pressly held to be common carriers, and subject to the " respects, the company would undoubtedly be liable for the damage resulting. This would not impose any liability for want of skill or knowledge not reasonably attainable in the present state of the art, nor for errors resulting from the peculiar and unknown condition of the atmosphere, or any agency from whatever source, which the degree of skill and care spoken of is insufficient to guard against or avoid." The Taking the facts as proved in the case now under consideration, and applying the principles of law to them, are the plaintiffs entitled to recover? They make out a prima facie case when they show that the message which the company undertook to send was not delivered and that damage has resulted. It is not care and diligence adequate to the busi-necessary that they show affirmatively that the failure ness which they undertake; "with skill, with care, to deliver happened through any omission of duty by and with attention;" "a high degree of responsibil- the company or its officers, or from some defect in the ity." These are but the varied forms of expressing instrumentalities employed by the company. the requirement of what is known in law as ordinary failure to deliver being shown, the legal presumption care, as applied to an employment of this nature-an is that it was caused by some one or other of these employment which is not that of an ordinary bailee. causes, or of all combined. It then becomes incumThe public as a general rule have no choice in the se- bent on the defendant, if it would relieve itself from lection of the company. They have none in the selec- the consequences of such presumption, to overcome tion of its servants or agents. They have no control that presumption by showing that in the attempted over the agencies or instrumentalities used in con- transmission and delivery of the message is exercised ducting the business of the company. The public all proper care and diligence commensurate with the must take the agencies which the companies furnish, undertaking, and that the failure is not attributable and they have no supervision over its management or to any fault or negligence on its part, or that of any of methods of performing the service which it holds itself its employees. Bartlett v. Telegraph Co., 62 Me. 221; out as willing and ready to perform. And while we Baldwin v. Telegraph Co., 45 N. Y. 744; Telegraph Co. do not hold that these companies are common car- v. Graham, 1 Colo. 230; Shear. & R. Neg., § 559; Teleriers, and subject to the same severe rule of responsi- graph Co. v. Wenger, 55 Penn. St. 262. bility, we think that those who engage in the business of thus serving the public by transmitting messages should be held to a high degree of diligence, skill and care, and should be responsible for any negligence or unfaithfulness in the performance of their duties. A telegraph company which holds itself out to the public as ready to transmit all messages delivered to it is bound to have suitable instruments and competent servants, and to see that the service is rendered with that degree of care and skill which the peculiar nature of the undertaking requires. We do not understand however that this duty would impose a liability upon the company for want of skill or knowledge not reasonably attainable in the art; nor for errors or imperfections which arise from causes not within its control, or which are not capable of being guarded against. White v. Telegraph Co., 14 Fed. Rep. 710; Sweatland v. Telegraph Co., 27 Iowa, 433: Leonard v. Telegraph Co., 41 N. Y. 572; Ellis v. Telegraph Co., 13 Allen, 233; Bartlett v. Telegraph Co., 62 Me. 221. We think our own court has expressed the doctrine we are discussing in language so fitting that we may be justified in making the following extended quotation from the case last cited: "To require a degree of care and skill commensurate with the importance of the trust reposed, is in accordance with the principles of law applicable to all undertakings of whatever kind, whether professional, mechanical or that of the common laborer. There is no reason why the business of sending messages by telegraph should be made an exception to the general rule. This requires skill as well as care. If the work is difficult greater skill is required. It is often necessary to trust to this mode of communication matters of great moment, and therefore the law requires great care. It is necessary to use instruments of a somewhat delicate nature and accurate adjust ment, and therefore they must be so made as to be reasonably sufficient for the purpose. The company holding itself out to the public as ready and willing to transmit messages by this means, pledges to that public the use of instruments proper for the purpose, and that degree of skill and care adequate to accomplish the object proposed. In case of failure in any of these The case last named was where a message sent by the plaintiff's line to New York was transmitted only to Philadelphia, and no reason was assigned for the failure to transmit the message to its destination. The court say: 'No such reason as the law would recognize, and indeed no reason at all was given for the failure to transmit the message to