to which may be had for the purposes of in- | guage may be attributed to a desire to conterpretation, leads to the conclusion that it dense and simplify the law. 36 Cyc. 1165, was not the intention of the Legislature to 1166. We therefore hold that there was no make so radical a change in the law. In intention to alter the law upon this subject, their report to the Legislature the commission and that the statute now in force is suffiin reference to the statutes upon the subject cient to create a lien in favor of the corof corporations said: "In all cases our pur-poration. pose has been, without attempting to change the law in any essential particular, to arrange it logically, dispensing with unnecessary verbiage, which tends only to confusion." The Legislature had this report before it when considering the revised statute, and was undoubtedly guided thereby, at least to some extent, in its enactment. The corporation lien had existed under the old statutes for some time, and there is no apparent reason for concluding that there was an intention to take it away, though it must be conceded that a substantial change was made by the elimination of the right of foreclosure as provided for by the previous statute. But there was every reason for striking that provision out. It authorized the summary foreclosure of the lien by a substituted service of notice, a proceeding subject to abuse. By omitting it in the revision the corporation was left free to resort to such other methods for the enforcement of its claim as are consistent with the general principles of law applicable to the enforcement of like claims. The purpose of the commission was to reduce the great mass of corporation statutes to compact form, using no more language than was necessary to give clear and unambiguous expression to rights granted and liabilities imposed. Statutes for all practical purposes similar to our revised statute the courts of other states have construed as creating a lien in favor of the corporation. Cook on Corp. (6th Ed.) § 525; Kenton Ins. Co. v. Bowman, 84 Ky. 430, 1 S. W. 717; Farmers' Bank Case, 2 Bland (Md.) 394; Bank v. Haney, 87 Iowa, 106, 54 N. W. 61: Bank v. Bank, 77 Vt. 123, 59 Atl. 197, 107 Am. St. Rep. 754; Bank v. Tumbler Co., 172 Pa. 614, 33 Atl. 748. Our examination of the reports discloses a general trend of decisions in harmony with those cited. Note to Dempster Mfg. Co. v. Downs, 3 Am. & Eng. Ann. Cas. 188. 2. Whether a lien created by statute, with no provision for its enforcement, may be foreclosed in equity is a question upon which the authorities are, perhaps, not in harmony, though the weight of opinion sustains the jurisdiction. A corporation lien upon its stock is substantially dissimilar to the common-law lien upon articles of personal property, the existence of which is the right to the possession and the actual detention of the property until the indebtedness is paid. In the case of a lien upon corporate stock, neither the right of nor the possession itself is given the corporation. The certificates of stock constitute the property, and may be transferred from hand to hand, by proper indorsement, though a transfer upon the books of the corporation cannot be compelled until the lien of the corporation is discharged. Yet for all practical purposes the property in the stock passes upon assignment. Lund v. Wheaton Roller Mill Co., 50 Minn. 36, 52 N. W. 268, 36 Am. St. Rep. 623. If the sole remedy of the corporation to enforce its rights be limited to a refusal to transfer a sale upon its books, then the lien is without substantial substance, and the corporation practically remediless. The statute gives a valuable right, and there should be a remedy for its enforcement; for a right without a remedy is an anomaly in the law. Many of the courts where the question has been presented have affirmatively held that a foreclosure may be had in equity. Cook on Corp. (6th Ed.) 530; McIlroy v. Dickson, 66 Ark. 327, 50 S. W. 868; Ry. Co. v. Fackney, 78 Ill. 120; Tete v. Bank, 4 Brewst. (Pa.) 308; Bank v. Trust Co. (Ky.) 40 S. W. 458; Wright Lumber v. Hixon, 105 Wis. 153, 80 N. W. 1110, 1135; Gilchrist v. Smelter Ry. Co. (C. C.) 58 Fed. 708. But the equitable jurisdiction of the court for the enforcement of statutory or other liens, even in the presence of a remedy at law by foreclosure, would seem to be settled in The commission had this general rule in this state by the decision in Forepaugh v. mind, and were undoubtedly of the opinion Pryor, 30 Minn. 35, 14 N. W. 61. It was that the language of the revised statute was there held that an action may be maintained sufficient to create and vest in the corpora- to foreclose a chattel mortgage, notwithstandtion a lien for the protection of its interests, ing the fact that the mortgage contained a and adopted it in that view with no in- power of sale. No distinction on principle tention of changing the law. There is no can be made between that case and the one presumption that a change was intended; in at bar. There was in that case a lien by fact, the presumption is to the contrary. 