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Federal Constitution, to prevent the deplorable evils v. Brown, 19 N. W. Rep. 429, and cases cited. which would have resulted from the failure to reg- This case also settled another very important quesalate, by a comprehensive and uniform law binding tion, namely, that the demand for the fugitive upon all the States, a matter of such vital import- must be made by an appeal to the executive auance to the administration of criminal law, incor- thority of the State, although the Constitution is porated into the Constitution the provisions of entirely silent on that subject. The court say at section 2 of article 4, “a person charged in any page 102: “ The clause in question, like the clause State with treason, felony or other crime who shall in the Confederation, authorizes the demand to be flee from justice and be found in another State, made by the executive authority of the State where shall on demand of the executive authority of the the crime was committed, but does not in so many State from which he had fled be delivered up to words specify the officer of the State upon whom be removed to the State having jurisdiction of the the demand is to be made, and whose duty it is to crime.” The first and all important question is have the fugitive delivered and removed to the whether the imperative language of this provision State having jurisdiction of the crime. But under imposes upon the several States a duty, the per- the Confederation it is plain that the demand was formance of which may be enforced by any tribu- to be made on the governor or executive authority nal, State or Federal; or whether the duty is one of the State, and could be made on no other deof imperfect legal obligation. That an absolute partment or officer, for the Confederation was only duty, involving no discretion whetber the case is a league of separate sovereignties in which each brought clearly within the language and spirit of State within its own limits held and exercises all this provision, was intended to be devolved upon the powers of sovereignty, and the Confederation the several States, cannot be seriously questioned. had no officer, either executive, judicial or ministeIndeed all the authorities support this view of the rial, through whom it could exercise an authority question. Work v. Corrington, 34 Ohio St. 64; S. C., within the limits of a State. In the present Con32 Am. Rep. 345; Kentucky v. Dennison, 24 How. stitution however these powers to a limited extent 66. This duty however has been held by the have been conferred on the general government United States Supreme Court to be a duty of im- within the territories of the several States. But perfect legal obligation, for the reason that there is the part of the clause in relation to the mode of no constituted legal tribunal vested with authority demanding and surrendering the fugitive is (with to enforce its performance. For the purpose of the exception of an unimportant word or two) a litthe discharge of this duty the States are independ- eral copy of the article of the Confederation, and ent sovereignties with respect to one another, re- it is plain that the mode of the demand, and the sponsible to no superior, and not subject to the official authority by and to whom it was addressed coercion of any tribunal. This duty is the same in under the Confederation, must have been in the its nature as those duties which are imposed by the minds of the members of the convention wlien this laws of nations upon the different sovereignties of article was introduced, and that in adopting the the civilized world in their intercourse one with same words they manifestly intended to sanction another. Such duties are of imperfect obligation, the mode of proceeding practiced under the because there exists no common tribunal to which Confederation — that is of demanding the fugitive nations can appeal for the settlement of their con- from the executive authority, and making it his troversies; no court of judicature vested with the duty to cause him to be delivered up.” authority to determine their conflicting claims, and While the governor of a State has in every case with the power of carrying its judgment into exe- the undoubted power to refuse to comply with the cution. The case of Kentucky v. Dennison, 24 requisition and grant the warrrant, yet it is neverHow. 66, settled the doctrine of the exemption of theless his duty to issue his warrant for the apprethe States and their executives from national or hension of an alleged fugitive from justice in every other control in all cases of inter-State extradition. case coming within the scope of the Constitution, In this case the governor of Kentucky moved the unless some special reasons exist justifying a reUnited States Supreme Court for a rule on the fusal. The courts have determined what some of governor of Ohio to show cause why a mandamus these special reasons are. It is important that they should not issue commanding him to cause one Wil-should be referred to, not because they can ever be lis Lago, a fugitive from justice, to be delivered up invoked in the courts to support the claim to immuto be removed to the State of Kentucky, having nity from arrest and surrender, but for the reason jurisdiction of the crime with which he was that it is always in the power of the alleged fugicharged. The motion was overruled, with the cou- tive to obtain a hearing before the governor of the currence of all the justices in the opinion of the State in which he has been or is to be arrested, court, delivered by Chief Justice Taney. The de- either after or before the issuing of the warrant by cision is summed up in its concluding sentence: such governor. These rules which have been estab“But if the governor of Ohio refuses to discharge lished by the judiciary for the guidance of executhis duty, there is no power delegated to the gen- tive discretion in such cases, though not obligatory eral government, either through the judicial de- upon the executive, will yet undoubtedly be obpartment or any other department, to use any coer- served and followed in all cases in which they may cive means to compel him.” To same effect State be properly applied. It therefore becomes necessary to inquire what rules have been established his official capacity. The warrant is not process of justifying the governor of a State in refusing to the person holding the office of governor, but a wargrant the warrant in cases where he has undoubt- rant issued by an officer. We all agree that Govedly the power to issue it. In the first place if the ernor Young had the same power to revoke a waralleged fugitive from justice is held for crime in rant issued by his predecessor that he had to revoke the State to which he has fied, and from which he one issued by himself.” The cases we have been is demanded, the governor has the right to refuse, considering are cases in which it has been held to and should refuse to issue the warrant. Work v.

