or tavern to see that his patrons are protected from the wrongdoing of those in his employ and those whom he chooses to harbor. And he is liable for injuries sustained by one who comes into his place and becomes intoxicated, by reason of another, who also becomes intoxicated there, and who, in view of the proprietor, attaches a piece of paper to the former and sets it on fire: Rommel v. Sehambacher, 120 Pa. St. 579, 6 Am. St. Rep. 732, 11 Atl. 779. See, also, Mastad y. Swedish Brethren, 83 Minn. 40, 85 N. W. 913, 85' Am. St. Rep. 446, and monographic bote.

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FEWINGS V. MENDENHALL.

[88 Minn. 336, 93 N. W. 127.)
CARRIERS-Duty to Passengers-Protection Against Strikers.
A carrier of passengers is not required to exercise the utmost care
and vigilance to protect them from the criminal acts of strikers and
strangers, not under its control nor subject to its orders. As to the
acts of such persons, carriers of passengers are liable for the exercise
of ordinary care and prudence only. (p. 524.)

CARRIERS-Protection of Passengers Against Strikers.-A
carrier of passengers is charged with ordinary care and prudence
only to guard them against the lawless acts of strikers and strangers
pot under its direction or control, and its failure to pull down the
blinds of the car in which a passenger is riding or to stretch a
heavy canvas over the windows of the car as a protection against
such lawless acts, is not negligence for wbich a recovery can be bad
for personal injuries received. (p. 524.)

CARRIERS-Protection of Passengers Against Strikers.--A carrier of passengers attempting to operate its cars during a strike of its employés is not guilty of negligence in failing to notify its passenger of the violent conduct of such strikers and their sympathizers, over whom he has no direction or control. (p. 525.)

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Green & Wood, for the appellant.
J. Jenswold, Jr., for the respondent.

838 BROWN, J. Action to recover damages for personal in.
juries alleged to have been occasioned by the negligence of de-
fendant. Plaintiff had a verdict in the court below, and de-

)

* with the company, but by a boy who was in no way under the

zda lor plaintif for the sum of ten thousand three hundred
Lepthree dollars and thirty-three cents.
ir prizipal question presented for consideration at this time
sana the evidence is sufficient to sustain a finding of action-
de salirnce against defendant. Other questions are discussed
tres
res vf counsel

, but the evidence upon this question ap-
a 2 de substantially the same as on the former trial, and it is
2 tle parties that the question be now met and determined,
cate litigation may be brought to an end, and further expense

In the consideration of this question it is proper to pat first the degree of care required of defendant under cir

s like those shown, for in determining whether he was aj si negligence which was the proximate cause of plaintiff's yee must be guided by the rules of duty and care necessary keerised in such cases. Though no exceptions were taken 23 marge of the trial court, wherein the jury was instructed e bendent was charged with the highest degree of care and fit for the protection of plaintiff while a passenger, the m. is properly presented by the errors assigned on the eta for a new trial and by the assignments of error in this

fendant appealed from an order denying his motion for judg. ment notwithstanding the verdict or for a new trial.

The case was here on a former appeal: Fewings v. Mendenhall, 83 Minn. 237, 86 N. W. 96. The facts are there fully stated, but for an understanding of the questions presented at this time, a restatement is necessary; but in doing so we follow substantially the statement there made. Defendant, as receiver of the Duluth Street Railway Company, has operated its street-car system since July, 1898. On May 2, 1899, a general strike was inaugurated by the employés of the company, which was maintained until after the plaintiff was injured as hereinafter stated. Defendant procured other men to take the place of the strikers, and continued to operate the street-car lines. On Sunday even. ing, May 7th, plaintiff took passage in a car operated by defendant, at Superior, in the state of Wisconsin, for Duluth. While the car was going northerly along Garfield avenue in Duluth, and as it approached Michigan street, a young man, not in any way connected with the company as an employé or otherwise, not & passenger, nor in any way under the control or direction of defendant, threw a stone at the car in which plaintiff was so riding, which passed through the window thereof, and struck plaintiff on the head, whereby he was seriously injured. He brought this action to recover damages because of such injury, basing his claim to a right of recovery on the alleged negligence of defendant in failing to take proper precautions to prevent injuries from acts of this kind. The complaint alleges, among other things, that plaintiff