36 contract and also by statute. Here the lien Cyc. 1067, and cases cited. And though a exists solely by statute, with no method for change in the phraseology of an amendatory statute raises a presumption that a departure from the old law was intended, such a change is not ordinarily or necessarily of particular significance in the case of a gen its enforcement provided by the law of its creation. We hold, therefore, that it may be foreclosed in equity. The authorities sustain this view. See note to Aldine Mfg. Co. v. Phillips, 74 Am. St. Rep. 387. CLARK v. SCANDINAVIAN-AMERICAN BANK OF ST. PAUL. on the ground floor of the building, and there. by she was injured. There was other evidence tending to show that the plaintiff was (Supreme Court of Minnesota. Dec. 23, 1910.) not the first one to leave the elevator; that (Syllabus by the Court.) CARRIERS (§§ 318, 321*)—OPERATION OF ELEVATOR EVIDENCE. the operator did not call out "Ground Floor," the inside; that he was in the act of bringnor open the doors, which opened only from Personal injury action to recover for dam- ing the elevator to a level with the ground ages alleged to have been sustained by the neg-floor, when some one other than the operator ligence of the defendant in operating its passen opened the door, and the plaintiff walked ger elevator while plaintiff was in the act of alighting therefrom. Verdict for $2,417, which out, and in doing so stumbled and fell. The was reduced to $1,500. Held, the evidence sus- evidence in material particulars was contains the verdict. There were no reversible er- flicting, and a consideration of the whole rors in the rulings of the court as to the admis- thereof satisfies us that the verdict is sussion of evidence, nor in its charge, nor in its order providing for a reduction of the verdict, tained by the evidence. instead of absolutely granting a new trial. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1307-1314, 1326-1337; Dec. Dig. §§ 318, 321.*] 2. The defendant further claims that it was reversible error for the trial court to instruct the jury to the effect that if the elevator doors were opened by some one othAppeal from District Court, Ramsey Coun-er than the operator, but with his knowl ty; Hascall R. Brill, Judge. Action by Hattie Clark against the Scandinavian-American Bank of St. Paul. Verdict for plaintiff. From an order denying new trial, on reduction of the verdict, defendant appeals. Affirmed. Harris Richardson and Harold C. Kerr, for appellant. S. J. Donnelly and D. E. Dwyer, for respondent. START, C. J. On July 7, 1909, the plaintiff, a woman 48 years of age, was injured while in the act of leaving a passenger elevator in the possession and control of the defendant in its bank building. She brought this action in the district court of the county of Ramsey to recover damages for her injury, on the ground that it was sustained by the negligence of the defendant. Verdict for her in the sum of $2,417. The trial court made its order denying the defendant's motion for a new trial, upon condition that the plaintiff consents to a reduction of the verdict to the sum of $1,500. She so consented, and the defendant appealed from the order. 1. The defendant's first contention is that the verdict is not sustained by the evidence. There was evidence tending to show that the plaintiff entered the elevator from the third floor of the building, to go to the lowest or ground floor; that when the elevator reached that floor the operator so stopped it that the top of the floor of the elevator was an inch below the level of the ground floor, upon which was an iron threshold or sill, which projected over the elevator pit some two inches; that when the elevator so came to a stop the operator called out “Ground Floor," and the doors of the elevator were open, there were two of them; she did not see the operator open either, but she did not open either of them; and, further, that the plaintiff, who was the first one to get out, while in the act of leaving the elevator, caught her foot in some way under the projection, which caused her to be thrown out and up edge or permission, it would be his act. The reason urged why this was error is that there was no evidence