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way company running cars every half hour | upon an exception to the refusal to give this between Haverhill and Hampton Beach, ruling. through Amesbury, in front of the plaintiff's Manifestly the question of the plaintiff's store. At the time of the accident, a regular due care was for the jury. His horse was a car and three other cars carrying an excur. kind and gentle one, not afraid of electric sion of butchers and grocers from Nashua, cars. It was fastened by an ordinary N. H., were passing over the defendant's weight, apparently sufficiently heavy. The track, bound for Hampton Beach. The three plaintiff's case is a stronger one in this reexcursion cars were following the regular spect than that which was held by this court car at distances of from 600 to 1000 feet to present a question for jury in Southworth apart, and were decorated with strips of v. Old Colony & Newport Railway, 105 Mass. white cotton cloth about a yard wide, with 342, 7 Am. Rep. 528. the words "Butchers' & Grocers' Association There was evidence of negligence on the of Nashua" printed thereon, one of these part of the defendant. It ran its cars strips being over the dashboard and others through a public street, decorated in a manalong the sides of each of the excursion cars. ner which the jury might have found was The plaintiff's horse, harnessed into an or. likely to frighten horses, and did produce dinary delivery wagon, was standing in the that result in this case. Jones v. Houstreet in front of his store, between the de satonic Railroad, 107 Mass. 261; Judd v. tendant's tracks and the sidewalk, secured Fargo, 107 Mass. 264; In Patnoude v. New by a rope to an ordinary 28 pound weight. York, New Haven & Hartford Railroad, 180 There was a great amount of noise made by Mass. 119, 61 N. E. 813, the covered electric the passengers on one of the excursion cars, car which frightened the plaintiff's horse in singing, shouting and blowing horns. The was not upon the public street, but in the horse became frightened and ran away, and defendant's own freight yard. It does not was injured. It was not struck or in any appear whether the noises of shouting, singway injured by contact with either of the ing, and blowing horns, made by the pas. defendant's cars; but the claim was that it sengers on the defendant's car, caused or became frightened by the cars, and that this, contributed to the fright of the plaintiff's together with the rate of speed at which the horse. No question seems to have been made cars were running, caused it to run away and as to this and no ruling was asked for at the injure itself. There was evidence that the trial. We need not consider whether the dehorse was kind, gentle, and not afraid of fendant would have been under any liability electric cars. A witness for the plaintiff for injuries caused by disorderly conduct of testified that the cars were running "pretty its passengers which it made no effort to fast.” The plaintiff's clerk testified that up suppress. on the approach of the second excursion car Exceptions overruled. the horse turned and ran down the street; that he started from the store after the horse, and saw the car moving; that one

(190 Mass. 391) end of the bunting on it was loose and in

MCDONALD V. DUTTON et al. motion; and that the car was "almost under control" as it passed the store, and ran by

(Supreme Judicial Court of Massachusetts.

Middlesex. Feb. 28, 1906.) the store a distance of from 90 to 100 feet. There was no ordinance in Amesbury at that | 1. MASTER AND SERVANT-INJURIES TO SERVtime fixing the rate of speed of electric cars.

ANT-NEGLIGENCE OF MASTER-ELEVATOR.

The owner of a freight elevator is not guilOther witnesses testified that the cars were ty of negligence in permitting a break in the decorated with bunting, which was flopping plastered wall of the elevator well, 5 or 6 inches with the motion of the cars and bulging in

wide, 24 inches high, and from 1 inch to 1142

inches deep, which caused an injury to a seryand out. The plaintiff and his clerk were

ant who allowed his foot to project over the engaged in the store, putting up orders, be edge of the elevator floor. fore and when the horse ran. Their atten [Ed. Note. For cases in point, see vol. 34, tion was attracted to the noise upon the ex. | Cent. Dig. Master and Servant, 88 179, 208.] cursion car, but neither of them left his place 2. SAME-ASSUMPTION OF Risk. in the store to do anything with reference to A servant assumed the obvious risk of in

jury incident to the walls of an elevator well the horse before it started to run. The de.

being covered with plaster in place of boards or fendant offered testimony tending to show metal. that the horse started to run upon the ap [Ed. Note.-For cases in point, see vol. 34, proach of the last of the three excursion Cent. Dig. Master and Servant, 88 610-624.] cars, and turned and ran across the street in

