ter. if he has no knowledge, he is guilty of ac-, honest mistake; but, after all, this can only tual fraud." be a matter of opinion. It was not pretended to be based on any facts which would explain the source and reason of the opinion. We cannot hold that this charitable opinion of the plaintiff is sufficient to relieve the defendant from the duty of overthrowing the prima facie case arising from the showing as to damage which has resulted from a misrepresentation of a material inducement to the purchase, made presumably in conscious ignorance of the truth, and hence, in the eyes of the law, made recklessly and fraudulently. It will be observed that these authorities do not go to the extent of holding that it is not necessary to allege and prove the scienThis view has to do solely with the method and the quantum of proof. It is applicable here because the question before us for discussion is whether plaintiff, when he completed his testimony, had made a prima facie case, calling for explanation by the defendant. Upon this precise point the observations of the Pennsylvania court in Griswold v. Gebbie, 126 Pa. 353, 12 Am. St. Rep. 878, 17 Atl. 673, are pertinent. It is there said that "in an action of deceit, scienter must not only be alleged, but proved; and the jury must be satisfied that the defendant made the statement knowing it to be false, or with such conscious ignorance of its truth as to be equivalent to a falsehood. But the plaintiff in such action has made out a prima facie case, without direct proof of deceitful intent, when he has proved that the defendant made a positive statement of a material fact, its falsity, and the circumstances under which it was made, tending to show a reckless assertion in conscious ignorance of the fact." We have been cited to many cases holding, in effect, that the better rule in actions of deceit is that it is not necessary to allege and prove knowledge of the falsity of the representations on the part of the vendor; but we are not prepared to follow these cases in all respects. We think the true rule, or at least the one supported by the decided weight of authority, is expressed in the extracts quoted above; and especially the following statement, found in 8 Enc. Pl. & Pr., at page 905: "It is not always necessary, however, to prove that the defendant actually knew the falsity of his representations; scienter being sufficiently proven by showing that the representation was made as of knowledge, when in fact the defendant was without knowledge upon the subject, or when, by reason of his position, he should have known the truth or falsity of the representation made. These qualifications do not form exceptions to the rule that scienter must be proven, but relate only to the manner in which it should be shown." . We cannot escape the conclusion that the plaintiff in the case at bar brought himself within the scope of this sensible and salutary rule. Certainly Vincent had a right to assume that the owners of the property knew whereof they spoke when they assumed to state that the cleared land was on the property sold. The statement was manifestly one of fact, and not opinion, and was made as of knowledge. True, plaintiff gives it as his opinion that Trimble made an We write this in full view and after careful consideration of the cases of Sims v. Eiland, 57 Miss. 83; Mizell v. Sims, 89 Miss. 331, and Taylor v. Frost, 39 Miss. 328. Sims v. Eiland, carefully considered, does not, in our opinion, militate against our holding. The only question squarely before the court for decision in that case was the sufficiency of a replication to a plea averring that the defendants "honestly believed" that the representations were true; and the court holds that it is a good answer to such a plea to aver that defendants had no reasonable ground to believe that such representations were true; for, says Judge Campbell, "one cannot believe what he has no reasonable ground to believe." Here we hold no more than that Trimble, having made an emphatic assertion of a fact, should be required to disprove the presumption of knowledge which is thereby created, and disclose, if he can, what reasonable grounds existed for his belief. Mizell v. Sims turns upon the form of the action, and