tending to support any such hypothesis. The operator was in the control of the elevator. It was his duty to exercise due care to see that the doors were not opened until he had brought the elevator into a position that would enable the passengers to alight in safety. He testified that people were accustomed to open the door when they went down in the elevator; that they generally did so, but he told them "that they shouldn't" open the door. He further testified in this connection as follows: "Q. Well, you didn't tell them that day? A. I didn't tell them-wellQ. No. Well, when was the first time you told anybody else, before you told it on the witness stand here, about some passenger opening it that way? A. I don't remember. Q. You remember talking with Mr. Dwyer about it, don't you? A. Oh, yes. Q. Did you tell him then a passenger opened it? A. Well, I didn't open the door." We are of the opinion that the testimony of the operator justified the instruction. Other instructions of the court, and its refusal to give certain requested instructions, are also assigned as error; but a mere reading of the record clearly indicates that the court did not err in these respects. 3. We find no reversible errors in the rulings of the court as to the admission of evidence. The verdict, as reduced, is not excessive; nor did the trial judge abuse his discretion in providing for a reduction of the verdict, instead of making his order granting a new trial absolute. The damages awarded, and the evidence as to other issues, do not indicate a fair probability that the jury were influenced by passion or prejudice in determining the other issues. Goss v. Goss, 102 Minn. 346, 113 N. W. 690. Order affirmed. O'BRIEN, J., took no part. HEADLINE v. GREAT NORTHERN RY. CO. (Supreme Court of Minnesota. Dec. 23, 1910.) (Syllabus by the Court.) 1. EVIDENCE (§ 80*)-PRESUMPTIONS. gence of his fellow servants. The here material facts are these: Plaintiff's intestate was in the employ of the defendant as a carpenter; his work consisting of repairing bridges and other property belonging to the railroad company and situated on its line of road. He had charge of a crew of bridge carpenters, with headquarters at Great Falls, Mont. His duties required him to go from place to place whenever and wherever on its line the master carpenter should direct. As a part of the contract of employment, defendant agreed to transport him to and from the places where he was required to perform his work. At the time of his death he was proceeding from Hardy, a station on the road where he had been at work, to Dear Plaintiff's intestate was a bridge carpenter employed by the defendant. The contract obligated the defendant to furnish him transportation to any place where it required him to work. While being so transported on a railway train of the defendant in Montana, there was a collision between his train and one of its freight trains, whereby he was killed. The collision was caused by the negligence of the engineer and conductor of the freight train. This action was brought in the district court of Minnesota to recover damages for his death. Verdict for the plaintiff, but judgment was ordered for defendant notwithstanding the verdict. Held, it does not appear what the common law of Montana applicable to these facts is; hence it is pre-born Bridge, where he had been ordered to sumed to be the same as that of this state, and make certain repairs upon a bridge at that by it the question of the defendant's liability place. He was riding in a caboose attached must be determined. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 101; Dec. Dig. 80;* Common Law, Cent. Dig. §§ 14-16.] 2. MASTER AND SERVANT ( 190*)-INJURY TO SERVANT-NEGLIGENCE-FELLOW SERVANTS. A contract obligation rested upon the defendant to safely transport the deceased to the place where it required him to work. Whether he was strictly a passenger while being so transported is immaterial, for by virtue of its contract it was the absolute duty of the defendant to exercise due care to secure his safe transportation. The negligence of the engineer and the conductor was its negligence. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. 8 190.