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touching it in any particular. He gave no note | pose thereupon, either express or by necessary or other obligation to his vendors for the pay- implication, is sufficient to control the question, ment of the debt upon the land, or its purchase. provided its latitude is reasonably apparent. The deed conveying him the land contains a We are not shut up to a will alone for ibis inrecital of the existence of the incumbrance, and tent. We may get it from the res gestæ, the intestate's assumption and promise to pay it; facts of the transaction connecting the decedent and the intestate accepted the deed, and went with the incumbrance, it may be express or by into possession of the land under it.. “This is necessary implication. Bisph. Eq. $$ 347, 348. the head and front of his offending" in this di. It is to be noted that the judges in the cases rection. It will be noticed that the principle cited considered and interpreted the facts as applicable to these facts has not been questioned transactions, to find proper evidence of the in England or the States of this Union, except- decedent's intentions to charge his personalty ing this, during a period of 200 years, and that in case of the burdened realty. Lord Cowper, there bas been no conflict upon it, but only in Bagot v. Oughton, 1 P. Wms. 347, after deupon the question, What acts of the purchaser tailing the facts of the transaction, said: “The will make the incumbrance his debi, and his covenant was an additional security, for personal estate primarily liable for its payment? the satisfaction only of the lender, and not in—and that the weight of authority upon this tended to alter the nature of the debt.” pbase of the question was adverse to the pri- Chancellor Kent (3 Johns. Ch. 262), after say. mary liability of the purchaser.

ing there must be a direct dealing with the Sir William Grant, in Lechmere v. Charlton, owner of the lien debt, adds: “And even that 15 Ves. Jr. 198, says: “Where a person becomes is not enough, unless the dealing with the mort. entitled to an estate subject to a charge, and gagee be of such a nature as to afford decided then covenants to pay it, the charge still re evidence of an intention to shift the primary mains primarily on the real estate, and the cove- obligation from the real and personal fund.” pant is only a collateral security, because the 2 Story. Eq. Jur. & 1248, on the same point, debt is not the original debt of the covenantor." has this language: “And even a covenant or

It is well settled by the ablest courts and law. bond for the purpose will not be sufficient, unwriters in this and the mother country that the less accompanied with circumstances showing personal estate will not be primarily liable un- a decided intention to make thereby the debt less the testator bas not merely made bimself personally his own.” answerable for the payment of the mortgage, Redfield, on Wills, in nearly identical lanbut has made the debi directly and absolutely guage, lays down the same rule. bis own, and has in some other way manifested The inquiry is not, Did the decedent charge an intention to throw the burden on the per- the McKinney land primarily with the $10,000 sonalty, in ease of the land.

incumbrance? This debt had been fastened We are aware that it has been objected that upon it before intestate's purchase, but it is the high authorities cited to sustain the princi- said that O'Conner intended to relieve the land ple laid down above are not Tennessee author- by throwing upon bis personally the primary ities, and therefore are not binding on this liability of its payment. If we are precluded court; that we bave a system of statutes of our from considering and interpreting the facts of own regulating the administration of decedents' the purchase for the answer to the question (be estates, and the system, as explained by our dying intestate), we have no evidence of an inadjudged cases, should determine and setile the tention to exonerate the land with his personalquestion raised by the second error of complain- ty; and, however, clearly, the heir cannot call ant's assignment. Is this objection well taken? on the distributee to reimburse him for the disThere is no provision of our Code touching the charge of the McKinney debt. But, consideradministration of estates that provides for a ling the facts of the purchase of the McKinney case circumstanced as is the one in hand. It | land by the intestate, is there proper evidence is not a creditor seeking, under these laws, to of intent to exonerate? The vendor's lien in subject realty to sale, in order to pay his debts. favor of McKinney was fastened on the land, nor an administrator or executor, for the cred- being retained on ihe face of the deed io intesitor, seeking to reach realty as a means of pay- tate's vendors. O'Conner made no contract ing a debt of a decedent. The creditor enforced with the lienholder: gave no note or other oblihis lien for purchase money in the courts, and gation to him for it. He merely accepted a bad sale and payment of his debts from the pro- deed from his vendors, which recited the exceeds of the realty. The heir-at-law now asks istence of the incumbrance, and that intestate to be reimbursed the sum paid from the pro- assumed and agreed to discharge it; but nothceeds of this land. The question of bis prayer ing was said or done by him in tbe direction of depends upon the equity of his case, and its discharge. This fixed lien was left by the whether bis laud was the primary fund for the parties undisturbed,-a primary charge upon payment of the debt paid by his inheritance. The land. Our Code makes both real and personal prop- It is clear this purchase was made for the erty assets for the payment of debts,-the latter benefit or increase of the real estate. This fact, the primary, and the first the auxiliary, fund for under the old rule, which will be discussed bepayment,-unless this order has been changed low, was evidence of an intention and purpose by the decedent in his life, as between legatee on the part of the purchaser that the land puror distributee on the one band, and the devisee chased should be the primary source of its payor beir at law, on the other. Our Code and ment. Evidently, the intestate intended his the adjudged cases of this court permit the personalty to be in aid of the realty merely, for decedent to determine which shall be the pri- ine reasons stated under the high authorities mary, and which the auxiliary, fund for pay- cited. I hold that the McKinney land was ing debts and legacies. His intention or pur- i first liable for the payment of the McKinney $10,000, and interest, and cost, and that the nor decision of this court settling the identical beir is vot entitled to a recovery against the ad- question presented here; that the question is ministratrix for reimbursement therefor. equitable, to be settled by deciding where the