its destination. Thus was permitted a clear case of gross negligence against the company in performing its undertaking, and a consequent liability to the plaintiff for such damage as he had sustained in consequence thereof." The case at bar is unlike that. While it is true that the message in this case was not transmitted to its destination, the defendant here has assumed the burden of proof, after the prima facie case of the plaintiffs, and by evidence, which is uncoutradicted, has shown that the failure was caused by agencies over which it had no control, and for which it was not responsible. The dispatch, when received at the Chicago office during the night, was taken from the wire, and the relay copy was hung upon the stock yards' hook, to be forwarded the following morning when the office at that place should open. This is all that could be done that night. By the terms of the company's stipulation or regulation to which the plaintiffs, by their signature thereto, either assented, or by which they must be held to be estopped (Breese v. Telegraph Co., 48 N. Y. 141, 142; Grinnell v. Telegraph Co., 113 Mass. 307), aside from the void condition of which we have spoken, the message was not to be delivered earlier than the morning of the next ensuing business day. An earlier transmission in this case was impossible. Immediately prior to the time for forwarding the message over the line communicating with the stock yards a fire suddenly broke out in the operating room, and before any thing could be rescued the whole room was enveloped in flames, and this message destroyed. The origin of the fire, as we have stated, and as the evidence shows, was due to atmospheric conditions and influences over which the defendant company had no control. There were no improvements known or anywhere in use which could guard against the possibility of such an occurrence. If the company ought to have foreseen that such an accident might happen, or if such an occurrence could reasonably have been anticipated, and it could have been guarded against, then the omission to provide against it might be held to be actionable negligence. But the facts as they appear in the case, rebut any negligence on this ground. That it was likely to occur was only a possibility. The fire does not appear to have orignated through any fault or neg ligence of the company or its employees, or through any imperfections in the chemicals, metals, machinery or implements used by it, which by any skill or knowledge reasonably attainable in the present state of telegraphy, could be guarded against. The facts proved bring the case within the decisions to which we have referred in another part of this opinion, and upon these facts and the law it is the opinion of the court that the plaintiff cannot prevail. Judgment for the defendant. Peters, C. J., and Walton, Danforth, Virgin and Libbey, JJ., concur. ABSTRACTS OF VARIOUS RECENT DE- as lessees of stalls the privilege of peddling about the CONTRACT-VALIDITY—RESTRAINT OF TRADE.-For the sole purpose of forming a combination among all the manufacturers of lumber at a certain poiut, increasing the price, limiting the amount, and giving plaintiff the control of the supply in four counties for a year, plaintiff by contracts with the other manufacturers, either by lease of their mills or by purchase of their product for the year secured the control of the amount purchased, among which contracts, and similar to the others, was one with defendants, whereby they agreed to sell plaintiff during the year a specified amount of lumber at a given price; and further, to manufacture no lumber for sale in said counties during said year, except under the contract, and to pay plaintiff $20 per M. for any lumber sold to others in that period. Held, wholly void as against public policy. Among the contracts illegal under the common law, because opposed to public policy, were contracts in general restraint of trade-contracts between individuals to prevent competition, and keep up the price of articles of utility. Pom. Const., § 283; Jones v. Caswell, 3 Johns. Cas. 29; Doolin v. Ward, 6 Johus. 194; Wilbur v. How, 8 id. 346. The case of Arnot v. CONSTITUTIONAL LAW- ORDINANCE -MARKETSABRIDGING RIGHTS OF CITIZENS.—The provision in the Mobile city ordinance entitled an "ordinance to establish and regulate markets," prohibing the sale of fresh meats at retail outside of certain markets established by the ordinance, is not unconstitutional. The recent adjudications of the Supreme Court of the United States fully recognize the doctrine that the Federal Constitution cannot be successfully invoked in limitation of the State's absolute control, either directly or through its political instrumentalities, of its internal police affairs. Both the necessity for police regulation in a given instance, and the adaptation of a particular regulation to the specific end in view, are matters entirely of State cognizance and final determination. This ordinance therefore as applied to the agreed facts, is not violative of any provision of the national Constitution. Mugler v. Kansas, 123 U. S. 623; oleomargarine case, Powell v. Com., 37 Alb. Law Jour. 370. The delegation to a municipal corporation of the power to establish