way company running cars every half hour between Haverhill and Hampton Beach, through Amesbury, in front of the plaintiff's store. At the time of the accident, a regular car and three other cars carrying an excursion of butchers and grocers from Nashua, N. H., were passing over the defendant's track, bound for Hampton Beach. The three excursion cars were following the regular car at distances of from 600 to 1000 feet apart, and were decorated with strips of white cotton cloth about a yard wide, with the words "Butchers' & Grocers' Association of Nashua" printed thereon, one of these strips being over the dashboard and others along the sides of each of the excursion cars. The plaintiff's horse, harnessed into an ordinary delivery wagon, was standing in the street in front of his store, between the defendant's tracks and the sidewalk, secured by a rope to an ordinary 28 pound weight. There was a great amount of noise made by the passengers on one of the excursion cars, in singing, shouting and blowing horns. The horse became frightened and ran away, and was injured. It was not struck or in any way injured by contact with either of the defendant's cars; but the claim was that it became frightened by the cars, and that this, together with the rate of speed at which the cars were running, caused it to run away and injure itself. There was evidence that the horse was kind, gentle, and not afraid of electric cars. A witness for the plaintiff testified that the cars were running "pretty fast." The plaintiff's clerk testified that upon the approach of the second excursion car the horse turned and ran down the street; that he started from the store after the horse, and saw the car moving; that one end of the bunting on it was loose and in motion; and that the car was "almost under control" as it passed the store, and ran by the store a distance of from 90 to 100 feet. There was no ordinance in Amesbury at that time fixing the rate of speed of electric cars. Other witnesses testified that the cars were decorated with bunting, which was flopping with the motion of the cars and bulging in and out. The plaintiff and his clerk were engaged in the store, putting up orders, before and when the horse ran. Their attention was attracted to the noise upon the excursion car, but neither of them left his place in the store to do anything with reference to the horse before it started to run. The defendant offered testimony tending to show that the horse started to run upon the approach of the last of the three excursion cars, and turned and ran across the street in front of that car, and that the motorman applied his brakes and stopped the car before it reached the place where the horse had been standing. Upon this evidence, the defendant asked the justice who presided at the trial in the superior court to rule that the plaintiff could not recover, and, after a verdict for the plaintiff, brings the case before us

upon an exception to the refusal to give this ruling.

Manifestly the question of the plaintiff's due care was for the jury. His horse was a kind and gentle one, not afraid of electric cars. It was fastened by an ordinary weight, apparently sufficiently heavy. The plaintiff's case is a stronger one in this respect than that which was held by this court to present a question for jury in Southworth v. Old Colony & Newport Railway, 105 Mass. 342, 7 Am. Rep. 528.

There was evidence of negligence on the part of the defendant. It ran its cars through a public street, decorated in a manner which the jury might have found was likely to frighten horses, and did produce that result in this case. Jones v. Housatonic Railroad, 107 Mass. 261; Judd v. Fargo, 107 Mass. 264; In Patnoude v. New York, New Haven & Hartford Railroad, 180 Mass. 119, 61 N. E. 813, the covered electric car which frightened the plaintiff's horse was not upon the public street, but in the defendant's own freight yard. It does not appear whether the noises of shouting, singing, and blowing horns, made by the pas sengers on the defendant's car, caused or contributed to the fright of the plaintiff's horse. No question seems to have been made as to this and no ruling was asked for at the trial. We need not consider whether the defendant would have been under any liability for injuries caused by disorderly conduct of its passengers which it made no effort to suppress.

Exceptions overruled.

(190 Mass. 391)

MCDONALD v. DUTTON et al. (Supreme Judicial Court of Massachusetts. Middlesex. Feb. 28, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE OF MASTER-ELEVATOR.

The owner of a freight elevator is not guilty of negligence in permitting a break in the plastered wall of the elevator well, 5 or 6 inches wide, 21⁄2 inches high, and from 1 inch to 12 inches deep, which caused an injury to a servant who allowed his foot to project over the edge of the elevator floor.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 179, 208.] 2. SAME-ASSUMPTION OF RISK.

A servant assumed the obvious risk of injury incident to the walls of an elevator well being covered with plaster in place of boards or metal.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 610-624.]

Exceptions from Superior Court, Middlesex County; Frank A. Gaskill, Judge.

Action by one McDonald against one Dutton and others. Verdict for plaintiff, and defendants except. Exceptions sustained.

Walter I. Badger and Wm. Harold Hitchcock, for plaintiff. Romney Spring and F. B. Kendall, for defendants.