the court does no more than to decide that, in an action based upon a breach of warranty, where the warranties are expressed in a written instrument, contemporaneous verbal representations cannot be considered, because the suit is not the common-law action of deceit. Taylor v. Frost involves the correctness of certain instructions given after full proof, and does not necessarily involve any consideration of presumption or the requisites of a prima facie case. opinion does, indeed, say that it is incumbent on the plaintiff to show knowledge on the part of the vendor; but there was no necessity in that case for consideration of the question as to how that knowledge may be proven. The We have carefully examined the exhaustive note to Cottrill v. Krum, 18 Am. St. Rep. 549, and, so far from being shaken in our position, we are confirmed therein; especially in view of the language employed on page 559, where it is said: "To make a party liable in an action at law for false representations, it must be shown that he made the representations with actual knowl (November 4, 1908.) Case Note. - Duty of master to adopt rules to protect servant, or to warn him, against dangers not reasonably to be apprehended. edge of their falsity, or without knowing; from fault in not guarding against it, the whether they were true or false, or under employer cannot be found to be in fault in such circumstances that he ought to have not anticipating the danger and warning known that they were false, whether he did the employee of it. or not." The authorities cited in support of this statement are numerous and of the highest order of respectability. We have also examined Kountze v. Kennedy, 147 N. Y. 124, 29 L.R.A. 360, 49 Am. St. Rep. 651, 41 N. E. 414, and, while there are some observations in this case, growing out of its own particular facts, which seem to be at variance with our announcement, yet the court is at pains to say, in effect, that a statement made without knowledge of its truth or falsity, and not caring what the fact may be, is made recklessly, and amounts in law to the same thing as actual, positive knowledge of the falsity. In justice to the learned judge below, we feel it our duty to say that he was doubt less misled, in the hurry of a nisi prius trial, by the language employed in the Mississippi cases referred to, especially Taylor v. Frost, supra; and such language might well mislead the most careful and learned judge, called on to decide a close question without opportunity to reflect or examine authorities. It follows, from these views, that, while we approve of the action of the court in sustaining the demurrer to the original declaration, the peremptory instruction should not have been given, and the case is therefore reversed and remanded. NEW HAMPSHIRE SUPREME MARGARET AHERN V. AMOSKEAG MANUFACTURING COM- (75 N. H. 99, 71 Atl. 213.) warning Master-insufficient light Cases in which it appears that the danger was clearly obvious and understood by the servant do not come within the scope of this note. As to rules. When the business of the master is such that the safety of one servant depends upon the way in which other servants do their work, it is his duty to make, promulgate, and enforce reasonable and sufficient rules for the protection of the servant exposed to danger; and the rules should be so framed as to guard the servants, to a reasonable extent, against the consequences, not only of the carelessness of a coservant, but also of their own carelessness. Labatt, Mast. limitations (see Labatt, Mast. & S. § 211, & S. § 210. To this rule there are several and 20 Am. & Eng. Enc. Law, 2d ed. p. 101), but this note deals only with the limitation as to the master's duty where the danger was not reasonably to be apprehended. A master is only required to make rules to guard against such accidents and casualties as may reasonably be foreseen, and he is not bound to use more than reasonable care in deciding whether such rules are necessary. Gaska v. American Car & Foundry Co. 127 Mo. App. 169, 105 S. W. 3; Berrigan v. New York, L. E. & W. R. Co. 131 N. Y. 582, 30 N. E. 57; Eastwood v. Retsof Min. Co. 86 Hun, 91, 34 N. Y. Supp. 196, affirmed, without opinion, in 152 N. Y. 651, 47 N. E. 1106; Merchants' & P. Oil