Barg v. Bousfield, 65 Minn. 355, 68 N. W. 45. And see Kaillen v. N. W. Bedding Co., 46 Minn. 187, 189, 48 N. W. 779; Sterling v. Union, 142 Mich. 284, 105 N. W. 755.

3. Defendant insists that the act of the foreman in starting the machine was the mere incident of the work and the negligence of a fellow servant, and therefore assumed. There is no merit in this contention. The duty of giving warning was an absolute duty of the master which he could not delegate. The charge properly assumed that, if the jury found the facts submitted to it, then as a matter of law the foreman was a vice principal. Perras v. A. Booth & Co., 82 Minn. 191, 84 N. W. 739, 85 N. W. 179; Carlson v. N. W. Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914; Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N. W. 1057, 99 Am. St. 534; Dizonno v. G. N. Ry. Co., 103 Minn. 120, 114 N. W. 736; Reiter-Connolly v. Hamlin, 144 Ala. 192, 40 South. 280; Comrade v. Atlas, 44 Wash. 470, 87 Pac. 517; 6 Current Law, 558.

4. Defendant also insists that the damages were excessive. The wound on the back of the hand near the juncture of the carpal and metacarpal bones caused the tissues of the hand to atrophy in such a way as to interfere with the use of the tendons attached to the top of the middle joints of the three fingers between the thumb and little finger. As the result of the wound there was a permanent disfigurement and deformity, the bones had been broken, and the injured hand had shrunken up. It was in a "condition of progressive atrophy with a tendency to shrivel up the hand." No known operation would relieve her. The verdict seems large. The trial court, which alone was in a position to properly determine the question, sustained it. We feel constrained, within the familiar rule on the subject, to affirm his conclusion in this regard.

Other assignments of error not herein specifically referred to have been considered and have not been found sufficient to justify the change of the conclusion here reached.

Affirmed.

ELLIOTT, J.

I dissent.

INTERNATIONAL BOOM COMPANY and Another v. RAINY LAKE RIVER BOOM CORPORATION.1

Upon a former appeal of this case it was held that there was evidence which required the case to be submitted to the jury and a new trial was granted. Upon a new trial the evidence was substantially the same, but the trial court directed a verdict for the plaintiffs. It is held that the decision on the former appeal is the law of the case, and the order is there fore reversed, and a new trial granted.

From an order of the district court for Beltrami county, Spooner, J., denying its motion that the directed verdict in favor of plaintiffs be set aside and for a new trial, defendant appealed. The facts are stated in the opinion. Reversed and new trial granted.

H. Steenerson and Charles Loring, for appellant.

A. Y. Merrill and C. J. Rockwood, for respondents.

ELLIOTT, J.

The character of this action fully appears in the opinion filed on a former appeal and reported in 97 Minn. 513, 107 N. W. 735. It will not be necessary to repeat what was there said. The action was in claim and delivery for the possession of certain logs, which the defendant claimed the right to hold until it was paid certain fees, which it claimed under and by virtue of chapter 221, p. 350, Laws 1889. The case was tried before a court and jury, and a verdict directed in favor of the plaintiffs for the possession of the logs. On appeal to this court the order of the trial court denying a new trial was reversed, and a new trial granted, because the evidence tended to show that the services for which the defendant claimed compensation had been rendered under and pursuant to an implied contract, under which the defendant collected, sorted, and handled the plaintiffs' logs. After the case was sent back, it was retried and the trial court again directed a verdict for the plaintiffs; and it comes again to this court on an appeal from an order denying the defendant's motion for a new trial.

The case should have been submitted to the jury under instructions in accordance with the decision of this court. The evidence on the second trial was substantially the same as on the first trial, and the decision on the former appeal is the law of the case. As far as we have been able to discover, every fact upon which the decision of this court rested was shown on the second trial, and nothing additional appeared which is of any particular importance on the question of whether or not there was a contract between the parties under which the services were rendered. The trial court should have accepted the opinion as the law of the case and submitted the case to the jury. The order is therefore reversed, and a new trial granted.

Separate actions in the district court for Ramsey county, one by McDonald to recover $5,000 damages for personal injuries and the other by Mullane to recover $200 for injury to his horse. The cases were tried together before Hallam, J., and a jury, which rendered a verdict in favor of McDonald for $1,200 and in favor of Mullane for $200. From orders denying its separate motions for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

The respondent McDonald brought his action against the appellant to recover damages alleged to have been occasioned by the negligence of the appellant in the handling of one of its street cars. The respondent Mullane also brought an action against the street railway company to recover damages which he claims to have suffered through the killing of the horse which was being driven by the respondent at the time of the accident. The two cases were tried together, and verdicts returned in favor of McDonald for $1,200 and Mullane for $200. The defendant moved for judgment notwithstanding the verdicts or for a new trial, and appeals from an order denying the alternative motion. The cases were submitted in this court as one case, and the decision herein disposes of both cases. The facts and issues very clearly appear in the following memorandum filed by the learned trial judge:

"Plaintiff was injured while crossing the Robert street bridge, in St. Paul, by collision with a street car of the defendant. Plaintiff was driving a team from the southerly to the northerly side of the bridge. There was a car in front of him on the right-hand track going in the same direction, but going so slowly that he wished to pass it. The bridge was so narrow that he could not safely pass to the right of the car, so he passed to the left, traveling partially on the track designed for south-bound cars. The bridge is highest in the center, and from the center span, which for a space is about level, it slopes towards either end, so that an approaching car cannot be seen for the full length of the bridge. There was some testimony that plaintiff proceeded to about the front vestibule of the north-bound car, when he saw a southbound car approaching; that he then pulled in his team and attempted to pass to the rear of the north-bound car, but before he could do so the south-bound car struck his team, causing the injuries complained of. As one witness described it: 'He turned out to pass this car, and, when he did, why he went along before we could see the car coming over the top of the bridge, and when he did it was too late. The car was coming the other way so fast that he could not get time to turn back and out of the way from the car.' I believe the case was properly submitted to the jury. Plaintiff was upon a public thoroughfare, and he was lawfully and properly where he was at the time of the collision, unless he was guilty of contributory negligence. The jury found specifically that he was not guilty of contributory negligence. In my judgment there is evidence amply sufficient to sustain such a finding. It cannot be said, as a matter of law, that it is contributory negligence to attempt to pass a slowly moving street car, even though it is necessary, in order to do so, to travel upon tracks upon which cars approach going in the opposite direction. Whether such an act is negligence depends upon the circumstances of the case. Under the evidence in this case this question was clearly one for the jury."

N. M. Thygeson and W. H. Bennett, for appellant.

C. D. & R. D. O'Brien and E. W. Williams, for respondent.

ELLIOTT, J. (after stating the facts as above).

The jury found, in answer to a special interrogatory, that McDonald was not guilty of contributory negligence, and this finding is under the evidence final, unless the violation by McDonald of an ordinance of the city of St. Paul forbidding the driving of a team faster than a walk over any bridge in the city of St. Paul was negligence per se and contributed to the accident. This ordinance was passed in 1884, and it is at least doubtful whether it is reasonable, when applied to a bridge such as that upon which this accident occurred. However that may be, and assuming that McDonald was violating the ordinance when he drove around the car in the attempt to pass it, we have only the fact established that he was negligent in that particular respect. This alone would not prevent recovery, as it must further appear that the particular act of negligence contributed to the causing of the accident. It appears that his team had stopped and was standing still when it was struck by the approaching car. It was, under the circumstances, a fair question for the jury, assuming that he had been guilty of a negligent act, whether it contributed to causing his injury; and that