« EelmineJätka »
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Inderes see same topic and KEY-NUMBER
| plaintiff a right commanded by the judgment to
be accorded him, the defendant was not preju-
See Pleading, w403; Statutes, 279. diced thereby, where the writ was properly
granted upon other grounds.-Monk v. Crooker,
I. NATURE AND GROUNDS IN GEN-
207 S. W. 194.
m4(4) (Tex.) The right to have a judgment
reinstated and enforced by mandamus is not
affected by the fact that an appeal from such
affected by the fact that mandamuus18 Hot See Homicide
judgment can be taken or a writ of error to
review judgment secured on a retrial.—Gulf, C.
& S. F. Ry. Co. v. Muse, 207 S. W. 897.
See Divorce; Husband and Wife; Seduction,
9 (Tex.) The Supreme Court, under Const. 52, 54; Wills, 183.
art. 5, § 3, may issue writ of mandamus to re-
em 20(1) (Tex.Civ.App.) An agreement
quire district court to enforce judgment, al-
tween a man and a woman then to become and
though prior thereto the Court of Civil Appeals
thence afterwards to be husband and wife is
under Rev. St. 1911, art. 1595, has issued a
the gist of a common-law marriage.--Edmond-
writ of mandamus directing court to retry case.
---Gulf, C. & S. F. Ry, Co. v. Muse, 207 S. W.
son v. Johnson, 207 S. W. 586.
cm 16(1) (Tex.Civ.App.) The court will not
MASTER AND SERVANT.
grant the mandamus sought by relator, where See Appeal and Error, Omw 1060, 1062, 1064,
the writ would be unavailing and useless.-Pol 1067, 1170; Assignments, m52, 85; Com-
lard v. Speer, 207 S. W. 620.
merce, m8, 27; Contracts, m108, 138;
II. SUBJECTS AND PURPOSES OF
Courts, w97; Damages, 173; Death,
39,' 86; Evidence, E 471, 539; Land-
lord and Tenant, Om66; Larceny, em 15, 57;
(A) Acts and Proceedings of Courts, Limitation of Actions, 127; Municipal
Judges, and Judicial Officers.
Corporations, w724; Pleading, 69, 403;
30 (Tex.Civ.App.) Mandamus will not lie Railroads, O 278; Subrogation, Ouws23;
to compel the district judge to hold a special Trial, 29, 191, 252, 260, 296, 331, 351.
term of court under provisions of Vernon's
Sayles' Ann. Civ. St. 1914, art. 1720, since
II. SERVICES AND COMPENSATION.
the statute clearly leaves the matter of calling (B) Wages and Other Remuneration.
such sessions to the discretion of the district
72 (Mo.App.) A servant employed at a stip-
judge.-Pollard v. Speer, 207 S. W. 620.
ulated wage per week, plus commissions upon
Om 31 (Tex.Civ.App.) By Vernon's Sayles'
Ann. Civ. St. 1914, art. 1595, Court of Civil
sales, cannot recover for extra work performed
Appeals cannot issue writ of mandamus to
upon evenings or holidays, in the absence of
an express contract therefor, where the cir-
compel district court to proceed with trial of
cumstances were not so extraordinary as to
cause pursuant to law, unless its action in con-
tinuing cause amounts to a refusal so to pro-
infer a contract for extra compensation.-Gut-
weiler v. Lundquist, 207 S. W. 838.
ceed.-Matagorda Canal Co. v. Styles, 207 S.
Where plaintiff continued to accept employ-
31 (Tex.Civ. App.) Under Vernon's Sayles'
ment as a clothing salesman from year to year
Ann. Civ. St. 1914, art. 1595, the Court of
at a stipulated compensation, knowing ttat he
Civil Appeals may, by mandamus, compel a
was expected, about twice a year, to assist in
judge of the district court to proceed to trial
codifying inventory lists on evenings or holi-
and judgment in a cause "agreeable to the
days, as an employé, he cannot after several
principles and usages of law," but cannot di-
years enforce a claim for extra payment there-
rect the character or kind of his decision.-
Pollard v. Speer, 207 S. W. 620.
III. MASTER'S LIABILITY FOR IN-
III. JURISDICTION, PROCEEDINGS,
JURIES TO SERVANT.
(A) Nature and Extent in General.