LORING, J. This is an action of tort for personal injuries to an employé while he was riding on his employer's freight elevator. The plaintiff was a boy between, 15 and 16 years of age, and we assume that the jury were warranted in finding that he had a right to be on the elevator and that he was in the exercise of due care at the time of the accident. We do not find it necessary to consider this with care, because, in our opinion, he failed to make out a case of negligence on the part of the defendant. The elevator in question ran from the subbasement of the defendants' store to the sidewalk in Pemberton Square. It consisted of a platform 7 feet 10 inches square, with an iron post at each corner about 6% feet high. The top of the elevator well had an iron covering, which was raised up by these posts as the elevator ascended above the level of the sidewalk, and this covering returned automatically when the elevator descended. The top edge of the elevator well was made of a stone coping 7 inches deep, and the sides of the well below the coping, for a distance down the well of 10 or 15 feet, were plastered on metal lathing.

The plaintiff's case was that he had gone to the subbasement with a basket full of waste paper, and after depositing it there he was returning on the elevator, sitting on his basket, with one foot inadvertently over the edge of the elevator, when it was caught in a hole in the plaster just under the stone coping. "The evidence tended to show that the plaintiff was injured by losing the two outside toes of his right foot and a portion of the outside of said foot. No other toes were injured." No witness had seen this hole before the injury. One Williams examined it for the plaintiff 23 days after the accident. His description of it was as follows: "There is a cap of granite that lies level with the sidewalk, about 6 or 8 inches thick, and underneath that capping, about the middle of the front of the elevator, was a hole which was directly under the cap where the plastering or side of the elevator well had fallen off, and leaving a place under the cap and running back. I measured with my finger on the left-hand side. It would be about an inch and a half deep; and on the right-hand side it would be about an inch deep. It was an uneven break. The break was 5 or 6 inches wide." Two witnesses called by the defendants, who were on the sidewalk when the accident happened, and looked to see what was the cause of it, also described this hole. One said: "The only thing I saw was a little hole there under the coping there, or that plate that comes down there, and I should judge it was about as big as your fist." The other: "Say this was the coping; here your stone coping, and there was a little break, not very large, right underneath. I should say a couple of inches. I don't

know, but somwhere about that; just a little dent of a hole in. Q. How deep was it? A. I didn't take particular measurement, but I would take it-just looking at it thereabout half an inch or so; about half an inch, I should say." The evidence justified a finding that the hole was an old one. The clearance between the elevator and the sides of the elevator well was about an inch, but there was some vibration in the working of the elevator, especially in case of heavy loads. The plaintiff's witness Williams testified that the "well was rough and there were other breaks in the plastering besides this one; that the sides of the well were scraped, with lines running up on all sides; that there was scratches varying from one-fourth to one-half inch in depth; that excepting for these holes and scratches the surface of the elevator well was smooth."

The plaintiff relies, also, on the following testimony given on cross-examination by one Shea, a machinist in charge of the defendant's elevators, but not of their elevator wells, namely: That the walls of the well ought to be flush to avoid danger as much as possible; the danger of bundles getting caught which might tear the wrapping, or rip machinery, and, if that happened, sombody would probably get hurt. The plaintiff also relies on the testimony of this same witness "that a hole in the side of the elevator 18 iches long and projecting in under that cap from an inch to an inch and a half, and projecting down 4 to 6 inches, would be such a place as he would feel it his duty to report." We lay aside the last answer of this witness. The witness testified that he did not find a break of that kind, and we find in the bill of exceptions no statement that the break in question was a break of that kind. We are of opinion that it would be holding an employer to too high a degree of care if he was held to be negligent in repairing a break in the plastering of a freight elevator well, which is necessarily scratched and banged in the use to which it is put, when that hole at most is 5 or 6 inches wide, 21⁄2 inches high, and 1 inch deep at one end and 1% inches deep at the other end. We have taken the height of the hole at 21⁄2 inches because one of the defendants' witnesses said It was "as big as your fist." No height was given by the witnesses called by the plaintiff. We are of opinion that it was not a defect. See, in this connection, Jennings v. Tompkins, 180 Mass. 302, 62 N. E. 265.

So far as there was a danger incident to the walls of the elevator well being covered with plaster in place of boards or metal, that was a danger assumed by the plaintiff as an obvious risk of the employment which he chose to accept.

Exceptions sustained.

(166 Ind. 316) STOY et al. v. INDIANA HYDRAULIC POWER CO. (No. 20,495.)

(Supreme Court of Indiana. March 16, 1906.) 1. EMINENT DOMAIN-JUDGMENT OF CONDEM

NATION-APPEAL-REVIEW.

