make out a case, and seems to take it for granted that it has made out a case, where as a matter of fact there was no consideration for such limited liability, because, forsooth, it is said the rate of $1 on the bill of lading with the "fire clause" was the same as the rate six or nine years before on the bill of lading without such fire clause." The fact that the rate today on the bill of lading with the fire limitation is the same as it was years ago without such limitation is no proof that the rate of to-day is not fixed in consequence of such limited liability, even in the absence of all other proof on the subject. Before any probative effect can be given this fact or circumstance, to overcome the presumption of a consideration, you have to negative the idea and destroy the right of the carrier to change its tariff of charges from time to time, to meet competition, and other exigencies. I say, in the absence of proof (except that relied on by the majority as showing no consideration, to wit, $1 before and $1 after the adoption of the "fire clause") it does not follow that at the time of the issuance of the particular bill of lading sued on here there was not another and a higher rate for the full common-law liability. The consideration need not be great, because, in the language of the books, some consideration, however slight, is sufficient, and the consideration will be presumed from the manifest and absolutely necessary difference of responsibility. Company would have a right to make a rule that where it was to be held liable as an insurer against loss by fire, for such combustible material as cotton, notice should be given the home office by the local agent, so that special provision might be made to protect itself by obtaining reinsurance, provided that it did not cause such delay as would incommode or injure the shipper. If the shipper wanted insurance, there were two avenues open to him to obtain it-one by paying the Company the increased rate of freight, the other, by insuring in a regular insurance company; and it is a matter of common information that insurance can be obtained from an insurance company, generally, for a smaller amount than is usually charged by the carriers for the insurance liability. Certainly it seems to me, with due deference to my learned associates that every principle of justice and fairness revolts at the idea of allowing the shipper to have insurance where he has knowingly refused to apply and pay for it, either to the transportation company or to the insurance company. To hold the transportation company now liable as an insurer is to do so upon ex post facto inquiry, aliunde the contract, and in violation of what I regard as elementary principles of law and morals. But If the opinion of the majority concerned alone the disposition of the case in hand, I would have been content with the mere anBut we are not left to fall back on these nouncement of my non-concurrence. well-settled principles, nor to indulge in pre- where the spirit and tendency of the decision sumption; for the proof is clear and uncon- appear to me hurtful, I deem it my duty to tradicted that at the time of the issuance of point out, even at the expense of weariness to this bill of lading the rate for cotton, with the myself and the bar, the dangers to which it common-law liability, was $1.85. This posi- may lead. The spirit and tendency to which tive and uncontroverted proof surely cannot I refer are to be found in the strictness with be overcome by a presumption predicated upon which the common law liability of the carrier the mere fact that six or nine years before this is sought to be enforced, and the severe conditime the Company carried the common-law tions imposed as necessary to obtaining the liability at $1, the same price that it now benefit of a contract for limited liability. Incharges for the limited liability; nor can this deed, the difference between myself and the proof be affected, one way or the other, by the majority may be said to be that, in my opinfact that the Company had no printed bill of ion, a contract for exemption from loss by fire, lading on hand, and had not instructed its not resulting from the negligence of the caragent in relation thereto. While, in the opin-rier, should be construed liberally and fairly, ion of the majority, this fact may make the in accordance with the intention of the parties, Company liable, as not giving the shipper op-in the absence of fraud or imposition, while portunity to get something he did not ask for, the majority opinion applies a degree of strictand did not want, it cannot disprove the un- ness in considering such contract which, in contradicted fact that there