Exceptions from Superior Court, Middlefront of that car, and that the motorman ap

sex County; Frank A. Gaskill, Judge. plied his brakes and stopped the car before it

Action by one McDonald against one Dutreached the place where the horse had been

ton and others. Verdict for plaintiff, and standing. Upon this evidence, the defendant asked the justice who presided at the trial

defendants except. Exceptions sustained. in the superior court to rule that the plain Walter I. Badger and Wm. Harold Hitchtiff could not recover, and, after a verdict cock, for plaintiff. Romney Spring and F. for the plaintiff, brings the case before us | B. Kendall, for defendants.

LORING, J. This is an action of tort for, know, but somwhere about that; just a little personal injuries to an employé while he was dent of a hole in. Q. How deep was it? riding on his employer's freight elevator. A. I didn't take particular measurement, but The plaintiff was a boy between. 15 and 16 | I would take it—just looking at it there years of age, and we assume that the jury about half an inch or so; about half an inch, were warranted in finding that he had a right I should say." The evidence justified a to be on the elevator and that he was in the finding that the hole was an old one. The exercise of due care at the time of the ac clearance between the elevator and the sides cident. We do not find it necessary to consid of the elevator well was about an inch, but er this with care, because, in our opinion, he there was some vibration in the working of failed to make out a case of negligence on the the elevator, especially in case of heavy part of the defendant. The elevator in ques loads. The plaintiff's witness Williams testion ran from the subbasement of the defend tified that the “well was rough and there ants' store to the sidewalk in Pemberton were other breaks in the plastering besides Square. It consisted of a platform 7 feet 10 this one; that the sides of the well were inches square, with an iron post at each corner scraped, with lines running up on all sides, that about 612 feet high. The top of the elevator there was scratches varying from one fourth well had an iron covering, which was raised to one-half inch in depth; that excepting for up by these posts as the elevator ascended these holes and scratches the surface of the above the level of the sidewalk, and this elevator well was smooth." covering returned automatically when the ele The plaintiff relies, also, on the following vator descended. The top edge of the eleva

testimony given on cross-examination by one tor well was made of a stone coping 7 inches

Shea, a machinist in charge of the defend. deep, and the sides of the well below the

ant's elevators, but not of their elevator coping, for a distance down the well of 10 or

wells, namely: That the walls of the well 15 feet, were plastered on metal lathing.

ought to be flush to avoid danger as much The plaintiff's case was that he had gone

as possible; the danger of bundles getting to the subbasement with a basket full of

caught which might tear the wrapping, or rip waste paper, and after depositing it there he

machinery, and, if that happened, sombody was returning on the elevator, sitting on his

would probably get hurt. The plaintiff also basket, with one foot inadvertently over the

relies on the testimony of this same witness edge of the elevator, when it was caught in a

"that a hole in the side of the elevator 18 hole in the plaster just under the stone cop

iches long and projecting in under that cap ing. “The evidence tended to show that the

from an inch to an inch and a half, and proplaintiff was injured by losing the two out

jecting down 4 to 6 inches, would be such side toes of his right foot and a portion of

a place as he would feel it bis duty to rethe outside of said foot. No other toes were

port.” We lay aside the last answer of this injured.” No witness had seen this hole be

witness. The witness testified that he did fore the injury. One Williams examined it

not find a break of that kind, and we find for the plaintiff 23 days after the accident.

in the bill of exceptions no statement that the His description of it was as follows:

break in question was a break of that kind. “There is a cap of granite that lies level with

We are of opinion that it would be holding an the sidewalk, about 6 or 8 inches thick, and underneath that capping, about the middle of

employer to too high a degree of care if he the front of the elevator, was a hole which

was held to be negligent in repairing a was directly under the cap where the plas

break in the plastering of a freight elevator tering or side of the elevator well had fallen

well, which is necessarily scratched and bang. off, and leaving a place under the cap and

ed in the use to which it is put, when that running back. I measured with my finger

hole at most is 5 or 6 inches wide, 24 inches on the left-hand side. It would be about an

high, and 1 inch deep at one end and 113 inch and a half deep; and on the right-hand

inches deep at the other end. We bare side it would be about an inch deep. It was

taken the height of the hole at 242 inches bean uneven break. The break was 5 or 6

cause one of the defendants' witnesses said inches wide.” Two witnesses called by the

