car from which the accident came they should not have piled them up so high as to make the pile dangerous. There was no emergency or necessity for putting a high pile of timbers upon any one car to be drawn the short distance. But, if the employes desired to put a high pile of lumber upon any one of these cars, it is undisputed that suitable stakes had been furnished by the defendant to put inside the boxes, where they could have been properly fastened, and thus have held the lumber as securely as if piled upon platform cars with iron brackets upon the sides and stakes placed therein. It is too obvious for dispute that the sole cause of this accident was the improper loading of the car, and that if the employes of the defendant had properly loaded it, and made proper use of the stakes and materials the company had furnished, the accident would not have happened. These employes were the co-employes of the intestate, and for their carelessness the defendant is not responsible. In the case of Bushby v. New York, L. E. & W. R. Co., 107 N. Y. 374, the plaintiff, a brakeman on a car loaded with lumber, was thrown off from the car because an imperfect stake broke while the car was in motion, and he was thus injured; and it was held that the defendant was liable on the ground that it had not furnished any stakes for holding the lumber in place after it was put upon the car. The main features of that case are, therefore, unlike those which exist here. This case bears some resemblance to the case of Byrnes v. New York, L. E. & W. R. Co., 113 N. Y. 251, where a brakeman upon a lumber car was injured because it was improperly loaded; and it was held that the defendant, having provided a safe car, and a safe system, and competent men to inspect it, was not responsible for the negligence of co-employes in the performance of their work. We are, therefore, of opinion that upon the defendant's motion the court should have directed a verdict in its favor, and the judgment should therefore be reversed, and a new trial granted, costs to abide event.

FINCH, PECKHAM and GRAY, JJ., concur.

DANFORTH, J., (dissenting.)—At the close of the evidence the defendant's counsel asked the court to direct a verdict, upon the grounds-" First. There is no evidence whatever of the defendant's negligence. Second. On the ground of the plaintiff's contributory negligence. Third. That, even assuming that the duty in this case was one to be performed by the master, there is no evidence that, under the circumstances in this case, the ordinary care required of the master had not been exercised on this occasion." At the close of the case numerous exceptions were taken to the charge as made,

and to the refusal of the learned judge to charge as requested by the defendant's counsel. The plaintiff had a verdict, and the exceptions were ordered to be heard at the general term in the first instance. They were there overruled. The opinion then rendered seems to be abundantly sufficient to sustain that result, and I am unable to find in the argument submitted to us in the interest of the railroad company any reasons sufficient in law for the reversal of the judgment which the supreme court ordered.

The first point made by the appellant is that the trial court erred in refusing to direct a verdict for the defendant. The plaintiff's intestate was a switchmnn. While performing his duties as such, several sticks of timber from 26 to 30 feet in length, and from 5 to 12 inches thick, part of the load of a passing car, fell from it and upon him, crushing him so that he died. This car was for all legal purposes the car of the defendant, employed by it in its business, and for its management the defendant is to some extent responsible. The law casts upon it a certain duty, and it is for the interest and safety of the community that the defendant be held to its performance. Was there evidence Duty of mas of negligence on its part? It was held in Bush- ter to furnish by v. New York, L. E. & W. R. Co., 107 N. Y.

suitable car.

374, not by way of formulating any new rule, but by application of a very old one, that it was the duty of the company as master to fit or prepare its cars for the use for which it was designed. There the company had furnished a platform car without stakes or sides, and through the imperfection of the stakes finally provided its servant's death was caused, and for that the defendant was required to make compensation. The same rule applies here. It was within the province of the master to furnish a suitable car for the carriage of lumber; and the proposition may be more specific,-it was the duty of the master to furnish a car suitable for the carriage or transportation of that particular load of lumber.

The concession of the defendant is that the "car was not what is known as a regular lumber-car.'" It was in fact a gondola or coal car. It is also a statement of the defendant that "a regular lumber-car is a flat car, having brackets upon its sides, into which stakes from three to six inches thick are driven, and inside of those the lumber is laid." It is, of course, obvious that the height of the stake or other protection is an important consideration, and must govern the height of the load. The car in question also had brackets on the side, but they were not empty, nor were they designed for stakes. They were to receive the post or bar to the box frame, which was from 18 inches to 2 feet high. Above that, of course,

the sides of the car furnished no protection. It appeared, however, that this frame went round the car, at the end as well as at the sides, and that, owing to the greater length of the timber, one end of some of the pieces was necessarily put in the car, and the other projected over the end of the car slanting. It also appears that the load was higher than the sides of the car and was not staked. It could not be staked, because no brackets were provided, and the only way the timber was secured from outward force was by nailing some sticks on the inside of the car-box, neither fastening them to each other nor overhead. They were not intended as protection, but as guides, and the defendant's foreman testified that the security relied upon was from the different widths of the timber, and so from "one piece overlapping the other." We have, then, a case precisely within the principle of the Bushby Case, supra. Here the car above the sides of the box was unprotected, and no means of protection afforded,no brackets within which stakes could be placed; but, more than that, the car was an unusual one for the purpose to which it was applied, and for which the company furnished it. If it was so managed as to give equivalent security to the em ploye, it was for the jury to find that out. From the face of the record it might appear that the dangerous machine was sent upon the track without a thought or care for the safety of those whose duty as employes might bring them to it, or of the traveler whose journey would lead him near its course. The trouble was not in the manner of loading, but in the construction of the car, which made any other manner impossible. As the load rose above the box, every timber had at once leaned towards the ground, and by its own gravity gave effect to each jar or concussion. It was not from the omission of stakes, but from the absence of brackets to receive them. The defect was structural, and the omission corporate. It is enough for us to say that if there was any question it was one for the jury, and that the court committed no error in refusing to take it from them.