151(2) (Tex.Civ.App.) The city was not a w 89(3) (Mo.) The fact that on going to work
necessary party in madamus by district attor- a shoveler found the other shovelers incidental-
ney to compel judge and clerk of corporation ly breaking boulders with dynamite under the
court to permit petitioner to prosecute all eye of a foreman, and no one there ready to
criminal cases, and to tax costs in such cases break boulders for him, was an implied com-
in his favor, although city ordinances attempt mand for him to break boulders with dynamite,
ing to deny him such right were involved. as far as the liability of the master was con-
Monk v. Crooker, 207 S. W. 194.
cerned.--Batesel V. American Zinc, Lead &
Com 164(3) (Tex.Civ.App.) In mandamus by dis- Smelting Co., 207 S. W. 742.
trict attorney to compel judge and clerk of 89(3) (Tex.Civ.App.) Employé of railroad
the city court to permit him to prosecute all company, injured while riding upon track in a
criminal cases in such court, where the judge motorcycle by invitation of another employé
specially denied an allegation in the petition after working hours, motorcycle being run down
that he refused to permit the plaintiff to prose- by freight train, held a "trespasser."--Frick v.
cute cases in his court, but did not deny an International & G. N. Ry, Co., 207 S. W. 198.
allegation in a verified supplemental petition Om90 (Mo.App.) It is the duty of a master to
that he purposely set cases so that plaintiff always exercise due care to the end that his
or his assistants could not be present, the dis- servant will not be injured.-Daugherty v. Neo-
trict court was authorized, in the absence of sho Granby Mining Co., 207 S. W. 253.
other evidence, to find that the judge refused to
recognize plaintiff's right.-Monk v. Crooker,
(B) Tools, Machinery, Appliances, and
207 S. W. 194.
Places for Work.
Om 187(4) (Tex.Civ.App.) In mandamus a party Om 106(4) (Mo.App.) Though plaintiff's employ-
who did not object to the court's deciding the er had leased tracks to its codefendant, that did
(ase on the evidence before it, and did not of- not relieve the employer from duty to keep
fer any further evidence, cannot complain that safe the place where plaintiff, wh .. with others.
there should have been a further bearing on was repairing the tracks, was required to work
the facts, if the facts before the court were at the time of his injury.--Bequette v. Pitts-
sufficient to sustain the judgment.-Monk v. burgh Plate Glass Co., 207 S. W. 852.
Crooker, 207 S. W. 194.
107(2) (Mo.App.) Where plaintiff, in obeying
187(9) (Tex.Civ.App.) If the facts in man- | the command of his foreman directing the work
damus did not show that defendant had denied' of repairing tracks, was required to place him-
'self between the track on which he was working , himself out as being capable of performing the
and a cable used to haul cars, held, that it was work, with its attendant danger, and as know-
the duty of the foreman to keep the place rea- ling and comprehending same.-Batesel v. Ameri-
sonably safe while plaintiff was required to oc- can Zine, Lead & Smelting Co., 207 S. W. 742.
cupy it.-Bequette .v. Pittsburgh Plate Glass Om 153(4) (Mo.) The very fact that a danger is
Co., 207 S. W. 852. .
such that the work can be done safely only
cm 107(3) (Mo.App.) Where deceased, a hauler, after experience and training must be taken
was doing a mere detail of the work at a clay into consideration in determining a master's neg-
pile under direction of his immediate superior, ligence in directing or permitting an inexperi.
who took precautions for haulers and shovelers, enced servant to engage in extrahazardous oc-
held that, where deceased was directed to a cupation without proper warning and instruc-
point of danger and a slide from the pile killed tion.--Batesel v. American Zinc, Lead & Smelt.
him, the master cannot escape liability on the ling Co., 207 S. W. 742.
ground that deceased and his vice-principal 157 (Mo.) Where there are abnormal and
were digging at the pile to cause the clay to fall. extraordinary risks, it is not generally sufficient
--Medley v. Parker-Russel Min. & Mfg. Co., that the master merely inform the servant that
207 S. W. 887.
there is danger, or the source from which the
C 110 (Tex.Civ.App.) Act Cong. Feb. 17, 1911 danger comes; but there must be such instruc-
(U. S. Comp. St. $$ 8630-8639), providing for tion as will enable the servant to avoid the in-
official inspection of locomotives engaged in in-liury.-Batesel v. American Zinc. Lead & Smelt-
terstate commerce under rules of Interstate | ing Co., 207 S. W. 742.
