WATER-WORKS-LIABILITY FOR LOSS BY Fire. -The question as to the liability of waterworks companies, to owners of property for damages occasioned by insufficient water supply at a fire, has frequently come before the courts with conflicting results. (See 34 Cent. L. J. 296, 507; 37 Cent. L. J. 42, 392; 38 Cent. L. J. 217; 39 Cent. L. J. 320; 41 Cent. L. J. 302.) The question came before the Court of Appeals of Texas in Lenzen v. City of New Braunfels, 35 S. W. Rep. 341, as to the liability of a city under such circumstances, the holding of the court being that a city incorporated under the general law, through the voluntary acts of its inhabitants, which, under such law, for its own advantage and profit, voluntarily maintains a system of water-works for general purposes, including the extinguishment of fires, is liable to a patron of the works, for hire, whose property is consumed through the city's negligence in permitting such works to get out of repair, and allowing the water in the standpipe to get so low as to afford insufficient pressure to throw the water upon the burning property from the hydrants.

MASTER AND SERVANT-PERSONAL INJURYASSUMPTION OF RISK.-The Appellate Court of Indiana decides, in Stuart v. New Albany Mfg. Co., 43 N. E. Rep. 961, that a servant employed to assist in the erection of a building, who, in the ordinary course of such employment, is placed in a position where danger of personal injury is obvious, though acting under the direct orders of a superior, assumes the risk of such position. The following is from the opinion of the court:

It is a most familiar rule of law that it is the duty of the master to provide his servants with reasonably safe places and appliances in the performance of the work required of such servant. Blondin v. Quarry

or other instrument by which the ropes could have been manipulated. All that is averred in this connection is that tag ropes were to be used by attaching them to the top end of the beam, and slowly lifting' the same while the plaintiff was fitting the lower end thereof in the groove cut for it. By whom these ropes "were to be used," or to what they could have been fastened or adjusted, or where the men manipulating them could have stood, is not shown. It is also averred, as we have seen, that "in raising said beam the work was performed by other employees." If we assume that it was the duty of such "other employees" to adjust the ropes, and by means thereof to lift the top of the post upward, this would seem to be the work of fellow servants, for the omission of which, if injury resulted, the master would not be held responsible.

Another rule, equally familiar as the one requiring the master to furnish his servant a safe place to work, is that when a servant of mature years and understanding enters into an employment which is neces sarily hazardous, he will be presumed to have taken all the ordinary risks incident to such service, and the fact that the service is naturally a dangerous one does not increase the master's liability, if the injury results from the natural and ordinary incidents of the undertaking. If there is a defect in the machinery or appliances that renders the work of the servant more hazardous, and that defect is open and obvious, or can, by the exercise of ordinary care, be discovered by the servant, but is disregarded, the risk becomes one of the assumed risks of the service, and liability therefor is waived. Myers v. W. C. De Pauw Co., 138 Ind. 590, 38 N. E. Rep. 37; Lime Co. v. Griffin, 189 Ind. 141, 38 N. E. Rep. 411; Railroad Co. v. Hender son (Ind. Sup.), 42 N. E. Rep. 216; Stone Co. v. Hobbs, Id. 1022; Stone Co. v. Hobbs, 11 Ind. App. 27, 38 N. E. Rep. 538; City of Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. Rep. 700. It is not averred that the appellant was taken from the work for which he was employed, and put in a more hazardous situation, by the command of the appellee or one representing it. On the other hand, it appears plainly enough that the appellant was employed to assist in the construction of the building; that is to say, in the performance of the work in which he was injured. It is true, it is stated that appellant was inexperienced in carpenter work, bridge building, and such work as was necessary to assist in such building; but it is not shown that he did not possess his proper faculties or an average degree of intelligence. We cannot say that the work assigned the appellant was more than common or ordinary labor, such as the appellant avers he was employed to perform. It required no particular experience or skill for the appellant to hold the crowbar in the groove, so as to keep the beam from slipping beyond it. This is what he says in his complaint be was directed to do. Appellant must have known that there was at least some possibility of danger from the falling of the beam. He was, therefore, required to

that such a frail piece of wood, thus fastened, must in all probability give way to the heavy pressure of the beam if it came against it with sufficient force, whether it was fastened with small or large nails. It is true the appellant alleges in his complaint that he did not know of the defect in the brace, or of the failure to use the ropes at the top end of the beam; but, notwithstanding such averment, it is apparent from the facts pleaded, we think, that he had an equal opportunity with the appellee of knowing the existing conditions, and could, by most casual observation, have seen the defects; and where this is the case, the general averment must give way to the specific. Myers V. W. C. De Pauw Co., supra; Railroad Co. v. Duel, 134 Ind. 156, 33 N. E. Rep. 355.