*] Appeal from District Court, Hennepin County; David F. Simpson, Judge. Action by Agnes C. Headline, administratrix, against the Great Northern Railroad Company. Verdict for plaintiff. From an order of judgment for defendant notwithstanding verdict, plaintiff appeals. Reversed and remanded. W. B. Anderson and Harlan P. Roberts, for appellant. Brown, Albert & Guesmer, for respondent. START, C. J. The plaintiff's intestate on December 28, 1908, was killed in the state of Montana by the alleged negligence of the defendant. This action was brought in the district court of the county of Hennepin to recover damages for his death. Verdict for the plaintiff in the sum of $8,500. The trial court, upon the defendant's blended motion for judgment or for a new trial, ordered judgment for it notwithstanding the verdict, upon the ground that by the laws of Montana the deceased was a fellow servant with the defendant's engineer and conductor, whose negligence caused his death, and hence no recovery could be had in Montana. The plaintiff appealed from the whole order. to an extra work train, No. 322. Train No. 674, coming from the opposite direction, collided with the train upon which he was so riding, and he was thereby instantly killed. The collision was caused by the negligence of the engineer and conductor of train No. 674 in failing to obey the order of defendant, given through its train dispatcher, by which train No. 674 was directed to run 1 hour and 30 minutes late, and to pass train No. 322 at the station of Mid Canyon. Had the order been obeyed by the employés in charge of train No. 674, no collision would have occurred. There was no fault or neglect on the part of those in charge of train No. 322, in which the deceased was riding, and neither train crew had any authority or control over the crew of the other train. The conductor and engineer of train No. 674 had never theretofore disobeyed an order of this character, and defendant had no reason to suppose that this one would not be obeyed. Deceased was employed in the state of Montana, and his death as stated occurred in that state. The statutes of Montana and the decisions of its Supreme Court, so far as here relevant, by stipulation are to be referred to and used as if actually in evidence. It is the contention of the defendant upon these facts that the relation between the deceased and the engineer and conductor was by the law of Montana that of fellow servants, for whose negligence it is not liable. If this be well founded, then, whatever may be the rule in this state as applied to the facts like those at bar, the order appealed from must be affirmed. If, however, no rule has been laid down by the courts of Montana applicable to the special facts of this case, we must then inquire what the common law of this state is; for in the absence of pleading or proof to the contrary it will be presumed that the common law of Montana is The question here to be decided is whether the same as in this state. Crandall v. Railthe record shows, as a matter of law, that way Co., 83 Minn. 190, 86 N. W. 10, 85 Am. the deceased was killed solely by the negli- St. Rep. 458; Engstrand v. Kleffman, 86 were, and properly so, held fellow servants. In the Holmes Case a train dispatcher and an engineer who was guided in the performance of his duties by orders issued by the dispatcher, both being engaged in the service of operating trains, were held not fellow servants, and that the engineer could recover for the negligence of the dispatcher. In the McCabe Case the department doctrine was recognized, and, if applied to facts like these at bar, would charge defendant with liability. For a bridge carpenter and an engineer of a train are clearly in separate departments of railroad work, so that, if the Montana court should adopt that rule, the liability of the defendant would be clear. Minn. 403, 90 N. W. 1054, 91 Am. St. Rep. | far rendered by the Montana court. In the 359. The fellow-servant doctrine has not Baugh Case an engineer and his fireman been abolished by statute in Montana, and the first inquiry is: Has the Supreme Court of that state declared what is the common law of the state applicable to the facts of this case? Four decisions of the Supreme Court of Montana are cited, from which it is contended that the law of that state sustains the conclusion of the court below that the relation of fellow servants existed between the deceased and the engineer and conductor. We are unable to concur in this view of the Montana decisions. In none of the cases referred to were the facts at all like the facts in this case. The question was not involved in Dillon v. Railway Co., 38 Mont. 485, 100 Pac. 960. That action was founded upon the statutes of the state, and it was conceded that the injured employé was a fellow servant with the employé whose negligence caused the injury. Goodwell v. Railway Co., 18 Mont. 293, 45 Pac. 210, involved facts wholly unlike those at bar. There the foreman of a gang of men was guilty of negligence in not giving proper warning of certain dangers incident to the work in the performance of