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were induced by fraudulent representations, consisting of a written statement issued and signed by the secretary and treasurer of the company, purporting to have been taken from its books, representing the corporation to be in a prosperous condition, with a net surplus of twenty-seven thousand nine hundred and thirty-three dollars and sixty-seven cents. The bill further alleged that some mouths after the subscriptions were made the complainants for the first time learned that they had been deceived by the omission from such statement of the fact that the corporation was liable to one Johnson for paid-up stock in the sum of twenty-seven thousand dollars, and that upon an explanation being demanded, "the officers of the company again succeeded in pulling the wool over complainant's eyes" by representations that the corporation had earned and would forthwith declare a dividend of forty per cent. That the matter was allowed to proceed, and that no dividend was declared, though demanded by the complainants. That the corporation sent out subsequent written statements, each showing the corporation to be in a less flourishing condition, and all containing misleading and fraudulent representations, and that the corporation is hopelessly insolvent. This bill was demurred to as failing to state a cause of action. The demurrer was sustained, the bill dismissed, and complainants asked for and obtained a writ of error. The supreme court, in affirming the judgment of the lower court, said:

"A contract to purchase stock induced by fraudulent representations is not void, but only voidable, at the option of the purchaser. If, as was said in Bosher v. Richmond etc. Land Co., 89 Va. 455, 37 Am. St. Rep. 879, the representations are made by promoters, or by a prospectus, the innocent subscriber may rely upon them without investigation. Ordinarily, however, where the rights of creditors are concerned, he must exercise reasonable care and vigilance in discovering the fraud, and in any case he must, upon discovery of the fraud, promptly repudiate the purchase. He has no right to hold on to the stock in the hope or expectation of realizing a profit therefrom, and, failing, in this, to disaffirm the contract. Hence, if after discovering the fraud, he demands or receives a dividend, or continues to act as a stockholder, or does any act inconsistent with an intention to disaffirm the contract, he will be held to have waived the fraud.

"As was said by the master of the rolls in Ashley's case, L. R. 9 Eq. 263: 'The leading principle in all these cases is this: A man must not play fast and loose; he must not say, "I will abide by the company, if successful, and I will leave the company if it fails"; and, therefore, whenever a misrepresentation is made of which any one of the shareholders has notice, and can take advantage to avoid his contract with the company, it is his duty to determine at once whether he will depart from the company or whether he will remain a member.' The same principle has been recognized in numerous cases, English and American. Indeed, it is fundamental, and rests upon a twofold reason, viz: 1. Because the subscriber's remaining in the company may induce others, upon the credit of his name, to become members; and 2. Because it may likewise induce others to give credit to the company for the same reason: Ogilvie v. Knox Ins. Co., 22 How. 380; Upton v. Tribilcock, 91 U. S. 45; Upton v. Englehart, 3 Dill. 496; 1 Cook on Stocks and Stockholders, 3d ed., secs. 151, 160, 165, and cases cited."

CORPORATIONS-SUBSCRIPTION TO STOCK-RIGHT TO AVOID FOR FRAUD.— If a subscription for shares of corporate stock has been obtained by frauda. lent representations it may be annulled by the subscribers at any time before other equities have intervened: Bosher v. Richmond etc. Land Co.,

69 Va. 455; 37 Am. St. Rep. 879, and note. This question will be found thoroughly treated in the extended notes to Thompson v. Reno Sav. Bank, 3 Am. St. Rep. 824; Purker v. Thomas, 81 Am. Dec. 401, and Franklin Glass Co. v. Alexander, 9 Am. Dec. 96.

NORFOLK AND WESTERN R. R. Co. v. Ward.

[90 VIRGINIA, 687.]

MASTER AND SERVANT-RISK NOT ASSUMED BY EMPLOYEE.-A laborer who does not know of an unusual and increased danger known to his employer, but who goes into a ditch and digs it to twice its usual depth under peremptory orders from his employer or superior employee, does not assume the risk of an injury received from the caving in of the sides of the ditch, and may recover from his negligent employer. MASTER AND SERVANT-INJURY FROM INCREASED RISK-BURDEN OF PROOF. If a servant shows that his injury was caused by an increased risk, and one not ordinarily incident to his employment, but growing out of the master's negligence, the burden of proof is upon the master to show that the servant knew of and understood the increased danger. MASTER AND SERVANT-INCREASED RISK-CONTRIBUTORY NEGLIGENCE.–

If the master or vice-principal orders a servant into a place of danger, and the latter obeys, thereby receiving an injury, he does not lose his remedy against the master on the ground of contributory negligence, unless the danger is so glaring that no prudent man would have entered into it, even when, like the servant, he is not entirely free to choose.

Brown & Moore, for the plaintiff in error.

R. C. Jackson and W. D. Tompkins, for the defendant in

error.

688 FAUNTLEROY, J. This suit is for damages for an injury received by the plaintiff while in the employ of the defendant company grading the track of its road.

After all the evidence had been introduced the court gave four instructions asked for by the plaintiff, which were excepted to by the defendant, and gave six instructions asked for by the defendant, which were excepted to by the plaintiff. The jury found for the plaintiff, and assessed eleven hundred dollars damages.

The defendant inoved to set aside the verdict and for a new trial, on the ground that the verdict is contrary to the evidence and law of the case, which motion the court overruled and entered the judgment complained of, upon the finding of the jury.

AM. ST. REP., VOL. XLIV.-60

The defendant excepted to the action of the court, and the evidence is certified.

