They

affects the grapes only, and not the vines or their foliage. In May, 1889, just as the vines were coming out in leaf and blossom, and before any indication of the rot had appeared, or could appear, the complainant advertised the farm for sale in a Philadelphia paper, and stated that he could be seen on two successive days at a certain place in that city. This advertisement caught the eye of the defendant, and, as a result, his wife met the complainant at the place mentioned in the advertisement. The result of that interview was that the defendant and his wife, a day or so later, went down to Egg Harbor City, visited the complainant at his house, and were by him taken out and shown the farm. The defendant and his wife swore that, before going out to the farm, complainant showed them the grape vines growing in his garden, and spoke of the beautiful grapes which he grew upon them, and, while going over the farm, pointed out the vines to them, and called their attention to their beautiful growth and appearance, and then, and at his house afterwards, stated that they produced from $250 to $350 worth of grapes a year, and that there was a good market for them in Egg Harbor City, and also for the other truck that could be raised on the farm. swore that he stated that Egg Harbor City had from 3,000 to 4,000 inhabitants, making a good market for the produce of the farm. The defendant and his wife further swore that they were familiar from their experience in the old country with the effect of the grape-vine insect,-Phylloxera,-which attacks the roots of the vine, and also with the black and yellow rot, which attacks the fruit itself, and that, while going through the vineyard on the farm, the husband asked the complainant whether they had any grape insects in the root or grape rot in that neighborhood, and that the complainant replied that they had none, that it was not known in that neighborhood, and that nothing ever got into the vines. They further swore that after the return to the complainant's house, and after they had had dinner, the complainant asked them whether they had made up their minds to purchase the farm, and spoke of another party who wished to buy it, and made a show of sending him a postal card. The defendants swore that, at this juncture, the husband asked the complainant a second time, and in a very pointed manner, whether there was any grape rot in that neighborhood; that the complainant did not answer directly, but apparently turned the conversation in another direction, and again asked what they were going to do about buying the farm; that then the husband reminded the complainant that he had not answered the question he put to him as to there being grape rot in that neighborhood, and thereupon complainant answered in the most positive manner that there was none, whereupon they

agreed to buy the farm at $1,800, and paid $100 in cash, paying $600 more at the delivery of the deed, a few days later, and giving the mortgage in question for the balance of the consideration.

The complainant denies these allegations in toto, and is in a measure supported by his wife and the man who drove the carriage which took the parties out to the farm; but manifestly, while the wife and the carriage driver might have heard, and probably did hear, more or less of the conversation be tween the parties, they did not necessarily or even probably hear it all, for the wife was not at the farm, and at the house was more or less engaged with her household duties, and the driver was not in the house; and so the disputed question of fact must be determined upon the reliability of the evidence of the parties themselves. Now, considering the prevalence of the black rot throughout this country, as disclosed by the evidence of the case, and also its prevalence in portions of Europe, and the familiarity of the defendants with grape culture and the danger from this disease, I think it not probable that they would have bought the premises in question without making inquiry as to the existence of this terrible disease in that neighborhood, when a material element in the value of the property they were buying was this flourishing vineyard upon it. Further, the manner of the witnesses upon the stand, and the circumstances, as detailed by the defendants, under which the husband pressed the question upon the complainant at the crucial point in the negotiations, lead me to the conclusion that their story was not fabricated, but was a statement of what actually occurred. I therefore find as a matter of fact that the representations were made as alleged by the cross bill.

It was not contended that, if made, they were not made with the knowledge that they were false. It was admitted by the complainant and abundantly proven that it was a matter of general knowledge with everybody in that neighborhood, including the complainant, that the black rot did there prevail, and that its result was disastrous to the grape culture, and rendered it unprofitable, unless and until such time as some antidote could be found. It was also proven that notoriously the population of the city was only about 1,500. It was urged by the complainant that the subsequent conduct of the defendants was not in accord with the truth of their statement in that behalf. It is said, and truly, that the defendants paid the interest on this mortgage for two or three years without protest, and made no complaint until they brought suit in the supreme court, which, by the transcript, seems to have been in March, 1892, nearly three years after the purchase. But it must be observed in this connection that the defendants were strangers, and ignorant of our

laws and customs, unable to speak or understand our language, and so, in a measure, incapable of learning their rights. Besides, they may not have felt justified in arriving at the conclusion from one year's experience that the disease in question was so thoroughly prevalent and so punctual in its annual recurrence as it afterwards proved to be. They may have reasoned that it would be premature for them to claim a rescission of the contract and return of their money upon one year's failure of the crop, and that it was their duty to wait and see what another year would show. And so with the second and third years. In fact, they lost three crops in succession by the black rot, and then brought their action in the supreme court. What legal advice they sought or received as to their rights in the premises does not appear, but it is proper to remark that the wife swears that she did complain to the complainant on the occasion of one of the payments of interest that it was too bad that he should have cheated them as he did on the sale of the farm.