which the foreman was engaged with the other men, and it was held that he was a fellow servant. Hastings v. Railway Co., 18 Mont. 493, 46 Pac. 264, was on its face substantially like the Goodwell Case. In Mulligan v. Railway Co., 19 Mont. 139, 47 Pac. 795, the fireman and engineer of the same train were fellow servants, a rule followed by practically all the courts. The contention of counsel that these decisions clearly disclose the rule of Montana as applicable to the case at bar is founded in the main upon a course of reasoning having its principal support in the fact that in the opinions authorities are cited from the federal courts which apparently support the claim that the relation of fellow servants existed in the case at bar. Cases are cited by the Montana court which sustain plaintiff's contention that decedent and the crew in charge of train No. 674 were not fellow servants. A careful consideration of the decisions cited leads us to the conclusion that we would not be justified in holding that the courts of Montana definitely settled the question here presented. It is true that such decisions indicate a purpose to follow the decisions of the federal Supreme Court as to the application of the fellow-servant doctrine; but there is no decisive indication as to which line of decisions of that tribunal should be followed. Whether the case of Railway Co. v. Baugh, 149 U. S. 376, 13 Sup. Ct. 914, 37 L. Ed. 772, and allied cases shall be followed, or the cases of Railway Co. v. Holmes, 202 U. S. 438, 26 Sup. Ct. 676, 50 L. Ed. 1094, and McCabe Construction Co. v. Wilson, 209 U. S. 275, 28 Sup. Ct. 558, 52 L. Ed. 788, as applied to facts of this case, can But in the absence of some clear and positive decision of that court based upon facts analogous to those here presented the conclusion must be that the rule controlling the question is unsettled in that state. The presumption, then, is that the common law of Montana here applicable is the same as that of this state, and we have this question: Is the defendant, upon the facts, relieved from liability for the death of the deceased on the alleged ground that he was a fellow servant of the engineer and conductor? That is, did the defendant owe him any personal duty in the premises? The fellow servant rule has been accepted and enforced by this court, and its qualification, adopted by many other courts, to the effect that employés in independent departments are not fellow servants, has been rejected. This is settled by a long line of decisions of this court, among others the following: Foster v. Railway Co., 14 Minn. 360 (Gil. 277); Brown v. Railway Co., 31 Minn. 553, 18 N. W. 834. The great diversity of judicial opinion as to the reason of the rule indicates that it does not rest on any substantial basis of reason or justice, otherwise there would be unanimity, and that the true reason - for its adoption was an economic one, in order to foster industries by relieving the master from liability to any of his employés for personal injuries due to the negligence of any other of his employés in the same industry. The injustice of making this exception to the rule of respondeat superior is obvious, thus compelling those who receive the least from an industry to assume its hazards to life and limb from the negligence of those over whom they have no control and in whose selection they have no voice. The rule, however, is the law of this state, as evidenced by the decisions of this court, and by the rule of stare decisis we are bound to enforce it in good faith. Nevertheless reason and justice forbid that the rule should be extended or confounded with the rule as to the absolute duties of the master, as illustrated by the pioneer case of Drymala v. Thompson, 26 Minn. 40, 1 N. W. 255, and exempts the master from liability. Wood's Law of Master and Servant, §§ 435, 436. Where a master reserves to himself the per the defendant's liability depends largely upon | the case at bar, yet the controlling principle whether it owed the deceased any personal seems to be the same, which is that one who or absolute duty as master by virtue of the directly causes an injury to another may be contract of employment between them. The his fellow servant in the broadest sense of question must be considered from this view- | that term, but not such within the rule which point. Bjorklund v. Gray, 106 Minn. 42, 118 N. W. 59. The here material part of such contract was to the effect that the defendant should furnish him transportation | formance of a particular act, he cannot avoid from his headquarters or from any place where he happened to be at work as bridge carpenter