public markets, and to confine the sale of commodities which, in consideration of public health, required police inspection and supervision, to such markets, is clearly within the competency of the General Assembly, under the Constitution of Alabama, and it is not conceived that any right secured by the organic law would be impaired by the exercise of this power, even if one of the results of its exercise should be the destruction of an existing and long-established business. Such ordinances however must not be inconsistent with general laws; they must be reasonable in their provisions, and referable to the perform-country north and west of Elmira. Defendant enance of some recognized government function. Deferring for the present, the inquiry whether the charter of Mobile confers power on the city government to prohibit the sale of meats at any store or stall outside of the market buildings, the question arises, has the petitioner shown that he is affected by any other provision in the ordinance? It is not shown that he has peddled, or desires to peddle, about the streets. An ordinance, like a statute, may be valid in some of its provisions and invalid in others. Vines v. State, 67 Ala. 73; Powell v. State, 69 id. 10; McCreary v. State, 73 id. 480. It is not our purpose to inquire into the validity of the clause which discriminates in the matter of peddling on the streets between tenants of stalls and those who are not. If this does vitiate the ordinance to any extent, it is only to the extent of avoiding this exception, or giving to all persons the benefit of it, and allowing others as well Coal Co., 68 N. Y. 559, is in most respects similar to the case at bar. Arnot, the plaintiff, brought the suit as the assignee of the Butler Colliery Company, which company and defendants were corporations engaged in the business of mining and vending coal at or near Pittston, Penn. Defendant also had a depot for coal at Elmira, N. Y., and was engaged in vending coal, the product of the Pittston mines, to a large extent of tered into a contract with the Butler Colliery Company by which said defendant agreed to take all the coal the Butler Company desired to send north of the State line, not exceeding 2,000 tons per month, and the Butler Colliery Coal Company on its part agreed not to sell coal to any other party except defendant, to go north of the State line (between New York and Pennsylvania) during the continuance of the agreement. The Butler Company sold coal during the term covered by the agreement to parties other than the defendant; and having delivered to the defendant under the agreement coal which the latter refused to pay for, the action was brought to recover for the coal so delivered under the agreement. It appeared that defendant had made similar contracts with all the other mining proprietors of Pittston, and that the object was to so control the shipment and supply of coal for the Elmira market as to maintain an unnaturally high * price for coal in that market, and to prevent competition in the sale of coal therein. The court in cousidering the appeal said: "That a combination to effect such a purpose is iuimical to the interests of the public, and that all contracts designed to effect such an end are contrary to public policy, and therefore illegal, is too well settled by adjudicated cases to be a question of this day. Cites Coal Co. v. Coal Co., 68 Penn. St. 182; People v. Fisher, 14 Wend. 9; Sleeper v. Van Middlesworth, 4 Denio, 434; Bank v. King, 44 N. Y. 87. Every producer or vendor of coal or other commodity has the right to use all legitimate efforts to obtain the best price for the article in which he deals; but when he endeavors to artificially enhance prices by suppressing or keeping out of market the produce of others, and to accomplish that purpose by means of contracts binding them to withhold their supply, such restraints are even more mischievous than combinations not to sell under an agreed price. Combinations of that character have been held to be against public policy and illegal. * * Parties entering into contracts of this description must depend upon each other for their execution, and cannot derive any assistance from the courts." And the contract was held void. Salt Co. v. Guitrie, 35 Ohio St. 672; Craft v. McConoughy, 79 Ill. 339; and Coal Co. v. Coal Co., 68 Penn. St. 182, are to the same general effect. In the case at bar the facts are, as we think, even stronger against the plaintiff than in Arnot v. Coal Co. Here it entered into a contract with the object and view to suppress the supply and enhance the price of lumber in four counties of the State. The contract was void as being against public policy, and the defendants, as they had a right to do, repudiated the contract. Plaintiff, who has parted with nothing of value, now seeks to recover damages for non-delivery of lumber under this contract. Plaintiff had an undoubted right to purchase any or all of the lumber it chose, and to sell at such prices and places as it saw fit; but when, as a condition of purchase, it bound its vendor not to sell to others under a penalty, it transcended a rule the adoption of which has been dictated by the experience and wisdom of ages, as essential to the best interests of the community, and as necessary to the protection alike of individuals and legitimate trade. With the results naturally flowing from the laws of demand and supply the courts have nothing to do; but when agreements are resorted to for the purpose of taking trade out of the realm of competition, and thereby enhancing or depressing prices of commodities, the courts cannot be successfully invoked, and their execution will be left to the volition of the parties thereto. Cal. Sup. Ct., June 4, 1888. Santa Clara Val. M. & L. Co. v. Hayes. Opinion by Searls, C. J. CRIMINAL LAW-LARCENY-DECOYING.