Another matter urged by the complainant is that the defendants did not take advantage of a remedy which has been discovered for this disease. This remedy is the use of a liquid mixture, which should be applied to the vines several times during the season by the use of a machine called a "sprayer." It appeared by the evidence that this remedy has proved to be of considerable efficacy in arresting the progress of the disease, and that, by its use with judgment and at proper seasons, a large proportion of the grapes may be saved. But, then, it also appeared that its success had not been established until within the last year or two; that the first attempts to use it were either not successful at all, or only partially so; and that it had not even at the time of the hearing come into general use by the grape raisers, though the evidence tended to show that it will probably come into general use. Its success depends upon skill and judgment in its application, which can only be attained by reading or by experience in its use; also, it is attended with more or less of expense, not only in the cost of the liquid itself, but also of the machine for spraying it, and the labor required in its application. Under the circumstances of the case and the evidence adduced, I think that the defendants cannot be charged with negligence in not having used this remedy. At the same time, its discovery does tend materially to increase the value of the farm, and diminish the damages which the defendants have suffered by reason of the false representations which were made to them by the complainant. But, then, it cannot entirely eliminate these damages, for the reason that, at best, the remedy is not quite complete, and is attended with considerable cost in its application. Besides, as

before remarked, it was not an established remedy in general use at the date of the conveyance in question, and was in fact not available to the defendants for at least two years thereafter. The result is that, while the complainant has had the use of a part of the consideration and the interest on the remainder, the defendant has lost his grape crop without any fault on his part. The really difficult part of this case is as to the remedy. The defendant asks for a rescission, viz. a cancellation of his bond, and the return of the $700 paid, and he offers to reconvey the premises. The difficulty I find in enforcing this remedy is the allegation, sustained by some proof, that the premises are not in as good a condition as when conveyed, and particularly that the defendant has dug up one or two acres of the vines. The other remedy open to the defendant is abatement on the amount due upon the bond and mortgage. I have concluded to give the complainant his choice of these remedies, as follows: I assess the damages of the defendants at the date to which the interest had been paid on the mortgage at $500, and I give to the defendant his option either to take a decree for $600, with interest, or to rescind his contract, take back a conveyance of the premises, cancel the bond and mortgage, and repay the $700 cash payment, less such a sum of money as it shall appear by the evidence already adduced, and such as may hereafter be adduced for that purpose, is the amount which the farm has deteriorated in value since the conveyance, by reason of its having not been kept in proper repair and in a proper state of cultivation, and by reason of the destruction of a portion of the vines. If the complainant shall choose the remedy by way of rescission, further evidence will be necessary upon the question of the reduction in value of the farm by reason of the matters just stated. In either case there will be no costs by either party against the other.

It is proper to add that, in fixing the damages at $500, I have not followed the rule which perhaps would prevail in an action at law, viz. to give the purchaser the difference between the actual value of the property conveyed and what it would have been worth if it had been in fact what the seller represented it to be. The application of that rule here would probably give the defendant much larger damages than $500, for I have no doubt that the mortgaged premises would have been worth considerably more than $1,800 but for the prevalence of the grape rot in their neighborhood. In fixing the damages I have endeavored to simply save the purchaser from any loss, and not to give him any profit which he would or might have made if the premises were what they were represented to be. I think that this rule is more in accord than the other with the principles of a court of equity, and with what was said by the chief

justice in delivering the judgment of the court of errors and appeals in O'Brien v. Hulfish, 22 N. J. Eq. 473, 474.

(77 Md. 593)

MAYOR, ETC., OF CITY OF BALTIMORE Y. WAR.

(Court of Appeals of Maryland. June 21, 1893.) MASTER AND SERVANT-INCOMPETENT EMPLOYENEGLIGENCE OF MASTER-SUFFICIENCY OF EVIDENCE-COMPETENCY.

