264 Louis & I. M. R. Co., 59 Mo. 495; Wilson v. Merry, 1 H. L. Sc. App. 326; Wigmore The court say, in the case of State v. Malster, 12 Reporter, 783, that to the general In Kain v. Smith, 3 Ohio Law J. 154, the New York court of appeals held that the master is liable for injuries caused by defects in machinery or apparatus which should have been discovered and remedied by the master mechanic or foreman, when such defects caused the injury complained of. It has been held in Missouri, Marshall v. Schricker, 63 Mo. 309, that "the employer cannot be charged with negligence of one who was merely a foreman over the plaintiff, not engaged in a distinct part of the general service, but in the same work with the plaintiff, and not charged with any executive duties or control over plaintiff which would constitute him the agent of the employer." This is a place where Browne's alter ego doctrine comes into play; but, according to the writer's way of viewing the question, this is not in accord with the current of the decisions and the weight of authority. The weight of authority, at least in the more recent cases, is to the effect that, no matter whether the foreman or superior servant is vested with "executive powers or not, if an inferior employe is required to obey the directions of such superior servant or foreman in charge, he is not a fellow-workman within the rule, and the common master will be liable in damages for any negligence on the part of such superior servant or foreman in charge, which results in injury to an inferior servant or employe; and particularly when such inferior servant or employe is injured while attempting to perform an act directed by such foreman or superior servant. Dowling v. Allen, 74 Mo. 13. It may be laid down as a general rule that a master is liable for all injuries caused by the negligence of a fellow-servant, when such fellow-servant is empowered with superior authority and may direct the inferior. Cowles v. Richmond & D. R. Co., 84 N. C. 309; Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221. Thus, in the case of McCosker v. Long Island R. Co., 10 Reporter, 608, the New York court of appeals held that a yard-master of a railway company, who had charge of the making up of trains, and the power to employ and discharge subordinates, stands in the place of the company pro hac vice. And there are a number of cases to the same effect. See Laning v. New York Cent. R. Co., 49 N. Y. 521; Brickner v. New York Cent. R. Co., Id. 672; Flike v. Boston & A. R. Co., 53 N. Y. 549; Malone v. Hathaway, 64 N. Y. 5; Besel v. New York Cent. & H. R. R. Co., 70 N. Y. 171; Fort v. Whipple, 11 Hun, 586; Eagan v. Tucker, 18 Hun, 347; Mullon v. Steam-ship Co., 78 Pa. St. 26; Railway Co. v. Lewis, 33 Ohio St. 196; Dobbin v. Richmond & D. R. Co., 81 N. C. 446; The Clatsop Chief, 7 Sawy. 274; S. C. 8 Fed. Rep. 163. In the case of The Clatsop Chief it is said: "The deceased was merely the fireman of the Clatsop Chief, and, as such, subject to the orders of the master. He was an inferior servant, injured by the misconduct of a superior one, for which injury there is much authority and more reason for holding This is manifestly the only just and equitable docthe common employer liable." trine. It may be a breaking away from the rigorous and inequitable rules of the En 1 glish common law, and from the former doctrine in this country; see Buckley v. Gould & C. Min. Co., 14 Fed. Rep. 833, and note, 840, but the tide seems to be now fully set in the direction of justice and humanity, and the poor laborer, who, under the old rule, was left to be driven about by the winds of chance, stranded upon the shoals of misfortune, or wrecked upon the rocks of adversity, will be better protected in his person and his rights in the future. Packet Co. v. McCue, 17 Wall. 513; Railroad Co. v. Fort, Id. 557; Berea Stone Co. v. Kraft, 31 Ohio St. 289; Chicago & N. W. R. Co. v. Moranda, 93 III. 302; Devany v. Vulcan Iron Works, 4 Mo. App. 236; Gormly v. Vulcan Iron Works, 61 Mo. 492; The Chandos, 6 Sawy. 548. St. Paul, Minn. JAS. M. KERR, PHILBRICK V. CITY OF NILES. 'Circuit Court, W. D. Michigan, S. D. September 10, 1885.) 