the same rights in all respects. He is subject to the same obligations, duties and liabilities, and that right has been secured by the amendments to the Constitution. This was a public school, and whether this negro, the father of the boy that was excluded, pay much or little tax, he is bound to contribute to the support and maintenance of that public school; and doing that, he has a right to have his children educated at the public expense in the same way and to the same extent that white children are educated, no more and no less. The Legislature of Ohio has authorized the establishment of public schools; that is to say, they have authorized the classifi cation of these school children, and have authorized the neg.oes to be educated separately, in one school, separately from the white children, and the white children separately from the negro. Now, that is no wrong to the negro. The legislature has a right to do that. If you find upon the facts of this case that such school had been provided, which afforded like facilities as the one to which he went and claimed admission, reasonably accessible to him, not exactly-İ don't put it upon the ground of exactly as accesble, but if the colored school was established in good faith, supplied with a competent teacher, corresponding in a reasonable degree with the qualifications of the white teachers of the country, and reasonably accessible to this negro, it was his duty to have gone to the colored school, and if he refused to go there, and claimed admission into the white school and was excluded he has nothing in law to complain of. But if, as has been contended, and this is the question of fact that has not been discussed-at least it has only been alluded to-if you find as a matter of fact, and that is the fact that you will pass upon, that this colored school was so remote-too remote for the child of this black man to attend, without oppression, and without going over unreasonable and unusual distances; that the School Board or Trustees of the District-Trustees, whoever they may be, whose duty it was to provide these schools, had placed this negro at a disadvantage with his white neighbor-material disadvantage had required of him, in order to get his education, more than they had required of others; to travel over this greater distance, which was unusual, they had not provided for him the same accommodation, the same facilities, the same conveniencies, or something approximating them, that he could obtain in his home school, If I may. so term it, the school nearer to him, then, and in that event he had a right to go to this white school; for if the law is not enforced in that way, you will see at once that by this claim of right to classify or send the negro to one place and the white man to another, or provide accommodations or educational facilities for the white man that you don't give to the ne, ro, the inequaliities and the injustice and the wrong that are inflicted upon the negro, and the violation of that constitutional amendment which was intended to give him protection. Now that is the question of fact that you are to determine, and if

you find that that school was sufficiently near home that it was well appointed, well provided with teachers, reasonably accessible, the court instructs you that this defendant would not be guilty; but if on the other hand you find the reverse, then the court instructs you that he had a right to enter this white school.

Now, there must be an intent. I told you at the outset there must be an intent to constitute a crime. But the position of counsel might mislead you. The intent necessary to constitute this crime is: Did the defendant intend to exclude him from the school? That is the intent? Did he intend to do that? The fact that he supposed at the time that he had a legal right to do it, the fact that he did not know what the courts would hold, how they would construe this matter, or, in other words, the fact that he did not understand the law of the case, is not an excuse. If he intended to do the acts which in law constitute the offense, then that is the only intention which the law demands in order to a conviction. Counsel said in his remarks to the jury that now, ever since the decision which was made in the civil suit between these parties, tried before me here some time ago, that if the teacher was to exclude the colored boy under the same circumstances, he would be guilty. Gentlemen, the statutes of Congress don't change according to the decisions of courts. It is a new idea that the law is one way until the court makes a decision in reference to a matter of this sort, and then becomes another way after the decision is made-that is, that the statute has a different and more rigid effect now, since the decision made six months ago, than it had before this decision was made. If it was possible to give it such a construction, and there is no authority for it, that construction alone would in legal effect abolish the amendment to the Constitution. The law of the case would depend not upon a judicial construction to be made by the judges, but it would be made to depend upon the opinion which the parties themselves might entertain of the law, and one man who understood it correctly would be guilty of a crime, whereas another man who did not understand it, but doing the same thing, would be innocent. Now, that ain't the law! The law assumes that every one knows what the law is and is bound at his own peril, in criminal and in civil cases, to know what the law is. It is true they don't all know it, but they are all bound to know it. The law prescribes the rule, publishes it, sends it forth to the country, and they are bound to take cognizance of the law, and it is not a flexible thing, that is one way to-day, and is another way six months afterwards, because the court may happen to have given a different construction. The Counsel admits to you that my instructions in the other case were correct, and I think they were correct, and they are exactly the instructions that I give you here now. If they were correct, it was because I construed the law as Congress intended it to be construed, as it should have been construed, as it ought to be adminis

tered, not as to what it shall be in the future, but what it has been in the past, been so since the time of the enactment.