In Power Co. v. Murphy, 115 Ind. 566, 18 N. E. Rep. 30, Mitchell, J., speaking for the court, in reference to the rule of the assumption of the risk by the employee, said: "What he (the master) especially engages is that he will not expose the employee to danger which is not obvious, or of which the latter has no knowledge or adequate comprehension, and which is not reasonably and fairly incident to and within the ordinary risks of the service which he has undertaken. There is another equally well-settled principle, correlative to the rules which define the duties of the employer, which holds the employee to the assumption of all risks naturally and reasonably incident to the service in which he embarks, so far as the hazards of the service are obvious and within the apprehension of a person of his experience and understanding. From the application of this principle, it follows that if an employee voluntarily, without specific command as to time and manner, uses an obviously defective implement, the defect being alike open to the observation and within the comprehension of the employer and employee, both stand upon common ground, and no recovery can be had for a resulting injury. * Thus, it has been well stated

'that an employee who knows, or by the exercise of ordinary diligence could know, of any defects or imperfections in the things about which he is employed, and continues in the service without objection, and without promise of change, is presumed to have assumed all the consequences resulting from such defects, and to have waived all right to recover for injuries caused thereby.'" In the case of Rietman v. Stolte, 120 Ind. 314, 22 N. E. Rep. 304, the plaintiff was employed by defendants in their mill; and, under the direction of the latter, he was engaged in loading heavy timber from a wagon into a car, by means of a crane belonging to the defendants, on which there was an iron hook, which grasped and held the timbers. This hook was worn and defective, which the plaintiff knew, or had the opportunity of knowing. While the plaintiff was engaged as stated, a piece of timber slipped from the grasp of the hook, and fell upon and injured him. The court held that, on these facts, there could be no recovery. Judge Olds, who delivered the opinion, after quoting from the case of Power Co. v. Murphy, supra, observes: "The rule does not go to the extent of requiring the employee to search for latent defects in the machinery or appliances furnished him for use; but it does go to the extent that the employee assumes the consequences resulting from such defects as are patent, and such as, by the exercise of ordinary diligence, and giving proper heed to the things that surround him, he would dis

must look, and, unless some reasonable excuse is given, he is guilty of negligence if he does not look. In this case the special findings show the defect to be one which the appellee would have known if he had exercised ordinary diligence, and given proper attention to his business and the things surrounding him, and that he was neglectful of his duty and of the things which surrounded him, and it was by reason of his own negligence that he did not know of the defect in the hook, and is chargeable with having known of that defect." In Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. Rep. 741, the court, in considering this question, on page 332, 129 Ind., and page 741, 27 N. E. Rep., said: "It is also settled law that, notwithstanding the continuing duty resting upon the master to provide for his employees suitable and safe places and appliances for their work, the employee who voluntarily continues in the master's service after notice of defects in tools, machinery, or other appliances, which augment the danger of his service, thereby assumes the risk as increased by the defect, unless the master expressly or impliedly promises to remedy the defect." The case of Railway Co. v. Watson, 114 Ind. 20, 14 N. E. Rep. 721, and 15 N. E. Rep. 824, is instructive upon this subject. In delivering the opinion of the court in that case, Elliott, J., on page 27, 114 Ind., and page 721, 14 N. E. Rep., and page 824, 15 N. E. Rep., says: "The rule which we regard as sound in principle, and supported by authority, may be thus expressed: The employee who continues in the service of his employer, after notice of a defect augmenting the danger of the service, assumes the risk as increased by the defect, unless the master expressly or impliedly promises to remedy the defect. The promise of the master is the basis of the exception. If the promise be absent, the exception cannot exist." In the case of Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. Rep. 770, on page 266, 117 Ind., and page 770, 19 N. E. Rep., it was said by Elliott, C. J.: "Employees assume all ordinary risks incident to the employment, but they assume no extraordinary risks caused by the employer's breach of duty, unless they have knowledge of the unusual danger caused by the breach, and voluntarily continue in the company's employment. If, with this knowledge, they do continue, then the increased danger becomes an incident of the service, which they assume, and for liability from which the master is exonerated. The knowledge of the danger adds it as one of the incidents of the employment which the employee assumes. It becomes a danger which his continuance in his master's service makes an incident of the service; and, when it takes this character, the master is no longer bound to answer for the employee's safety so far as it is imperiled by the danger voluntarily and knowingly assumed. The knowledge, in conjunction with the continuance in the service, operates as a waiver of the right to make the master responsible." After quoting from Beach on Contributory Negligence, the learned chief justice continues: "This puts the rule exonerating the master on the true ground. He is exonerated because the employee himself assumes the danger, as increased; and, as he voluntarily assumes it, the master is relieved. The parties change positions; the employee assumes the risk that, if it were not for his knowledge, his employer would be compelled to as. sume. The duty which the employer is under is materially affected by the element of knowledge, and unless a duty is shown, of course there can be no actionable negligence, since a duty lies at the foundation of every right of action grounded on the negli gence of a defendant. It must follow, in order to show