were two rates, many cases in practice, would amount to proone of which could be obtained instanter at $1 hibition. It seems to me that every exemption with the limitation, and the other at $1.85 or condition is, in the opinion of the majority, without any limitation, obtainable by waiting placed upon the same footing, and construed until the agent could telegraph to the general with equal strictness, without regard to the freight department at Nashville. It must be policy which should govern in the treatment noticed that there was no occasion to telegraph of the sundry exemptions. This is happily to Nashville to ascertain what the common-law-illustrated by the quotation with which the liability rate was. This was known to the agent, and is positively testified to by him, and that it was $1.85 per bale, and this was also known to the plaintiffs through their agent, Mr. Embry. The telegram was therefore necessary, not to ascertain the rate, but merely to get instructions as to the issuing of such a form. It does not seem that there was any more necessity for the Company to keep on hand a form of bill of lading that was never called for than there would be for a merchant to keep on hand goods for which there is no demand. Indeed it may be safe to say that the majority opinion closes, as follows: "The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out, and seck redress in the courts. His business will not admit of such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier presents, often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this, or abandon his business." Such language may be well enough in the case in which it was used, when applied, as was done there, to a case where the | bility, exempting the carrier from liability for carrier was seeking to obtain the benefit of a accidental losses, where it can be safely done, contract exempting it from a claim for dama- enables the carrying interest to reduce its rate ges for a personal injury to a passenger, occa- of compensation, thus proportionally reliev sioned by the carrier's own negligence; but the ing the transportation of produce and mersame language, when applied to a contract ex-chandise from some of the burdens with which emption for loss by fire, without negligence, it is loaded;" which, as we have seen, has becomes misleading, and tends, though unin- been approved by our own court. For the tentionally, to inflame the mind of the trier, reasons stated, I am constrained to dissent whether judge or jury. The quotation I re- from the views of the majority, both as to the spectfully suggest is as inapplicable to the facts conclusion reached, and the reasoning upon of the case at bar as it is to the law. To my which such conclusion res s. This I do with mind the case in hand, instead of being viewed great respect for my esteemed associates, in the light of the quotation above, should whose views are the result of a careful considhave been decided in the light of the language eration of the case. From my point of view, of the same judge, in the same case, where, the judgment of the circuit court should be respeaking of such exemption as is the subject versed, and judgment rendered here for the of decision in the case at bar, he says: "A defendant. modification of the strict rules of responsi MICHIGAN SUPREME COURT. versed. The case sufficiently appears in the opinion. Mr. F. O. Clark, for defendant, appellant: A public corporation is not liable to an action by individuals, unless the right of action be given by statute. White v. Charleston, 2 Hill, L. 571; Detroit ▼. Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 Mich. 486; Kincaid v. Hardin Co. 53 Iowa, 430; Eastman v. Meredith, 36 N. H. 284; Dosdall v. Olmstead Co. 30 Minn. 96; Bigelow v. Randolph, 14 Gray, 541; Hill v. Boston, 122 Mass. 353; Riddle v. Proprs. Locks and Canals on Merrimac River, 7 Mass. 186; Leoni Trop. v. Taylor, 20 Mich. 148; Cooley, Const. Lim. 241247; Ang. & A. Corp. 719-762; Hamilton Co. v. Mighels, 7 Ohio St. 109. A township is not liable for the misfeasance or nonfeasance of one of its oflicers, but the remedy is against the delinquent officer himself. Fish v. Dodge, 38 Barb. 163; Robinson v. Chamberlain, 34 N. Y. 389. In order to create a right of action, against a quasi municipal corporation, as created by statute, there must be some statutory provisions for such liability or there is no right of action. Hedges v. Madison Co. 6 Ill. 567; Ang. & A. Corp. § 24, 629; Shearm. & Redf. Neg. SS 118, 139; Morey v. Newfane, 8 Barb. 652; St. Johns v. McFarlan, 33 Mich. 72; Dargan v. Mobile, 31 Ala. 469; Forsyth v. Atlanta, 45 Ga. 152; Buttrick v. Lowell, 1 Allen, 172; Walcott v. Swampscott, Id. 101; Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 101 Mass. 87; Grube v. St. Paul, 34 Minn. 402; Voorath v. Hoboken, 6 Cent. Rep. 338, 49 N. J. L. 285; Hines v. Charlotte (Mich.) 1 L. R. A. 844. Messrs. Mapes & Kinkade for plaintiff, appellee. Campbell, J., delivered the opinion of the court: Plaintiff was injured by falling into a ditch NOTE.