Well, another position is assumed, that this defendant consulted counsel, and counsel advised him that the law was different from what this court instructs you that it is. Well, gentlemen, the legal fraternity to which I have belonged for forty-one years contains a good many sensible and good useful men; contains a great many men competent to advise, and honest enough to give correct counsel; but then it contains a great many more charlatans, superficial lawyers, honest or dishonest, as the case may be, and I think I may say that my observations in courts for forty-one years leads me to believe that at least one half of the litigation that we are troubled with in the courts, arises from the misadvice of counsel. Nevertheless the law, in its tenderness, in some respects gives force and effect to the advice of counsel. If A has B arrested upon the charge of larceny, and B is tried and acquitted, and B then sues A for what is termed a malicious prosecution, that is for prosecuting him when he was innocent, and without sufficient probable cause to justify the prosecution, A, the defendant in that civil suit, may show in his defense that he acted upon sufficient cause and in good faith, and in an action of that kind, if A can show that he made a fair presentation of his case to an attorney in good standing, and that counsel advised him that it was sufficient ground for prosecution, and that he thereupon, acting in good faith upon the advice of counsel, instituted the prosecution, why, that would be a good defense. But that has not been carried into the criminal law. We don't seem to need it now. We don't seem to need defenses of that kind. They have got plenty of other defenses available. But if it became necessary, a man might defend for murder, or assault and battery, or anything else, for I fancy that any one evilly inclined, could find in Cincinnati or anywhere else in this broad country, some man to advise him to do whatever he wanted to do. That is the rule which some counsel act upon. They generally find out what a man wants to be advised, and then they advise him; and he is the man that pleases him. Now, it may be that this defendant, and I expect he did, advised with counsel, and I expect his counsel instructed him that he had a right to exclude this negro from the school, and I take it, am willing to concede, that he acted in the matter in the utmost good faith; that he thought he was doing what he had a right to do; but the court charges you, gentlemen, that notwithstanding all of that, if he did what the act of Congress forbids him to do, and did it under color of authority, and because this boy was a colored boy, that it would be no excuse; he would still be guilty. It would be a matter to address itself very strongly to the consideration of the court. The punishment prescribed by the statute is that the court may inflict a thousand dollars fine and twelve months imprisonment; and in a proper case this court

would do that. The court can not go beyond that in any case; but the court is not bound to do that; it is bound to exercise its own judgment in a particular case. It may fine as low as a penny, or imprisonment for twenty minutes, or either one. It is a matter within the discretion of the court. There is no minimum of punishment, but there is a maximum, beyond which the court can not go; and we are, gentlemen, all under obligations to avoid, as far as possible, anything like personal feeling, any personal interest. We are under oath both the court and jury, to administer the law just as we find it. The court is to determine the law and the jury is to pass upon the fact.

Now the issue, and the only issue, is, whether this colored school that had been provided, and which the statute had authority to provide, was reasonably accessible, and gave to this boy the same facilities, educational facilities that he could have obtained at the other, or something approaching it. If it did, then this defendant is not guilty; if it did not, then the court instructs you that, upon your finding that fact, he would be guilty as he is charged in the indictment. Take the case gentlemen.

The jury disagreed, and were discharged. Channing Richards, for the Governmen'. John Johnston and H. J. Buntin, for defendant.

RAILROAD COMPANY--DAMAGES--EMPLOYE-REASONABLE OR UNREASONABLE ORDERS.

SUPREME COURT OF OHIO.

PITTSBURGH, CINCINNATI & ST. LOUIS RAILWAY COMPANY

V.

GEORGE HENDERSON.

February 28, 1882.

1. Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a. question of mixed law and fact, to be determined by the jury under proper instructions.

2. Where an action is brought against a railroad company by one of its employes to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the company as to the management of a particular train, which order was unreasonable and the enforcement of the same was dangerous to such employe, the fact that the negligence of a fellow servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action.

Error to the District Court of Harrison County.

Henderson brought suit in the Court of Common Pleas of Harrison County against the Pittsburgh, Cincinnati & St. Louis Railway Company. He was a laborer in the employ of the company upon a construction train which was.

on the main track of the railroad, in a deep rock cut, upon a heavy curve in the road. While he and the other laborers were at work loading the train with gravel, a freight train which was on its regular time was run into the construction train without warning of any sort, and by the wreck which resulted from the collision, Henderson was driven against the rocks, two or three of his ribs were broken, his shoulder was dislocated, and he was permanently injured. The action was brought to recover damages for the injuries, and in the court of common pleas there was a verdict and judgment in his favor for $3,000, which judgment was affirmed in the district court, and this petition in error was filed to reverse the original judgment as well as the judgment of affirmance. The record contains all

the evidence.