Commerce Commission, did not change rail-
road's legal duty to exercise ordinary care to
(E) Fellow Servants.
keep its machinery in reasonably safe condi-
Om 185(23) (Mo.App.) Where a servant whose
tion, so that the fact that an appliance is not directions plaintiff was bound to obey ordered
condemned upon inspection is not conclusive on him to perform work which required him to
question of whether it is a safe appliance.--|
stand on tracks between electrically operated
Lancaster & Wight v. Allen, 207 S. W. 984.
trucks, it became the nondelegable duty of the
125(8) (Tex.Ciy.App.) Without proof of master to keep the place safe, so the master is
master's actual knowledge of the existence of liable where the servant whose orders plaintiff
a defect in appliances, etc., such defect must was bound to obey started the trucks without
have existed for such length of time as to warning.-Morin v. Rainey, 207 S. W. 858.
raise the presumption of negligence in fail Om 189(3) (Mo.App.) Though plaintiff and the
ing to discover it by reasonable inspection. servant who controlled the movement of electri-
Houston E. & W. T. Ry, Co. v. Hickman, 207 cally operated trucks which were joined together
S. W. 550.
and ran on a narrow gauge track worked under
a common foreman, if plaintiff was required to
(C) Methods of Work, Rules, and Orders. I obey the directions of the operator as to moving
Om 133 (Mo. App.) Where defendant, though it pots on the trucks, such operator was a vice
had leased tracks, kept the same in repair, and principal as to such directions.---Morin y. Rain-
plaintiff, one of its employés, engaged in re-ey, 207 S. W. 858.
pairing the tracks, was required to stand near w 189(7) Tex.Civ.App.) Foreman who hati
a cable used to move cars on the tracks, held, control over men working under him, and whose
that defendant's foreman was not entitled to recommendations for employment and discharge
wholly rely on the employés of the lessee to of employés in his department were invariably
give warning when it was intended to move the made effective by the company, was a vice prid-
cable.-Bequette v. Pittsburgh Plate Glass Co., I cipal.--San Antonio Portland Cement Co. v.
207 S. W. 852.
Gschwender, 207 S. W. 967.
em 135 (Tex.Civ.App.) In a railway repair
C 190(19) (Tex. Civ. App.) Where emplorer
man's action for injury, due to being struck knew that certain duty was dangerous, and that
by an engine while at work near a track in a employé was ignorant of such danger, it was
train shed, where there was evidence that it liable for death of employé incurred in the dis-
was customary to signal or give warning of charge of the duty, after being ordered to dis-
the approach of locomotives, defendant owed charge duty by foreman, the negligence being
plaintiff the duty of giving such warning.-
that of the employer.-San Antonio Portland
Texas & P. Ry. Co. v. McGraw. 207 S W Cement Co. v. Gschwender, 207 S. W. 967.
www 201(10) (Mo.App.) Where a servant, who
139 (Tex.Civ.App.) Defendant's mine fore-controlled the movements of electrically operat-
man, even if he negligently directed a coal mined trucks and whose orders plaintiff was bound
er to work on right side of his room, could not
to obey, directed plaintiff to perform work which
have reasonably contemplated that miner would
required him to stand on the track between
mine coal almost across the face of his room,
rucks, and while plaintiff was in that posi-
leaving a projection, and thereafter undertake
tion the operator started the trucks, held, though
to mine under it, causing it to fall.-Haney v.
the operator occupied a dual capacity, being a
Texas & Pacific Coal Co., 207 S. W. 375.
vice principal as to directions and fellow serv.
Om 139 (Tex.Civ.App.) In an artion by a rail-
ant as to operating the trucks, plaintiff's in-
road fireman injured in a collision when the
* juries did not solely result from the negligent
engine on which he was working passed through
och act of the operator in his capacity as a fellow
an open switch, and the sole basis for lig-
servant.--Morin v. Rainey, 207 S. W. 858.
bility was the negligence of the engineer in
not discovering that the switch was open, it is
(F) Risks Assumed by Servant.
immaterial that switch was changed by an un-w204(1) (Tex.Civ.App.) The federal Employ.
authorized person.-Lancaster v. Mays, 207 S. ers' Liability Act (U. S. Comp. St. 1916, $8
86.7-86565) leaves the application of assumed
C 1 49(2) (Tex.Civ.App.) Employer knowing risk as it was at common law, as recognized
that duty of turning on electric switch was dan- and construed by the federal courts.-Southern
gerous, and that employé was ignorant of such l'ac. Co. v. Berkshire, 207 S. W. 323.
danger, was negligent in ordering employé to 204(1) (Tex.Civ.App.) Federal Employers'
turn on switch.--San Antonio Portland Cement Liability Act has not abrogated the defense
Co. v. Gschwender, 207 S. W, 967.
of assumed risk under the common law.-Schaff
v. Hendrich. 207 S. W. 543.