-Public agencies not liable for negligence of limited to officers and agents of fire insurance their servants. A personal injury caused by the negligence of an agent or servant of a public charitable corporation does not give a right of action for damages against a corporation. Fire Ins. Patrol v. Boyd, 1 L. R. A. 417, and note, 120 Pa. 624. So where the corporation was a public charitable institution (McDonald v. Mass. General Hospital, 120 Mass. 432); or was a mere agent to perform a duty for the benefit of the public under the authority of law. Benton v. Boston City Hospital, 140 Mass. 13. companies, being a private, and not a public, corporation, nor a public charity, is liable for the negligent act of its servants notwithstanding the fact that the saving of life and property is referred to in its charter in general terms. See Newcomb v. Boston Prot. Dept. (Mass.) 6 L. R. A. 778. So a cemetery corporation is not a public charity and is liable to the owner of a grave for the negli gent burial of a stranger therein. Donnelly v. Bostou Catholic Cem. Asso. 5 New Eng. Rep. 741, 146 Mass. 163; Old South Society v. Crocker, 119 Mass. 23; Evergreen Cemetery Asso. v. Beecher, 2 New Eng. Rep. 308, 53 Conn. 551; Re Deansville But a corporation the membership in which is Cemetery Asso. 66 N. Y. 569. dug by the servants of defendant for laying water-pipes. He recovered damages to an extent not held by the trial judge to be beyond the merits of the case; and, if defendant is liable at all, there seems to be nothing in the record to show error in holding the judgment regular and proper in law, although, as not uncommon in such cases, the jury gave the plaintiff the benefit of all the disputed facts. But it is claimed that under the Statutes regu lating its powers, and those of the City of Marquette, the defendant cannot be held legally responsible for the negligence of its serv ants in an action in tort for damages. That the individual wrong-doer, if there was one, by whose misconduct plaintiff was hurt, is responsible, is not disputed. Whether the corporation in charge of the public ways is liable is not before us. The sole question is whether this corporation, which is created to subserve certain important municipal purposes, has been made responsible by law for such accidents, when, if not incorporated, it is not shown that it would be, is the only matter for our consideration; and the differences existing under different charters are such as to leave the matter to be decided by its own facts. The defendant was incorporated by "An Act to Create a Board of Water Commissioners in the Village of Marquette, and to Define its Powers and Duties," approved March 2, 1869. The subsequent incorporation of the city merely made the necessary changes to meet the change in government. Although not in terms declared to be a corporation, the powers given them are in such language as to make them such. They are liable, as well as competent, to be impleaded, to make contracts, and hold property, to have a seal and make by laws, and geuerally "to do all legal acts which may be necessary and proper to carry out the effect, intent and object of this Act." As all of their powers are confined legally to the scope of the Statute, it is necessary to consider them. The members derive their appointment from the corporate body of the city, and not from the people. By section 6 they are required "to examine and consider all matters relative to supplying said [City] of Marquette with a sufficient quantity of pure and wholesome water for domestic use, also to provide suitable and efficient means for the extinguishment of fires." This is the general and sole purpose of all their incidental powers. By subsequent sections they are empowered, under approval of the electors by vote on that question, to issue bonds to a limited extent, and, if unable to pay, to renew them. They are authorized to report to the city council, which is empowered, but not expressly required, to raise by tax any sums beyond the revenue of the Board necessary to pay principal or interest on the bonds, or any deficiency in operating expenses." They are authorized, "after the necessary means have been procured, as herein provided," to purchase necessary lands and materials, and construct reservoirs, buildings, machinery, and fixtures to supply water, and