We feel less certain in disposing of the three superior equity is; that complainant's conten1,000-dollar notes given by the intestate to bis tion is supported by the superior equity, the vendors on the purchase of the McKinney land. controversy being between the heirs at law and These notes are for an additional sum, needed distributee, creditors and legatees having no to acquire the balf of the McKinney land, were interest therein. On the last analysis, lying in aid of the purchase, and come under the back of the fact of a “personal contract," on rule laid down by Mr. Lomax, as follows: "So, which the Massachusetts cases put the primary in cases where the land comes to the deceased liability on the personalty, is this inquiry: Was by descent or devise (will perchance vary the the contract for the increase and benefit of the rule], bis concurrence in the mortgage deed, realty, or of the personalty? Its answer deter. and his personal covenant for the payment of mines which estate is first liable. If the realty the money, on the assigoment or transfer of the is first in liability, the contract made for the mortgage, will not alter the burden, as between purchase money, though capable of being bis real and personal representatives. And the turned into a personal judgment against the same principle applies if other estates are added purchaser, is secondary in its character, and in to the security, on a further sum lent, or if there aid of the realty. This rule was formulated be a covenant op his part increasing the rate of and used by the courts of England more than interest. And it seems that, if the sum bor- 200 years ago, in settling questions identical rowed by him and added to the original mort. with those now before ibis court, and since its gage be comparatively small, equity will not introduction into the judicial bistory of the consider that be had different intentions as to mother country we remember no decision of these different terms, but will charge tbe real her courts questioning its soundness. It should estate with the whole." See 2 Lomax, Exrs. be stated that at the date of its first use person. marg. note, 227, 228.

alty constituted the only fund for the payment The sum covered by the three notes is small, of debts in England. A favoritism, the outcompared with the incumbrance debt, being a growth of the old feudal system, so completely little less than one third its size. Alluding to hedged the realty about that it was rarely made the rule above given, equity will not consider to pay debts of decedents. In the United States he bad a different intention as to these terms. property of a decedent, of all kiods, is and has and, therefore, the real estate should be charged been applicable to the payment of his debts. with both sums, as the primary source of pav. It has been made so now in England. Our ment. Complainant's first error assigned de constitutions and laws constitute a soil more nies the right of the defendant to reimburse- favorable to the growth and vigor to this old ment on these facts: The intestate bought of rule than that of its origin, and in this country Sanford real estate at the price of $1,650; paid we would expect to see it oftener applied, and $550 cash, and gave notes for balance. He its authority less questioned, than in the land purchased of Moffatt real estate at $4,500, and of its nativity. This old rule has been cited gave bis notes therefor. Each vendor made a and approved by the Supreme Court of the deed of the real estate sold by him to intestate, United States in Mcleurn v. Wallace, 35 U. S. retaining lien for purchase money upon the 10 Pet. 644 [9 L. ed. 566). Judge McLean, deland conveyed. Each enforced bis lien upon livering the opinion of the court, quotes Lord the real estate against the beir-at law, and bad Eldon as saying, in Waring v. Ward, 7 Ves. Jr. his debt paid from the proceeds thereof. These 336, that “ihe principle upon which the perproceedings were after death of intestate, and sonal estate is first liable in general cases is that ibe realty so sold was situated in or near the the contract, primarily, is a personal contract, City of Knoxville. The presumption is that the personal estate receiving the benefit.' this realty was bought by the intestate on spec- Judge McLean, continuing, says: “And so, if ulation, and he intended and proposed to pay the contract was in regard to the realty, the the sums due thereon from the proceeds there. debt is a charge on the land. It is in this way of when sold. Complainant ipsists that no case that a court of chancery, by looking at the has been passed upon by this court identical in origin of the debt, is enabled to fix the rule beits facts and defenses with the one in hand. tween distributees.” We have found none determined by courts of We state generally that many of the state last resort in the United States, except one or courts and law-writers in the United States cite more adjudged by the Supreme Court of Massa- and approve this “rule;” but they need not be chusetts, wherein the court briefly held that referred to here with more particularity. When the contract of purchase was a personal one, the rule was adopted in England, personal upon which the purchaser might have been property did not have its present volume or sued, judgment bad, and the debt collected importance. The mortgages upon real estate from his personal estate; and for that reason were nearly without exception for borrowed held tbe personalty the primary fund for pay- money.