Co. v. Burns, 96 Tex. 573, 74 S. W. 758. The mere failure to adopt a particular rule is not proof of negligence, unless it appears that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity for such rule. Gila Valley, G. & N. R. Co. v. Lyon, 8 Ariz. 118, 71 Pac. 957 (to prevent running cars on a siding on a trestle by their own momentum); Shaw v. New Year Gold Mines Co. 31 Mont. 138, 77 Pac. 515 (to prevent danger from unexploded shots while drilling holes for blasts); Morgan v. Hudson River Ore & Iron Co. 133 N. Y. 666, 31 N. E. 234 (to prevent removal of block under car wheel); Burke v. Syracuse, B. & N. Y. R. Co. 69 Hun, 21, 23 N. Y. Supp. 458 (to prevent an employee from opening a switch at an improper time); Ely v. New York C. & H. R. R. Co. 88 Hun, 323, 34 N. Y. Supp. 739 (to prevent injury while loading railroad rails on a flat car); Koszlowski v. American Locomotive Co. 96 App. Div. 40, 89 N. Y. Supp. 55 (to prevent injury from T RANSFER by the Superior Court for, fail because of the burning out of a fuse. Hillsboro County for the opinion of During a period of darkness because of such the Supreme Court after verdict in plain failure, plaintiff attempted, for a proper tiff's favor of an action brought to recover | purpose of her own, to leave the room where damages for personal injuries alleged to she was employed, and, in doing so, stumbled have been caused by defendant's negligence. over a truck carelessly left in the passageVerdict set aside. way, and was injured. Plaintiff was an adult, who had been employed for eighteen months in defendant's establishment in placing the wrappings upon bolts of cloth which were brought into the room where plaintiff' was working, on trucks, and unloaded on tables. Trucks were used in all parts of the room, but, when empty, were required to be removed to a place reserved for them, and were not allowed to be left elsewhere. The room was lighted by electricity, which at times would dropping a 50-pound steel rod 30 or 40 feet while repairing the same); Johnson v. Portland Stone Co. 40 Or. 436, 67 Pac. 1013, 68 Pac. 425 (to prevent danger from unexploded shots while drilling holes for blasts); Moore Lime Co. v. Richardson, 95 Va. 326, 64 Am. St. Rep. 785, 28 S. E. 334 (to prevent injury from the occasional moving of cars by hand). The question is whether the failure to adopt such a rule is the omission of that reasonable care which should, from the nature of the business, have foreseen and anticipated its necessity to protect the servant. Wolfinger v. Brooklyn Heights R. Co. 121 App. Div. 140, 105 N. Y. Supp. 610. Further facts appear in the opinion. Messrs. Branch & Branch and M. F. Shea, for plaintiff : The master owes his servants a duty to provide rules and regulations for their protection against temporary and transitory risks, such as failure of lights. 4 Thomp. Neg. § 4135; Hill v. Boston & M. R. Co. 72 N. H. 518, 57 Atl. 924; Smith v. Boston & M. R. Co. 73 N. H. 325, 61 Atl. 359; Nolan v. New York, N. H. & H. R. rule calculated to prevent an accident from the setting in motion of an electric fan, by a servant's mistake in turning on the current at the wrong switchboard. As to warnings. A master is not called upon to anticipate and warn against every possible danger to which the servant may be subjected in the course of his employment. Thus, while it is the duty of the master to inform the employee of the nature of the risk and peril to be incurred in the course of his employment, he is not required to warn as to a special danger which springs out of a particular fact which in its details cannot be anticipated. Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 307, 96 Fed. 713; Yeaton v. Boston & L. R. Sanner v. Atchi-Corp. 135 Mass. 418; Gay v. Southern R. Co. 101 Va. 466, 44 S. E. 707. To impose the duty of making and enforcing reasonable rules, the danger to be guarded against must be one that would probably occur and is to be anticipated from the character of the work. son, T. & S. F. R. Co. 17 Tex. Civ. App. 337, 43 S. W. 533. The master is not guilty of negligence in failing to prescribe a rule for an unusual and unexpected emergency, where the evidence fails to disclose that any occasion had ever arisen to render such a prescription