to provide means for fire protection, and are given, for the purposes of the "fire department," the powers which were before possessed by the village. They are empowered to lay pipes for water, and to build bydrants, and to employ such persons as they deem necessary to perform their duties. They have power to levy water rates on consumers on an equitable basis. They can procure lands by condemnation, where needed, and, on payment of the damages into the city treasury, may get the title. All materials contracted for or procured by them are exen:pt from execution. It may be important, in this connection, to consider the legal position of this Board in its functions. While it is a local corporation, created to serve municipal purposes, it is in no sense a municipal corporation, within the legal meaning of that term. It has been settled in this State that there can be no municipal corporation that is not the direct representative of the people of its locality. Atty-Gen. v. Detroit, 58 Mich. 213; Allor v. Wayne Co. Auditors, 43 Mich. 76; People v. Hurlbut, 24 Mich. 44; Metropolitan Police Board v. Wayne Co. Auditors, 68 Mich. 576, 13 West. Rep. 487; People v Detroit, 28 Mich. 228; People v. Detroit, 29 Mich. 108; Butler v. Detroit, 43 Mich. 552. In several of these as in other cases the doc trine has been recognized that the establishment of corporations to act as municipal boards or agencies did not give them any governmental municipal authority; and it is difficult to see how the incorporation or non incorporation of the same board can change its character in the performance of public duties. The furnishing of water and the establishment of a tire department are among the almost universal functions of cities; and the incorporation of water and fire boards appointed by the city is only a convenient way of removing that busiuess from the constant interference of the ordinary city authorities, with such safeguards as are deemed best for that purpose. It was held in Detroit v. Blackeby, 21 Mich. 84, that cities and municipalities are not usually responsible in damages for the neglect of persons in public office, unless made so by statute; and it has been held in numerous cases since that the statute liability cannot be enlarged. Detroit v. Putnam, 45 Mich. 263; McKellar v. Detroit, 57 Mich. 158; McArthur v. Saginaw, 58 Mich. 357; Williams v. Grand Rapids, 59 Mich. 51; Keyes v. Morcellus, 50 Mich. 439. On the other hand, it was held in Detroit v. Corey, 9 Mich. 165, that where a city is engaged in making a work which is its private property as a municipality, and not a mere public easement, and done under city employment or contract, it is responsible for injuries caused by neglect in its process of construction, as it is for any such action as directly injures private property. Pennoyer v. Saginaw, 8 Mich. 534; Ashley v. Port Huron, 35 Mich. 296; Defer v. Detroit, 67 Mich. 346, 11 West. Rep. 530. But it is not usually liable in other cases. If this defendant was the representative directly of the people of Marquette to govern the city, with power to tax the people to carry out its plans, and held the property in its charge by proprietorship for its own purposes, it would seem to come within the Corey Case. But a city represents the people for all the strict purposes of local government, and has power to raise its own revenue. The Legislature, in re quiring towns, cities and villages, to answer in damages for neglect to keep roads in repair, at the same time found it necessary to remove one of the recognized difficulties arising from lack of funds, by enabling them to provide by taxation for all such purposes. The purposes for which the present municipal agency was created are entirely for the protection of the city from fire, and for promoting its health, by a supply of good water. The defendant is only enabled to obtain and hold such property as will be instrumental to that end. Every seizure of such property, if allowed, would be a diminution of the power of defendant to perform its public duties in regard to public health and safety. It not only has no taxing power, but the city has no power to give it any taxes, except such as will enable it to pay its bonds, and meet any deficiency in operating expenses. Its property is not subject to execution. It cannot be true that such an agency can be officially liable to suits for liabilities, where it has no legal means of raising funds for payment. As already suggested, unincorporated boards are not so liable; and there is no obvious reason why the mere fact | of incorporation, with no change of powers, can change their liabilities. We cannot consider, on this record, any other question but