1. In an action against a city by a laborer in a sewer for injuries caused by defendant's negligence in employing an incompetent engineer who operated a steam hoisting apparatus, by means of which plaintiff was lowered into the sewer, it appeared that such engineer, the day he began running the engine, and the day before the accident, let the elevator cage fall two or three times. Held that, though such cage fell because of the engineer's negligence, it constituted no proof that he was incompetent, nor that defendant was negligent in employing him. 2. There was evidence that the officer having superintendence of the work and authority to employ men, on the recommendation of a citizen and of a member of the city council, an experienced locomotive engineer, employed the engineer who operated such hoisting apparatus, instead of another person whom he had selected for the place. Held, that there was no evidence that such officer was negligent in employing such engineer, in the absence of evidence also that a prudent man would not have acted on such recommendations.

3. Evidence by such councilman, giving his interpretation, and the effect on him, instead of the contents, of a letter by such citizen to the superintendent, recommending the employment of such engineer, was improperly admitted.

4. In the absence of evidence that such superintendent had knowledge of the negligence of such engineer on the day previous to the accident, there is no evidence of defendant's negligence in retaining him thereafter.

Robinson, C. J., dissents.

Appeal from Baltimore court of common pleas.

Action by William H. War against the mayor and city council of Baltimore to recover damages for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed, and new trial denied.

Argued before ROBINSON, C. J., and BRYAN, ROBERTS, FOWLER, and McSHERRY, JJ.

Thos. G. Hayes, Jr., and Wm. S. Bryan, for appellant. F. S. Hoblitzell, for appellee.

MCSHERRY, J. This action was brought to recover damages for personal injuries. The declaration contains three counts. The first has been abandoned, and need not, therefore, be alluded to. The second alleges, in substance, that the defendant, a municipal corporation, was engaged in constructing a sewer under the bed of Cross street in the city of Baltimore; that the plaintiff was employed as a laborer thereon; that in the prosecution of this work a shaft was sunk, through which a cage or elevator used for conveying the plaintiff and

others to and from their work in the sewer, and for other purposes, was raised and lowered by means of a steam engine; that the defendant was bound to furnish a safe, competent, and skillful engineer to operate the engine, but that notwithstanding this duty the defendant did not employ a safe, competent, and skillful engineer, whereby the plaintiff, while rightfully upon the elevator, to be conveyed down the shaft to his work, and while exercising due care himself, was, by the negligence of the defendant, its agents and servants, precipitated down the shaft, and seriously injured for life. The third count alleges that the defendant was bound to use care in the selection and in the retention in its service of a competent and trustworthy engineer to operate the engine used in hoisting and lowering the cage or elevator, but that the defendant was negligent in the selection and retention in its service of Thomas Burns, the engineer who had control of the engine, and that by reason of the incompetency or negligence of Burns and the negligence of the city in selecting and retaining him, the plaintiff was injured in the manner and to the extent described in the second count. The defendant pleaded not guilty, and the trial resulted in a verdict against the city, upon which judgment was eutered, and from that judgment this appeal has been taken.

The gravamen of the second count is that the city was negligent in not employing a competent engineer to operate the elevator, and that the engineer himself was negligent; and of the third count that the city was negligent in selecting and in retaining in its service an incompetent engineer, and that the engineer was guilty of negligence, whereby the accident happened. If the city was guilty of negligence as imputed to it in the third count, it must have been negligent either in the original employment of Burns, or in continuing him in its employ after discovering his incompetency, if he really was incompetent, or in continuing him in its employ after having had sufficient time to discover his incompetency, and carelessly failing to do so. It appears from the plaintiff's evidence that Ordinance No. 43 of 1889 made provision for the construction of the Cross street sewer, and that the management and control of the entire work was placed in the hands of the city commissioner. He was intrusted with the power to employ laborers, mechanics, and all other servants needed in the prosecution of the work, and had charge of and supervision over the whole improvement. He acted for the city, and stood towards the employes under him in the relation of deputy master or vice principal. It is equally certain that Burns, the engineer, by whose alleged negligence the accident happened, and War, the plaintiff, were fellow servants of the same master. It is true the one had charge of