The plaintiff in error assigns for error that the judgment is erroneous, in that the court overruled the motion to set aside the verdict of the jury, as contrary to the law and the evidence, and to grant a new trial; and that the instructions given to the jury, on the prayer of the plaintiff, are erroneous.

The appellee, Ward, received severe and permanent injury by the caving in of the side of a chamber, or "ground hoghole," as known in the parlance of railroad track grading, eighteen inches wide, thirteen feet deep, and twelve feet into the mass of impending earth to be excavated and removed, in which he was working in the employ of the defendant company, and into which he was specifically and peremptorily ordered to go and dig and excavate it deeper, after he had dug it, and shoveled out the earth, to even a greater depth than was the customary and prudent depth, by the supervising and authoritative "boss" in charge of the work as the agent of the appellant.

The defendant company claims that the evidence failed to 689 show any negligence on the part of the company, and that the plaintiff knew, or ought to have known, of the danger of the place and character of the work; and that he assumed the risk incident to his employment.

The evidence is certified, and in reviewing the finding of the jury upon the facts we are confined to the evidence for the appellee where there is any conflict. Abundant evidence was introduced by the plaintiff (who is appellee here) to show that the place in which he worked, and the method of the work, as ordered and conducted by the defendant, were not reasonably safe, and that the agent of the company in charge of the digging and excavating did not adopt or observe the requisite and usual caution to prevent or guard against the extreme danger of the work into which he specifically and positively ordered the appellee to go, and which proximately caused his severe and lasting injury. The soil or earth in which the defendant company was constructing its roadbed was treacherous at this place-rotten and seamy; and the evidence shows that it was known to the company's agent and representative to be dangerous to work in by sinking chambers and undermining and breaking off the forehead or blocked out mass. Their foreman, who ordered the appel lee to go back into the hoghole and sink it to the unusual

and dangerous depth of thirteen feet, knew of the risk of the undertaking, and expressed his fear that he would get his men killed in the chambers by the falling in of the sides. of the rotten, loose, and seamy earth; and only a day or two before the accident which injured the appellee one of the chambers near by caved in because of the character of the earth and the unsupported sides of the "hoghole." After Ware, the appellee, had sunk the chamber in which the accident occurred to the usual depth to which they had been sinking them he came out to break off the forehead as the usual precaution for safety. Long, the standing boss, was peremptorily ordered by Hanks, the walking and chief boss, without even a look or glance of inspection 690 by either of them, to send Ward in again to sink the chamber deeper. Long gave the order to Ward as coming from Hanks, which Ward obeyed; and, when he had dug and shoveled out the chamber to the depth of thirteen feet, one of the unsupported sides fell in and crushed the appellee under the weight of the fallen mass, causing to him painful and permanent injury. Here is a distinct act of positive negligence and recklessness of the authoritative agent of the defendant company, by which, proximately and directly, a day laborer, who was bound to obey the orders of his superior, was severely injured and disabled for life.

It is argued that the appellee, Ward, must be presumed to have known, and was in duty bound to observe, the dangerous character of the work, and therefore he assumed the danger incident to his employment. He swears positively that he did not know of the danger of his situation and surroundings; and the jury found, as a fact, that he was not guilty of contributory negligence in obeying the specific and positive order of his superiors to return into the chamber and sink it deeper. Hanks and Long knew of the danger, and the duty of careful and constant inspection of the situation and progress of the work, to detect and provide against danger and injury to the laborer who was digging and shoveling dirt in this narrow, deep, and dark ditch, was wholly neglected by them to the serious injury of the defendant's employee. An employee assumes such risks as are incident to his employment and do not arise or ensue from the negligence of his employer, or his deputies in authority over him and his work; but the evidence in this case establishes the fact that the accident would not have happened

but for the gross recklessness of the defendant company's agent. The usual plan of doing this work had been to sink the chamber six or eight feet, and then "break off" the loosened and undermined forehead or impending mass, before beginning to sink the chamber deeper. Had this been observed in this case there could be but little or no danger of 691 serious injury, because the walls being low were not likely to fall; and if they should commence to fall the workmen could save themselves by getting out, which it was impossible for Ward to do in a narrow cell only eighteen inches wide and thirteen feet deep, into which he was ordered to work, and to sink the chamber several feet deeper than was usual; and that, too, in earth more dangerous and treacher. ous than had been encountered in the work before reaching the cut where the accident and the injury happened.

When the servant shows that his injury was in consequence of an increased risk, and one not ordinarily incident to his employment, but growing out of the master's negligence, the burden of proof is upon the master to show that the servant knew of and understood the increased danger: Swoboda v. Ward, 40 Mich. 420-424.

"If he knew, or reasonably ought to have known, the presence of danger to him in the course of his employment of the cattle chute in question, and saw fit, notwithstanding, to continue in his employment, he might be held to answer the extraordinary risk, as well as the ordinary risks of his service. But it appears to us that this consequence of acquiescence ought to rest on positive knowledge of precise dangers assumed-not on vague surmises of possibility of danger": Dorsey v. Phillips etc. Co., 42 Wis. 583.

If an employee, without specific command as to time and manner, uses an obviously defective implement, the defect alike open to the observation and within the comprehension of both employer and employee, both stand upon common ground, and no recovery can be had for a resulting injury to either; but when the servant acts under the orders of his master, and is injured, the rule is different, for then it cannot be said, with any degree of reason, that the master and servant stand on equal footing, even though they have equal knowledge of the danger. The servant occupies a position of subordination, and may rely upon the skill and knowledge of his master, and is not free to 693 act on his own suspi

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