Under a statute providing for appeals to the circuit court in condemnation proceedings, the method of taking the appeal being by exceptions to the award, preliminary objections to the service and to the appointment of appraisers were not brought forward by the mere taking of an appeal to the circuit court, and were not reviewable on appeal to the Supreme Court.

2. APPEAL-ASSIGNMENTS OF ERROR-SUFFI

CIENCY.

Under Burns' Ann. St. 1901, § 667, requiring the pleading which is to be filed in the Supreme Court to be a specific assignment of errors, the sufficiency of a complaint cannot be reviewed on an assignment complaining of the overruling of a motion for new trial or the rendition of final judgment.

3. SAME-REVIEW-MATTERS IN RECORD.

An objection to the jurisdiction in a particular case must be brought into the record in order to be reviewed on appeal.

4. EMINENT DOMAIN-PUBLIC USE-HYDRAULIC COMPANIES.

Burns' Ann. St. 1901, § 4833, authorizing hydraulic companies to condemn land in order to erect dams, is not unconstitutional, on the ground that the use is not a public one.

GILLETT, C. J. This is an appeal from proceedings instituted by appellee, a hydraulic company, to condemn property under and by virtue of section 4833 et seq., Burns' Ann. St. 1901. After the filing of an amended instrument of appropriation, appellant entered a special appearance and moved to quash the service. This motion was overruled, and appellant then filed 10 objections to the appointment of appraisers. These objections were overruled, and appraisers were appointed. They subsequently filed their award of damages in the clerk's office, and within 10 days thereafter appellant filed 12 exceptions to the award. The first exception went to the assessment of damages, and the ninth exception charged that the appraisers made their assessment under the supposition that the lands described in the warrant contained 7 acres, whereas in truth and in fact there were 29 acres embraced within said description. The remaining exceptions went to the authority to condemn, the sufficiency of the instrument of appropriation, and the regularity of the proceedings. On the motion of appellee, the court struck out all of said ex76 N.D.-67

ceptions except the first and ninth. On said issues the cause was tried without the intervention of a jury, and the court entered a finding and judgment affirming the award of the appraisers. Appellant filed a motion for a new trial, assigning as grounds therefor that the finding of the court was not sustained by sufficient evidence and that it was contrary to law. Upon the overruling of said motion this appeal was taken. Appellant has not sought to bring the evidence into the record. Error is assigned as follows: "First. The court erred in overruling the motion of William L. Stoy, made on special appearance, to set aside and quash the notice given by the plaintiff of the appropriation. Second. The court erred in overruling the objection of appellant William L. Stoy to the appointment of appraisers to appraise the damages he would sustain by reason of the appropriation of his real estate. Third. The court erred in overruling the motion of the appellant William L. Stoy for a new trial. Fourth. That the court erred in rendering final judgment in said cause."

Under these assignments appellant's counsel urge that it is not shown that the use for which the land is sought to be appropriated is a public one, but, on the contrary, that it appears affirmatively from the instrument of appropriation that the water power is desired to generate electricity for the purposes of sale, that the statute is unconstitutional if it purports to authorize such an appropriation, that the instrument of appropriation does not show that the river is at least 65 feet wide, that under the facts set up by appellant in his exceptions appellee is not a duly organized corporation, that the service upon appellant was insufficient, and that the motion for a new trial should have been sustained because the record does not show that the assessment of damages was recorded by the clerk as provided by section 4834, supra. As the law stood when these proceedings were had, it is clear that there could not have been a direct appeal to this court from the order appointing appraisers (Lafayette, etc., R. Co. v. Butner, 162 Ind. 460, 70 N. E. 529; Noblesville Hydraulic Co. v. Evans, 163 Ind. 700, 72 N. E. 126), that the only appeal which could have been taken was to the circuit court, and that the method of taking the appeal was by exceptions to the award, whereby it might be reviewed as to matters of both law and fact (McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413; Swinney v. Ft. Wayne, etc., R. Co., 59 Ind. 205; Cincinnati, etc., R. Co. v. Wabash R. Co., 162 Ind. 303, 70 N. E. 256; Wabash R. Co. v. Cincinnati, etc., R. Co., 29 Ind. App. 546, 63 N. E. 325). It is clear that the preliminary objections to the service and to the appointment of appraisers were not brought forward by the mere taking of an appeal to the circuit court, and, consequently, that they have not properly been assigned as error here.

