To this complaint a demurrer is filed for two causes: First-For the want of an allegation of knowledge on the part of defendant, and a want of it on the plaintiff's part that the floor was defective. And second-Because the injury, if any, resulted from the negligence of plaintiff's fellow-servants.

That the plaintiff is not, in making out his case, required to show a want of concurring negligence on his part is settled by the Supreme Court in Railroad Company v. Gladman, 15 Wall. 401. The court there say: "The plaintiff may establish the negligence of the defendant, his own injury in consequence thereof, and his case is made out. If there are circumstances which convict him of concurring negligence, the defendant must prove them, and thus defeat the action. Irrespective of statute law, the burden of proof on that point does not rest upon the plaintiff." Knowledge on the part of plaintiff that the platform was defective and unsafe is clearly a circumstance tending to convict him of concurring neg

the defendant. It was therefore unnecessary to allege a want of knowledge on his part.

As to the want of an averment of knowledge on defendant's part, if such knowledge is a fact, without proof of which the plaintiff can not establish the charge of negligence, then it should be averred. If, however, the defendant may be convicted of negligence, though ignorant of the defects in the platform, then the complaint is sufficient, and the question of defendant's knowledge, or want of it, is important as a matter of evidence only, in proof of the essential fact, which is the negligence.

in the light of the decisions, it does not mean all who are employed by the same master to carry out a common business, but only such as serve together in such connection and in such capacity that the law exempts the master from liability for injuries, one to another, caused by negligence. Who are to be considered fellow-servants, engaged in a common business, within the rule is, in some degree, an open question in each case, to be determined by the facts of the particular case. But there should be some established principle to guide us in determining that question, and it ought to rest on sound reasoning. The principle which lies at the foundation of the master's exemption in any case, is this That the servant, having voluntarily entered into a contract of service to do a specified work for a specified compensation, has thereby accepted the ordinary perils incident to doing that work; and whenever the negligence of another employee of the same master can be considered an ordinary risk, one which he might reasonably anticipate at the time of making his contract, he ac-ligence, the proof of which, upon the authority cited, rests upon cepts also the perils liable to happen through such negligence. And it seems clear, that upon this principle those only are fellow servants for whose negligence, one to another, the master is exempt, who serve in such capacity and in such relation to the master and each other that the means of the servants to protect themselves are equal to or greater than those of the master to afford them protection; and that further than this justice and policy forbid us to carry the implied portion of the contract of service. Beyond this an injured servant has as clear a title to relief against the master as a stranger, upon the maxim respondeat superior. Such cases as that of Fort, in 17 Wallace, and Ford v. Railroad Company, 110 Mass., 240, with many others, show that the contract of service is not presumed to regulate all the rights and duties of the parties. Under various circumstances the master has been held liable to one servant for the negligence of another, notwithstanding the privity of contract. In such cases the master's liability attaches, not by virtue of his contract, but upon the maxim respondeat superior, which maxim our supreme court has said is of "universal application," and "wholly irrespective of any contract, express or implied, or any other relation between the injured party and the master." Railroad Co. v. Derby, 14 How., 468. Regarding the case at bar in the light of the conclusions thus reached, the complaint states a good cause of action, and it is not enough to defeat it that the negligence charged must have been that of some servant of the defendant employed in the same general business with the plaintiff. To defeat the action, it must ap-Clough, 2 H. & N. 258. To the same effect is the case of Ford v. pear that the plaintiff and the person whose negligence caused the injury were fellow-servants within the principles announced in this opinion.

The demurrer is overruled.

Negligence-Pleading.

*

That the latter proposition is the true one, appears both by the weight of authority and reason. In cases like the present, knowledge is regarded as an ingredient of negligence, which may be proved under an allegation of negligence. It was so held upon demurrer, in Byron v. Telegraph Company, 26 Barb. 39. If a master's personal knowledge of defects in his machinery is necessary to his liability, says Mr. Justice Byles, the more a master neglects his business and abandons it to others, the less will he be liable. But knowledge is only on ingredient in negligence. Clark v. Holmes, 7 H. & N. Ex. 937. Knowledge is only a fact in the case, to be considered by the jury with the other circumstances in determining on the one hand whether the defendant has been guilty of negligence, and on the other whether the plaintiff has been guilty of contributory negligence. But in neither case is such knowledge conclusive on the point. Ibid, and William v.

*

Railroad Company, 10 Mass. 240. Speaking of knowledge on defendant's part, the court said: "The question was not whether the officers named knew or might have known of the defect, or of the incompetency of those who had charge of repairs, but whether the corporation in any part of its organization, by any of its agents, or for want of agents, failed to exercise due care to prevent injury to the plaintiff from defects in the instrument furnished for his use.