1. NEGLIGENCE-Defective SIDEWALK-QUESTION FOR JURY. When, in an action to recover damages for a personal injury caused by a defective sidewalk, the evidence upon the issue of negligence or contributory negligence presents a question of fact to be considered and determined by weighing evidence, it is the province of the jury, and not of the court, to determine it. 2. SAME-NEW TRIAL-EXCESSIVE DAMAGES. A verdict of $3,000 for personal injury, caused by falling through an opening in a sidewalk, held not so excessive as to warrant a new trial. Assumpsit. Motion for a new trial. George S. Clapp and James A. Kellogg, for plaintiff. WITHEY, J. The grounds of the defendant's motion for a new trial are that the verdict is against the weight of evidence, contrary to the law and the charge of the court; that the court refused to grant some of the defendant's requests, and that the damages are excessive. The jury gave the plaintiff a verdict for $3,000 damages as compensation for personal injuries sustained by falling through an opening in a sidewalk into the area under the walk in the defendant city. The plaintiff was going south on the sidewalk in question, carrying an open umbrella somewhat in front of her, to ward off the wind and snow which were coming from the south-west, and, not seeing the hole in the walk, which was then uncovered, fell through it into the area. The street was a public one, and the plaintiff had previously passed over the same walk, and never observed any sign or evidence of danger to persons passing over it; nor was there, in fact, any danger when the trap-door was in its place which usually covered the opening. Years prior to the event in question the owners of the property fronting on the sidewalk built the walk, leaving the opening in question, about three feet wide by five feet long, to which a trap-door was fitted. They and their tenants were accustomed, from the time the walk was built, to remove the cover whenever they had occasion either to lower merchandise or other articles into the area, or to remove therefrom any articles. The area was connected with the basement of the building. On such occasions the trap-door was leaned against the front of the building, the opening reaching close to the wall and extending five feet towards the outer edge or end of the walk. From the sidewalk to the bottom of the area was four or five feet. Whenever the cover was removed for the purpose stated, the opening was usually exposed for 15 minutes, more or less, according to convenience and circumstances, and at such times, and on the present occasion, left wholly unguarded, and without a signal to warn of the danger other than the opening itself. The laws of the state grant to the city the care of its streets and sidewalks, and the usual powers, such as impose the duty of keeping or causing them to be kept in a reasonably safe condition for the public use. The principal questions in the case are whether the injuries to the plaintiff resulted from want of proper and reasonable care on the part of the municipal authorities, amounting to negligence, and whether the plaintiff was guilty of contributory negligence. The jury were instructed, in substance, that there could be no objection to the existence of the opening in the walk, closed by a trap-door, and the fact that the occupants of the building were accustomed and suffered to remove the cover in order to receive into or deliver merchandise or other articles from the basement of the building through the area was not of itself evidence of negligence; that openings in sidewalks were allowable and usual, and to which there was no valid objection when kept securely covered, or, when uncovered, if proper precautions are taken to guard persons against accident and injury; and that in order to establish negligence it must appear from the evidence that the city authorities not only knew of the existence of the opening, and of such occasional use of it, but also knew that the occupants of the building were accustomed to leave the opening uncovered, with no protection about it, and no signal of danger, and suffered such a state of things to continue. Whether the city authorities had been guilty of negligence by failing to exercise reasonable care and diligence depended upon considerations which were fully stated, and in reference to which considerable evidence was introduced on both sides. It cannot justly be contended that the evidence on the part of the plaintiff did not tend to show that there was negligence, nor can it be contended, on the other hand, that the evidence did not tend to show contributory negligence on the part of the plaintiff. The defendant's counsel contend that the preponderance of evidence was clearly with the defendant on both questions; but I am unable to say that the conclusions reached by the jury were clearly or manifestly wrong, even though I should not entirely agree with them. The rule is that whenever the evidence upon any issue in a cause presents a question of fact to be considered and determined by weighing evidence, it is the province of the jury, and not of the court, to consider and determine it. People in the city of Niles who passed over the sidewalk knew there was an opening in it. That at times it was left uncovered and unguarded, as it was at the time of the plaintiff's injury. The jury were therefore justified in finding that the city authorities, by the exercise of