(D) Warning and Instructing Servant.
C 20411) (Tex.Civ.App.) While the defense of
Om 153(1) (Mo.) Only thing which excuses mas- assumed risk is eliminated by the federal Em-
ter from duty to warn and instruct an inexperi- ployers' Liability Act (C. S. Comp. St. 88
enced servant, as to hazards and dangers usual. 86557-S665) in cases of interstate commerce,
ly not comprehended by the inexperienced, is that where the violation by the carrier of the stat-
in applying for the employment the servant holds I ute enacted for the safety of employés con-
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
tributed to the injury in all other cases it is im 265(7) (Mo.App.) The doctrine of res ipsa
a complete bar.-Southern Pac. Co. v. Miller, loquitur appnes in an action by a servant for
207 S. W. 554.
injuries occasioned by the falling of a hoist or
Om 217(10) (Tex.Civ.App.) Railroad employé bucket in which he was descending into a mine,
engaged in interstate commerce, knowing that where the servant had no control, management,
machinery is defective, the place of work un- or opportunity to know and be informed con-
necessarily dangerous, or that proper rules cerning the hoist.-Daugherty v..
y v. Neosho Gran-
are not enforced, assumes risk thereof, unless by Mining Co., 207 S. W. 253.
he informs employer, who promises to correctem 270(10) (Ark.) In action by servant for in-
conditions.-Schaff v. Hendrich, 207 S. W. 543. juries claimed to have been caused by toppling
Om 218(3) (Mo.) No employé can be held to as-over of piled lumber, thus forcing plaintiff
sume risks which are unknown to him, or dan against bull wheel, it was error to admit evi-
gers which, by reason of his inexperience, he dence that floor was cupped up and uneven ;
does not comprehend.--Batesel v. American Zinc, there being no evidence that plaintiff stumbled
Lead & Smelting Co., 207 S. W. 742.
or fell by reason of condition of floor.--A. J.
Om 223 (Ky.) The second miller in a roller Neimeyer Lumber Co. v, Brame, 207 S. W. 35.
mill, under duty, in the absence of the head ww270(15) (Mo.App.) In an action by a track
miller, to operate the regular mill machinery, repairer, injured, where it appeared that the
and keep it going, but not to take care of ele-
foreman in charge of the crew did not warn bim
vator machinery, did not assume risk of in- of the danger, evidence of a previous custom to
jury from defective condition of such elevator warn held admissible.-Bequette v. Pittsburgh
machinery.--Lexington Roller Mills Co. v. Plate Glass Co., 207 S. W. 852.
Fields, 207 S. W. 477.
em 273 (Mo.) In an action by an inexperienced
m226 (1) (Tex.Civ.App.) Railroad employé shoveler for personal injuries sustained while
engaged in interstate commerce assumes all breaking boulders with dynamite, court should
ordinary risks incident to employment, but have admitted, on the question of assumption of
not those arising from railroad's negligence.- risk, evidence that in mining as generally car.
Schaff v. Hendrich, 207 S. W. 543.
ried on in such district the work of breaking
boulders was not intrusted to common laborers
(G) Contributory Negligence of Servant.
such as shovelers.--Batesel v. American Zinc,
Om 230(6) (Mo.) Whether or not a servant was Lead & Smelting Co., 207 S. W. 742.
guilty of contributory negligence in undertaking 274(4) (Tex.Civ.App.) In action for death of
to use dynamite in breaking boulders, in view of employé involving question of whether employé
his knowing his own inexperience and the dan- realized dangerous character of work, foreman's
ger of so doing, depends on whether the danger testimony, “Wages were never raised because
was so obvious and glaring that a reasonably Mr. B. thought he did not have enough experi-
prudent man would not, under the same cir ence to justify it," held relevant and material,
cumstances, undertake to do so.-Batesel v. 1 -San Antonio Portland Cement Co. v. Gschwen-
American Zinc, Lead & Smelting Co., 207 S. der, 207 S. W. 967.