J. P. KNARESBOROUGH v. BELCHER SILVER MINING Upon this point we think the demurrer is not well taken.

COMPANY.

United States Circuit Court, District of Nevada.

Before Mr. Justice FIELD, and Mr. District Judge HILLYER.

In an action by an employee against his employer, a corporation, for damages for an injury caused by a defective floor, it is not necessary to allege that the defendant had, or that the plaintiffs had not, knowledge of the defect.

Opinion by HILLYER, District Judge; Mr. Justice FIELD concurring.

The plaintiff sues for injuries received while in the defendant's employment. The injuries were caused by a defective floor or platform upon which he was at work, and it is alleged in the complaint that the defendant provided this insecure and defective platform negligently. There is no allegation in the complaint that the plaintiff did not know, or that the defendant did know, that the floor was defective and insecure.

The second cause of demurrer alleged, is that the injury, if any, resulted from the negligence of plaintiff's fellow-servants.

In the case of Kieley against the same defendant, this point was discussed at some length at this term, and the conclusion reached that the doctrine contended for by the defendant was not law. It was this: That the defendant, being a corporation, and unable to act otherwise than by means of servants, all persons employed by it in the same general business must necessarily be fellow-servants, within the rule exempting the master from liability for the negligence of one servant to another. It is unnecessary to discuss the point in this case, or do more than refer to what was said by the

court in Kieley's case.

The demurrer is overruled.

-A TIN POT, valued at fifty cents, has lately been the subject of contention in a Brooklyn court, where the lawyers' fees were two hundred and fifty dollars, and the damages were laid at three thousand dollars.

Negligence by Surgeon - Contributory Negligence and that direction was such as a surgeon or physician of ordin

2. The information given by a surgeon to his patient concerning the nature of his

ary skill would adopt or sanction, and the plaintiff negligently failed to observe such direction, or purposely disobeyed the same, and that such neglect or disobedience approximately contributed to the injuries of which he complains, he can not recover in this action, although he may prove that the defendant's negligence and want of skill also contributed to the injury. This grows out of the doctine that a party, who has directly, by his own negligence or disregard of duty, contributed to bring an injury upon himself, can not hold other parties, who have also contributed to the same, responsible for any part thereof, nor does it make any difference that one of the parties contributed in a much greater degree than the other; the injured party must not have contributed at all."

We are of opinion that the court did not err in so modifying the

malady, is a circumstance that should be considered in determining whether the patient, instructions requested by the plaintiff, whether the action be

in disobeying the instructions of the surgeon, was guilty of contributory negligence

⚫r not.

regarded as based upon the implied contract of the surgeon or

Motion for leave to file a petition in error to the District Court upon tort. of Ashland County.

Geddes, Dickey & Jenner, for plaintiff :

If a surgeon fails to exercise the ordinary care and skill of his profession, and thereby damages ensue to the patient, the patient may recover for such damages. 17 Ohio St. 262.

Failure of the patient to comply with the instructions of the surgeon does not constitute contributory negligence, where the instructions require more than the ordinary care and prudence of a person not a physician or surgeon. McCandless v. McWha, 22 Penn. St. 272.

It is a well-settled principle of law, that a party seeking to recover for an injury, must not have contributed to it in any degree either by his negligence, or the disregard of duty imposed upon him by a party who, by his negligence or want of care or skill, may also, in some degree, have contributed to the injury. Smith v. Smith, 2 Pick. 621; Hibbard v. Thompson, 109 Mass. 286.

This principle, as well as the evidence in the case, was entirely ignored by the instructions asked to be given to the jury by plaintiff's counsel.

It is also claimed that the court below erred in overruling the motion of the plaintiff for a new trial on the ground that the ver

In all its principles this case differs from that of Hibbard v. dict was contrary to the evidence. Thompson, 109 Mass. 286.

Matson & Leyman, for defendant:

The doctrine of contributory negligence applies. Shearman & Redfield on Negligence, secs. 34, 37, and notes; 3 Ohio St. 172; 6 Ohio St. 109; 11 Ohio St. 571; Hibbard v. Thompson, 109 Mass.

This claim is based upon the alleged facts, among others, that the testimony shows that the neglect and refusal of the plaintiff to obey the instructions of the defendant as to the condition in which the foot was to be kept, that of "absolute rest," was induced by the false information given by the defendant to plaintiff concerning the nature of his malady, and that the defendant, by McCandless v. McWha, 22 Penn. St. 272, lays down a contrary his want of skill in the treatment of the disease, caused the rule from that claimed by counsel for plaintiff.