foreman to any place the defendant required him to work for it. When he was killed, he was being so transported by the defendant on one of its railway trains, pursuant to the terms of the contract, to a place where he had been ordered to take charge of the repair of a bridge. The contention of counsel for the defendant is to the effect that it owed the deceased no personal duty, as he was not a passenger, and that the negligence which caused his death was strictly that of his fellow servants. This contention is urged in an able and exhaustive brief, citing and analyzing numerous authorities, all of which have received attentive consideration. We find ourselves unable to concur in the conclusion that the defendant owed the deceased no personal duty. The cases cited by counsel sustain the general proposition that an employé of a carrier traveling to or from his work in its cars free from charge, as stipulated for in the contract of service, is not a passenger, but merely an employé. Seaver v. Railway Co., 14 Gray (Mass.) 467; Vick v. Railway. Co., 95 N. Y. 267, 47 Am. Rep. 36; Elliot v. Railway Co., 5 Dak. 523, 41 N. W. 758, 3 L. R. A. 363. In the case of McNulty v. Railway Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721, it was held that an employé of a railway company, who was carried to and from his work on a train in consideration of a reduction in the price of his wages, was a passenger. In the case of Peterson v. Seattle Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586, the defendant was employed by the street car company at $1.50 per day and free transportation to and from his work. He was injured by the negligence of the defendant's motorman while riding home from his work on defendant's street car. It was held that he was not a fellow servant of the motorman, but that the defendant was liable for the motorman's negligence. See also Doyle v. Railway Co., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335, s. c. 166 Mass. 492, 44 N. E. 611, 33 L. R. A. 844, 55 Am. St. Rep. 417, Transit Co. v. Venable, 105 Tenn. 460, 58 S. W. 861, Railway Co. v. Holmes, 202 U. S. 438, 26 Sup. Ct. 676, 50 L. Ed. 1094, and McCabe v. Wilson, 209 U. S. 275, 28 Sup. Ct. 558, 52 L. Ed. 788. While the facts in the cases we have cited liability for its nonperformance by delegating the duty to another. One employs another, and agrees to furnish him tools and instrumentalities, to another he delegates the duty of procuring the tools and instrumentalities. If a defective instrumentality is selected and furnished by this last servant, and injury results to the servant using the same, the master is liable. Again, one is employed by a master who undertakes to furnish him with a safe place to perform his duties, to provide the place another is employed by the same master. If such second employé negligently performs his duty, and his fellow servant is injured thereby, the master is liable. In both of these instances the injured servant and the negligent servant are coemployés, in that they are engaged in a common employment, working with a common purpose, towards a common result, and, rejecting the departmental theory and the difference in grades, we still find the master liable because the negligent servant is performing a duty of which he cannot divest himself. In all of these instances the contract of hiring might have been different. The servant might have undertaken to select his own instrumentalities, or have undertaken to secure the safety of the place upon which he was to work; but where the master undertakes that duty he at once assumes the burden of the proper performance. Se here the defendant, having undertaken to transport the deceased from place to place, undertook to transport him safely. It, not he, selected the manner of such transportation, and undertook to make such manner safe. The contract on the part of the defendant in this case was not simply to permit the deceased to ride in its cars free to the places where he was to work; but it was an absolute contract obligation, based upon a valuable consideration, to transport the deceased, by such instrumentalities or agencies as it might select, to the place where he was to work. Whether the deceased was, while being so transported, strictly a passenger, is immaterial; for it is clear from the terms of the contract that it was the personal or absolute duty of the defendant to exercise due care to secure his safe transportation. It could not delegate this duty, so as to relieve itself from liability for a breach thereof. We accordingly hold that the negligence of the engineer and conductor, which caused the collision whereby the de |