-An officer to detect the author of certain thefts feigned a drunken slumber, with intent to allow any thief to rob him in order to make a case of larceny against him, having no suspicion that defendant would be the one. While in this condition, perfectly conscious and making no resistance, defendant took money from his person. Held, that the conduct of the officer did not constitute such consent as to take away a material element of the crime, and that defendant was guilty of larceny. It is no doubt true as a general proposition that larceny is not committed when the property is taken with the consent of its owner, but it is difficult in some instances to determine whether certain acts constitute in law such "consent," and under the authorities, we do not think there is such consent where mere passive submission on the part of the owner of the goods taken, and no indication that he wishes them taken, and no knowledge by the taker that the owner wishes them taken, and no mutual un derstanding between the two, and no active measures of inducement employed for the purpose of leading into temptation, and no preconcert whatever between the thief and the owner. And some of the circumstances were present in all the cases cited by counsel for appellant. In Rex v. McDaniel, Fost. Cr. Cas. 121, a case of robbery, Salmon, the person alleged to have been robbed, entered into a conspiracy with one Blee, by which Salmon was to be robbed by Blee and certain other persons whom Blee was to entice into the scheme, and the court held that the acts done in carrying out the conspiracy, which looked like robbery, were not robbery at all, because Salmon was an active participant in and had planned the whole affair; and Justice Foster, delivering the opinion of the court, in noticing the case of one Norden, makes a distinction between that case and the McDonald Case which may well be applied to the case at bar. He says: "I come now to the case which I promised at the beginning to consider, and distinguish from the present case. One Norden, having been informed that one of the early stage coaches had been frequently robbed by a single highwayman, resolved to use his endeavors to apprehend the robber. For this purpose he put a little money and a pistol into his pocket, and attended the coach in a post-chaise till the highwayman came up to the company in the coach and to him, and presenting a weapon, demanded their money. Norden gave him the little money he had about him, and then jumped out of the chaise with his pistol in his hand, and with the assistance of some others took the highwayman. The robber was indicted about a year ago in this court for a robbery on Norden, and convicted. And very properly, in my opinion, was he convicted. But that case differed widely 'from the present. In that case Norden set out with a laudable intention to use his endeavors for apprehending the highwayman in case he should that morning come to rob the coach, which at that time was totally uncertain; and it was equally uncertain whether he would come alone or not. In the case now under consideration there was a most detestable conspiracy between Salmon and the rest of the prisoners that his property should be taken from him under the pretence and show of a robbery; and time, place and every other circumstance were known to Salmon beforehand, and agreed to by him." In United States v. Whittier, 5 Dill. 35, cited by appellant, the defendant was tempted to send obscene matters through the mails by a decoy letter sent to him for the express purpose of inducing him to commit the offense. In Dodge v. Brittain, Meigs, 84, the court merely holds that there would have been no larceny "if the master had directed the servant to deliver the property to the thief, instead of directing him to furnish facilities for his arriving at the place where it was kept." This case indeed was most strongly against the contention of appellant. Bishop, under the head of "Plans to entrap," sums up the authorities on the subject as follows: "If a man suspects that an offense is to be committed, and instead of taking precautions against it, sets a watch, and detects and arrests the offenders, he does not thereby consent to their conduct, or furnish them any excuse; and in general terms, exposing property or neglecting to watch it, under expectation that a thief will take it, or furnishing any other facilities or temptations to such or any other wrong-doer, is not a consent in law." 1 Bish. Crim. Law, § 262. From the authorities, and upon principle, we are of opinion that the conduct of the witness Slanker, as detailed by him in his testimony, did not amount to consent in law, and affords no reason why the act of appellant in taking the money (if he did take it in the manner as sworn to by Slanker) was not larceny. If there had been preconcert of action between Slanker and appellant, a differ ent question would have been presented. Cal. Sup. Ct., June 7, 1888. People v. Hanselman. Opinion by McFarland, J. MASTER AND SERVANTNEGLIGENCE - RAILROAD - LOW BRIDGES.