As to the exceptions to the judge's charge: (1) It was not necessary for the court to say that any of the defendant's

to charge.

servants" were competent for the work assigned Exceptions to them." It was enough to say, as the judge is conceded to have said, that there was "no evidence that they were not competent." I am unable to discover any ground upon which the defendant could justly call for an affirmative opinion or declaration from the court. (2) The learned counsel for the defendant asked the judge to charge: "If the jury believe that these cars were carefully inspected, before they started and prior to the accident,

by competent inspectors, and the method in which they were loaded and the load secured, was by them adjudged to be a safe and proper one, then the defendant cannot be held guilty of negligence," and he declined to charge differently than he had already charged. The court had properly referred to the grounds on which the defendant's liability depended, and was not bound to accept the measure proposed by counsel. It omitted elements of the greatest importance, and, if adopted, would have tended to exclude from the consideration of the jury the corporate negligence of the defendant in omitting, among other things, to furnish proper cars, and would have turned their attention from the master's acts to those of his servants. (3) The next point involves a like defective proposition. The defendant asked the learned trial judge to charge the jury: "If the defendant furnished suitable appliances for the loading and unloading of lumber, and employed competent and proper persons to load the cars, and the injury resulted from the neglect or failure of persons so employed to use such appliances or properly load the car, then the plaintiff cannot recover;" and the court responded in the same manner. The proposition is confined to the loading and unloading of the car either by appliance or laborers, and excluded entirely the construction of the car and its capacity to re-. ceive loads of this nature. Every fact suggested by the defendant's proposition might be true, and yet the plaintiff recover because the defendant had not furnished "a safe, suitable, and proper car" for such a load, or the application and use of such appliances and workmen. A trial judge must be left to the exercise of some discretion as to the considerations suggested by the evidence and the language in which he will communicate them to the jury. He cannot be called upon to turn the case one way or the other upon isolated points of inquiry, and he fails in no duty when he submits in a fair and impartial manner the whole matter in controversy to the jury as the constitutional and final judge of the facts. This was done in the case before us. I think the general term properly disposed of the exceptions. The judgment appealed from should therefore be affirmed.

RUGER, C. J., and ANDREWS, J., concur.

Negligently Loading Car-Motion for Non-Suit-Responsibility of Compa. ny. In an action against a railroad company to recover damages for injuries to a servant, caused by the improper manner in which a car was loaded, a motion by the defendant for a non-suit on the ground that there was no evidence of negligence on its part, sufficiently raises the point that the company was not responsible for the loading of the car, when the plaintiff's evidence shows that the car was improperly loaded. Byrnes v. New York, L. E. & W. R. Co., 113 N. Y. 251.

DOYLE

ข.

ST. PAUL, MINNEAPOLIS & MANITOBA R. Co.

(Minnesota Supreme Court, November 22, 1889.)

Evidence Declarations of Agent of Company-Admissibility. The plaintiff, an employe of a railroad company, having been injured while coupling cars, an agent sent by the company to obtain from the plaintiff a statement of the circumstances of the accident is not authorized by such agency to bind the company by his own declarations as to such circumstances. Proof of such declarations would be mere hearsay evidence.

Master and Servant- Use of Old Rails for Side Tracks-Evidence of Cus tom. The issue being as to whether the conduct of a railroad company not obviously dangerous and culpable (the use of partially worn rails for side tracks at a railway station) is negligence, proof may be made that the conduct in question is in accordance with the general custom of others (railroad companies) under like circumstances.

Same-Defective Rail-Evidence. The question being whether the plaintiff's foot was caught by a splinter on the inside of a railroad track or rail, and as to whether the defendant is chargeable with negligence therefor, danger from such cause not being self-evident, it is competent for the defendant to show by experienced witnesses that such accidents have been unknown.

Same-Defective Rail-Notice of Defect.-Liability for an accident from such a cause is not established, unless it is shown that the defendant had notice of the defect, or that in the exercise of reasonable care the defendant should have known it, or should have apprehended it, and that it was dangerous.

Same--Assumption of Risk-Knowledge of Defect.-A servant who knows the condition of the appliances or place in connection with which he is employed, or who in the exercise of ordinary observation ought to have known, and who knows, or ought to have known, the danger to which he may be thereby exposed, is to be deemed, in general, to have taken upon himself the risk.

Same-Cause of Injury-Negligence. The plaintiff claiming to have been injured (run over) by reason of having his foot caught by a splinter in the rail while coupling cars, and complaining also that the freight on one of the cars (railroad iron) had been negligently suffered to project over the end of the car, held, that a recovery could not be had for the latter cause, the plaintiff not having been injured thereby.

APPEAL from District Court, Kandiyohi County.

M. D. Grover and J. W. Mason for appellant.
Benton, Plumley & Healy for respondent.

DICKINSON, J.-This action is for the recovery of damages for a personal injury suffered by the plaintiff while engaged in the discharge of his duty as a switchman in the defendant's service at one of its railroad stations. The accident occurred in connection with an attempt by the

Facts.