the engine which hoisted and lowered the cage in the shaft, and the other worked in the excavation below the surface; but they both served the same master, worked under the same control, derived authority and compensation from the same source, and were engaged in the same general business, though in different grades or departments of it; and each took the risk of the other's negligence. Wonder v. Railroad Co., 32 Md. 420; State v. Malster, 57 Md. 287; Elevator Co. v. Neal, 65 Md. 438, 5 Atl. Rep. 338; Yates v. Iron Co., 69 Md. 370, 16 Atl. Rep. 280. The master does not guaranty his servant against the negligence of a fellow servant. One of the risks which the servant takes upon himself on entering or remaining in the master's employment is the danger of injuries to himself from the negligence of coemployes. For these injuries the master is not responsible unless he himself has been guilty of negligence in the selection of the servant whose carelessness caused the accident, or unless, knowing his incompetency, or having sufficient opportunity to know it, and failing to discover it, he has retained the negligent employe in his service. This principle is not only not disputed, but the declaration is framed upon a distinct recognition of it. To maintain this action it is consequently necessary for the plaintiff to prove not only the fact of the injury, but also-First, that the accident was the direct result of a coemploye's negligence; and, secondly, either that the master had not used proper care to select a competent coemploye, or that subsequently to the employment and prior to the accident the defendant discovered the incompetency of Burns, or could have discovered it by the exercise of reasonable care, but still retained the incompetent servant. The burden of proof was on the plaintiff to establish these propositions by legally sufficient evidence, and, unless the evidence adduced by him was of sufficient probative force to enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the proposition sought to be maintained thereby, it was the clear duty of the court to exclude it from the consideration of the jury. Elevator Co. v. Neal, supra. Several of the prayers presented in behalf of the city, but rejected by the court below, challenged the legal sufficiency of the evidence, and now raise in this court the ultimate or fundamental question of the right of the plaintiff to recover at all. Turning to the evidence offered by the plaintiff, and assuming for the purposes of this discussion that the objections to its admissibility are not tenable, there are two circumstances (and only two) relied on to show the imputed incompetency of Burns and the lack of care on the part of the city commissioner in selecting him to operate the engine. It appears that the shaft where the accident happened was 45 or 50 feet deep, and

that the cage or elevator was hoisted from the bottom by means of a cable which was coiled upon a drum as the latter revolved when the power of the engine was applied. This drum was provided with a brake, which by friction retarded the revolution of the drum as the cage descended, and enabled the engineer to lower the elevator gradually. By not throwing the engine out of gear the pressure of the steam further retarded the descent of the elevator. The engine had been erected but a few days before the accident, and Burns was placed in charge of it the day immediately preceding the occurrence. In lowering the cage the day before the injury happened he let it fall two or three times, but why he did this, or for how great a distance it fell, does not satisfactorily appear. This is one of the two circumstances adduced to prove Burns Incompetent. There are some speculations and some vague conjectures as to what caused the cage to fall as just stated, but they are far short of legal proof. Conceding, however, that it fell by reason of negligence on the part of Burns the day before the accident, this was no proof that he was incompetent, nor that the city commissioner had been negligent in selecting Burns for the position to which the latter had been assigned. Negligence and incompetency are not convertible terms, for the most competent may sometimes be negligent, and evidence of acts of former unskillfulness furnishes no legitimate ground of presumption either that Burns was negligent when the plaintiff was injured, or, unless communicated to or known by Smyrk, the city commissioner, before the accident to the plaintiff happened, that Simyrk was derelict in retaining Burns in the city's service. There is no testimony in the record to the effect that Burns was incompetent. Beever, one of the plaintiff's witnesses, testified that he had told Mr. Thomas, who was superintending the work, thrat Burns was incompetent to run an engine, and that he told Thomas this when the cage fell the day before the injury, but he nowhere testified as a fact upon the trial to that alleged incompetency. The day before the plaintiff was hurt the cage fell either because Burns was negligent, or because he was incompetent, or by reason of some accident referable neither to negligence nor incompetency on his part. No other cause can possibly be assigned. The burden of proof is on the plaintiff to show that Burns was incompetent. The occurrence itself in cases of this character raises no presumption of negligence, and justifies no inference of incompetency. If you say the cage fell the day before the accident, because Burns was then negligent, you do not thereby prove him incompetent, because negligence may be predicable of competency. If you say the cage fell because of some accident, you do not prove Burns negligent,