be the moral duty of the executive to revoke a Corrington, 34 Ohio St. 64; S. C., 32 Am. Rep. 345; warrant once issued. These rules should therefore Taylor v. Taintor, 16 Wall. 366, 370; Troutman's be invoked before the governor himself. The fugicase, 4 Zabr. 634; In re Briscoe, 51 How. Pr. 422.

tive can

never avail himself of them upon habeas He may

and sbould refuse to deliver the fugitive corpus. If the decision of the executive is against when he is satisfied that the sole object of the him in cases where the power to grant the warrant prosccution and extradition is to enforce collection { exists, the decision is final and subject to no reof a claim. Work v. Corrington, supra. In this view. But suppose the executive revokes a warcase the court say on this point: “ The provision rant without any reason for so doing, will it be a was inserted in the articles of Confederation, and good answer to the revocation, on a writ of habeas subsequently in the Constitution, to subserve public corpus, that the governor should not have recalled and not private purposes. The object was to secure the warrant in the absence of any sufficient reason? the punishment of public offenders, and not to en- In other words, is the power of the executive to reforce the payment of private claims, whether well voke the warrant circumscribed or unlimited ? On or ill founded. To employ this extraordinary pro- both principle and authority the power to revoke cess for public purposes tends to secure peace and the warrant must be considered to be as broad and good order, but to prostitute it to the advancement unlimited as the power originally to refuse the of private ends is to bring it into great disfavor. granting of the warrant. The case of Work v. CorTrue, the theory is that the demanding State will rington, supra, is explicit on this point. The syllahold the offender for trial, even though he be bus clearly states the decision so far as this quesbrought into the State fraudulently or forcibly, and tion is concerned: “Where such warrant has been without process, but experience shows that where revoked by the governor no inquiry will be made the end sought is private the accused is rarely in a proceeding on habeas corpus on behalf of the brought to trial. No satisfactory reason is per- alleged fugitive as to the grounds of such revocaceived why a governor should issue or obey a tion, although at the time of the revocation the requisition when he is satisfied that the sole object fugitive may have been in the custody of the agent of the party complaining is to enforce the payment of the demanding State.” It is therefore the law of a private claim for money. Such an abuse of that the executive has the power not only arbiprocess is equivalent to a fraudulent use of it.” In trarily to refuse the granting of the warrant, but such a case a warrant which has been already also arbitrarily to revoke it after it has been propgranted may be revoked. This was the ground on erly issued. The moment it is revoked the agent which the warrant in the case of Work v. . Corrington, of the demanding State ceases to have any authorsupra, was revoked, and the court approved and ity to retain the fugitive in his custody, and the sustained the action of the governor in this respect, court on habeas corpus must discharge him. The and expressed its opinion in these most emphatic decision in this case of Work v. Corrington, that the words: “For reasons equally strong, a governor fugitive must be released on habeas corpus, even from whom such warrant is obtained for the ad- though he was in the custody of the agent of the vancement of private ends fails to discharge his duty demanding State at the time of the revocation of if he neglects to revoke the provision discovering the warrant is unquestionably sound, for the reason the fraud." The warrant may be revoked even af- that while the fugitive remains within the territoter the fugitive has been apprehended and is in the rial limits of the State to which he has fled, he custody of the agent of the demanding State, pro- cannot be subjected to the laws or control of the vided he is still within the territorial limits of the State in which he committed the crime. The agent State upon which the demand was made. This is who has him in his custody derives all his authority precisely what was done in the above case, and the to hold him and deprive him of his liberty from action of the governor was approved by the court. the warrant of the governor. The moment that Moreover the revocation need not be made by the warrant is revoked his authority is annulled, and governor who granted the warrant. It may be from that moment his detention of the fugitive is made by his successor in office. the above case unlawful. the warrant was issued by Governor Hayes, and While the conduct of the executive in refusing was revoked by his successor, Governor Young. to issue the warrant is subject to no judicial conThe reasoning of the court on this point is brief, trol, yet his decision in granting the warrant is albut convincing and unanswerable: “Further ob- ways subject to the supervision of the courts, and jection is made that Governor Young had no au- unless the case is brought clearly within the scope thority to revoke a warrant issued by Governor of the constitutional provision, and the act of ConHayes. But we have seen that the governor acts in gress passed in pursuance of that provision, the