The action of the court below in striking

out all of the exceptions which appellant addressed to the award seems to have left no question in issue except as to the amount of the damages. The ruling referred to, as will be observed, has not been assigned as error. Doubtless the question as to the sufficiency of the instrument of appropriation might have been raised by an independent assignment of error; but we are of opinion that on the errors which have been assigned there is no basis for a determination of the questions upon which appellant chiefly relies. Section 667, Burns' Ann. St. 1901, requires that the pleading which is to be filed in this court shall be "a specific assignment of errors." It is obvious that this statute is in no wise complied with where the effort is to question the sufficiency of a complaint or of an instrument of appropriation by assigning as ground therefor the overruling of a motion for a new trial or the rendition of final judgment. The case does not, even upon the contention of appellant, involve a lack of jurisdiction over the subject-matter. Appellant's counsel submit no argument to show that section 4834 is unconstitutional. They only assert, in one of their points, that if the statute purports to invest appellee with the right to condemn for private purposes it is in violation of the Constitution of the state. The case, therefore, as it is presented to us, seems to be one in which the jurisdiction of the court over the general subject stands unchallenged, and that the most which is contended for is that there existed in the particular case a specific objection to the jurisdiction. In such a case the objection must be duly brought into the record. Perkins v. Hayward, 132 Ind. 95, 31 N. E. 670; Elliott, Appellate Procedure, § 776. More than that, it can in no sense be said that there was a lack of jurisdiction of the subject-matter. It has been stated that "jurisdiction of the subject-matter is not confined to spots within the jurisdictional field, nor to parts of that field, but it extends to the whole of that field, however wide it may be." Elliott, Gen. Prac. § 238. The filing of the instrument of appropriation, together with the proof of service, was a challenge to the court to determine as to its authority to proceed under said statute. The enactment can by no means be said to be clearly unconstitutional, in view of the holdings of this court under cognate statutes, rendered prior to the adoption of the Constitution of 1851. In these circumstances, and keeping in mind the character of the court, it must be said that there was jurisdiction over the subjectmatter and that the judgment of the court was not a mere usurpation. Van Fleet, Col. Attack, §§ 59, 61, 66. So, whatever view may be taken as to the manner of raising a question as to a want of jurisdiction over the subject-matter, it is plain that in such a case as this we are not authorized to disturb the judgment in the absence of a specific assignment which presents for our consideration an error warranting a reversal.

There remains but one question to consider, in view of the posture of the case, and that is the objection of appellant, based on the overruling of his motion for a new trial, that it is not shown that the assessment of damages was recorded after it was filed with the clerk. We are of opinion that in this particu lar the statute is directory. Jones v. Swift, 94 Ind. 516; Wampler v. State, 148 Ind. 557, 47 N. E. 1068, 38 L. R. A. 829; Custer v. Holler, 160 Ind. 505, 67 N. E. 228. But, If we should be in error in this, the presumption in favor of the due performance of official actions suffices to support appellee, since appellant has not seen fit to bring the evidence into the record.

A master is not liable for the acts of his servant, committed outside the line of his duty and not connected with his master's business, though the particular injury could not have occurred without the facilities afforded by the relation of the servant to his master.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1225.] 2. SAME-PLEADING-COMPLAINT.

In an action by a servant for injuries, owing to a sliver having blown from a hammer that was in use by another servant, the complaint was insufficient for failing to show that the act of the other servant was done in the line of his duty.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1269.]

Appeal from Superior Court, Vanderburgh County; Jno. H. Foster, Judge.

Action by Henry Gillen against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Gilchrist & De Bruler, for appellant. Van Pelt & Monfort and G. V. Menzies, for appellee.

MONTGOMERY, J. This cause was transferred from the Appellate Court under the provisions of section 1337u, Burns' Ann. St. 1901. This action was brought by appellee to recover damages for a personal injury received while in appellant's employ. It is alleged that the court below erred in overruling (1) appellant's demurrer to the first paragraph of complaint, (2) its demurrer to the first paragraph of complaint, and (3) its motion for a new trial. The sufficiency of the first paragraph of complaint is not seriously questioned, and in our opinion no error was committed in overruling appellant's demurrer to the same.