Cm 276(3) (Tex.Civ.App.) In coal miner's suit
2341) (Tex.Civ.App.) An employé could not for injury from negligence in failing to remove
be negligent in performance of dangerous duty | débris after fall of earth and coal in mine
where he had no knowledge of the danger.-San chamber, evidence held to sustain trial court's
Antonio Portland Cement Co. y. Gschwender. finding that negligence was not proximate cause
207 S. W. 967.
of injury.-Haney v. Texas & Pacific Coal Co.,
Om 246(2) (Ky.) That employé, when elevator 207 Š. W. 375.
stopped and began to jerk, did not clearly and On 276(6) (Tex.Civ.App.) In employé's suit
at once apprehend just what had happened, against railroad for injury in operating lever
or what might happen to him, and jumped. to controlling interlocking plant at junction of
his injury, does not alter employer's liability | tracks, evidence held sufficient to sustain jury's
if its negligence actually or in reasonable ap- | finding that failure of the lever to work was
pearance had placed him suddenly in peril, proximate cause of injury.-Houston E. & W.
though employé, if he had remained in elevat T. Ry. Co. v. Hickman, 207 S. W. 550.
or, could have stopped it without injury. Cm 278(7) (Tex.Civ.App.) In employé's suit
Lexington Roller Mills Co. v. Fields, 207 S. / against railroad for injury in operating lever
| controlling interlocking plant at junction of
tracks, evidence held to sustain jury's finding
that failure of lever to work was due to rail-
255(30) (Tex.Com.App.) Railroad employé road's negligence in constructing plant defec-
operating signal board by means of lever in pro- tively, and in thereafter maintaining it in its
jecting bay window of station was not as a defective condition.-Houston E. & W. T. Ry.
matter of law required to look to see if track Co. v. Hickman, 207 S. W. 550.
was clear before giving signal that operator had a 278(12) (Ky.) In action for injuries to see-
no orders for engineer.--Southern Kansas Ry. ond miller of a roller mills company from a
Co. v. Shinn, 207 S. W. 87.
defective elevator, evidence of the unsafe con-
m258(19) (Tex.Civ.App.) A petition alleging dition of the elevator held to sustain verdict
that plaintiff, while a minor, 17 years old, was for plaintiff.-Lexington Roller Mills Co. v.
emploved by defendant, that he was required | Fields, 207 S. W. 477.
to perform services in a cotton gin owned by den 278(18) Mo.App.) In a railroad employé's
fendant, that the machinery was negligently left action for injuries sustained while lifting a cas-
exposed, that plaintiff was ignorant of the dan- ket into a baggage car, evidence held to show
ger, that he was not warned, and that as a re-negligence on the part of plaintiff's fellow work-
sult he sustained injuries, held, as against gen-ers in failing to lift the front end of the cas-
eral demurrer, sufficient to state a cause of ac-ket clear of the doorsill.-Davidson y. St. Louis
tion.- Pelipchyk v. Borden, 207 S. W. 177. & S. F. Ry. Co., 207 S. W. 277.
Em 263 (Tex.Civ.App.) Employé, suing for in-law279(5) (Mo.App.) Evidence held to show
juries and seeking to avoid employer's defense that an employé, who directed deceased as to
of assumed risk by employer's promise to his place of work, occupied a dual position, be-
remedy conditions, must specially plead such ing a vice principal with respect to his authority
promise. Schaff v. Hendrich. 207 S. W. 543. Tover de
nd other haulers, and his duty
264(4) (Mo.App.) In an action for the death to take precautions for their safety, and an
of a servant who fell into a vat of boiling wa-ordinary laborer with respect to manual duties
ter, held, under the pleadings, that testimony he performed.-Medley y. Parker-Russel Min. &
that there was no railing around the vat, and Mfg. Co., 207 S. W. 887.
that such railing could have been supplied with-m280 (Tex.Civ.App.) Evidence held to show
out interfering with the work, was admissible.- that railroad employé, injured while working
Probst v. St. Louis Basket & Box Co., 207 S. in roundhouse pit by reason of slippery con-
dition of pit bottom, knew of such conditions
and realized risk of slipping and falling by , ignorance thereof, employer's negligence was,
reason thereof in performance of his duties. under the evidence, for the jury.--San Antonio
-Schaff v. Hendrich, 207 S. W. 543.