Construction trains have no place on the schedule or time table, and by the printed rules of the company it is required that they shall be kept out of the way of all regular trains, freight as well as passenger, clearing their time at least ten minutes, and it is the duty of the conductor of the construction train to observe the time of all trains and obey the rule. This rule, however, may be suspended as to freight trains by special order of the superintendent of the railroad company, whenever he sees fit to do so, in which case it is the duty of the conductor of the construction train, where such train is being loaded on the main track, to keep the train in its place and send a man with a proper signal to notify approaching freight trains.

In this instance the superintendent had made such special order, and the conductor of the construction train, keeping his train on the track, had sent a flagman to notify the approaching freight train; but the flagman performed his duty so negligently and improperly that the engineer of the freight train understood his acts as an order to go ahead and not stop. The engineer says the flagman stood several yards from the railroad track, holding the flag down at his side with one hand and making motion with the other as for a forward movement. In this way the injury was occasioned, without any negligence on the part of the plaintiff. It would have taken six minutes to move the construction train to a side track from the place where it stood on the main track.

Barrett was superintendent of the company. He testified: "There are general printed rules for all trains, made in order to promote the safety of persons and property. I establish these printed rules. I am the superior officer for that purpose on this division. I give special orders and private instructions, as I think necessary, to annul or disregard the general rules. * * * They are not printed. * * * Construction trains cannot occupy the main track without special instructions. It is the duty of the conductors of construction trains to protect their trains. I gave special order, which annulled the general rule as to construction trains, allowing them to stand on the track until the arrival of

freight trains, by sending back a flagman to notify approaching trains. I give special orders to construction trains where to work, and direct them by special orders from time to time, by telegram or otherwise."

Lowen was boss of the laborers employed on the construction train. He hired and discharged the men and regulated the time and manner of working. He had authority to require that the train should be moved, as he might direct, with reference to the work, but it was no part of his duty to observe the time of approaching trains, that matter being confided exclusively to the conductor. He was in the caboose until the freight train was ithin a few feet of the construction train, and barely escaped serious injury, but several persons beside Henderson were injured.

In the amended petition the negligence of the superintendent, "boss," and the conductor of the construction train, is stated, and the answer is a denial.

J. Dunbar, for plaintiff in error.

The duty implied as incident to the employment, and the question whether the special order was reasonable, were questions of law. 5 Ohio St. 567; 43 Ill. 421. The exception to the charge was sufficient. 10 Ohio St. 226; 29 Ohio St. 452; 32 Ohio St. 415.

J. M. Estep, for defendant in error.

Negligence is for the jury. 8 Ohio St. 580; 13 Ohio St. 66; 23 Ohio St. 10; 24 Ohio St. 639, 668; 28 Ohio St. 23; 31 Ohio St. 480; 32 Ohio St. 66; 35 N. Y. 10; 58 N. Y. 455; 77 N. Y. 72; Shearman & R. on Neg. § 11. Rules must be Ohio St. 226; Negligence complained of is neglireasonable. Shearman & R. on Neg. § 93; 36 gence of Company. Shearman & R. on Neg. § 89: 33 Ohio St. 468; 73 N. Y. 40; 81 N. Y. 206; 42 Md. 117, 136; 6 Bing. 716. Employe takes no risk of negligence of company. 1b.; 3 Ohio St. 201; 31 Ohio St. 287; 17 Ohio St. 197; 36 Ohio St. 221; Shearman & R. on Neg. § § 5, 10, 89; 73 N. Y. 40; 53 N. Y. 553. Exceptions to charge in gross and hence insufficient. 25 Ohio St. 584; 30 Ohio St. 105; 32 Ohio St. 77; 21 Wall. 158.

OKEY, C. J.

Where a servant sustains injury by the negligence of his master, the master is liable in an action by the servant for damages. A breach of duty by the master is not one of the risks which one assumes in entering upon the employment of another. This breach of duty may consist in employing other servants who are incompetent, in providing unsafe machinery and structures, in failing to notify the servant of peculiar dangers known to himself but not to the servant, or in needlessly placing the servant in a place of danger.