detention of the fugitive will be illegal, and he ishable by fine not exceeding five thousand dollars, will be discharged by the court on habeas corpus. was an offense for which the executive of a State In determining whether the governor had authority could issue his warrant to arrest and deliver a fugito issue the warrant it becomes necessary to ascer- tive from justice. tain first of all to what offenses the language of

Guy C. H. CORLISS. the Constitution refers. In other words for what violations of law has the executive the power to

CORPORATION-PURCHASE OF CAPITAL STOCK surrender a fugitive on demand? This provision of

-REPLEVIN. the Constitution is very comprehensive. It embraces the case of a person charged with “ treason, WISCONSIN SUPREME COURT, SEPTEMBER 23, 1884. felony or other crime.” The question has frequently been before the courts of the different States and

BUTTON V. HOFFMAN.* the United States Supreme Court, and the rule One who by purchase or otherwise becomes the owner of all which has been enunciated by them all, without a

the capital stock of a private corporation does not thereby single dissent, is that the executive has authority to

become the legal owner of its property, and cannot main

tain replevin therefor in his own name. arrest and surrender a fugitive from justice who has been guilty of any offense which is punished APPEAL from Circuit Court, Jackson county. as criminal by the laws of the demanding State.

Carl C. Pope, for respondent. In re Hooper, 52 Wis. 699; People v. Brady, 56

C. F. Ainsworth and S. U.Pinney, for appellant. N. Y. 182; Broron's case, 112 Mass. 409; Clark's case, 9 Wend. 212; People v. Pinkerton, 17 Hun,

ORTON, J. This is an action of replevin in which the 199; State v. Stewart, 20 N. W. Rep. 429; Kentucky title of the plaintiff to the property was put in issue by

the answer. In his instructions to the jury the learned v. Dennison, 24 How. 66; In re Voorhis, 32 N. J. judge of the Circuit Court said: “I think the testiL. 141; Fetter's case, 3 Zabr. 311; Leury's case, 6 mony is that the plaintiff had the title to the propAbb. N. C. 54; People v. Donohue, 84 N. Y. 441. erty." The evidence of the plaintiff's title was that As the question involves the construction of the the property belonged to a corporation known as "The Federal Constitution the judgment of the national Hayden & Smith Manufacturing Company," and that

he purchased and became the sole owner of all of the Supreme Court is of course final. In Kentucky v.

capital stock of said corporation. As the plaiutiff in Dennison, supra, it was argued that the provision his testimony expressed it, “I bought all the stock. I was not designed to apply to cases of new offenses own all the stock now. I became the absolute owner created by statute since the adoption of the Consti- of the mill. It belonged at that time to the company, tution, especially where such offenses were not

and I am the company." There was no other evi

dence of the condition of the corporation at the time. made crimes by the laws of the State upon which

Is this sufficient evidence of the plaintiff's title? We the demand was made. But the court repudiated think not. The learned counsel of the respondent in this palpably erroneous doctrine, and decided that his brief says: “The property had formerly belonged the constitutional framers had exhibited the delib- to the Hayden & Smith Manufacturing Company, but

the respondent had purchased and become the owner erate purpose to include every offense known to the law of the State from which the party charged sole owner."

of all the stock of the company, and thus became its had Aed.” In re Hooper, supra, the court say: “The From the very nature of a private business corporalanguage of the Constitution of the United States tion, or indeed of any corporation, the stockholders is that the alleged fugitive from justice must be

are not the private and joint owners of its propcharged with treason, felony or other crime.' The erty.