the liability of this Board. We know of no other instance in which a public board can be subjected to suit without means of raising money from the taxpayers. It is for the Legislature to determine how far, if at all, a body whose negligence, if it is so called, is imputed, and in no sense actual, shall be made subject to suit for the misconduct of its employés. There are many cases where such liability does not exist, except against the immediate individual wrong-doer. The person injured is not harmed any more where there are several persons liable than where there is only one. Imputed negligence is purely & question of public policy, and subject to legis lative regulation. No one can be bound by this record, except the immediate parties to it, and it would be improper to go beyond it. The judgment should be reversed, with costs, and without a new trial. Champlin, Ch. J., and Morse and Long, JJ., concurred; Grant, J., did not sit. 8. The servant is not required to know in death, and alleged to have been caused by *Head notes by BERMUDEZ, Ch. J. defendant's negligence. Reversed. NOTE.-Master not to expose servant to extraordinary ployment. Louisville, N. O. & T. R. Co. v. Conroy, risks. It is the duty of the master, so far as he can, by the use of extraordinary care, to avoid exposing his servants to extraordinary risks, but he is not bound to guarantee them against such risks. Southwest Virginia Imp. Co. v. Andrew, 13 Va. L. J. 634, 17 Wash. L. Rep. 599; Tissue v. Baltimore & O. R. Co. 112 Pa. 91, 2 Cent. Rep. 596. He must use reasonable diligence in seeing that the place where the service is to be performed is safe for that purpose, and to guard against the risk of accident to his employés. Bennett v. Syndicate Ins. Co. 39 Minn. 254; Foster v. Pusey (Del.) 13 Cent. Rep. 47; Hungerford v. Chicago, M. & St. P. R. Co. (Minn.) 43 N. W. Rep. 324. 63 Miss. 562. The rule that where the dangers of employment are clearly known and open to observation as to both master and servant the former is not liable does not apply where a servant known to be inexperienced is set to work, without being cautioned, with machinery known to the master to be unusually dangerous. Louisville, N. A. & C. R. Co. v. Frawley, 7 West. Rep. 44, 110 Ind. 18. It is the duty of the master who sets the servant to work in a place of danger, to give him such no tice and instruction as is reasonably required by reason of the youth or inexperience of the servant. This duty is not confined to cases where the servant is a "man of manifest imbecility." Atkins v. Merrick Thread Co. 3 New Eng. Rep. 39, 142 Mass. 431. It is the duty of the employer to inform the em Dangerous occupations demand correspondingly greater care on the part of persons engaged in them; but if one so engaged be injured by the neg-ployé of increased danger in the change of machinlect of the master, not freed from liability therefor by some contractual relation, such master cannot avoid such responsibility because such injured person was knowingly engaged in a dangerous em ery, unless the changes and increased danger are so apparent that he ought to take notice. Hawkins v. Johnson, 2 West. Rep. 290, 105 Ind. 29; Brazil Block Coal Co. v. Gaffney, 4 L. R. A. 850, 119 Ind. 455. See also 9 L. R. A. 861; 11 L. R. A. 773; 12 L. R. A. 103. The facts are fully stated in the opinion. Mr. George L. Bright, for appellants: Where the injury is caused partly by the negligence of a fellow servant, and partly by the failure of the company to provide proper and suitable apparatus, the negligence of the co-servant will not exonerate the company from the consequences of its own default. Towns v. Vicksburg, S. & P. R. Co. 37 La. Ann. 632; Grand Trunk R. Co. v. Cummings, 106 U. S. 700 (27 L. ed. 266); Ellis v. New York, L. E. & W. R. Co. 95 N. Y. 546. See also Sullivan v. Vicksburg, S. & P. R. Co. 39 La. Ann. 800; Moses v. Louisville, N. O. & T. R. Co. Id. 650; Hanson v. Mansfield R. & Transp. Co. 38 La. Ann. 112; Ketchum v. Texas & P. R. Co. Id. 778; Faren v. Sellers, 39 La. Ann. 1020. The caution required is according to the maturity and capacity of the child, a matter to be determined in each case by the circumstances of that case. Washington & G. R. Co. v. Gladmon, 82 U. S. 15 Wall. 401 (21 L. ed. 114); Sioux City & Pac. R. Co. v. Stout, 84 U. S. 17 Wall. 657 (21 L. ed. 745. If the defendant is guilty of gross negligence, he cannot set up a trifling negligence or inadvertence of the plaintiff as a defense. Field, Damages, § 168, pp. 159, 163; Wharton, Neg. $$ 300, 301. An employé has a right to rely upon the care and superior knowledge and judgment of his employer. Wood, Mast. and S. 681, 738, 763; 2 Wharton, Neg. p. 975, 