necessary or important. St. Louis, K. C. & C. R. Co. v. Conway, 86 C. C. A. 1, 156 Fed. 234; Davenport v. Oceanic Amusement Co. 116 N. Y. Supp. 609. In Johnson v. The Prince Line, 123 App: Div. 547, 108 N. Y. Supp. 193, it was held that the test of negligence in failing to promulgate a rule is whether a reasonably pru dent man would, in advance of the accident, have thought it necessary to promulgate the rule; and that a master was not negli gent in failing to make a rule requiring the presence of an additional servant to take the place of one who temporarily left his post of duty for the purpose of going to a saloon for a drink. It is not negligence on the part of the master to fail to instruct an employee to avoid an injury such as never before happened, and which the master was not bound ber Co. v. McClurg, 26 Ohio C. C. 481. to anticipate would happen. Diamond Rub In Dahlke v. Illinois Steel Co. 100 Wis. 431, 76 N. W. 362, it was held that even that there was a duty to instruct in regard if a danger existed, yet it did not follow hended that the circumstances requisite to to it, unless it was reasonably to be appreset that danger in motion might probably occur. In Benfield v. Vacuum Oil Co. 75 Hun, 213, 27 N. Y. Supp. 16, affirmed, without opinion, in 151 N. Y. 671, 46 N. E. 1145, it was held that where plaintiff testified that during a year and a half he had performed the same duties and no such accident had before occurred, it tended to show that the danger was one not reasonably to have been apprehended, and therefore the master was not bound to warn against it. In Dooling v. Deutscher Verein, 97 App. Div. 39, 83 N. Y. Supp. 580, it was held In Moran v. Mulligan, 110 App. Div. 208, that where it did not appear that any sim-97 N. Y. Supp. 7, it was held that the masilar accident had ever occurred to put the ter was not guilty of negligence in failing master on his guard upon the subject, he to warn a servant that one of the knives in was not negligent in not promulgating a a revolving machine might become detached C. Street R. Co. 99 Me. 127, 58 Atl. 676; Crawford v. United R. & Electric Co. 101 Md. 402, 70 L.R.A. 489, 61 Atl. 287; Bushby v. New York, L. E. & W. R. Co. 107 N. Y. 374, 1 Am. St. Rep. 844, 14 N. E. 407; Ford v. Lake Shore & M. S. R. Co. 124 N. Y. 493, 12 L.R.A. 454, 26 N. E. 1101; Abel v. Delaware & H. Canal Co. 128 N. Y. 662, 28 N. E. Co. 70 Conn. 159, 43 L.R.A. 305, 39 Atl. 115; McGovern v. Central Vermont R. Co. 123 N. Y. 280, 25 N. E. 373; Eastwood v. Retsof Min. Co. 86 Hun, 91, 34 N. Y. Supp. 196, affirmed in 152 N. Y. 651, 47 N. E. 1106; Hartvig v. N. P. Lumber Co. 19 Or. 522, 25 Pac. 358; Rex v. Pullman's Palace Car Co. 2 Marv. (Del.) 347, 43 Atl. 246; Murphy v. Hughes, 1 Penn. (Del.) 250, 40|663; Lake Shore & M. S. R. Co. v. Topliff, 18 Atl. 187; Giordano v. Brandywine Granite Co. 3 Penn. (Del.) 423, 52 Atl. 332; Johnson v. Union Pacific Coal Co. 28 Utah, 46, 67 L.R.A. 506, 76 Pac. 1089; Richlands Iron Co. v. Elkins, 90 Va. 261, 17 S. E. 890; Latorre v. Central Stamping Co. 9 App. Div. 145, 41 N. Y. Supp. 99; O'Rourke v. Alphons Custodis Chimney Constr. Co. 21 Pa. Super. Ct. 52; Moran v. Rockland, T. & and fly out and injure him while working, in the neighborhood of the machine, where no such accident had ever before occurred, and he had no reason to anticipate it. In Powers v. Wyman & G. Co. 199 Mass. 591, 85 N. E. 845, it was held that the employer was not guilty of negligence in failing to warn or instruct his servant, where he had no reason to anticipate that, while wheeling a barrow along a passageway, he would fall and strike his foot on the pedal of a trip hammer, thus setting the machine in motion and bringing the hammer down on one of his fingers. In Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S. E. 13, it was held that a master was not bound to anticipate that competent servants might be negligent, and to warn his other servants of dangers which might arise from such possible negligence. In Sommers v. Standard Min. Co. 146 Mich. 111, 109 N. W. 30, it was held that where a coal-mine operator employed a driver to move cars of coal from the galleries of the mine to the shaftroom, there to be received by a cager and placed upon the ele vator, the master was