a breach of duty creating a cause of action for its breach, that it is necessary to aver that the employee was ignorant of the default of the employer which increased the perils of the service." In the case of Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210, the same learned judge, in delivering the opinion of the court, on page 54, 127 Ind., and page 210, 26 N. E. Rep., said: "We do not doubt that it (the instruction) correctly expresses the law as applied to a case where the question is one of contributory negligence; but here the question is not exclusively one of that character, for the material question is whether appellee, having knowledge of the danger, assumed it as one of the risks incident to his service. The law upon this point is well settled, for it has often been held that where the danger is known, although it is attributable to a breach of duty upon the part of the employer, the employee assumes it as one of the risks of his service, if he voluntarily remains in the employer's service after he has acquired a knowledge of, the danger. An exception to the general rule exists, but exists only when the employer promises to take meas. ures to remove the danger." This court, in an opinion by Crumpacker, J., in the case of Railroad Co. v. Doan, 3 Ind. App. 453, 29 N. E. Rep. 940, on page 455, 3 Ind. App., and page 940, 29 N. E. Rep., said: "While a servant does ordinarily assume all of the incidental risks of his employment, and those which are patent and within the reasonable range of his observation, at the same time the master undertakes to exercise reasonable care and diligence to provide him with safe appliances and surroundings."

ELECTRIC STREET RAILWAY-NEGLIGENCE OF CONDUCTOR-INJURY TO BYSTANDER.-In Manning v. West End St. Ry. Co., 44 N. E. Rep. 135, decided by the Supreme Judicial Court of Massachusetts, it was held that one walking along the sidewalk, or momentarily stopping near an electric car, was not bound to take special precautions against possible injury from the slipping of a switch stick from the hands of the conductor of the car while he was attempting, with such stick, to free the trolley. It was further held that evidence that a conductor of defendant's electric car allowed a switch stick, which he was using from the top of the car to free the trolley, to fall from his hands and injure a bystander, with evidence of a prior binding of the trolley at the same place, warranted a finding of negligence in the adjustment of the overhead wires, and that negligence in the adjustment of such overhead wires is not too remote to form an element of damage. The court said:

This is an action for personal injuries caused by the plaintiff's being struck by a switch stick which flew from the hands of a conductor of the defendant as he was using it on top of an electric car to free the trolley, which had caught in a frog at the junction of some overhead wires. The case is here on the defendant's exceptions. The first question argued is the usual one of the plaintiff's care. What is due care depends on the nature of the accident, and the degree

of danger, according to common experience, under the known circumstances. The plaintiff was on the sidewalk, either walking or momentarily stopping. Putting it in the most favorable way for the defendant, the jury at least were authorized to find that the plaintiff was not bound to take special precautions against such a missile from such a source. The jury were instructed that if the plaintiff stopped and stood there simply to look, and the accident took place while he was doing so, he could not recover. This certainly was sufficiently favorable to the defendant. Smethurst v. Barton Square Ind. Cong. Church, 148 Mass. 261, 266, 19 N. E. Rep. 387.