286.

RIX, J.-This was an action to recover of the defendant, a physician and surgeon, for malpractice in treating a swollen and diseased foot and ankle of the plaintiff. One of the questions presented for our consideration, arises upon the refusal of the court to instruct the jury as requested by the plaintiff, and upon the instructions given in relation to the question of contributory negligence, on which subject there was testimony, tending to show such negligence on the part of the plaintiff. The instructions requested by counsel for plaintiff, were:

I." That if they find any want of the ordinary care, skill, or diligence of physicians and surgeons, on the part of the defendant, which diminished the chances of the plaintiff's recovery, or increased his sufferings, or prolonged his illness, such want of care, skill, or diligence would constitute injury to the plaintiff, for which he is entitled to recover."

2. "That if they find the plaintiff retained the defendant as a physician and surgeon to manage, take care of, and treat the diseased and swollen foot and ankle of the plaintiff described in the petition, in a skillful and proper manner, and that the defendant, being so retained, did professionally, as a surgeon and physician, manage and treat said diseased and swollen ankle, and in such management and treatment did not exercise the ordinary care, skill, and diligence of surgeons and physicians in such cases, and injury resulted to the plaintiff from such want of care, skill, and diligence, then, and in that case, the plaintiff is entitled to recover in this ac· tion," which the court gave to the jury with this modification: "If you shall find that the defendant directed the plaintiff to observe absolute rest, as a part of the treatment to said foot, * From advance sheets of 25 Ohio State Reports, received through the courtesy of the publishers, Messrs. Robert Clark & Co., of Cincinnati.

injury.

Upon these points, the testimony contained in the record is conflicting.

It is undoubtedly true, that the information which a surgeon may give to a patient concerning the nature of his malady, is a circumstance that should be considered by the jury in determining the question whether the patient, in disobeying the instructions of the surgeon, was guilty of contributory negligence or not.

No special instruction was asked upon this point at the trial in the court of common pleas, and as we are unable, from an examination of all the testimony, to say that the plaintiff was misled by any false statement made to him by the defendant, as to the nature of his malady, we are of opinion that the court did not err in overruling the motion on this ground.

The remaining point was fully and fairly submitted to the jury by the court, upon all the evidence in the case, and we do not think their finding should be disturbed. LEAVE REfused. MCILVAINE, C. J., and WELCH, WHITE, and GILMORE, JJ., concurring.

Briefs.

Negligence of Railway-Fences-Injury to Property--Damages.-W. M. Querry v. M. K. & T. R. R. Co. In the Supreme Court of Missouri. Brief for defendant, pp. 18. This was an action for damages for injuries sustained by plaintiff in loss of a cow, through negligence of defendant in not keeping up a fence, and in rendering said cow worthless by per mitting a train to run over her. [Address J. Montgomery, Jr., Esq., Sedalia, Mo.]

Double Damages.-E. C. Parish v. M. K. & T. R. R. Co. In the Su

preme Court of Missouri. Brief for the defendant and appellant, pp. 7. In lower court, verdict was returned for certain sum, which, on motion, was doubled. Defendant excepted on ground that court had no jurisdiction. [Address J. Montgomery, Jr., Esq.]

Ejectment to recover of Railroad Company Lands used in Constructing the Same.-W. Quayle v. T. and N. R. R. Co. In the Supreme Court of Missouri. Brief for defendants, pp. 18. Plaintiff's land, was condemned by authority to allow defendants to build roads thereon. Defendants, upon judgment, paid necessary damages into court, for said plaintiff. [Address J. Montgomery, Jr., Esq., Sedalia, Mo.]

Power of one Executor, the other not qualiying, to carry out the Testator's Will.-T. J. Johnson v. Drucilla Bowden. In the Supreme Court of Texas. Brief for plaintiff, pp. 13. A testator dying, only one executor qualified. This executor carried out the terms of the will, and sold land to plaintiff. Question arises, could one executor, or trustee, execute a trust, the other not joining? [Address T.T. Gammage, Esq., Palestine, Texas.]

Taxation by Town for Subscription to Railroad-Election Noesen et al. v. Port Washington et al. Supreme Court of Wisconsin. Brief for plaintiff, pp. 16. It is asserted that the town officers called a meeting in an illegal manner, where it was voted that the town take certain stock in a certain railroad. This action is to prevent threatened taxation under that vote. [Address Smith & Stark, Milwaukee, Wis.]

