MINES AND MINERS. WEIGHING COAL AT THE MINES. Continued. coal at the mines," of the laws of 1883, is not open to the constitutional objection of depriving coal operators of their right to make special con- tracts. That section does not require that the wages under all contracts shall be computed upon the basis of the weight of the coal mined. It only applies to cases where, by contract, the wages are to be paid accord- ing to the weight of coal mined. Jones v. The People, 590.
2. That act leaves it free for the owner or operator of a coal mine to make contracts with his employes to mine coal for whatever may be agreed upon between them,-by the day, week, month, year, or by the box, or in any other manner that may be agreed upon between them. Where the contract is for the paying of wages in some other way than according to the weight of the coal dug, the purpose of the act would seem to fail, and its provisions do not apply. Ibid. 590.
3. On the trial of an operator of a coal mine for not providing a "track scale," etc., so that the weight of coal of each miner might be ascertained, the court refused to allow the defendant to prove that for nine years prior thereto the corporation owning and operating the mine had a contract with all the men employed to mine coal during that period, to receive as the wages for their labor from the coal company forty cents for each box of coal mined and taken from the mine; that the miners had always been, and were then, satisfied to work under such contract, and that they did not want the coal weighed, as a basis upon which to compute their wages, etc.: Held, that it was error to exclude the proposed evidence, as its admission would have shown a case to which the statute did not apply. Ibid. 590.
REFORMING deeds, etc., IN EQUITY.
1. Generally. See CHANCERY, 11, 12, 13.
2. Admissible to show a mistake in a deed. See EVIDENCE, 3. DEGREE OF EVIDENCE REQUIRED.
3. To show such mistake. Same title, 14.
MORTGAGES AND DEEDS OF TRUST.
WHAT AMOUNTS TO A MORTGAGE.
1. Any conveyance of an estate to secure a debt or the performance of some act, such as the payment of money or the furnishing of indem- nity, subject to be defeated by the performance of the act agreed to be done, is a mortgage. Fitch v. Wetherbee et al. 475.
2. Deeds of trust by a corporation upon its lands, to trustees, to secure the performance of an undertaking of the company to pay divi- dends, or interest, on guaranteed and preferred stock issued and sold, and ultimately to pay for the stock itself, are in the strictest sense mort- gages. Ibid. 475.
MORTGAGES AND DEEDS OF TRUST. Continued.
OF A DEED ABSOLUTE IN FORM.
3. Whether a mortgage. The owner of city real estate, after making default of interest on a loan secured by trust deed on the same, turned over the possession of such property to his creditor, who, from that time, received the rents on the same; and after the advertisement of the prem- ises for sale by the trustee, it was agreed that the creditor should bid in the same, and hold it in trust for the debtor until an accounting could be had, when, if the debtor was still owing the creditor anything, a new loan was to be made upon the property. The property was so purchased by the creditor, who shortly afterward caused a judgment by confession to be entered against the debtor for an alleged deficiency between the sum due on the loan and the amount of the bid, upon which an execu- tion was issued, and levied upon other property of the debtor, which was also sold, and bought by such creditor: Held, that the trustee's deed to the creditor was in equity a mortgage, and that the debtor had the right to redeem. Union Mutual Life Ins. Co. v. Slee, 35.
SALE UNDER DEED OF TRUST.
4. Notice thereof-sufficiency, as showing amount due. A notice of sale under a deed of trust contained this clause: "Default has been made in the payment of part of the interest note due November 22, 1876, and the whole of the interest note due May 22, 1877; and whereas, the legal holder of said note and unpaid interest coupons (the Pawtucket Institution for Savings) has thereupon exercised its option of declaring the whole principal sum, and the interest thereon, due and payable; and whereas, default has been made in the payment of the principal and interest so become due and payable," etc.: Held, that the notice showed, with reasonable certainty, that the amount claimed to be due was the principal sum, the interest note due May 22, 1877, and part of the inter- est note due November 22, 1876, and stated substantially the amount due. As to the part due on the latter note the notice was indefinite, but, considering the amounts involved, (the principal being $5000, and the interest notes $250,) and the smallness of the sum due on such interest note, the notice was held substantially good. Hoyt et al. v. Pawtucket Institution for Savings et al. 390.
5. Inadequacy of price-whether so regarded. In August, 1877, real estate was sold under a deed of trust for $5250, which the witnesses placed in value at $15,000 at that time, which it appeared was much more than the property could then have been sold for, there being no market for the property at the latter price, and no demand for such property; and it appeared that in August, 1881, when the prices had advanced, it was sold for only $12,000, and that at the time of the sale there was some $2000 of unpaid taxes against the land: Held, that there was no such gross inadequacy of price as should lend much additional strength to any alleged irregularity in the sale. Ibid. 390.
MORTGAGES AND DEEDS OF TRUST. Continued.
EQUITABLE DEFENCES TO MORTGAGE.
6. Although given to secure negotiable paper which has been as- signed before maturity. See ASSIGNMENT, 1 to 4.
MUNICIPAL CORPORATIONS. See CORPORATIONS, 11 to 14.
MUNICIPAL TAXATION. See TAXATION, 1 to 6.
AS TO THE ELEMENT OF DUE CARE.
1. On the part of the plaintiff. In an action on the case against a city and the owner of premises in the city, to recover for an injury received from a neglect to keep the sidewalk in front of the premises in repair, the court instructed the jury that "when a city is vested, under the provisions of its charter, with the charge of its streets, roads, alleys and sidewalks, said city is bound to see that the same are kept in a reason- ably safe state of repair; and such city is liable to parties injured by its negligence in so doing:" Held, that the instruction lacked the essential qualification that the plaintiff was, at the time of the injury, observing that due care and caution for his personal safety a reasonable person would do under the same circumstances. City of Peoria et al. v. Simp- son, 294.