It was “as big as your fist." No height was defendants, who were on the sidewalk when

given by the witnesses called by the plaintiff. the accident happened, and looked to see

We are of opinion that it was not a defect. what was the cause of it, also described this

See, in this connection, Jennings v. Tompkins, hole. One said: "The only thing I saw was

180 Mass. 302, 62 N. E. 265. a little hole there under the coping there, So far as there was a danger incident to or that plate that comes down there, and I the walls of the elevator well being covered should judge it was about as big as your fist." with plaster in place of boards or metal, The other: "Say this was the coping; here that was a danger assumed by the plaintifr your stone coping, and there was a little as an obvious risk of the employment which break, not very large, right underneath. he chose to accept. I should say a couple of inches. I don't Exceptions sustained.

(166 Ind. 316)
og in to

ceptions except the first and ninth. On said STOY et al. V. INDIANA HYDRAULIO issues the cause was tried without the interPOWER 00. (No. 20,495.)

vention of a jury, and the court entered a (Supreme Court of Indiana. March 16, 1906.) finding and judgment affirming the award of 1. EMINENT DOMAIN- JUDGMENT OF CONDEM the appraisers. Appellant filed a motion for NATION-APPEAL-REVIEW..

a new trial, assigning as grounds therefor • Under a statute providing for appeals to that the finding of the court was not susthe circuit court in condemnation proceedings, the method of taking the appeal being by

tained by sufficient evidence and that it was exceptions to the award, preliminary objections

contrary to law. Upon the overruling of said to the service and to the appointment of'ap motion this appeal was taken. Appellant nas praisers were not brought forward by the mere taking of an appeal to the circuit court, and

| not sought to bring the evidence into the were not reviewable on appeal to the Supreme

record. Error is assigned as follows: "First. Court.

The court erred in overruling the motion of 2. APPEAL-ASSIGNMENTS OF ERROR-SUFFI William L. Stoy, made on special appearance, CIENCY.

to set aside and quash the notice given by Under Burns' Ann. St. 1901, § 667, requir

the plaintiff of the appropriation. Second. ing the pleading which is to be filed in the Supreme Court to be a specific assignment of

The court erred in overruling the objection errors, the sufficiency of a complaint cannot of appellant William L. Stoy to the appointbe reviewed on an assignment complaining of

ment of appraisers to appraise the damages the overruling of a motion for new trial or the rendition of final judgment.

he would sustain by reason of the appropri3. SAME-REVIEW-MATTERS IN RECORD.

ation of his real estate. Third. The court An objection to the jurisdiction in a par erred in overruling the motion of the appelticular case must be brought into the record lant William L. Stoy for a new trial. in order to be reviewed on appeal.

Fourth. That the court erred in rendering 4. EMINENT DOMAIN-PUBLIC USE-HYDRAU

final judgment in said cause." LIC COMPANIES.;

Burns' Ann. St. 1901, § 4833, authorizing Under these assignments appellant's counhydraulic companies to condemn land in order sel urge' that it is not shown that the use for to erect dams, is not unconstitutional, on the which the land is sought to be appropriated ground that the use is not a public one...

is a public one, but, on the contrary, that it Appeal from Circuit Court, Martin Coun appears affirmatively from the instrument of ty; H. Q. Houghton, Judge.

appropriation that the water power is desired Condemnation proceedings by the Indiana to generate electricity for the purposes of Hydraulic Power Company against William sale, that the statute is unconstitutional if L. Stoy and others to condemn land, under it purports to authorize such an appropriBurns Ann. St. 1901, 8 4833. From the judg ation, that the instrument of appropriation ment of condemnation, the landowners ap does not show that the river is at least 65 peal. Affirmed.

feet wide, that under the facts set up by Marshall & Carrico, Gardiner & Slimp,

appellant in his exceptions appellee is not and Ogden & Inman, for appellants. Cullop |

a duly organized corporation, that the service & Shaw and Loveland & Loveland, for upon appellant was insufficient, and that the appellee.