The corporation is the real, though artifi

cial, person substituted for the natural person who weight of judicial opinion is that these words em

procured its creation, and bave pecuniary interests in brace any act forbidden and made punishable by it, in which all its property is vested, and by which it the laws of the State making the demand.” In is controlled, managed, and disposed of. It must purPeople v. Brady, supra, the same doctrine is stated chase, hold, grant, sell, and convey the corporate in these words: The word crime in the clause of property, and do business, sue and be sued, plead and

be impleaded, for corporate purposes, by its corporate the Constitution which has been quoted embraces

The corporation must do its business in a cerevery act forbidden and made punishable by the tain way, and by its regularly appointed officers and law of a State, and the right of a State to demand agents, whose acts are those of the corporation only as the surrender of a fugitive from justice extends to they are within the powers and purposes of the corall cases of the violation of its criminal law. Feloporation. In an ordinary copartnership the members

of it act as natural persons and as agents for each nies and misdemeanors, offenses by statute and at

other, and with unlimited liability. But not so with common law, are alike within the constitutional

a corporation; its members, as natural persons, are provision.” In People v. Donohue, supra, it is thus merged into the corporate identity. Ang. & A. Corp., expressed: The language chosen is broad, and $$ 40, 46, 100, 591, 595. A share of the capital stock of a was plainly intended to embrace every criminal of. corporation is defined to be a right to partake, accordfense, and every act forbidden and made punish- tained from the use and disposal of the capital stock

ing to the amount subscribed of the surplus profits obable by the law of the State where the crime was

of the company to those purposes for which the comcommitted, and whether such by common law or ex- pany is constituted. Id., $ 557. The corporation is the press legislative enactment.” In Morton v. Skinner, trustee for the management of the property, and the 48 Ind. 123, it was held that a misdemeanor, pun

*$. C., 20 N. W.Rep. 667.

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name.

owner

stockholders are the mere cestui que trust. Gray v. the officer, in his return, certified that he had Portland Bank, 3 Mass. 365; Eidman v. Bouman, 4 Am. taken a bond “from the within named A., B., aud Corp. Cas. 350.

C.," and the property was receipted by “A., B., and The right of alienation or assignment of the prop- C., plaintiffs." It was held that the action was not by erty is in the corporation alone, and this right is not the corporation, as it should have been, and judgment affected by making the stockholders individually liable was rendered for the defendaut. It is said in Van for the corporate debts. Ang. & A. Corp., $ 191; Pope Allen v. Assessors, 3 Wall. 584, “ the corporation in the v. Brandon, 2 Stew. (Ala.) 401; Whitwell v. Warner, 20 legal owner of all the property of the bauk, both real Vt. 444. The property of the corporation is the mere and personal." instrument whereby the stock is made to produce the In Wilde v. Jenkins, supra, where a copartnership profits, which are the dividends to be declared from bought all the property and effects, together with the time to time by corporate authority for the benefit of franchises of a corporation, and elected themselves the stockholders, while the property itself, which pro- trustees of the corporation, it was held that the corpoduces them, continues to belong to the corporation. ration was not dissolved, and that the legal title to the Bradley v. Holdsworth, 3 Mees. & W. 422; Waltham real and personal property was still in the corporation Bank v. Waltham, 10 Metc. 334; Tippets v. Walker, 4 for their benefit. Mass. 595. The corporation bolds its property only for In Mickles v. Bank, 11 Paige, 118, it was held that the purposes for which it was permitted to acquire it, although a corporation was deemed to have surrenand even the corporation cannot divert it from such dered its charter for non-user, it was not dissolved, use, and a shareholder has no right to it, or the profits and would not until its dissolution was judicially dearising therefrom, until a lawful division is made by clared, and that until then its property could be taken the directors or other proper officers of the corpora- and sold by its judgment creditors. tion, or by judicial determination. Ang. & A. Corp., In Bennett v. American Art Union, 5 Sandf. 614, it SS 160, 190, 557; Ilyatt v. Allen, 4 Am. Corp. Cas. 6:24. A was held that “as a general rule, the whole title, conveyance of all the capital stock to a purchaser gives legal and equitable (to its property), is vested in the to such purchaser only an equitable interest in the corporation itself," and that the individual members property to carry on business under the act of incor- have no other or greater interest in it tban is expressly poration and in the corporate name, and the corpora. I given to them by the charter, and the prayer of comtion is still the legal owner of the same. Wilde v. Jen- plainant, as a shareholder in the art-uvion, for an inkins, 4 Paige, 481. A legal distribution of the property junction against a certain disposition of its property after a dissolution of the corporation and settlement was denied, because it had no interest in it. See also of its affairs is the inception of any title of a stock- Goodwin v. Hardy, 57 Me. 143. holder to it, although he be the sole stockholder. Ang. It is true that none of the above cases are precisely & A. Corp., $ 779a.