Portland Cement Co. v. Gschwender, 207 S. W.
Sun 280 (Tex.Civ.App.) In an action by a
switchman for alleged injury from being jerk-
em 286(40) (Mo.) Whether a master, who em-
ed from a car by sudden application of brakes, ployed a servant as a shoveler, was guilty of
evidence held to show that plaintiff had as-
negligence in not warning and instructing the
sumed the risk.-Southern Pac. Co. v. Miller, servant, injured by going up to stick of dyna-
207 S. W. 554.
mite thinking it was not lighted, as to the
anner of breaking boulders too heavy
Om 281(10) (Tex.Civ.App.) In action for death
of employé incurred in turning on electric
to handle with dynamite, held for the jury.-
switch, in compliance with order, evidence held
| Batesel v. American Zinc, Lead & Smelting Co.,
insufficient to sustain finding that employé
207 S. W. 742
realized the danger.-San Antonio Portland Ce-
288(2) (Tex.Civ.App.) In an action by a
railroad engineer engaged in interstate com-
ment Co. v. Gschwender, 207 S. W. 967.
merce for injuries occasioned by being struck
Oma 286(10) (Ark.) In an action by a servant
by a mail crane while leaning out of his cab,
for injuries occasioned by catching hand be-
whether plaintiff assumed the risk held for the
tween cable and bull wheel, whether master was jury. --Southern Pac. Co. v. Berkshire, 207 S.
negligent in the piling of lumber in the vicinity W. 323.
held for the jury.-A, J. Neimeyer Lumber Co.
On 288(11) (Ark.) In an action by boy of 16 for
v. Brame, 207 S. W. 35.
personal injuries, whether plaintiff assumed
286(14) (Tex.Civ.App.) In action for death risk in attempting to follow foreman between
of locomotive fireman from derailment of en- bull wheel and insecurely stacked pile of lum-
gine engaged in interstate commerce, evidence ber, thereby catching his hand between bull
that switch point was in a condition to cause wheel and cable, held for the jury.-A. J. Nei-
wheel to climb on top of rail and cause de meyer Lumber Co. v. Brame, 207 S. W. 35.
railment was sufficient to warrant the submis 288(14) (Tex.Civ.App.) In railroad em-
sion to jury of whether switch point was defec ployé's action for injuries sustained while en-
tive.-Lancaster & Wight v. Allen, 207 S. W. gaged in interstate commerce, defended on
ground of assumption of risk, foreman's state-
em 286(15) (Tex.Civ.App.) Whether railroad ment, “Well, I will see,” was insufficient as
was negligent in maintaining a mail crane near matter of law to sustain finding of a promise to
its track, according to postal regulations, repair defective condition.-Schaff v. Hendrich,
against which the engineer struck his head 207 S. W. 543.
while looking out of his cab, held for the jury. 288(30) (Tex.) Question whether conduc-
-Southern Pac. Co. v. Berkshire, 207 S. W. tor's negligence was the proximate cause of
death of locomotive engineer, being under the
286(19) (Mo.App.) In an action for the evidence for the jury, it cannot be heid as a
death of plaintiff's husband, who was killed by conclusion of law that engineer assumed the
ay pile near which he was risk.--Pope y. Kansas City, M. &0. Ry, Co.
shoveling clay into a wagon, evidence held suffi- of Texas, 207 S. W. 514.
cient to carry the case to the jury on the ques 289(4) (Tex.Civ.App.) A railway repair
tion of the negligence of the master's vice prin- man, who was injured by a locomotive while
cipal.-Medley v. Parker-Russel Min. & Mfg. engaged at his regular work near a track, in
Co., 207 S. W. 887.
a train shed, was not guilty of contributory
C 286(22) (Mo. App.) In an action for the negligence, as a matter of law, where he could
death of a servant who was scalded in a tank assume that a custom of giving warning of the
of boiling water which was not protected by a approach of engines would be observed.-Ter-
railing held, under the evidence, that the ques- as & P. Ry. Co. v. McGraw, 207 S. W. 559.
tion of the master's negligence was for the jury. 289(11) (Mo.) An inexperienced servant ap-
--Probst v. St. Louis Basket & Box Co., 207 proaching a stick of dynamite without knowing
S. W. 891.
that the fuse was on fire. having no knowledge
Om 286(27) (Mo. App.) In a servant's action, the of evidence showing that fact, could not be
question of the negligence of a vice principal, correctly held guilty of negligence as a matter
under whose orders plaintiff went between elec- of law.-Batesel v. American Zinc, Lead &
trically operated trucks, held for the jury,- Smelting Co., 207 S. W. 742.