motion for a new trial should have been sus

tained because the record does not show that · GILLETT, C. J. This is an appeal from the assessment of damages was recorded by proceedings instituted by appellee, a bydrau- | the clerk as provided by section 4834, supra. lic company, to condemn property under and As the law stood when these proceedings were by virtue of section 4833 et seq., Burns' Ann. had, it is clear that there could not have St. 1901. After the filing of an amended in- been a direct appeal to this court from the strument of appropriation, appellant entered order appointing appraisers (Lafayette, etc., a special appearance and moved to quash R. Co. v. Butner, 162 Ind.' 460, 70 N. E. the service. This motion was overruled, and 529; Noblesville Hydraulic Co. v. Evans, 163 appellant then filed 10 objections to the ap- Ind. 700, 72 N. E. 126), that the only appeal pointment of appraisers. These objections which could have been taken was to the cirwere overruled, and 'appraisers were appoint- cuit court, and that the method of taking the ed. They subsequently filed their award appeal was by exceptions to the award, of damages in the clerk's office, and within whereby it might be reviewed as to matters 10 days thereafter appellant filed 12 excep of both law and fact (McMahon v. Cincinnati, tions to the award. The first exception went etc., R. Co., 5 Ind. 413; Swinney v. Ft. Wayne, to the assessment of damages, and the ninth etc., R. Co., 59 Ind. 205; Cincinnati, etc., R. exception charged that the appraisers made Co. v. Wabash R. Co., 162 Ind. 303, 70 N. E. their assessment under the supposition that 256; Wabash R. Co. v. Cincinnati, etc., R. the lands described in the warrant contained Co., 29 Ind. App. 546, 63 N. E. 325). It is 74 acres, whereas in truth and in fact there clear that the preliminary objections to the were 29 acres embraced within said descrip service and to the appointment of appraisers tion. The remaining exceptions went to the were not brought forward by the mere taking authority to condemn, the sufficiency of the of an appeal to the circuit court, and, conseinstrument of appropriation, and the regular- quently, that they have not properly been ity of the proceedings. On the motion of ap- | assigned as error here. pel'ee, the court struck out all of said ex. The action of the court below in striking

76 N.E.—67

out all of the exceptions which appellant ad- 1 There remains but one question to consider, dressed to the award seems to have left no | in view of the posture of the case, and that question in issue except as to the amountof the is the objection of appellant, based on the damages. The ruling referred to, as will be overruling of his motion for a new trial, that observed, has not been assigned as error. it is not shown that the assessment of damaDoubtless the question as to the sufficiency of ges was recorded after it was filed with the the instrument of appropriation might have clerk. We are of opinion that in this particu. been raised by an independent assignment of lar the statute is directory. Jones y. Swift, error; but we are of opinion that on the | 94 Ind. 516; Wampler v. State, 148 Ind. 357, errors which have been assigned there is no | 47 N. E. 1068, 38 L R. A. 829; Custer v. basis for a determination of the questions Holler, 160 Ind. 505, 67 N. E. 228. But, it upon which appellant chiefly relies. Section we should be in error in this, the presumption 667, Burns' Ann, St. 1901, requires that the in favor of the due performance of official pleading which is to be filed in this court actions suffices to support appellee, since apshall be "a specific assignment of errors." It pellant has not seen fit to bring the evidence is obvious that this statute is in no wise into the record. complied with where the effort is to question Judgment affirmed. the sufficiency of a complaint or of an instrument of appropriation by assigning as ground therefor the overruling of a motion for a new

(166 Ind. 321) trial or the rendition of final judgment. The LOUISVILLE & N. R. CO. V. GILLEN. (No. case does not, even upon the contention of

20,345.) appellant, involve a lack of jurisdiction over (Supreme Court of Indiana. March 16, 1906.) the subject-matter. Appellant's counsel sub- 1. MASTER AND SERVANT-NEGLIGENCE OF mit no argument to show that section 4834 I SERVANT-MASTER'S LIABILITY. is unconstitutional. They only assert, in one