reasonable care and diligence, should have known of the same facts, and of the recurring danger. If they should have known those things, they are conclusively presumed to have known them. They never took steps to remove, diminish, or prevent the danger. They never required the size of the opening to be reduced, which would have diminished the danger, nor a guard or signal of danger to be exhibited, but suffered without any action a careless and negligent use of it to be continued year after year, and up to the time of the accident. All these considerations, past and present, the jury were told to consider. I might conclude that the plaintiff was guilty of contributory negligence, but the jury have said she was not negligent, and I cannot say they are clearly in error. Certainly she was not called upon to exercise extraordinary vigilance in going over a walk not generally dangerous and not known by her ever to have been dangerous. The care required was much less than in a person going over a railroad crossing, a place of constant and well-known danger, demanding the greatest vigilance on the part of persons and approaching trains. The only care required of the plaintiff was ordinary care, such as a prudent person is expected to use under like circumstances. The verdict was not contrary to the charge of the court, and all instructions were given that were material or necessary. The damages are larger than I think the plaintiff ought to recover, but there is no rule by which to compute definitely the damages in such a case. They are, in a large degree, a matter of judgment, and 12 good men have fixed them at $3,000. Another trial might result in less or greater damages being awarded, and inasmuch as I can reduce them only by exercising my individual judgment against the judgment of 12 men, with no certain standard for fixing a different sum, I have concluded to overrule the motion for a new trial upon this as I have upon the other grounds. And it is so ordered, with costs of the motion in favor of the plaintiff. Negligence, when question for jury, see Bunt v. Sierra Buttes Gold Min. Co., 24 Fed Rep. 847. In re Application of KELLEY for Writ of Habeas Corpus.1 (District Court, D. Minnesota. November 7, 1885.) 1. EXTRADITION-BRITISH TREATY OF 1842-MINNESOTA STATUTE-EXAMINATION BEFORE UNITED STATES COMMISSIONER-RIGHT OF ACCUSED TO OFFER TES TIMONY. On the examination of a party before a United States commissioner in the state of Minnesota, in extradition proceedings under the treaty of 1842 with Great Britain, he has the right to examine witnesses in his own behalf. 2. SAME-ACT OF CONGRESS OF 1848-WARRANT-AUTHORITY OF UNITED STATES COMMISSIONER. The authority of the commissioner to issue the warrant under the treaty of 1842, and the act of congress of 1848, must appear upon the face of the writ. On Habeas Corpus. H. Steenerson and J. W. Cathcart, for petitioner. A. G. M. Spragge and C. A. Congdon, for the British Government. NELSON, J. The prisoner, Edward Kelley, was arrested under a warrant issued by Frank Ives, commissioner of the circuit court of the United States for the district of Minnesota, on complaint of a constable of the dominion of Canada for his extradition under the treaty of 1842 between the United States and Great Britain on the charge of murder; and after examination he was committed to the custody of the marshal of the United States for this district, to await the executive order for his surrender. He is now brought before me on a writ of habeas corpus, and the proceedings before the commissioner are sent up on a writ of certiorari. The complaint is in the following words: "COMPLAINT. "United States of America, District of Minnesota-ss.: Before me, Frank Ives, a commissioner of the circuit court of the United States in and for said district, personally comes John Lee Johnston, a constable of the dominion of Canada police, who, being sworn, on his oath says, on information and belief, that on or about the twenty-seventh day of November, 1884, at the neighborhood of Johnston's ranch, on the Columbia river, in the Kootaney district of British Columbia, in the dominion of Canada, one Edward Kelley did feloniously, and with malice aforethought, kill and murder one Robert McGregor Baird, whose residence was in Missoula, in the territory of Montana, in the United States of America. The said offense is contrary to the statutes of the dominion of Canada, and the complainant prays that the said Edward Kelley may be arrested and held for extradition, and be further dealt with according to law. JOHN L. JOHNSTON. "Subscribed and sworn to before me this twenty-sixth day of September, A. D. 1885. "FRANK IVES, "Commissioner U. S. Circuit Court for the District of Minnesota." 1 Reported by Robertson Howard, Esq., of the St. Paul bar. |