-A brakeman, ou so dark a night that be could not see around him, at the request of the engineer in charge of the train, went to the top of a car to set the brakes, as was his duty, and without any fault of his own, was knocked off the car, and seriously injured, by his head coming in contact with a bridge, built by the defendant company so low as not to allow a man on the top of a car to walk and stand erect. The brakeman had no knowledge or express notice of the dangerous nature of the bridge, or any opportunity of finding out its dangerous character. Held, that he was entitled to damages against the defendants. There are cases which hold that in such a case railway companies are not bound to erect the overhead bridges constructed by them of such a height that brakemen can stand or walk erect upon the tops of the cars without coming in collision with them. As applied to this case especially, we cannot approve of those rulings. Here the bridge was but four feet and nine inches above the top of the cars. The brakes were on the tops of the cars; and to get to them, the brakemen were required to pass over the tops of the cars, not only in the day-time, but also in the night-time, and often doubtless as in this case, when the night was dark, raining and foggy, and when it would be almost, if not quite, impossible for them to know of the proximity of such bridges when called to brakes upon moving trains, even if they had knowledge that such bridges were maintained. To erect and maintain such bridges under such circumstances is negligence. Further reflection has strengthened the conviction on our part that this conclusion is fully sustained, both by reason and the better authority. In addition to the authorities cited in the principal opinion, we cite the following: 1 Shear. & R. Neg. (4th ed.), § 198, et seq., and notes, and cases there cited. Beach Contrib. Neg., § 134; Railroad Co. v. Johnson, 116 Ill. 206. And where, as here, the facts are shown without any conflict in the evidence, the court may charge the jury that in the erection and maintenance of the bridge, the railway company was guilty of negligence. Board, etc., v. Legg, 110 Ind. 479, and cases there cited. In the contract of hiring, an employee assumes all risks ordinarily and naturally incident to the service, but he does not assume the risk of injury from unusual hazards. To say the least, in this case, appellee did not, by his contract of hiring, assume the risk of injury from the low bridge, unless he had knowledge of the hazard. The danger from such a bridge is not a hazard ordinarily and naturally connected with the service. It is not shown that he was informed of the danger, nor that he had knowledge of it when he engaged in the service. As to his duty to exercise care for his own safety, both in discovering the danger and in avoiding the injury, the jury were fully instructed, and as we have said, and without being more specific, the rule was pushed beyond what reason and the law will sanction. Ind. Sup. Ct., June 20, 1888. Louisville, N. A. & C. R. Co. v. Wright. Opinion by Zollars, J. DEFECTIVE APPLIANCES-NEGLIGENCE OF FEL LOW-SERVANT.-An employee was injured from a defect in a machine, due to the negligence of one employed to reconstruct and look after the machines. Held, that the injury did not arise from the negligence of a fellow-servant, and the employer was liable. The rights of a plaintiff who has been injured by defective machinery of a defendant for whom he was working, depend upon the contract, express or implied, under which he was employed. In making a contract for service, if the business is to be carried on by many persons working together in a factory, the parties naturally contemplate the existence of machinery, tools and appliances, and the presence of other employees who will be fellow-servants of him who is contracting to serve. In the absence of an express stipulation, the master impliedly agrees to provide and maintain reasonably safe and suitable machinery and appliances, so far as the exercise of proper care on his part will secure them, and the servant agrees to assume all the ordinary risks of the business, and among them the risk of injury from negligence of his fellow-servants. This obligation which the master assumes is personal, and pertains to him in his relation to the business as proprietor, and in his relation to the servant as master. It has been repeatedly held that he cannot discharge it by delegating the performance of his duty to another. Elmer v. Locke, 135 Mass. 575; Lawless v. Railroad Co., 136 id. 1; Killea v. Faxon, 125 id. 485; Kelley v. Norcross, 121 id. 508; Ford v. Railroad Co., 110 id. 240; Hough v. Railway Co., 100 U. S. 213; Flike v. Railroad Co., 53 N. Y. 549. And if he employs agents or servants to represent him in the performance of this duty, they