Vendor's liens were very rare, and ment, and the realiy in aid of it, merely. cut no figure in the current litigation of that

Complainant admits that the non-lien cred day. The courts, in that formative period, exitor cannot subject the laud to sale for the plained the parts of the transaction from which payment of bis debt until he shows complete grew the debt, to ascertain the interest of the exoneration of the personalty, or its insuffi. debtor to charge his real or personal estate with ciency to pay debts. She insists the lien credits payment. Those able judges bad little of itor can proceed to enforce his lien upon the precedent to guide them, but had good common really in the first instance, without reference sense, and large acquaintance with and under. to the personally; that there is neither statute standing of the motives and purposes moving

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to action in the assairs of every day life. To | large part of the covenant litigation of the day.
this circumstance is largely due the excellency where the clains of creditors bave been paid,
of those early decisions. These fathers of our with no opposing statute por adjudication of
inberited jurisprudence, guided by their prac- this court, and when the title to both really
tical good sense and level-headed wisdom, in- and personalty flows from the same source,
terpreted the making of the debt for the increase the intestate, -why should not bis intent, im-
of and benefit to the personalty to mean that pressed upon his property, control the question
the debtor intended that estate should be bur- which shall enrich his beir or bis distributec?
dened primarily with the payment. Hence all What good reason is there for making this an
debts for personal property, services, loaned anomaly,-an exception to a rule of such gen-
money and mortgaged debts, which make up eral application ?
the consideration supporting the great bulk of This court, in Masson v. Swan, 6 Heisk. 451,
the indebiedness of that period, were held to 457, goes far to sustain this rule. Swan sold
be for the benefit of the personalty; and conse- a lot to Masson, by parol, who put valuable
quently it was first chargeable with their pay. improvements on it, but did not pay purchase
ment. These judges were too clear-beaded not money. Swan died, and Masson disailirmed
to know that the converse of this rule, when the contract, and sued for the value of the im-
applied to real estate, was axiomatically true, provements. This court held the lot the pri-
also; but, as the occasion of its application was mary fund for the payment. Judge Nicholson,
rare, ibere being few land transactions, there speaking for the court, said: “The real estate,
are few rulings of the courts upon it to be and not the personal, is benefited by the im-
found in the early reported cases. If the per- provement; and equity necessarily fixes the
soualty receiving the benefit coming from the liability for the benefit on the real estate.” The
creation of a debt means that the debtor in principle of Musson v. Suan has been applied
tended tbat it should tirst be chargeable, why to similar facts by nearly all the courts of this
does not the result follow to the really? When Union; and the reason of the rule, whenever
it gets the benefit, why should it be true as 10 applied, is the same, viz.: The realty, having
personalty and untrue ás to realty? The courts received the benefit, must be held first liable
proceeded in principle and reason upon the for the payment therefor. The personal con-
same line when they left the facts to determine tract on the part of Swan bad no bearing in the
the relative liability, inter partes, of twoor more decision.
persons jointly and severally bound upon the John Marshall, of Franklin, Tenn.,-a great
same instrument. If it is reasonably certain, name in the law,-sat as a special judge in
upon weighing the facts, that one signed with Franklin v. Armfield, 2 Sneed, 356, 357. This
the intention to be bound as principal, and the great lawyer held the executor, who had paid
others as sureties, the courts do not hesitate to off an incumbrance upon a parcel of land,
80 define their rights, and to enforce them ac- partly with bis own means, and partly with the
cordingly. Likewise, the determication of the assets in his own hands, was entitled to be re.
many questions arising in the settlement of imbursed therefor; and that the land, relieved
partnerships, involving the conflicting rights from the burden resting on it when it came to
of firm and individual creditors as to their the devisee, was chargeable therewith, as the
priorities of payment from firm and individual primary fund.
means, is largely controlled by the intention The personal-contract” theory, as a test to
and purpose of the parties, impressed upon the determine ich estate to be first chargcable
particular transaction. In fact, the rule giving with a debt, has been shifting and unfixed in
several priorities is the outgrowth and fruitage its nature, as may be seen in ibe overruling of
of the expressed or presumed intent of the par-Campbell v. Findley, 3 Humph. 330, after an
ties to the transaction, or in relation thereto. interval of half a century, by Moore v. Stovall,
Death and intestacy do not affect the question; 2 Lea, 543, by a divided court, and a century
and the personal contract idea, though a promi- of discordant opinions in England, and to some
nept fact, is silent, while the courts give expres extent in New York, as to what makes a bind-
sion to the intent of the parties, in settling and ing personal contract, in the sense of the rule.
fixing the relative liability of persons and funds It should be observed that these two prominent
in the two classes of cases herein before referred States in intelligence, wealth and culture bave
to. Also, if a tract of land subject to a lien is cleared up the question by clear-cut legislative
sold by the lien debtor surreptitiously, in sep- enactment, providing that the descended realty
arate parcels, at different times, and conveyed of decedents shall in all cases be the primary
by deeds registered when made, the lien, if fund for payment of any debt fastened upon it
enforced by rule of the land, must be in the by mortgage, etc., when it came to the heir,
inverse order of alienation. The first sub-pur- unless there is a clearly expressed intention to
chaser may force this order in the sale of the the contrary in the will of decedent. The bet-
parcels. This equity grows out of the pre- ter rule, we think, is to let the answer to the
sumed intention of the several sub-purchasers, inquiry, Which estate got the benefit? fix the
and may be enforcea, notwithstanding death primary liability, if the debt is for borrowed
and intestacy have intervened.