parallel with the present case in facts, but they are These general principles sufficiently establish the sufficiently analogous to be authority upon the priudoctrine that the

of all the capital cipie that the plaintiff, as the sole stockholder of the stock of a corporation does not therefore own corporation, is not the legal owner of the property. its property,

any of it, and does not He may have an equitable interest in it, but in this himself become the corporation, as a natural person, action he must show a legal title to the property in to own its property, and do its business in his own himself in order to recover, and he has shown that name. While the corporation exists he is a mere stock- such title is in another person. Timp v. Dockham, 32 holder of it, and nothing else. The consequences of a Wis. 146; Sensenbrenner v. Mathews, 48 id, 250; S. C., violation of these principles would be that the stock 33 Am. Rep. 809. In analogy to the above principle it holders would be the private and joint owners of the was held in Murphy v. Hanrahun, 50 Wis. 485, that the corporate property, and they could assume the powers sole heirs of an estate did not have such a legal title to of the corporation, and supersede its functions in its a promissory note given to their father as would enuse and disposition for their own benefit without per title them to sue the maker upon it, because the title sonal liability, and thus destroy the corporation, ter- to it was in the administrator, and they could obtain minate its business, and defraud its creditors. The the title only by administration and distribution acstockholders would be the owners of the property, and cordiug to law. The heirs in that case certainly had at the same time, it would belong to the corporation. as much equitable interest in that note as this plaintOne stockholder owning the whole capital stock could iff has in the property in coutroversy. The want of of course do what several stockholders could lawfully title to the property being fatal to the plaintiff's redo. It is said in City of Utica v. Churchill, 33 N. Y. covery in the action between the present parties, other 161, “the interest of a stockholder is of a collateral na- alleged errors will not be considered. ture, and is not the interest of an owner;" and in The judgment of the Circuit Court is reversed, and Hyatt v. Allen, supra, that “a shareholder in a corpo- the cause remanded for a new trial. ration has no legal title to its property or profits until a division is made."

Iu Railroad Co. v. Railroad Co., 23 Minn. 359, it is MASTER AND SERVANT-RAILROAD CONDUC. held that the corporation is still the absolute owner,

TOR AND ENGINEER NOT FELLOW and vested with the legal title of the property, and the

SERVANTS." real party in interest, although another party has become the owner of the sole beneficial interest in its SUPREME COURT OF THE UNITED STATES, rights, property, and immunities.

OCTOBER TERM, 1884. In Balduin v. Canfield, 26 Minn. 43, it was held that the sole owner of the stock did not own the laud of CHICAGO, MILWAUKEE & St. Paul RAILWAY Co. v. the corporation so as to convey the same.

Ross. In Bartlett v. Brickett, 14 Allen, 62, an action of replevin was brought by A., B., and C., as the “trustees

A railway company is liable to a locomotive engineer injured of the Ministerial Fund in the North Parish in Haver

by the negligence of a conductor in the conduct of a

train. hill,” which was the corporate name. In portions of the writ the plaintiffs were referred to as “the said N error to the Circuit Court of the United States for trustees" and "the said plaintiffs." In the bond, "A., the District of Minnesota. The opinion states the B., avd C., trustees as aforesaid," became bound, and

or

case.

FIELD, J. The plaintiff in the court below is a citi- the collision happened; that he then separated his zen of Minnesota, and by occupation an engineer on a train in the middle, took six cars to Minnehaha starailway train. The defendant in the court below, the tion, went back with the engine for the other six cars, plaintiff in error here, is a railway corporation created and was coming with them through the cut when the under the laws of Wisconsin. This action is brought collision occurred; that the gravel train had run in the to recover damages for injuries which the plaintiff night about a week, and that when he could reach sustained whilst engineer of a freight train by a col- Minneapolis before the starting time of plaintiff's lision with a gravel train on the 6th of November, train he ran without orders, otherwise upon orders, 1890. Both trains belonged to the company, and for and had met or passed plaintiff's train at the same some years he had been employed as such engineer ou place about every night during the week. its roads. On that day he was in charge of the engine It is evident from this brief statement that the conof a regular freight train which left Minneapolis at a ductor on each train was guilty of gross negligence. quarter past one in the morning, its regular schedule The conductor of the freight train was not only retime, and had the right of the road over the gravel quired by the general duty devolving on him, as oue trains, except when otherwise ordered. At the time controlling its movements, to give to its engineer such of the collision, one McClintock was the conductor of orders as would enable him to avoid collision with the train, and had the entire charge of running it. It other cars, but as we have seen, he was expressly diwas bis duty under the regulations of the company to rected by the regulations of the company, when runshow to the engineer all orders which he received with ning by telegraph or special orders, to communicate respect to the movements of the train. The regula-them to him. Had these regulations been complied tions in this respect were as follows: “Conductors with, the collision would have been avoided. The must in all cases, when running by telegraph and spec- couductor of the gravel train allowed it to be so orerial orders, show the same to the engineer of their train loaded that its engine was incapable of moving it at before leaving stations where the orders are received. one portion of the road before reaching the cut; and The engineer must read and understand the order be- when in consequence he was obliged to leave half of fore learing the station. The conductor will have his cars on the track while he took the others to Mincharge and control of the train, and of all persons em- nehalia, he omitted to send forward information of the plosed on it, and is responsible for its movements delay or to put out signals of danger. Having for the while on the road, except when his directions conflict week previous passed the freight train at nearly the with these regulations, or involve any risk or hazard, same place on the road, he must have kuown that by in which case the engineer will also be held responsi- the delay there was danger of collision. Ordinary ble.”