are to that extent agents or servants for whose conduct he is responsible. The very nature of the implied contract created by the hiring, whereby he undertakes to use proper care in always providing safe tools and appliances, is inconsistent with the delegation of the duty to a fellow-servant, for whose negligence he is not to be responsible. His obligation involves the exercise of every kind of care and diligence which is necessary to give him knowledge of the condition as to safety of his machinery and appliances, so far as such knowledge is obtainable by reasonable effort. His duty relates to the condition of these articles when they come to the hands of his servants for use, and the performance of that duty must carry him just so far into details as it is reasonably necessary to go, in view of the nature and risks of the business, to enable him to reasonably protect his servants from a danger which he should prevent. It is obvious that difficult questions arise in cases of this kind in determining the implied obligations of the respective parties under peculiar circumstances. In many kinds of business the condition of a machine as to safety is constantly changing with the use of it, and it is safe or unsafe at a given moment, according as it is properly or improperly used and managed by the servant who operates it. Moreover certain kinds of repairs can be conveniently and properly made, under direction and supervision, by servants regularly employed in the business. In such cases both parties to the contract of service must be presumed to have contemplated, that to a certain extent fellow-servants would be employed by the master to do work in keeping the machinery safe. Work negligently done within that field, if an accident should happen from it, would seem at first to introduce a conflict between the obligation of the master to hold himself liable for want of due care in keeping his machinery safe, and the obligation of the servant not to claim damages resulting from negligence of a fellowservant. It becomes necessary therefore to consider the rights of the parties in such cases. The application in each particular case of any general rules which may be laid down will involve a consideration of two questions of fact: First, what is the nature and character of the business, and the usual and proper general method of conducting it? Secondly, in such a business, what is reasonably necessary to be done on the part of the master to secure for the use of the workmen machinery and appliances which shall always be reasonably safe? First, there is that class of cases in which the condition of a machine as to safety is constantly changing with its use, so as to require from the persons tending it, as a part of the ordinary use of it, reconstruction or readjustment of parts as they become worn out or displaced from materials or new parts supplied by the master for that purpose. Such work is a part of the regular business of the servant in using the machine, and not of the master in maintaining it. Negligence in doing it is as to all other employees negligence of a fellow-servant. So far as the condition of machinery depends upon this kind of attention, the master does his duty if he employs competent and suitable persons, and supplies them with every thing needed for their work. A second class of cases includes those in which repair or reconstruction of a machine is necessary of such a kind as is commonly done, or may properly be done, under the direction of the master, by servants employed in the general business. Both parties to the contract must be presumed to have contemplated that such work would be done by fellow-servants of the employee, and he must therefore be held to have assumed all risks from their negligence in doing it. But this, it must be remembered, is a part of that work for the results of which, in the completed machine, the master agrees to hold himself responsible so far as good results can be insured by his exercise of proper care. And so he is bound to bring to this department of the business, either in his own person or by an agent, such intelligence, skill and experience as is reasonably to be required in one to whom in an important particular the safety of others is intrusted, and he is bound also to be reasonably diligent and careful in the use of his faculties. One who represents him in this field is not acting as a fellow-servant with his other employees within the meaning of the rule which we are considering, but is his agent or servant for whose care and diligence he is accountable. There may still be a third class of cases, in which a machine is of such a kind, and the nature of the business in which it is used is such, that the parties could never reasonably have contemplated that any servants employed in the business would build or reconstruct it. A proprietor might buy such a machine, or send an agent or servant to buy it. In either case the purchase would be in the line of the master's duty, and he would be liable for the consequences of negligence in making it. He might hire privileges and men in a machine-shop in a distant city and build it there. His servants in that work would not be fellow-servants with an employee engaged in au