money, and is secured by a mortgage on real Other contentions might be cited wherein the estate, and the personalty has been benefited expressed or presumed intention of the parties, thereby; and the courts, for more than a cenimpressed upon the transaction, is the control. tury, held these facts, by necessary implication, Jing fact with the courts in fixing the liability evidence of the decedent's intention to charge of persons or funds: but those named are deemed bis personalty with the burden of discbarging sufficient for this purpose, to show the constant the mortgage debt, in exoneration of the realty, practice of the courts in giving a controlling -not an intention shown in a will, but im. influence to the intent of parties in settling the pressed upon and inbering in the very fiber of

1

the transaction from which came the debt. I descent, the heir and distributee are never difWhen the debt is the price of land bought, ferent persons, except when one dies circumwhy will not these facis, under the same rule, stanced as was Thomas O'Conner, or without evidence an intent to charge the incumbered wife, or husband, or children, when the disland primarily, as the debt was made for the tributee is a parent, old, and perhaps needy. increase of the land?

The intestate was largely engaged in realWhy shift the le, and say the personalty estate culation in a growing city, where real is the primary fund to pay, because it is the estate was rapidly enhancing in value. The “personal debt of the decedent?”. In strict- purchases were made with the expectation of ness, the canons of descent devolved upon the early sales, at fine profits. He meets a sudden leirs only the excess of the market value of death. No testament is made, providing for the realty over the incumbering, unpaid pur bis childless widow. If the personalty is to chase money, with the privilege to them, upon relieve the realty of the incumbrance for its discharging that debt, to be invested with the purchase money, the beir will be enriched, and fee simple. The intestate took just this inter the widow and distributee in poverished. The est in the realty purchased, and no more was superior equity is certainly in her favor. The trausmitted to bis heirs. He consented to the heir is in a court of equity, asking that equity retention by his vendors of so much of the be done. Will equity reimburse the beirs at realty purchased as would be sufficient to pay the expense of the distributee? its price, and thereby appropriated and set The reasoning upon the first error assigned apart that interest as a means charged with the by complainant is equally applicable to the payment of the price of the realty. Presuma- third 1.000-dollar note given to the intestate's bly, the purchases from Moffatt and Sanford vendors in the purchase of the McKinney land. were on speculation, and intestate intended to We reach a conclusion as to this error with less pay the debty credited in the purchase from the certainty than we had as to the McKinney in. proceeds, when sold. As between the heir and cumbrance; but still we feel justified in holding the distributee, should not that intent of intes that the beirs are not entitled, in equity, to be tate to make ihe realty first liable to pay off reimbursed for sums paid upon the Moffat and the burden be effective, not as an intent evi- Sanford parcels of land from the proceeds of denced by & will, but one impressed upon and said lands. This disposes of the third assigned woven into the very texture of the transaction error of complainant adversely to the claim of by the intestate himself? Does public policy, the heirs at law, and upon the whole case, the or public good, or the uniformity of the rules chancellor is in error, and should be reversed, for administering the estates of decedents favor and the heirs at law pay the cost of this cause or oppose the settlements of these open ques in this and the court below. Entertaining tions, as already indicated? It can only be a these views, I am compelled to dissent from practical question when the distributee and the opinion of the majority of the court in this heir are not the same person, which is rarely case. tbe case. Under our laws of distribution and