As corporations act only through agents, it sometimes becomes important to determine what persons stand in such relation to it as that their negligence shall be deemed the negligence of the

corporation, or, as sometimes expressed, who is to be regarded as merely a servant of the corporation, and who is in legal effect the master. Upon this subject the cases are by no means in harmony [Pierce on Rail. (ed. of 1881), 367; 2 Thompson on Neg. Ch. XX.; 11 Reporter, 42, 207, 591; 21 Am. L. Reg. 76]; but it is unneces sary to enter upon any extended examination of them. No noubt can be entertained that one standing in the relation to the company sustained by Barrett, being the superintendent of the company, and clothed with power, at his own discretion, to make and suspend rules to regulate the running of all the trains on the road, is to be regarded, in a case of this sort, as in legal effect the master. And where one so in legal effect master, makes a special order with respect to the management of a particular train, which is, under the circumstances, unreasonable, and by the excution of such order a servant of the corporation, himself without fault, is injured, it will be no answer to the action of the injured party against the corporation to say, that the immediate cause of the injury was the negligence of a fellow servant of such injured party in the execution of the unreasonable order. Chicago etc. R. Co. v. McLallen, 84 Ill. 109; Chicago, etc. R Co. v. Moranda, 93 Ill. 302; Hough v. Railway Co. 100 U. S. 213; Fuller v. Jewett, 80 N. Y. 46; Smith p. Oxford Iron Co. 42 N. J. L. 467; Ohio & M. R. Co. v. Collarn, 73 Ind. 261; Patterson v. Pittsburgh, etc. R. Co. 76 Pa. St. 389; Cumberland, etc. R. Co. v. The State, 44 Md. 283; Ford v. Fitchburg etc. R. Co. 110 Mass. 240; Berea Stone Co. v. Kraft, 31 Ohio St. 287; Lake Shore, etc. R. Co. v. Lavalley, 36 Ohio St. 221.

Whether a rule of a railroad company is or is not a reasonable rule, is in many cases a question cf law; but in this case it cannot be affirmed as a matter of law that the special order made by superintendent Barrett was reasonable. On the contrary, whether such order was reasonable or unreasonable was a question of mixed law and fact proper for the determination of the jury, in view of the circumstances under which the order was to be executed, and upon proper instructions as to the law. The jury found that the order was unreasonable, under the circumstances, and we are not prepared to say that the finding was wrong.

Objection is made that the court permitted the petition to be admended after the evidence was closed, and also permitted the jury, after the verdict was announced, to retire for the purpose of correcting it. But these matters rested in the discretion of the court, which seems to have been exercised in furtherance of justice. And as to the request to charge and the charge given to the jury, the exception was general and not specific, and, looking to the whole record, we cannot say the action of the court was so prejudicial to the company, in any respect, as to afford ground of reversal.

Judgment affirmed.

[This case will appear in 37 O. S.1

SUBTERRANEAN RIGHTS OF WAY.

SUPREME COURT OF OHIO.

S. W. POMEROY

v.

BUCKEYE SALT COMPANY.

Feb. 28, 1882.

1. The general rules of law which govern the rights and obligations of the owners of dominant and servient estates, apply as well to subterranean rights of way as to those upon the surface.

2. The owner of coal lands, through which another has a right of way, by subterranean entry, to reach coal mines in an adjoining tract, may lawfully construct an entry crossing such right of way, provided; it be done without destroying or substantially interfering with the use thereof.

Error to the District Court of Meigs County. E. A. Guthrie, for plaintiff in error. John Cartwright and Grosvenor & Vorhes, for defendant in error.

LONGWORTH, J.

The

In the year 1869 Valentine B. Horton and Charles W. Dabney owned in fee a tract of land containing 43 acres, rectangular in shape, near the Ohio River, in the city of Pomeroy. This tract fronted southwardly toward the river and on the north adjoined a 300 acre tract of coal land afterwards purchased by the plaintiff in error. They also owned a coal landing, or platform, known as the "Goulding Platform," adjoining this 43 acre tract at its southeast corner. furnace of the Buckeye Salt Co., defendant in error, was near the southwest corner of the tract. Under the surface of this land extended a vein of coal, outcropping across the northeast corner and along the cliffs of the south front. A long disused entry, or passage way, extended from the Goulding platform through the coal vein northwardly to certain deserted workings, or coal veins, in the northeasterly portion of the tract These workings had caved in and the entry had become partially or entirely filled up, so as to be impassible unless cleared.,

In the year mentioned Horton and Dabney conveyed to defendant this tract in fee; the deed, however, containing this reservation:

"Saving and excepting a right of way from what is known as the Goulding platform, on lots numbered 279, 280, 281, and contiguous lots, by an entry to the north and east sides of the tract hereby granted, and the right to make such ways and roads and keep them in repair, for the transportation of coal and salt, as may be deemed necessary and expedient by the grantors, their heirs and assigns."