(Cairns) and Lord Justice James. A widow transferred stock which had previously stood in the joint names of her husband and herself, and to which she had become entitled by survivorship on the death of her husband, into the dividends of the stock were enjoyed by the transferor during her life. the joint names of herself, her daughter, and her daughter's husband; and The daughter died before her mother, and the son-in-law survived the mother. Held (affirming the decision of Hall, V. C.), that there was no resulti ng trus and that the son-in-law was entitled to the fund by survivorship.

CHICAGO LEGAL NEWS, OCTOBER 9.

Bankruptcy-Claim of Person Holding Stocks on a MarginSale-Deficiency-Expunging Claim.-In re John H. Daniels, a bankrupt, U. S. Dist. Court, N. D. of Ill. Opinion by Blodgett, J. The bankrupt was a banker in Illinois. The claimants, who were stock brokers in New York, purchased stock upon the order of Daniels, the bankrupt, paying the money therefor and receiving and holding the stocks, together with a margin of the ten per cent., or less, as security for the money advanced by them. At the time Daniels was declared a bankrupt, the stocks could have been sold by the claimant so as to have left a small balance in favor of Daniels, but the claimant held the stocks until they depreciated, sold them, and then filed his

Banks and Banking-Conversion of Deposits.-First Nat. Bank claim against the bankrupt's estate for the balance. The court held, that it

of Manhattan v. Citizens Bank of Topeka. In the United States District Court of Kansas. Brief for plaintiff, pp 21. Statement of the case: A deposit of a note for six thousand five hundred and twenty-four dollars, and of seven hundred and fifty dollars in cash was made with the defendant for the benefit of the plaintiff. This deposit, the petition alleges, the defendant wrongfully converted to its own use and benefit. The evidence on the trial showed that the cashier of the defendant, in conspiracy and collusion with the party depositing, re-delivered the deposit to said party without the knowledge or consent of the plaintiff. The deposit was made in pursuance of the compromise of an attachment suit, wherein the plaintiff had attached a herd of Texas cattle, as the property of Andrew Wilson, one of the depositing parties. The plaintiff released its attachment, the cattle were driven out of the district, and then the defendant gave up the deposit to Wilson again, or to his order. The jury returned a verdict in favor of the plaintiff for seven thousand five hundred dollars. A motion is now made in arrest of judgment and also for a new trial. [Address G. C. Clemens, Esq., Topeka, Kan.]

U. S. Patents versus Spanish Grants.-D. A. Harvey et al. v Ferdinand Rusch et al. Circuit Court, St. Louis County, Missouri. Brief. for plaintiffs, pp. 38. The plaintiffs claim the land in controversy as the legal representatives of patentees of the United States; the defendants, under grant rom the Spanish government, in 1802, confirmed by Congress in 1860. It is urged that Spain had no right in the land in 1802, and could have made no valid grant. So that the act of 1860 could not extend to any such grant, as that would be to confirm that which was void. The brief is an able discussion of many points under the acts of 1805, 1814, 1816 and 1836, pertaining to the subject. [Address P. E. Bland, Esq., St. Louis, Mo.]

Property in Logs from Indian Reservation.-U. S. v. Geo. Cook Supreme Court of United States. The treaty of 1838 gave certain Indians a reservation, whence logs were sold, in which logs the government claimed proprietorship. This is an argument for defendant the vendee of the Indians, pp. 9. [Address Winfield Smith, Esq., Milwaukee, Wis.]

Franchises-Right of One Railway to Condemn Road of An other.-Central City Rev. v. Fort Clark Rev. Supreme Court of Illinois Brief for plaintiff, pp. 30. Each railway was chartered to run between the same points, and defendant seeks to have court condemn plantiff's road to a certain extent, for the use of defendant; which plaintiff declares an infringement of its franchise and improper use of right of eminent domain. [Address L. Har mon, Esq, Peoria, Ills.]

Breach of Promise.-Glasscock v. Shell. In the Supreme Court of Texas. This is the first case of the kind in Texas. The brief of plaintiff and appellant was noticed in No. 39, p. 631 ante. Supplemental brief for appellant pp. 34. This case involves the richest discussions which have come before the eye of the "brevity man" of the JOURNAL. [Address Peeler, Montgomery & Fisher, Austin, Texas.

In our notice of briefs, ante, p. 667, we should have stated that Messrs. Low and McDougal were for defendant, and not plaintiff, in the case of Livingston Co. v. St. L.. C. B. & O. R. R. Co.

Summary of Our Legal Exchanges.