, as & passenger, was exposed to imminent danger by reason of the violent and unlawful acts of the strikers and their sympathizers; and that defendant, in the exercise of due care and prudence, could have prevented the same and protected plaintiff and the other passengers in the car from injury; but, notwithstanding this, that he carelessly failed and omitted to warn the plaintiff of any danger, or to make any effort or take any precautions to prevent 339 injury to him, or to provide or make use of any barriers or other means to avert injury resulting from acts of the kind complained of. It was held on the former appeal that defendant was not guilty of negligence in attempting to operate the cars during the strike, and that the trial court erred in submitting that question to the jury. The cause was remanded, and again tried, resulting in a finding by the jury that defendant was guilty of negligence in failing to take proper precautions to avert and prevent accidents of the kind complained of, and returned &

The strike which the employés of the street railway company sunted was bitterly and stubbornly contested, and resulted Buzh lawlessness and acts of violence on the part of the striksed their sympathizers toward the property of the company, este purpose in view of preventing the operation of the cars chining a submission to their terms. The act which resulted

was not committed by an employé, a fellow. 1, or by one having any connection or relation whatever

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strol of the company or any of its agents. He was a sympa-
sez vith the strikers

, and by his act of lawlessness no doubt bereikt he was aiding their cause. Ine question as to the extent of responsibility of a carrier of piragers and the degree of care essential to be exercised for se protection as to acts committed by strangers to the carrier a teter, prior to this case, been presented to this court for its kion. The general rule that such carrier is required to exertake that highest degree of care and foresight consistent with the elets conduct of its business is one that has very uniformly best applied by all the courts in cases where the act or omission en la pod of as negligence was in respect to a matter under the salind of the carrier. A carrier of passengers is required to ex

verdict for plaintiff for the sum of ten thousand three hundred and eighty-three dollars and thirty-three cents.

The principal question presented for consideration at this time is whether the evidence is sufficient to sustain a finding of actionable negligence against defendant. Other questions are discussed in the briefs of counsel, but the evidence upon this question appears to be substantially the same as on the former trial, and it is due to the parties that the question be now met and determined, that the litigation may be brought to an end, and further expense obviated. In the consideration of this question it is proper to inquire first the degree of care required of defendant under circumstances like those shown, for in determining whether he was guilty of negligence which was the proximate cause of plaintiff's injury we must be guided by the rules of duty and care necessary to be exercised in such cases. Though no exceptions were taken to the charge of the trial court, wherein the jury was instructed that defendant was charged with the highest degree of care and foresight for the protection of plaintiff while a passenger, the question is properly presented by the errors assigned on the motion for a new trial and by the assignments of error in this court.

The strike which the employés of the street railway company inaugurated was bitterly and stubbornly contested, and resulted in much lawlessness and acts of violence on the part of the strikers and their sympathizers toward the property of the company, with the purpose in view of preventing the operation of the cars and forcing a submission to their terms. The act which resulted in plaintiff's injury was not committed by an employé, a fellow. passenger, or by one having any connection or relation whatever 840 with the company, but by a boy who was in no way under the control of the company or any of its agents. He was a sympathizer with the strikers, and by his act of lawlessness no doubt thought he was aiding their cause.

The question as to the extent of responsibility of a carrier of passengers and the degree of care essential to be exercised for their protection as to acts committed by strangers to the carrier has never, prior to this case, been presented to this court for its decision. The general rule that such carrier is required to exercise the highest degree of care and foresight consistent with the orderly conduct of its business is one that has very uniformly been applied by all the courts in cases where the act or omission complained of as negligence was in respect to a matter under the control of the carrier. A carrier of passengers is required to er.

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