Pomeroy, having become the owner of the 300 acre tract on the north, purchased from Horton and the heirs of Dabney, the Goulding platform, together with the rights of way so secured by them, for the purpose of obtaining an entrance to the coal veins in his 300 acre tract.

Beginning at the platform he opened and cleared the old entry half way across the tract, until he came to the deserted workings. From

this point the evidence shows it to have been impracticable to proceed further to the north, the standing coal necessary to support the passage way having been exhausted. Near this point, however, was discovered another deserted entry running west. This entry he cleared and followed to the centre of the tract, the first point where he found standing coal sufficient to support a new entry. Through this standing coal he drove a new entry and windway for ventilation due north into his own land.

The defendant purchased the 43 acre tract for the purpose of mining coal therein, to use in its salt furnace. For this purpose it had driven an entry and windway northwardly through the western portion of its land to a point about three-fourths of the way across the tract. Thence it proposes to drive its entry at right angles eastwardly through and across the entry of plaintiff, and at the same level, for the avowed purpose of reaching the remaining coal in the northeast portion of its tract, and possibly with the further object of obtaining coal from lands lying to the east of the same.

To prevent this action the plaintiff brought suit in the Common Pleas Court of Meigs County, praying for an injunction to prevent defendant from "penetrating and breaking the walls of said way and entry and from crossing the way and entry of plaintiff."

The case was fully tried on appeal in the district court and the petition was dismissed. This decision we are now called upon to review.

The defendant maintains that it has the right to cross the plaintiff's entry and windway for several reasons which we shall now consider:

dence that such a course was not reasonable or practicable, and it does not appear that Pomeroy went any further to the west than was absolutely necessary to find standing coal sufficient to support his entry. This we think, under the terms of the reservation, he had a right to do. Had we any doubt upon this subject, however, such doubt would be set at rest by considering the subsequent action of the parties.

It seems to have been conceded by Pomeroy that the coal taken from his new entry belonged not to him but to the Salt Co., and he therefore proposed to pay the company at the rate of three quarters of a cent per bushel, measured in the solid, for all coal so taken out by him. This proposition, by its terms referred only to coal taken from the solid vein and not to such loose coal as might be found in clearing up the old entries or in the deserted workings. The proposition was, by a vote of defendant's directors, formally accepted on the 24th of April, 1874, and an agreement in writing was entered into four days. later, which, after reciting the conveyance from Horton and the heirs of Dabney to Pomeroy, reads as follows:

And whereas, in the prosecution of the right so acquired, the said Samuel Wyllys Pomeroy, in driving his entry, passes through coal which he concedes is the property of the Buckeye Salt Company now, therefore, the said company agrees to receive, as full compensation therefor, and the said Samuel Wyllys Pomeroy to pay, to the said company, for the coal removed by him in the prosecution of his said right of way, a royalty of three-fourths of a cent a bushel.

"It is also mutually agreed by the said parties that the coal so removed shall be estimated by measurement of the space occupied by the same before removal, by competent mining engineers, who shall make due allowance for customary waste in mining, slack, ete., on which no royalty is accustomed to be paid."

2. Defendant insists that, by the terms of the deed from Horton and Dabney, nothing more was reserved than a right to an entry extending from the platform in a direction due north, along the easterly side of the tract; and that, by going west to the centre of the tract and there driving his entry north, the plaintiff has exceeded the right granted him and has cut off the defendant's approach to its coal fields in the northeast quarter of its land, unless it is permitted to cross his entry. We are not prepared to say that in driving his entry as he did Pomeroy was a trespasser. Although doubtless it was possible to extend the entry due north through the deserted mines to the north and east sides of the tract, yet it clearly appears from the evi

by him in driving his entry and windway through the standing coal according to the terms of this contract; and that all this coal as taken out was purchased from him by the Salt Co.

Under this state of facts we do not think that defendant is in a position to question plaintiff's right to locate his entry as he did.

3. Under this state of facts the question arising for decision is, whether defendant has the right to cross the plaintiff's entry, at the same level, by an entry of its own. It is clear from the facts proved that to cross at any other level above or underneath plaintiff's entry would be impossible.

We do not think that there exists any difficulty in ascertaining the principles of law which govern the case. It having been established that Pomeroy has a right to the use of his entry as located and constructed, it is clear that defendant should not be permitted to do any act whereby such right will be destroyed or substantially interfered with. It is also clear that