entirely different business; and under the general doctrine of respondeat superior, he would be held liable for the consequences of their negligence. If he saw fit to construct or reconstruct it, in the same way, in or near the building in which it was to be used, the result would be the same. Upon our hypothesis it would be inconsistent with his implied contract to employ fellow-servants of his employee in his work, and he therefore could not relieve himself from his general obligation as to the safety of his machinery by setting up that bis servants in the construction or reconstruction were fellow-servants with his employees in the business it which it was to be used. It is believed that the decision in every case in this Commonwealth, founded upon alleged negligence of a master in relation to his machinery, tools or appliances, will be found, upon the view of the facts taken by the court, to come within one of these three classes, and to be governed by the principles which we have stated. Elmer v. Locke, 135 Mass. 575; Johnson v. Tow-Boat Co., id., 209; Rogers v. Manufacturing Co., 144 id. 198; Holden v. Railroad Co., 129 id. 268; Spicer v. Iron Co., 138 id. 426; McGee v. Cordage Co., 139 id. 445; Ackerson v. Dennison, 117 id. 407 Gilman v. Railroad Co., 10 Allen, 233; 13 id. 433; King v. Railroad Corp., 9 Cush. 112; 129 Mass. 277, note. See also Railroad Co. v. Herbert, 116 U. S. 642; Benzing v. Steinway, 101 N. Y. 547. Mass. Sup. Jud. Ct., May 4, 1888. Moynihan v. Hills Co. Opinion by Knowlton, J. NEGLIGENCE-VOLUNTEER.-One who is engaged in defendant's work, at the request of the man in charge, though he expects no pay, and is employed for a mere temporary purpose, is for the time being a servant of defendant, and entitled to the same protection as any other servant. This seems to be the rulé established by the authorities, and is supported by considerations of justice. Elwell's Evans Ag. 682; Wood Mast. & Serv., p. 909, § 455; Degg v. Railway Co., 1 Hurl. & N. 773; Potter v. Faulkner, 31 Law J. Q. B. 30; Warburton v. Railway Co., L. R., 2 Exch. 30; 36 L. J. Exch. 9; Wiggett v. Fox, 11 Exch. 832; Abraham v. Reynolds, 6 Jur. (N. 8.) 53: Flower v. Railroad Co., 69 Penn. St. 210; Railroad Co. v. Harrison, 48 Miss. 112; S. C., 12 Am. Rep. 356; Railroad Co. v. Bolton, 43 Ohio St. 224, 226. Wis. Sup. Ct., April 17, 1888. John. son v. Ashland Water Co. Opinion by Taylor, J. NOVELTY - SLEEPING CARS-SIGNAL NEGLIGENCE USE OF POISONS IN MANUFACTURES. -A manufacturer used a common mordant in dyeing certain cloth, by handling which a purchaser was poisoned; but the mordant was not at that time known to be poisonous to handle-the injury in question being the first known instance of injury from it. Held, that the manufacturer was not liable. Mass. Sup. Jud. Ct., June 21, 1888. Gould v. Slater Woolen Co. Opinion by C. Allen, J. PATENTS APPARATUS.-A patent for an improvement in compartment railway cars, describing an arrangement of wire signal bells or apparatus to extend from each compartment to the porter's room, in view of the fact that such signals were in common use in hotels, ou steamboats and elsewhere prior to the grant of the letters-patent, is void for want of novelty, and is not patentable. The patentee appears to have been the first to employ a wire signal-bell to summon a servant in a railway car; but can it be that it required an exercise of the inventive faculties to do this, in view of the fact that the identical apparatus had previously been used for the identical purpose in dwelling-houses, hotels and steamboats? The additional fact should also be remembered that similar signal appliances had been used in horse cars and in railway cars. The only novel feature that can by the most liberal construction be discovered, is the location of the apparatus in railway cars. The operation is the same; the result is the same. If it be invention to place a jingle bell in a passenger car, then each successive applicant who finds a new situation for such a bell is entitled to the rewards of an inventor. If this claim is held to be valid, with what consistency could a patent be refused to a person who, for the first time, should connect in a similar manner a row of bath houses at the seaside, or the boxes in a theatre, or the tables in a restaurant? To remove a bell from the stateroom of a passenger steamer and place it in the stateroom of a passenger car requires no more of the inventive faculty than to take a steam whistle from a tugboat and place it on a woolen mill-no more than to place a doctor's speaking-tube at the front door of a lawyer. The Supreme Court has over and over again decided that it was not invention to find a new place for an old device without change in the result or in the manner of operation. See cases cited in Electric Co. v. Alarm Co., 33 Fed. Rep. 254. But even if the foregoing views are incorrect, it is quite clear, in view of the state of the art and the minute description of the specification, that the claim must be confined, to some extent at least, to the mechanism and arrangement disclosed. It would be a most unwarranted expansion of the claim to give it the broad construction contended for by the complainant, which would bring within its scope every |