Morin v. Rainey, 207 S. W. 858.
en 289(37) (Mo.App.) Whether plaintiff, a track
Cw286(30) Tex.Com.App.) In brakeman's ac- repairer, was negligent in placing himself, in
tion for injuries from sagging telephone wires obedience to orders, in a position where he was
while on top of box car, evidence held insuffi- likely to be, and in fact was, injured by the
cient to justify submission to jury of question sudden tightening of a cable used to move cars,
whether operator of signal board who had given held for the jury.-Bequette v. Pittsburgh Plate
engineer signal to proceed had duty of looking Glass Co., 207 S. W. 852.
to see if track was clear before giving signal.-- 289(37) (Mo.App.) Whether plaintiff's hus-
Southern Kansas Ry. Co. v. Shinn, 207 S. W. band, who was killed by a fall of clay from a
| pile near which he was shoveling loose clay into
Cw286(31) (Mo.App.) In action by a track re- a wagon, was guilty of contributory negligence
pairer, injured when a cable used to move cars in taking the position, which was one directed
on the tracks was suddenly tightened, whether by his immediate superior, held, under the evi-
the foreman exercised ordinary care in respect dence. for the jury.-Medley v. Parker-Russel
to warnings, etc., held for the jury.-Bequette | Min. & Mfg. Co., 207 S. W. 887.
v. Pittsburgh Plate Glass Co., 207 S. W. 852. m289(37) (Tex.Civ. App.) Testimony held suf-
ww286(34) (Tex.Civ.App.) In an action for ficient to require submission to jury of whether
injuries to railroad fireman in collision based employé killed in turning on electric switch, as
on negligence of engineer in running into open ordered by his foreman, had knowledge of the
switch, where the evidence showed that green danger incident to turning of switch-San
light and green target meant clear main track Antonio Portland Cement Co. v. Gschwender,
and red light and red target meant open 207 S. W. 967.
switch, it was a question for jury whether en-C 293(5) (Ark.) An instruction that if plain-
gineer was negligent in passing a green light tiff, a 16 year old boy, was injured by being
and red target.-Lancaster y. Mays, 207 S. W. "led into a place of unsafety" by his foreman,
where there was a defective cordition "in close
m286(39) (Tex.Civ.App.) In action for death proximity" to a bull wheel over which passed a
of employé incurred in turning on electric cable, then plaintiff would be entitled to re-
switch, alleged to have been caused by employ- cover, was defective in not submitting the issue
er's negligence in ordering employé to turn on of negligence.-A. J. Neimeyer Lumber Co. v.
switch with knowledge of danger, and employé's | Brame, 207 S. W. 35.
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
293(18) (Mo.App.) Where negligence of al MILITARY SERVICE.
vice principal, who controlled the movement of
electrically operated trucks, which were start-See Army and Navy, 34.
ed, injuring plaintiff, was relied on, an instruc-
tion requiring the jury to find such vice prin-
MINES AND MINERALS.
cipal could have discovered the trucks were
about to be moved of which there was no evi-
See Master and Servant, 139, 265, 273, 276.
dence, held not prejudicial to the master, where II. TITLE, CONVEYANCES, AND
the evidence showed that plaintiff immediately
obeyed the vice principal's order, and the trucks
were immediately started.--Morin V. Rainey,
(C) Leanes, Licenses, and Contracts.
207 S. W. 858.
Cm78(1) (Ky.) Under lease providing that les-
Om 293(20) (Mo.App.) An instruction on the lia- sor should have royalty of one-eighth of all oil
bility of the master for the negligence of its produced and that lessee should begin a well
vice principal, who directed deceased as to his within one year or pay 25 cents an acre for
place of work, held not erroneous, under the evi- each additional year such beginning was de-
dence, in submitting whether the vice principal layed, the main consideration was the royalty
directed deceased when and how to perform his and development of the property, and lessee
duties, etc.-Medley v. Parker-Russel Min. & could not refuse to begin development for an
Mfg. Co., 207 S. W. 887.