OF JOINT AND SEVERAL LIABILITY.
2. Distinction in this regard between a trespass and a neglect of duty. For separate acts of trespass separately done, or for positive acts negligently done, although a single injury is inflicted, the parties can not be jointly held liable to the party injured. If there is no concert of action, or no common intent, there is no joint liability. But a different principle applies when the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the injured party may have his election to sue all parties owing the common duty, or each sepa- rately, treating the liability as joint or separate. Ibid. 294.
IN CASE OF SIDEWALKS OUT OF REPAIR.
3. Liability of the city and of the private owner of adjacent prem- ises. Where a duty rests upon both a city and the owner of premises within the city to keep the sidewalk in repair fronting the premises, and over an excavation, a failure to do so is a common neglect of duty, and both will be liable, either jointly or severally, to one injured in conse- quence of such neglect, who has himself exercised due care. Ibid. 294. IN CASE OF LEASED PREMISES.
4. Liability as between landlord and tenant. The tenant in posses- sion, and not the landlord, is responsible to third persons for injuries occasioned by a failure to keep the demised premises in repair, unless
NEGLIGENCE. IN CASE OF LEASED PREMISES.
the owner has agreed to keep them in repair, or when the premises were let with the alleged nuisance upon them, in which case the owner, and not the tenant, is responsible for injuries caused by the nuisance. City of Peoria et al. v. Simpson, 294.
DEPOT GROUNDS USED IN COMMON.
5. By servants of two railroad companies-reciprocal duties of the companies towards each other's servants. Where two railroad com- panies have, by agreement, a joint occupancy of depot grounds, in which their respective tracks are so situated and used that the servants of the two companies must necessarily, in the proper discharge of their duties, pass over each other's tracks, each company will owe the same duty to the servants of the other company, in the matter of observing proper care for their safety when crossing its tracks in the regular discharge of their duties, that it does to its own servants when crossing the same tracks. Illinois Central Railroad Co. v. Frelka, 498.
SIGNALS AT ROAD CROSSINGS.
6. The statute (chapter 114, section 43,) requires every railroad cor- poration to cause a bell of at least thirty pounds weight to be rung or a steam whistle to be sounded at the distance of at least eighty rods before a public highway is reached by a train or locomotive, and kept so ringing or being sounded until the highway is reached; and when this is done, the railroad company has discharged its duty imposed by the statute, whether such signal given is heard or not. The statute does not require the giving of such signals of the approach of a train as to enable others absolutely to ascertain its approach and avoid being injured. Chicago, Burlington and Quincy Railroad Co. v. Dougherty, 521.
7. If a railway company has such a bell on an engine attached to a train as the statute requires, and it is rung in the manner required, then, so far as giving signals before the train reaches a public highway cross- ing is concerned, the company is without blame, whether the signal so given is observed or heeded, or not, by one attempting to cross the rail- road track on the public highway. Ibid. 521.
8. Where the evidence is conflicting as to the fact whether a railway company, on the approach of one of its trains to a public road crossing, gave the statutory signals, it is error to state in an instruction, in a suit to recover damages for a personal injury to one while crossing the rail- road track on a public highway, that if the defendant failed to give such signals of the approach of the train as to enable the person injured or killed to ascertain its approach and avoid injury, the company is liable. Ibid. 521.
9. Communicated by locomotive engine — burden of proof as to the The statute which declares that in actions for damages for injury to property "occasioned by fire communicated by any locomotive engine
NEGLIGENCE. INJURY FROM FIRE.
while passing along any railroad," shall be prima facie evidence "to charge with negligence" the owner or operator of the road at the time, was intended to charge upon the company using the locomotive all injuries which are shown to have resulted from fire from a passing train, unless the company defendant can rebut such conclusion by proof showing that the loss was not occasioned by its negligence. Chicago and Alton Rail- road Co. v. Pennell, 435.
REMOTE AND PROXIMATE CAUSE.
10. Where a railway company, through negligence by the escape of fire from its locomotive engine, sets fire to a depot, from which a hotel in the vicinity is destroyed, to make the company liable to the owner of the hotel it is not necessary that the burning of the hotel should be so certain to result from the burning of the depot that a reasonable person could have foreseen that the hotel would burn, or that it probably would. It is enough if it be a consequence so natural and direct that a reasonable person might, and naturally would, see that it was liable to result from the burning of the depot. Ibid. 435.
CONTRIBUTORY AND COMPARATIVE.
11. Of the degree of care required, under different circumstances. Although a railway company may omit the statutory duty of ringing a bell or sounding a whistle at a public road crossing, still a party claiming to recover for an injury in consequence of such omission of duty, must have used due care and caution. The negligence of the company does not absolve him from all care. The plaintiff in such case, to recover, is required to exercise such care as might be expected of prudent men gen- erally, under like circumstances. Wabash, St. Louis and Pacific Ry.
12. Where it is well known to the servants of a railway company and a person injured at a road crossing, that such place is unusually hazard- ous, it is the duty of both parties to use more care than at ordinary cross- ings where the danger is not so great. In such case the servants of the company should ring the bell and sound the whistle to the full extent of the statutory requirement. Ibid. 114.
13. If a plaintiff who is injured at a highway crossing by a railway train does omit some slight precaution for his safety, and the railway company omits all care on its part, the plaintiff will not be without remedy. If the plaintiff's negligence is slight, and that of the company, when compared with that of the plaintiff, is gross, a recovery may be had. Ibid. 114.
14. What is prudence and proper care under some circumstances may be negligence in others; and so, negligence in danger under some cir- cumstances might be regarded as prudence under others. Each case must depend largely on its own facts. Ibid. 114.
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