A master is not liable for the acts of his

servant, committed outside the line of his duty of their points, that if the statute purports

and not connected with his master's business, to invest appellee with the right to condemn

though the particular injury could not have for private purposes it is in violation of the occurred without the facilities afforded by the Constitution of the state. The case, there relation of the servant to his master. fore, as it is presented to us, seems to be one

[Ed. Note.—For cases in point, see vol. 34, in which the jurisdiction of the court over

Cent. Dig. Master and Servant, & 1225.) the general subject stands unchallenged, and

2. SAME-PLEADING-COMPLAINT.

In an action by a servant for injuries, that the most which is contended for is that

owing to a sliver having blown from a hammer there existed in the particular case a specific that was in use by another servant, the comobjection to the jurisdiction. In such a case plaint was insufficient for failing to show that the objection must be duly brought into the

the act of the other servant was done in the

line of his duty. record. Perkins v. Hayward, 132 Ind. 95, 31

[Ed. Note.--For cases in point, see vol. 34, N. E. 670; Elliott, Appellate Procedure, $ 776.

Cent. Dig. Master and Servant, 1269.) More than that, it can in no sense be said

Appeal from Superior Court, Vanderburgh that there was a lack of jurisdiction of the subject-matter. It has been stated that

County; Jno. H. Foster, Judge. “jurisdiction of the subject-matter is not con

Action by Henry Gillen against the Louis

ville & Nashville Railroad Company. From fined to spots within the jurisdictional field, nor to parts of that field, but it extends to

a judgment for plaintiff, defendant appeals. the whole of that field, however wide it may

Reversed. be." Elliott, Gen. Prac. $ 238. The filing of Gilchrist & De Bruler, for appellant, Van the instrument of appropriation, together Pelt & Monfort and G. V. Menzies, for apwith the proof of service, was a challenge to the court to determine as to its authority to proceed under said statute. The enactment

MONTGOMERY, J. This cause was transcan by no means be said to be clearly uncon. ferred from the Appellate Court under the stitutional, in view of the holdings of this provisions of section 1337u, Burns' Ann. court under cognate statutes, rendered prior St. 1901. This action was brought by apto the adoption of the Constitution of 1851. | pellee to recover damages for a personal inIn these circumstances, and keeping in mind jury received while in appellant's employ. the character of the court, it must be said It is alleged that the court below erred in that there was jurisdiction over the subject overruling (1) appellant's demurrer to the matter and that the judgment of the court first paragraph of complaint, (2) its demurwas not a mere usurpation. Van Fleet, Col. rer to the first paragraph of complaint, and Attack, 88 59, 61, 66. So, whatever view (3) its motion for a new trial. The sufficienmay be taken as to the manner of raising a cy of the first paragraph of complaint is not question as to a want of jurisdiction over the seriously questioned, and in our opinion no subject-matter, it is plain that in such a error was committed in overruling appelcase as this we are not authorized to disturb lant's demurrer to the same. the judgment in the absence of a specific The substantial averments of the second assignment which presents for our considera paragraph of complaint are as follows: tion an error warranting a reversal.