prudence therefore would have dictated the sending When the freight train left Minneapolis on the morn- forward of information of his position or the putting ing of November 6, 1880, there was coming toward out of danger-signals. Had he done either of these that city from Fort Snelling, by order of the company, things the collision would not have occurred. orer the same road, a gravel train, termed in the com- The collision having been caused by the gross negliplaini a wild train, that is a train not running on gence of the conductors, the question arises whether schedule time any regular trips. The conductor, Mc- the company is responsible to the plaintiff for the inClintock, was informed by telegram from the train juries which that collision infiicted upon him. despatcher of the coming of this gravel train, and or- The general liability of a railroad company for indered to hold the freight train at South Mimeapolis juries caused by the negligence of its servants to pasuntil the gravel train arrived. South Minneapolis is sengers and others not in its service is conceded. It between Minneapolis and the place where the colli- covers all injuries to wbich they do not contribute. sion occurred. The gravel train bad been engaged for But where injuries befall a servant in its employ, a a week before in hauling in the night gravel to Min- different principle applies. Having been engaged for neapolis from a pit near Mendota, for the construc- the performance of specified services, he takes upon tion by the company of a new and separate line of himself the ordinary risks incident thereto. As a conrailroad between St. Paul and Minneapolis, and the sequence, if he suffers by exposure to them, he cannot freight train had during this time been stopped by recover compensation from his employer. The obthe conductor, on orders of the train despatcher, upon vious reason for this exemption is that he has, or in side tracks between Minneapolis and St. Paul Junc- | law is supposed to have them in contemplation when tion, for the passage of the gravel train. But on the he engages in the service, and that his compensation night of November 6, 1880, he neglected to deliver to is arranged accordingly. He cannot, in reason, comto the plaintiff the order he had received, and after plain if he suffers from a risk which he has voluntarily the train started he went into the caboose and there assumed, and for the assumption of which he is paid. fell asleep. The freight train of course did not stop There is also another reason often assigned for this at the station designated, but continuing at a speed of exemption, that of a supposed public policy. It is asfifteen miles an hour, entered a deep and narrow cut sumed that the exemption operates as a stimulant to 300 feet in length, through which the road passed at a diligence and caution on the part of the servant for considerable curve, and an a down grade, when the his own safety as well as that of his master. Much plaintiff saw on the bank a reflection of the light from potency is ascribed to this assumed fact by reference the engine of the gravel train, which was approacbing to those cases where diligence and caution on the part from the opposite direction at a speed of five or six of servants constitute the chief protection against acmiles an hour, and was then within about one hundred cidents. But it may be doubted whether the exempfeet. He at once whistled for brakes and reversed his tion has the effect thus claimed for it. We have never engine, but a collision almost immediately followed, known parties more willing to subject themselves to destroying the engines, damaging the cars of the two dangers of life or limb, because if losing tbe one or trains, causing the death of one person, and inflicting suffering in the other, damages could be recovered by upon the plaintiff severe and permanent injuries, for their representatives or themselves for the loss or inwbich he brings this action.

jury. The dread of personal injury has always proved On the trial the conductor of the gravel train testi-sufficient to bring into exercise the vigilance and acfied that at the time of the collision he was under tivity of the servant. orders to run to South Minneapolis regardless of the But however this may be, it is indispensable to the plaintiff's train; that baving twelve cars loaded with employer's exemption from liability to his servant for gravel, bis traiu stalled before reaching the cut where the consequences of risks thus incurred, that he should

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