215; Ellis v. New York, L. E. & W. R. Co. 95 N. Y. 546; Faren v. Sellers, 39 La. Ann. 1020; 2 Thompson, Neg. p. 975. As to the proper amount of damages, see: Choppin v. New Orleans & C. R. Co. 17 La. Ann. 19; Summers v. Crescent City R. Co. 34 La. Ann. 139; Vredenburg v. Behan, 33 La. Ann. 627; Ketchum v. Texas & P. R. Co. 38 La. Ann. 777; Louisville, N.O. & T. R. Co. v. Thompson, 64 Miss. 581; Wardle v. New Orleans R. Co. 35 La. Ann. 202; Peniston v. Chicago, St. L. & N. O. R. Co. 34 La. Ann. 778; Washing ton & G. R. Co. v. Gladmon, 82 U. S. 15 Wall. 401 (21 L. ed. 114); Houston v. Vicksburg, S. & Pac. R. Co. 39 La. Ann. 799; Sioux City & Pac. R. Co. v. Stout, 84 U. S. 17 Wall. 657 (21 L. ed. 745). It is uegligence in a mining company to fail to inform its employé of any danger from an unexploded blast in the vicinity of which such employé is working, of which the company or its foreman knows, or by the use of reasonable diligence ought to know. Kelley v. Cable Co. 7 Mont. 70. In such case the employé has a right to presume that his employer has done his duty in reference to the ascertainment of any danger from such blast. Ibid. An employé who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which he has opportunity to ascertain. Southwest Virginia Imp. Co. v. Andrew, 13 Va. L. J. 634, 17 Wash. L. Rep. 599. He does not assume any risk incident to the use of defective appliances or machinery, of which he is ignorant. Carpenter v. Mexican Nat. R. Co. 39 Fed. Rep. 315. Messrs. Farrar, Jonas & Kruttschnitt for appellee. Bermudez, Ch. J., delivered the opinion of the court: This is an action in damages, brought by a father and mother, under the provisions of article 2315 (2294), Rev. Civil Code, as amended in 1884. p. 94, No. 71. They aver, substantally, that their minor son, Edward, aged about eighteen years, while in the employ of the defendant Company, was, on the 8th of August, 1888, killed by the gross negligence and fault of the latter. The amount claimed is $25,000. The defense is a general denial, and contributory negligence. The case was tried by a jury, who rendered a verdict in favor of defendant Company. From the judgment thereon against them the plaintiffs appeal. The charge made against the defendant is that the accident occurred by its gross negligence and fault, which consisted in using wires which were not perfectly_insulated, which formed a net-work on the floor, whereas they should have gone direct from the dynamo to the ceiling, and should have been placed beyond the reach of the employés. In exoneration, the Company charges, counter, that the young man, instead of approaching the dynamo No. 35 in the reasonable and proper man ner required by the circumstances, did so, deliberately, from the front, and deliberately straddled the two current-bearing wires leading from it, one to the ceiling and one to dynamo 50, which was coupled with dynamos 35 and 36, into a series of three; that, by the movement thus occasioned, one of the wires touched the interior of the boy's thigh, and the other one the exterior of his buttock, thus making a circuit through his body, the shock of which threw him on the dynamo, and thence on the floor, where he lay upon these wires, breaking the circuit in his falı, and receiving the full force of it, which produced instant death. The stubborn facts of the case are that Edward Myhan, a young man of about eighteen years, was in the employ of the Company, on the 8th of August, 1888, as night-oiler, in the dynamo-room of their plant, in this city; that during the night of that day, while in the discharge of his duties as oiler, pressing tallow down in the box of a dynamo, he came in con knowledge of that fact. McDonald v. Chicago, St. P. M. & O. R. Co. (Minn.) 43 N. W. Rep. 380. Such employé is entitled to recover of the company, which knew of or could have discovered their condition by the exercise of reasonable diligence. Carpenter v. Mexican Nat. R. Co. supra. A master having charge of the work himself is guilty of negligence if defective appliances are furnished, or the structure upon which the servant is required to work is built in an unsafe manner. Kaspari v. Marsh, 74 Wis, 562. The servant is not necessarily guilty of contributory negligence because he works in the vicinity of dangerous machinery, knowing its condition, the measure of the duty of the two in that regard not being the same. Wuotilla v. Duluth Lumber Co. 37 Minn. 153. So it is negligence on the part of a railroad company to allow its employé to pass over a defective bridge, known to the corporation and not known to the servant. Nason v. West, 2 New Eng. Rep. 74, The master is bound to see that the servant has 78 Me. 253. |