KENTUCKY COURT OF APPEALS.

0.

J. M. WHITE, Appt.,

Messrs. De Jarnette & Dickerson, with

Mr. C. B. Simrall, for appellee: CINCINNATI, NEW ORLEANS & TEXAS

A party cannot recover for an accident ocPACIFIC R. CO.

casioned by the use of a defective platform,

after he had seen the defects, had his attention (....Ky.....)

expressly directed to them, and “knew its un

safe condition when he went on it." Knowledge of the unsafe condition of Bogenschutz v. Smith, 84 Ky. 331.

the platform provided by a carrier for loading There can be no recovery for an injury caused stock will not prevent a person, attempting to use by the mutual default of both parties. When it for that purpose, and exercising due care, from it can be shown that it would not bave bap. recovering for injuries received by reason of the pened except for the culpable negligence of the defect.

party injured concurring with that of the other (January 25, 1890.)

party, no action can be maintained.

Beach, Contrib. Neg. $ 7, and cases cited; A PPEAL by plaintiff from a judgment of the Sullivan v. Louiscille Bridge Co. 9 Bush, 81;

Circuit Court for Grant County in favor of Jacobs v. Louisville & N. R. Co. 10 Bush, 263; defendant in an action to recover damages for Louisville & N. R. Co. v. Collins, 2 Duv. (Ky.) personal injuries alleged to have resulted from 114; Louisville & N. R. Co. v. Robinson, 4 Bush, defendant's negligence. Reversed.

507; Louisville C. R. Co. v. Goetz, 79 Ky. 442; The facts sufficiently appear in the opinion. Kentucky Cent. R. Co. v. Lebris, 14 Bush, 518; Mr. J. J. Landram, for appellant:

Paducah & M. R. Co. v. Hoehl, 12 Busb, 41;

Wharton, Neg. $ 300, and cases cited, and see NOTE.--Carrier, unsafe condition of platform. See also $ 332; Shearm. & Redf. Neg. $ 25, and cases notes to New York, C. & St. L. R. Co. v. Doane (Ind.) cited; 2 Thompson, Neg. p. 1146, notes; Smith, 1 L. R. A. 157; Kelly v. Manhattan R. Co. (N. Y.) 3 Neg. 2d Eng. ed. p. 227, and cases cited; Pol L. R. A. 74; Missouri Pac. R. Co. v. Wortham (Tex.) lock, Torts, p. 374; Wood, Mast, and S. $ 319, 8 L. R. A. 368,

and cases cited; Smith, Mast. and S. 4th Eng.

1890.

WHITE V. CINCINNATI, NEW ORLEANS & Texas Pacific R. Co.

45

ed. p. 344; Patterson, Railway Acc. L. p. 45, | pose, but the public bad a right to demand it, and cases cited.

and to use the road for travel and shipping pur.

poses. It was bound to keep its platforms and Holt, J., delivered the opinion of the court: approaches essential to travel or shipment in a