That the appellant on “the 3d day of January, 1902, owned and operated at the town, who was using the hammer at the time of the of Howell, on the line of its railroad, in the accident was in the line of his duty as a state of Indiana, machine and repair shops, servant of the appellant or engaged in the where engines, cars, and other equipments 1 - prosecution of the master's business. It is of said company's railroad were manufac- manifest that there was no latent peril in tured and repaired. That on said date the mere presence of the inert hammer, alplaintiff was in the employ of said company leged to have been defective; but the danger at and in one of the buildings of said shops arose from a particular use of the instruas a sweeper. That plaintiff's duties as such ment. The liability, if any, in this action, sweeper were to sweep the floor of the boil must be predicated upon the use in its busier room of said building. That at the time ness of a defective tool, authorized either aforesaid defendant had and operated in expressly or impliedly by appellant. It is said boiler room work benches, to which averred in this paragraph of complaint mereiron vises were attached, in which vises ly that at the time of the accident one of the pieces of metal were fastened for the pur- | appellant's employés was hammering a piece pose of being hammered with hammers. of metal in a steel vise with this defective That at the time aforesaid defendant negli tool. The duties of this employé and the gently and carelessly permitted a defective purpose of the hammering are not stated, and unsafe hammer to be in use at one of | nor is it averred in general terms that the said benches, which said hammer had been | work in which he was engaged was in the for a long time prior thereto, and on said line of his duty under his employment. The day was, used in said defective and unsafe averments of the complaint should show that condition. That said hammer was defective the act of the servant resulting in the injury and unsafe in this, to wit: said hammer complained of was done while in the diswas tempered too hard, was extremely brit charge of his duties and performing service tle, and the edges thereof were sharp and for the master. If the offending employé improperly dressed. That the defective and was not acting in the line of his duty and unsafe condition of said hammer was at that within the scope of his authority, there can time known to said company and unknown be no liability against the employer. It is a to the plaintiff. That at the time aforesaid well settled principle of law that a master plaintiff, while in the proper discharge of is not answerable for the acts of his servant his duties as such sweeper, was walking in committed outside the line of his duty and and about one of said benches, to which not connected with his master's business, there was a vise attached, in which vise but done in pursuit of some independent purthere was at that time a piece of metal pose of his own, although the particular inscrewed. That one of the employés of said jury could not have occurred without the company was at the time engaged in ham facilities afforded by the relation of the mering on the piece of metal in said vise, servant to his master. Louisville, etc., Ry. and in doing said hammering was using the Co. v. Palmer, 13 Ind. App. 161, 39 N. E. said defective and unsafe hammer, which 881, 41 N. E. 400; Harrell v. Cleveland, etc., was unknown to the plaintiff. That while R. Co., 27 Ind. App. 29, 60 N. E. 717; Pittsplaintiff was at and near said bench, and in burgh, etc., R. Co. V. Adams, 25 Ind. App. the performance of his duties as aforesaid, 164, 56 N. E. 101; Cincinnati, etc., R. Co. v. and while said hammer was being used as | Voght, 26 Ind. App. 665, 60 N. E. 797; Helaforesaid, a piece or sliver of steel sudden- | frich et al. v. Williams. 84 Ind. 553: Smith ly and violently broke off said hammer, as v. Louisville, etc., R. Co., 124 Ind. 394, 24 N. said hammer came in contact with said met| E. 753; Lima R. Co. v. Little (Ohio) 65 N. E. al, which piece or sliver off said hammer en 861; Johanson v. Pioneer Fuel Co. (Minn.) 75 tered plaintiff's right eye with great force N. W. 719; Canton, etc., Co. v. Pool, 78 Miss. and violence, entirely destroying the same. 147, 28 South. 823, 84 Am. St. Rep. 620; That by reason of the injury to said eye it Goodloe v. Memphis, etc., R. Co., 107 Ala. was necessary to remove it, and the same 233, 18 South. 166, 29 L. R. A. 729, 54 Am. was removed. That by reason of said inju St. Rep. 71; Guille v. Campbell, 200 Pa. 119, ry the vision of plaintiff's left eye has be 49 Atl. 938, 55 L. R. A. 111, 86 Am. St. Rep. come seriously impaired and his mental 705; McCarthy V. Timmins, 178 Mass. 378, ity affected. That the injury herein com- ' 59 N. E. 1038, 86 Am. St. Rep. 490; Branch v. plained of was caused by the negligence of International, etc., R. Co., 92 Tex. 288, 47 said company in failing to provide and keep | S. W. 974, 71 Am. St. Rep. 844; Walker v. for use a safe hammer in and about where Hannibal, etc., R. Co., 121 Mo. 575, 26 S. W. plaintiff was required to perform his du 360, 24 L. R. A. 363, 42 Am. St. Rep. 547; ties, and in suffering and permitting to be Stephenson v. Southern Pac. Co., 93 Cal. 558, used in manner as aforesaid, at the time 29 Pac, 234, 15 L. R. A. 475, 27 Am. St. Rep. aforesaid, in its said boiler room, at the 223; Elliott on Railroads, 8 1303. place plaintiff was required to work, the The absence of averments showing that the said defective and unsafe hammer."

act of appellant's employé resulting in apIt is contended by appellant that this par. pellee's injury was done in line of duty or agraph of complaint is fatally defective for while performing any service required under the want of an averment that the employé his employment renders the second paragraph

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