Next it is said that there was no evidence of negli gence on the part of the defendant. The conductor must be taken to have known that he was in a public street, in which there were or might be travelers, and therefore must be taken to have known that, if the stick did fly with violence from his hands, there was a danger to passers, similar, although less in degree, to that which would have attended the firing of a pistol into the way. Apart from the possibility that he might receive an electric shock sufficient to make him let go his hold, the jury were at liberty to say, from their experience as men of the world, that under such circumstances such an accident commonly does not happen, unless the stick is carelessly handled; that it is in the power of the holder to see that he does not submit it to such a strain as to make it possible that it should be torn from his hands-and to infer from those general propositions of experience that there was negligence in the particular case. See Graham v. Badger, 164 Mass. 42, 47, 41 N. E. Rep. 61; Uggla v. Railway Co., 160 Mass. 351, 35 N. E. Rep. 1126; White v. Railroad Co., 144 Mass. 404, 11 N. E. Rep. 552.

A ruling was asked that there was no evidence that the accident was caused by defective construction of the trolley wires and trolley pole. The question is not what we should have found had the question been submitted to us. We cannot say that the jury were not warranted in finding the arrangements defective from the fact of the trolley leaving the wires and getting so firmly jammed, and the explanation of what the arrangements were, and what was possible, especially when coupled with evidence let in without objection, that similar accidents had occurred there half a dozen times before, and an admission of the defendant's expert that if that was true the place required attention. See Feital v. Railroad Co., 109 Mass. 398, 405. If there was negligence, and the later acts were proper, in view of the exigency, the only question would be that of remoteness, to which we shall refer in a moment.

We must deal with the fitness of the switch stick for the use to which it was put, in the same way as with the construction of the wires and trolley pole. The jury possibly might have inferred that alone, without India rubber gloves, it gave rise to an un necessary danger of an electric shock, and thus of escaping from the holder's hands.

There remains only the question whether the damage complained of was too remote to be recovered for in any of the possible aspects of the plaintiff's case. We are of opinion that even at the most distant moment, the possible negligence in the arrangement of the wires, was not so remote that that part of the case could be taken from the jury on the ground that they were not at liberty to find that, in the language of the court, such negligence was the efficient means and instrumentality by which the injury took place. Precisely what might happen as a consequence could not

be foreseen, of course. But the general nature of what would have to be done, and what was done in fact, could be foreseen, and the general nature of the dangers attending the attempt in the place was sufficiently plain. The language in McDonald v. Snelling, 14 Allen, 290, 295, must not be taken to require the possibility of any more accurate foresight as a condition of liability. Cases of recovery for much more improbable accidents can be found in the books. Powell v. Deveney, 3 Cush. 300.

The judge, no doubt, would have called the attention of the jury to the question of remoteness more specifically, had he been asked to do so; but it does not appear to us that the defendant ought to have escaped, if its negligence was proved, and we think it clear that a verdict for the defendant could not have been ordered on that ground.

CRIMINAL LAW-EVIDENCE OF GOOD CHARACTER-REMOTENESS IN TIME.-The Supreme Court of Tennessee decides, in State v. Fry, that, where the evidence against a defendant on trial for a crime is circumstantial only and he is also a witness in his own behalf, a liberal rule should prevail in the admission of testimony offered to show his previous good character, and depositions of neighbors who had known defendant for fifteen years in another State, where he had lived until six years before the trial, were not too remote in time to be admissible. The court says in part:

The question thus presented for decision is one of first impression in this State, so far as we are advised from any roported case. The case of Crowder v. State, 8 Lea, 669, is not an adjudication of this question. The question there presented was in respect of the character of the prosecutor, who had testified as a witness. All that was said on the subject is comprised in the following paragraphs, to-wit: "The State, by several witnesses, sustained the general character of the prosecutor. Two of the witness said his character was good for the last eight or ten years. The defendant then proffered to ask the witness as to his character previous to that time, but the court sustained the objection of the attorney general to the question. This, said the court, was not reversible error; the question was the character of the prosecutor at the time he testified. If the witnesses knew his character previous to the time fixed by them, their answers in the form given were almost equivalent to saying that, previous to that time, it was at least not free from doubt, so that, in effect, the defendant had the benefit of his proffered question." It will be observed that the court in that case remarked that the character of the prosecutor at the time he testified was the issue, and, for the purpose of reflecting light upon that issue, the State was permitted to prove that his character had been good for the last eight or ten years. The defendant was not permitted to inquire in respect of the character of the witness prior to that period. This court did not think this reversible error, since the answers of the witnesses implied that prior to that time the prosecu tor's character had not been free from doubt, and thus the defendant had the benefit of his question. In the American & English Encyclopedia of Law

(volume 29, p. 802), it is said, viz: "It is also true that the material object of inquiry is the character of the witness at the time when he testifies; but, if some latitude were not allowed in this regard, it would in many cases be impossible to impeach the most corrupt witness, or to sustain the most truthful one. The principle that the existence of a state of things once established by proof is presumed to continue the same until the contrary is shown is applicable, within reasonable limits, to the character of a witness proved to have once sustained a bad reputation for truth and veracity. It is therefore competent to impeach a witness by proof of his reputation in a neighborhood where he formerly resided, if the evidence be not too remote in point of time." Stratton v. State, 45 Ind. 468; Walker v. State, 6 Blackf. 1; Rogers v. Lewis, 19 Ind. 405; City of Aurora v. Cobb, 21 Ind. 492; Willard v. Goodenough, 30 Vt. 393; Fisher v. Conway, 21 Kan. 25. The same principle is, of course, applicable where the evidence is in support of the good character of the defendant. In Teese v. Huntington, 23 How. 2, the court said, viz: "Such testimony, undoubtedly, may properly be excluded by the court when it applies to a period of time so remote from the transaction involved in the controversy as thereby to become entirely unsatisfactory and immaterial, and, as the law cannot fix that period of limitation, it must necessarily be left to the discretion of the court." While this is true, if we can see there has been an abuse of this discretion this court will feel constrained to reverse. The conviction in this case was rested upon circumstantial evidence, which, although cogent and convincing, should have been viewed in the light reflected from the character of the defendant. It is in such cases that proof of character is of primal importance as tending to counteract the force of incriminating circumstances. The defendant was before the court not merely as a witness, but as the accused, and proof of character was important, not only to illustrate his credibility as a witness, but as a fact to be considered on the question of his guilt or innocence. The defendant, it is true, had lived in this community for six years; but by reason of his longer residence in another State, he had established a character there which he was entitled to prove in connection with the proof of his character in this State, as tending to show the improbability of his guilt. In our opinion, the depositions of the Wisconsin witnesses should have been admitted, and for this error the case is reversed, and remanded for a new trial.

TELEGRAPHIC LIBELS.-In Peterson v. Western Union Tel. Co., 67 N. W. Rep. 646, decided by the Supreme Court of Minnesota, it appeared that defendant received at its office at New Ulm a message directed to the plaintiff, at St. Paul, in these words: "Slippery Sam, your name is pants (signed) Many Republicans." It forwarded the message over its wires to its operator in St. Paul, who there wrote it down, placed it in a sealed envelope, and caused it to be delivered to the plaintiff. It was held that the message, on its face, was susceptible of a libelous meaning, and that the evidence was sufficient to justify a finding by the jury that the defend

ant maliciously published a libel. The court said in part:

The message was, on its face, fairly susceptible of a libelous meaning. The sting is in the word "slippery." This word, when used as descriptive of a person, has a well understood meaning. It means, when so used, that the person to whom it is applied cannot be depended on or trusted; that he is dishonest, and apt to play one false. (Cent. Dict.) If such is the meaning of the word as used in this message--and of this the jury were the judges-it was clearly libelous, because, if a man is dishonest, and apt to play one false, he merits the scorn and contempt of all honorable men. To falsely publish of a man that he is slippery tends to render him odious and contemptible. Such a publication is a libel. Wilkes v. Shields (Minn.), 64 N. W. Rep. 921. The question whether or not the defendant maliciously published the libel is one of some doubt, but we are of the opinion that it was a question for the jury, under the evidence. Technically, the defendant published the libel when it communicated it to its operator at St. Paul, but whether such publication was wrongful (that is actionable) depends on the further question whether or not it was privileged. The defendant was a common carrier, and was bound to transmit all proper messages delivered to it for that purpose, but it was not bound to send indecent or libelous communications. Where a proffered message is not manifestly a libel, or susceptible of a libelous meaning, on its face, and is forwarded in good faith by the operator, the defendant cannot be held to have maliciously published a libel, although the message subsequently proves to be such in fact. In such a case the operator cannot wait to consult a lawyer, or forward the message to the principal office for instructions. He must decide promptly, and forward the message without delay, if it is a proper one, and for any honest error of judg ment in the premises the telegraph company cannot be held responsible. But where the message, on its face, is clearly susceptible of a libelous meaning, is not signed by any responsible person, and there is no reason to believe that it is a cipher message, and it is forwarded under such circumstances as to warrant the jury in finding that the operator, in sending the message, was negligent or wanting in good faith in the premises, the company may be held to have maliciously published the libel. A publication under such circumstances is not privileged. The evidence in this case was such that a finding either way on the question whether the defendant maliciously published this libel would not be disturbed by the court.

BAILMENT-LIEN FOR LABOR AND SKILLTRAINING HORSE.-In Scott v. Mercer, 67 N. W. Rep. 108, it is held by the Supreme Court of Iowa that a person who keeps and trains a horse, under a contract with the owner, has a lien at common law for the labor, skill and expense bestowed and which has enhanced the value of the horse. The court says:

On the former hearing (63 N. W. Rep. 325) we held that the statute gave no lien in such a case, and declined to consider the question as to a common law lien, because of which a rehearing was granted, and the question is now before us.

In view of the fact that the appellant seems to make no contention for a lien except at the common law, we pass the question of a statutory lien with the statement that there is none. In Jones, Liens, § 731, it is said: "By the common law, a workman who by his skill and labor has enhanced the value of a chattel has a lien on it for his reasonable charges, provided that the employment be with the consent, either express or implied, of the owner." Among other citations in support of the rule is Nevan v. Roup, 8 Iowa, 207. It is further said in the section: "It exists in favor of any bailee for hire who takes property in the way of his trade or occupation, and by his labor and skill imparts additional value to it." In the Iowa case cited the lien was in favor of the thresher for threshing grain. It is said to exist in favor of a tailor for making a coat, a shoemaker for mending shoes, a jeweler for setting a gem, a wheelright for repairing a wagon, a harness maker for oiling a harness, in favor of a farrier for shoeing horses, etc. In Story, Bailm., § 440, speaking of the obligation of the bailee to return the thing after the work has been done, it is said the duty has a qualification, for "every bailee for hire has a lien on the thing for the amount of his compensation, and therefore he is not, unless it is specially otherwise agreed, bound to restore the thing bailed, until the compensation is paid." In Schouler, Bailm., § 122, it is said "One, at all events, who trains a horse for racing, has a lien at common law." The case cites, among others, that of Harris v. Woodruff, 124 Mass. 205, where a rule is stated as follows: "A person has a lien for the expense and skill bestowed upon a horse delivered to him to be trained for running races for bets and wagers in this commonwealth." In 2 Kent, Comm., p. 858, it is said: "It is now the general rule that every bailee for hire, who, by his labor and skill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges. .. The same right to a particular or specific lien applies to a miller, printer, tailor, wharfinger, warehouseman, or whoever takes property in the way of his trade or occupation, to bestow labor or expense upon it." The facts of this case brings the defendant within the general rule announced, and, wherever the rule has been invoked under the particular facts of this case, as to the kind of labor performed, it has been sustained. We may further say that such an application of the rule is equitable, and it is hard to imagine a reason why it should be applied in many cases where it unquestionably is, and not in this.

BLACKMAIL.

At common law a person was not liable to indictment for sending a threatening letter to extort money unless the threats were of such a nature as to be sufficient to overcome a firm and prudent man.' It was unnecessary to allege in the indictment that the threat was of a nature to overcome a firm and prudent men, but the allegations of the conduct of the accused must be such as to

1 Railroad v. Southerton, 6 East, 126; 2 Arch. Cr. Pr. (Pom. ed.) 1062.