The appellant sues for damages for injuries safe condition; and public policy forbids that it sustained by bim while assisting bis employer, should be allowed to protect itself from liabilia sbipper over the appellee's road, in loading ty for injurious consequences resulting to per. stock at night upon its cars. The apron or sons from its failure to perform this important platform connecting the stock-chute with the duty upon the ground that they knew the platcar into which the cattle were being driven form or approach was defective. gave way, precipitating the appellant against Suppose a passenger platform at a depot is the side of the car. The evidence tends to show defective. A person desiring to take passage that the apron was too short,—not long enough knows it. Ig he, therefore, to forego going, or to lap sufliciently far over on either the chute else take the risk of injury without remedy, or the car to insure safety to one upon it; that notwithstanding the exercise of reasonable care it was not fastened to the chute by binges or upon his part in attempting to board the train ? otherwise, as is usual, and had been out of re- Surely not. In this case the Company had propair for a considerable time; that all this was vided but the one chute and the one aprov for known to the Company, through its agent, pre- the shipment of stock at the station. It was vious 10 the time of the injury, but was like inviting patronage in tbis way by the public, alwise known to the appellant. It further ap- though it knew the means provided for the pears tbat the station where the accident purpose were unsafe. Under such circumstan. occurred was the nearest and most convenient ces, was the owner of the stock to be com: point for shipping the stock, and that but the pelled to take them elsewhere for shipment, or one chute and apron were provided by the Com- the appellant to refuse employment, because of pany. The lower court, at the close of the ap- knowledge of the defective condition of the pellant's testimony, peremptorily ivstructed the platform? A very different esse would be prejury to find for the Company upon the ground, sented where one contributed to his own injury as is admitted in argument, that the appellart by carelessness upon his part in the use of was aware of the defective condition of the the defective platform. He cannot complain platform, and could not therefore recover. where, but for his own neglect in the manner

Such an instruction should not be given, un- of using it, the injury would not have occurred. less, conceding the truth of the evidence of- In such a case, there is a co-operating cause of fered, and of every fact which it conduces to injury on his part. Here there is none, but the prove, the party has no case. It is contended Railroad Company invites the shipper to ship that the knowledge of the appellant, prior to his stock. It holds itself out as furnishing safe the time of the injury, of the unsafe condition means for the purpose; and, although he makes of the platform, forbids a recovery. If so, the a prudcot and usual use of them, yet after be action of the trial court was correct. Let us has been injured it says to bim: "There is no see. It is not properly a question of contribu- liability upon our part, because you knew we tory negligence. It is not claimed, and there were not doing what we professed to the pubis no testimony tending to show, that the appel- lic?" It cannot be heard to rely upon the fail. lant was negligent in the manner of using the ure of a duty so important to the public. It is platform. So far as appears, it was the usual the duty, for instance, of a railroad company and careful use of it; but the trouble consisted to keep its depot lighted at night, tbat entrance in the fact that it was defective. The rule is and exit may be safe. Suppose a person desires well settled by a uniform current of decisions, to take passage at a certain place, and upon so numerous that citation is unnecessary, that reaching the depot he finds that this has not a railroad must keep its platforms and ap- been done. The situation is such that he must proaches to which the public do, or will natu- enter the depot and take passage, or decline to rally, resort in doing business with it, in a safe go, however important bis business. He ac. condition for sucb use. This is one of the duties cordingly enters; and, while prudently, and as it owes to the public. It goes hand in hand best he can, making his way in the darkness, with its franchises and extraordinary privileges. falls, and is injured by something carelessly The appellant bad a right to be where he was, placed in the way by the company. Will it be and engaged as he was, when he was injured. contended that the company could shield itself The Company had invited his presence by hold by saying: “You knew there was no light in ing itself out as a carrier of stock. It had im- the depot, and if you had kept out of there no pliedly said to the public: “The platform is injury would have resulted?". safe for the purposes intended, if reasonable If one have notice of a defect in a highway care be exercised in its use."

making it dangerous for travel, this does not It is said, however, that the appellant knew per se make a careful and usual use of it by this was not true, and that he therefore used it him negligence. We do not, of course, mean at his peril. This is, however, unlike the case to hold that one may, by recklessly rushing in. of a servant against the master for an injury to danger, or by his own culpable negligence caused by a defective state of the machinery or in use of the appliances provided by the ruil. premises or materials provided by the latter road company, directly produce the injury, for the work of the former. The master is not and then hold the company liable; but as be bound to employ the servant. The latter can- must of necessity use them, or forego travel, or pot dictate to him in this respect. Not only the the transportation of his property, he should duty rested upon the Company, however, so not be remediless, although he may know of long as it held itself out to the public as a car. their defective condition, if he is injured wben rier, of providing safe appliances for such pur-/ using them for these purposes in a prudent and

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