not bound to apprehend that an intermeddler would start a car down an incline leading into the shaft room, and it was not the master's duty to warn the cager against such danger. In Girard v. Griswold, 177 Mass. 57, 58 N. E. 179, it was held that the master was under no duty to warn a sixteen-year-old girl against the unanticipated possible consequences of becoming frightened and jumping out of a window if the water gauge should burst. In Nowakowski v. Detroit Stove Works, 130 Mich. 308, 89 N. W. 956, it was held that a master was not guilty of negligence in failing to warn an eighteen-year-old boy, who had worked a month in a foundry, that, when approaching another carrying molten iron, he should turn his back or get behind a screen to avoid having his eye put out if his fellow servant should happen to spill a spoonful on the damp floor. In Diehl v. Standard Oil Co. 70 N. J. L. 424, 57 Atl. 131, it was held that no duty Ohio C. C. 714, affirmed in 53 Ohio St. 679, 44 N. E. 1144; Pool v. Southern P. Co. 20 Utah, 210, 58 Pac. 326; Wallin v. Eastern R. Co. 83 Minn. 149, 54 L.R.A. 481, 86 N. W. 76; Sprague v. New York & N. E. R. Co. 68 Conn. 345, 37 L.R.A. 368, 36 Atl. 791. Messrs. Taggart, Tuttle, Burroughs, & Wyman, for defendant: The risk, if any, was transitory, and de rested upon the master to warn a fourteenyear-old employee of a danger in the operation of a machine, where there was nothing in the apparatus, or in the method of its operation, that would have led an ordinarily prudent employer to suppose that there was any probability of injury occurring to the employee. In St. Louis Southwestern R. Co. v. Johnson (Tex. Civ. App.) 109 S. W. 486, it was held that the railroad company was not bound to warn its employee, engaged to load barrels in cars, of the risk and danger involved in attempting to rescue a barrel which accidentally fell from the platform and was rolling under a moving train, since there was no evidence that such act could have been anticipated or foreseen. In San Antonio Sewer Pipe Co. v. Noll, 37 Tex. Civ. App. 269, 83 S. W. 900, it was held that where the master did not know, and had no reason to suppose, that his servant would use a dull chisel when ordered to cut a piece of cast iron, it was not the master's duty to warn him of the danger attending the use of dull chisels. In Lord v. Boston & M. R. Co. 74 N. H. 39, 65 Atl. 111, it was held that, although the danger incident to shunting cars upon a side track may be a matter in respect to which it is the master's duty to warn his employees, a servant could not be heard to complain of his master's failure to do so, in the absence of evidence from which it could be found that the master ought to have anticipated that the servant would be where he was at the time he was injured, since the duty of warning servants of the transitory dangers of their employment is imposed on the master for the benefit of those servants only whom he ought to anticipate will be injured if he fails to warn them. In Cincinnati, N. O. & T. P. R. Co. v. Hill, 28 Ky. L. Rep. 530, 89 S. W. 523, it was held that if the place where the railroad company's brakeman was killed was not one where the presence of persons on the track was reasonably to be expected, it was not bound to give warning of the approach of the train. fendant was not required to provide against, room to remain in their places was in dis it. pute. The plaintiff testified that she did not hear such direction. Whether the other employees were directed to remain in their places or not, they did not remove from thei to the plaintiff's injury. There was no evi Smith v. Boston & M. R. Co. 73 N. H. 325, 61 Atl. 359; Klineintie v. Nashua Mfg. Co. 74 N. H. 276, 67 Atl. 573; Tilley v. Rockingham County Light & P. Co. 74 N. H. 316, 67 Atl. 946; Donovan v. American Lin-dence that the truck was put where the en Co. 180 Mass. 127, 61 N. E. 808; Kelley v. Calumet Woolen Co. 177 Mass. 128, 58 N. E. 182; Mellen v. Thomas Wilson Sons & Co. 159 Mass. 88, 34 N. E. 96; Simpson v. Central Vermont R. Co. 5 App. Div. 614, 39 N. Y. Supp. 464; Smith v. E. W. Backus Lumber Co. 64 Minn. 447, 67 N. W. 358; Collins v. St. Paul & S. C. R. Co. 30 Minn. 31, 14 N. W. 60. plaintiff collided with it, after the lights went