COMMERCIAL AND LEGAL REPORTER, October 6.* Advancement-Transfer of Stock into Joint Names of Transferor, Daughter and Son in Law-Survivorship.-Batstone v. Slater. English Court of Appeals in Chancery. Before the Lord Chancellor *Nashville, Tenn.: James Browne.

was the duty of the claimants to take notice of the adjudication of bankruptcy of Daniels, and that they were bound to know that their correspondent had lost his ability to pay, and that the management of his affairs was thereafter in the hands of the court, and if they had notified the court it would have ordered the stocks sold before they depreciated in value, but not having done so, and having sold them without the order of court, the debt having accrued after the adjudication in bankruptcy, the claim is not allowed, but expunged. Bankruptcy-Record of as Evidence-Corporation-Assessment by Authority of Court.-Michener, Plaintiff in Error, v. Payson Assignee of the Republic Ins. Co., Chicago. U. S. Cir. C., E. D. of Pa Opinion by McKennan, J. 1. The record as certified by the clerk was properly admitted, not only to prove the assignment, but also to show that an assessment by authority of the bankrupt court upon the stock of the bankrupt insurance company to pay losses had been made; that the certificate being of all "matters of record" touching the assessment, it was properly admitted to show that fact, although it did not purport to be a complete record of the whole proceedings. 2. The court appointing the assignee has exclusive jurisdiction of the administration of the bankrupt's assets, and to their distribution among creditors; that any adjudication which it may make in the exercise of this jurisdiction is unquestionable in a collateral proceeding in another form; that the assessment in question was directed and sanctioned by the court which has authority so to adjudge, and for any excess in it redress must be sought in that tribunal.

THE AMERICAN LAW REGISTER, OCTOBER.* Prescription-Profit a prendre--The Word "Beach."--Merwin v Wheeler. In Supreme Court of Errors of Connecticut. [14 Amer. L. Reg. (N. S.) 601.] Opinion by Seymour, C. J. 1. A strip of sandy beach, mainly valuable for its sand as an article of merchandise, was owned in fee by the plaintiffs, and the defendant claimed a prescriptive right to take sand ad libitum therefrom. Held, that evidence that the defendant, as one of the public and not as incident to an estate in other lands, had taken sand ad libitum from the beach, did not tend to prove an individual prescriptive right. Such an unlimited right to take the sand would be equivalent to full ownership, and inconsistent with the plaintiffs' title in fee. 3. A prescription, as well as a custom, to be valid must not be unreasonable. 4. The right would be a profit a prendre and not an easement, and such rights must, as a general, and perhaps universal rule, be prescribed for as incident to other lands, for, the benefit of or in connection with which the rights are to be exercised. 5. The word beach." has no such inflexible meaning that it must denote land

2.

Interest not always Recoverable-Interest in Virginia. -Harmanson, Assignee v. Wilson United States District Court. East. District of Virginia Opinion by Hughes, J. [14 Am L Reg. (N. S.) 627.] 1. Where interest is not expressly stipulated for in the contract, it is not an essential part thereof, and the state may prohibit its recovery without impairing the obligation of the contract. 2. In Virginia the interest is only recoverable by virtue of statutes which make the allowance of it discretionary with the court and jury. Therefore a statute allowing an abatement of interest that accrued during the war, between citizens of the same state, is constitutional and valid. 3. Semble, the act would be valid in Virginia, even in cases where interest was expressly contracted for.

Assignment by Debtor, Valid-National Bankrupt Act.-Cook v. Rogers, Garnishee of Bow. Supreme Court of Michigan. Opinion by Graves, J. [14 Am. L. Reg. (N. S.) 633.] 1. An assignment by a debtor of

*Philadelphia: D. B. Canfield & Co.

Definite Rate of Premium and Duration of Policy Necessary-ibility of Evidence of Final Adjustment.-Benson v. Tilton and Usage of Company.-Strohn v. Hartford Fire Ins. Co. Supreme Court of Wife. [54 N. H. 174.] 1. An unadjusted partnership transaction or ac Wisconsin. Op nion by Cole, J. [4 Ins. L. J. 680] An agreement with an count is not a proper matter for specification or a set-off in an action, at law. agent to insure, in which neither the rate of premium nor time the insurance 2. B. brought a writ of entry upon a mortgage against T. and his wife. was to run were fixed upon, but were left subject to future adjustment, does A son of T. had sold the note, which was secured by the mortgage, to B., not constitute a valid contract of insurance. The principal of a promissory with whom he had been in partnership, but they had dissolved and made a note or check silent as to time, can not be applied to a contract of insurance. partial adjustment of their partnership business before suit brought T. offered Usage of the company as to its practice in its insurance with other parties is to show that the partners had made a full and final adjustment of said partnerimmaterial where no complete contract has been made. ship busiuess, and that in such adjustment the plaintiff had been fully paid for this note and mortgage, and had agreed to give up the same to the defendant or his son. Held, that the evidence was competent.