The substantial averments of the second paragraph of complaint are as follows: That the appellant on "the 3d day of Jan

ary, 1902, owned and operated at the town of Howell, on the line of its railroad, in the state of Indiana, machine and repair shops, where engines, cars, and other equipments of said company's railroad were manufactured and repaired. That on said date plaintiff was in the employ of said company at and in one of the buildings of said shops as a sweeper. That plaintiff's duties as such sweeper were to sweep the floor of the boiler room of said building. That at the time aforesaid defendant had and operated in said boiler room work benches, to which iron vises were attached, in which vises pieces of metal were fastened for the purpose of being hammered with hammers. That at the time aforesaid defendant negligently and carelessly permitted a defective and unsafe hammer to be in use at one of said benches, which said hammer had been for a long time prior thereto, and on said day was, used in said defective and unsafe condition. That said hammer was defective and unsafe in this, to wit: said hammer was tempered too hard, was extremely brittle, and the edges thereof were sharp and improperly dressed. That the defective and unsafe condition of said hammer was at that time known to said company and unknown to the plaintiff. That at the time aforesaid plaintiff, while in the proper discharge of his duties as such sweeper, was walking in and about one of said benches, to which there was a vise attached, in which vise there was at that time a piece of metal screwed. That one of the employés of said company was at the time engaged in hammering on the piece of metal in said vise, and in doing said hammering was using the said defective and unsafe hammer, which was unknown to the plaintiff. That while plaintiff was at and near said bench, and in the performance of his duties as aforesaid, and while said hammer was being used as aforesaid, a piece or sliver of steel suddenly and violently broke off said hammer, as said hammer came in contact with said metal, which piece or sliver off said hammer entered plaintiff's right eye with great force and violence, entirely destroying the same. That by reason of the injury to said eye it was necessary to remove it, and the same was removed. That by reason of said injury the vision of plaintiff's left eye has become seriously impaired and his mentality affected. That the injury herein complained of was caused by the negligence of said company in failing to provide and keep for use a safe hammer in and about where plaintiff was required to perform his duties, and in suffering and permitting to be used in manner as aforesaid, at the time aforesaid, in its said boiler room, at the place plaintiff was required to work, the said defective and unsafe hammer."

It is contended by appellant that this para graph of complaint is fatally defective for the want of an averment that the employé

who was using the hammer at the time of the accident was in the line of his duty as a servant of the appellant or engaged in the prosecution of the master's business. It is manifest that there was no latent peril in the mere presence of the inert hammer, alleged to have been defective; but the danger arose from a particular use of the instrument. The liability, if any, in this action, must be predicated upon the use in its business of a defective tool, authorized either expressly or impliedly by appellant. It is averred in this paragraph of complaint merely that at the time of the accident one of the appellant's employés was hammering a piece of metal in a steel vise with this defective tool. The duties of this employé and the purpose of the hammering are not stated, nor is it averred in general terms that the work in which he was engaged was in the line of his duty under his employment. The averments of the complaint should show that the act of the servant resulting in the injury complained of was done while in the discharge of his duties and performing service for the master. If the offending employé was not acting in the line of his duty and within the scope of his authority, there can be no liability against the employer. It is a well settled principle of law that a master is not answerable for the acts of his servant committed outside the line of his duty and not connected with his master's business, but done in pursuit of some independent purpose of his own, although the particular injury could not have occurred without the facilities afforded by the relation of the servant to his master. Louisville, etc., Ry. Co. v. Palmer, 13 Ind. App. 161, 39 N. E. 881, 41 N. E. 400; Harrell v. Cleveland, etc., R. Co., 27 Ind. App. 29, 60 N. E. 717; Pittsburgh, etc., R. Co. v. Adams, 25 Ind. App. 164, 56 N. E. 101; Cincinnati, etc., R. Co. v. Voght, 26 Ind. App. 665, 60 N. E. 797; Helfrich et al. v. Williams, 84 Ind. 553; Smith v. Louisville, etc., R. Co., 124 Ind. 394, 24 N. E. 753; Lima R. Co. v. Little (Ohio) 65 N. E. 861; Johanson v. Pioneer Fuel Co. (Minn.) 75 N. W. 719; Canton, etc., Co. v. Pool, 78 Miss. 147, 28 South. 823, 84 Am. St. Rep. 620; Goodloe v. Memphis, etc., R. Co., 107 Ala. 233, 18 South. 166, 29 L. R. A. 729, 54 Am. St. Rep. 71; Guille v. Campbell, 200 Pa. 119, 49 Atl. 938, 55 L. R. A. 111, 86 Am. St. Rep. 705; McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490; Branch v. International, etc., R. Co., 92 Tex. 288, 47 S. W. 974, 71 Am. St. Rep. 844; Walker v. Hannibal, etc., R. Co., 121 Mo. 575, 26 S. W. 360, 24 L. R. A. 363, 42 Am. St. Rep. 547; Stephenson v. Southern Pac. Co., 93 Cal. 558, 29 Pac. 234, 15 L. R. A. 475, 27 Am. St. Rep. 223; Elliott on Railroads, § 1303.

The absence of averments showing that the act of appellant's employé resulting in appellee's injury was done in line of duty or while performing any service required under his employment renders the second paragraph