out, or that it was not at that point when darkness intervened, where the rule invoked would have required it to remain. If a rule was required for the reason suggested, the plaintiff was not injured by the action of other employees. So far as she is concerned, the argument is that, if such rule had been communicated to her, she could and would have obeyed it, and remained in Parsons, Ch. J.. delivered the opinion of her place and avoided the injury. It is not the court: contended that the purpose for which she was leaving the room was of such pressing necessity that she would have been justified in disregarding the rule. So far as the plaintiff is concerned, the only office of a rule would be to warn her of the danger that some of the trucks upon which the cloth was brought into the room, and moved to and from the various tables, might, at the moment of darkness, be in a passageway through which, in the course of business, they were moved. If there are cases where the risk of in The defendants adopted, for the illumination of the plaintiff's work place, a system of lighting commonly in use for such purposes, so far as appears, perfect of its kind, but subject to occasional interruptions. They provided the proper means for restoring the action of the system when such interruptions should occur, and a competent person to make the necessary repair. If it be conceded that it could be found it was the duty of the defendants to provide and have in operation a sufficient number of other systems of lighting so that by no possi-jury is so concealed or so serious that warnbility could the work place fail to be sufficiently lighted for a moment of time, the question would be whether the breach of this duty caused the injury. There was no machinery in the room. The plaintiff's work was the wrapping of bolts of cloth in paper, and there was light enough, after the extinguishment of the artificial system, for the plaintiff to continue at her work, which she did for a short time after the light failed. If the plaintiff had continued her work, or remained in her place, no injury would have resulted. The sudden failure of light did not cause the injury. ing is not a sufficient performance of the master's duty, and only a positive rule forbidding the dangerous course of conduct will excuse him, this case is not of that character. There is nothing unfamiliar about the inability to perceive, in the dark, obstructions to the course of one who walks without light. If there may be obstructions whose presence cannot be ascertained by the eye, due care requires the use of some other sense to detect them. The evidence is uncontradicted that the plaintiff, relying upon her familiarity with the room, was hurrying through the passage without care as to any temporary obstruction in her path, and was injured because of the unexpected presence of the truck. If it can reasonably be found that the plaintiff was without fault in not anticipating the possible presence, of the truck in her path, can it be found that the defendants were in fault for not anticipat For a proper purpose the plaintiff left her place to cross the room, and was injured by falling over a temporary obstruction in her path, for the existence of which at that place, it is conceded, the defendants were not responsible. When she left her place, the plaintiff knew of the absence of light; but she says that the defendants, having adopted a system of lighting which was liable to failing the same thing and warning the plaintiff of the danger? Whether they can or at times, should have promulgated a rule requiring the various employees to remain in cannot depends upon the answer to the intheir places in case the lights failed, and quiry whether, upon the evidence, it could that such rule was required because of the reasonably be found that the defendants' danger that employees might be injured by knowledge of the existence of the danger others moving about. There was evidence causing the injury was, or ought to have of the absence of such a rule formally made, been, superior to the plaintiff's. Gaudette though whether at the time the employees v. Boston & M. R. Co. 74 N. H. 597, 64 Atl. were directed by the person in charge of the 667; Dube v. Gay, 69 N. H. 670, 46 Atl. |