unreasonable length of time, and extend lease
294(6) Mo.App.) In a servant's action by payment of nominal rent.--Warren Oil &
where the negligence of the vice principal was Gas Co. v. Gilliam, 207 S. W. 698.
relied on, the instruction as to the right of the Om78(2) (Ky.) Under oil lease providing that
vice principal to direct plaintiff, etc., held not lessee was to begin a well within one year or
erroneous as being broader than the evidence. pay 25 cents an acre for each additional year,
Morin v. Rainey, 207 S. W. 858.
where such beginning was delayed, the tender
296(14) (Mo. App.) An instruction that for of the rental for the second year before the end
a servant to obey the direction of his vice prin- of that year was sufficient to avoid forfeiture
cipal was not contributory negligence, unless for failure to pay rent.-Warren Oil & Gas Co.
the danger was so imminent and glaring that no v. Gilliam, 207 S. W. 698.
reasonably careful man would have obeyed them 78 (3) (Ky.) While agreed royalty of one-
instruction, held not erroneous in use of the eighth of oil produced and development of prop-
words "imminent" and "glaring."- Medley v erty
Parker-Russel Min. & Mfg. Co., 207 S. W. 887.
new yox: erty was main consideration for lease. lessor
could not forfeit lease for nondevelopment
without notifying lessee that he would no longer
IV. LIABILITIES FOR INJURIES TO
accept annual rentals provided for each year
after first that development was delayed.- War-
(A) Acts or Omissions of Servant. ren Oil & Gas Co. v. Gilliam, 207 S. W. 698.
mm313 (Mo.App.) Where the negligence of the
Cm81 (Ky.) Defendants, subsequent lessees,
who had actual and constructive notice of plain-
master combined with that of a fellow servant
tiff's valid lease which was in force, acquired
produces an injury the negligence of neither be-
no rights as against plaintiff, and chancellor
ing the sole efficient cause, both the master and
fellow servant are liable, and the injured sery-
properly adjudged that plaintiff had right to
have title quieted as against defendants and to
ant may sue either or both.-Morin v. Rainey,
207 S. W. 858.
have them enjoined from interfering with his
right to enter on land and remove the oil.-
Warren Oil & Gas Co. v. Gilliam, 207 S. W.
See Subrogation, 31.
V. ASSIGNMENT OF LIEN OR CLAIM. See Infants.
204 (Tex. Civ. App.) An assignment of
builders' lien without an assignment of the
debt would be without meaning or use, and (See Insurance, Em129, 138, 17912.
the lien follows the debt.---Miller v. Guaranty
Trust & Banking Co., 207 S. W. 642.
See Judgment, Omw590; Trusts, cm359.
263(1) (Tex.Com.App.) Original contractor,
payee of notes and beneficiary of mechanic's and
builder's lien, who subsequently purchased prop- | See Evidence. 12.
erty, as part consideration assuming payment of
notes, was not necessary party to proceedings
to foreclose lien in sense that failure to make
him party rendered foreclosure void.-Hartfield See Appeal and Error, 359; Chattel Mort-
v. Greber, 207 S. W. 85.
gages; Exchange of Property, m7; Hus-
em 264(1) (Tex.Com. App.) Purchaser of prop band and Wife, Om171; Liens, Om7; Logs
erty subject to mechanics' lien, in suit by in and Logging, mõ; Receivers, 117, 118,
dorsee of notes upon them and to enforce lien, 128; Street. Railroads. Om55; Subrogation,
had right on timely application to make party
Om 23; Trusts, Oml14.
original contractor, who subsequently purchas-
I. REQUISITES AND VALIDITY.
ed property from original owner, who gave
notes and lien, but waived right by proceeding (A) Nature and Essentials of Conveyances
to trial without making application.-Hartfield
v. Greber, 207 S. W. 85.
Om 25(1) (Mo.) A conveyance of real estate by
em 281(5) (Mo.App.) In an action by a subcon- mortgage or deed of trust can only be effective
tractor for a general judgment against the con- | as such when made to secure a pre-existing,
tractor and to enforce a mechanic's lien on the then created, or after arising obligation, or the
building, evidence held to show that the work performance of some duty entailing a pecuniary
was done as a continuous job, and that the lien liability.--Finnerty V. John S. Blake & Bro.
account was filed in time.--Ogle v. W. M. Suth Realty Co., 207 S. W. 772.
erland Building & Contracting Co., 207 S. W. On 28 (Tex.Civ.App.) Where purchase-money