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damages. In my opinion, this objection is well founded. True, the laws of this state, as construed and declared by its supreme court, do not authorize a municipal government to take or damage private property without the owner's consent, and do entitle a property owner to an injunction to prevent injury to his property by city offoers and agents. But, by express enactment of congress, the national courts are forbidden to entertain a suit in equity in any case where a plain, adequate, and complete remedy may be had at law; and the equity jurisdiction of these courts cannot be extended by state laws. Rev. St. U. S. § 723; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. Rep. 276. On this ground, the demurrer will be sustained

ON REHEARING.

(November 11, 1892.) Both parties being dissatisfied with the foregoing decision, I have permitted them to make further arguments. In behalf of the city, it is asserted that, by its charter, the city is given specific power to locate sewers in its streets, and that the action of the city government in the exercise of this specific power is not subject to the power of the courts to pass judgment upon the reasonableness or unreasonableness thereof. The last proposition is well supported by authorities cited, including 1 Dill. Mun. Corp. $$ 328, 393; and it is true that the city charter does contain a provision declaring, in spe. cific terms, that the city government has power to locate sewers in the streets of the city. But this charter was framed and adopted by the people of the city themselves, after the rights of the complainant had become vested. The constitution and a general statute of the state gave the people of Spokane power to frame a charter for their city, and conferred upon the city, in general terms, the powers of a municipal corporation, and also granted certain powers and imposed limitations in specific terms. I do not find included in the enumeration of powers granted any specific provision relating to the location of sewers. That the charter of a city, framed by the people thereof under the constitutional and statutory provisions of this state, cannot be regarded as a grant of power from the state, is, in my opinion, established by the decision of the supreme court of this state in the case of City of Tacoma v. State, (Wash. St.) 29 Pac. Rep. 847. I hold, therefore, that the power of the city to locate sewers, and provide for the construction thereof, exists only by virtue of the general grant from the state of power to control its streets, and provide for the health and general welfare of its inhabitants; and, in the exercise of such powers, it cannot unreasonably infringe individual rights without liability to be called to account in the courts. Counsel for the city also calls my attention to the case of Hawes v. Oakland, 104 U. S. 450, and relies upon it as an authority denying the right of an individual to maintain a suit in defense of the rights of a corporation. That case appears to have been instituted for the protection of the shareholders of a corporation by one of their number. This case is different. The complainant is a mort.

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gagee of the property of the Ross Park Railway Company. His rights and title are not merged in the rights and title of the corporation. Though he has but a lien, that lien is his property, and a suit to protect it from injury by trespass involves a direct controversy between him and the trespasser.

On the complainant's side, the argument consists mainly of sug. gestions of difficulties and obstacles which may prevent a recovery of compensation for the destruction of his security in an action at law. The difficulties and obstacles, however, are not shown by averments in the bill to which the demurrer has reference. An amended bill having been presented to me, and the application for an injunction pendente lite being renewed pursuant to leave granted, I am of the opinion that it now appears that irreparable injury to the complainant is threatened. The amended bill shows that the railway company is insolvent; that it will be unable to repair the damage which will be done by constructing the sewer as proposed, or to again put its railway in operation; that the mortgaged property will not be of sufficient value, in the condition in which it will be left after the posts, wires, and tracks shall have been displaced, as proposed in the prosecution of the work of constructing said sewer, to produce, upon a sale thereof, more than a small fraction of the plaintiff's debt; that the threatened injury to his security will render his bonds unmarketable, and worthless as negotiable paper; that the city of Spokane is now in debt to an amount exceeding $1,700,000, and, by reason of constitutional and statutory limitations upon its powers to levy taxes, collect revenue, and incur debts, a judgment against it for the amount of the damages which the complainant will sustain by reason of the acts threatened will not be collectible. These new averments show that the complainant has no plain, adequate, and complete remedy at law. In my opinion, the amended bill must be answered, and the present application for an injunction must be granted.

MENT.

HOGAN Y, NORTHERN PAC. R. CO.

(Circuit Court, D. Montana. November 28, 1892.) MASTER AND SERVANT - NEGLIGENCE -PERSONAL INJURIES-SCOPE OF EMPLOY

A railroad employe of mature years and long experience, who is injured while coupling cars in obedience to the orders of his immediate superior, cannot recover merely because that duty is outside the scope of his employment, when he makes no objection to performing it, and there is no threat of dismissal in case of refusal. Miller v. Railroad Co., 17 Fed. Rep. 67, distinguished. Jones v. Railway Co., 14 N. W. Rep. 551, 49 Mich. 579, disapproved. At Law. Action by Thomas Hogan against the Northern Pacific Railroad Company for damages for injuries sustained while coupling cars, which was outside the scope of his employment by defendant. On motion to instruct the jury to find for defendant. Granted.

Elbert D. Weed, for plaintiff.
W. E. Cullen and Sydney Fox, for defendant.

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"Na Jadge, (orally.) In considering the motion

i ont asking the court to instruct the jury to -petendant, I have considered most of the authorir bucà plaintiff and defendant in the argument of the lie of Viller v. Railroad Co., 17 Fed. Rep. 67, the

are of the company. By order of the company,

perted from the coal mine to a station on the railEr was used as a means of transportation. The plain1: so he same for the purpose of being so transported. It "the car, having no brakes, was dangerous, and it was este sa deus to ride on the same; that, therefore, Miller, the I will not have entered upon the same for that purpose;

was guilty of contributory negligence in so doing. The Ritchis question to the jury, and in his instructions he charged vile duty of the master towards the servant, and said:

master or other servant, standing towards the servant injured in

a of superior or vice principal, orders the latter into a situation of Resis not a singer than the ordinary course of his duty, which he would have inHalla he obeys, and is thereby injured, the master is liable, unless the dit is so apparent that to obey would be an act of recklessness."

This language must be considered in connection with the facts in it ease. The instructions cover a case coming under the rule that the master must furnish the servant a safe place to work, and give him suitable machinery, etc., and, where he is to be transported, safe means of transportation, and does not apply to a case like this at all.

In the case of Gilmore v. Railroad Co., 18 Fed. Rep. 866, the plaintiff was hurt by an explosion of giant powder, being thawed before an

This was held to be a negligent way of thawing such powder. Gilmore was orđered to assist in doing it by the boss of the gang, Cortin. The court, in its opinion, says: “The plaintiff is comparatively an unskilled man, from the humbler walks of life, and appears to have been altogether ignorant of the dangers incident to thawing giant powder in this manner.” The principal question considered was as to whether the boss of the gang was what was termed a "vice principal,” which placed him in the position of master. Considering this question, there are some expressions indulged in by the court which favor the position of the plaintiff, but they should be considered with reference to the facts of the case, and not as applicable to other cases. In considering these remarks favorable to the plain tiff, the fact that Gilmore was an unskilled man, unacquainted with the danger incident to the thawing out of powder, should be considered. He was ordered to perform a duty which was extrahazardous, and the danger which he incurred was unknown to him, and it appears it was known to the boss of the gang, and that he did not notify Gilmore of the danger incurred in so thawing out such powder.

In the case of Railway Co. v. Bayfield, 37 Mich. 205, we find that the person injured was one Williams, a lad of 17. The court says: "As bearing upon the question of liability, special stress was placed by plaintiff on the youth, weakness, and inexperience of Wiliams," who was killed; and, after discussing other questions, the court comes to the question presented in this case, and says:

open fire.

- This principle (being one stated before) may be applicable even where the risks are apparent, and fully open to observation, provided the servant, from his youth and inexperience, or other cause, is incapable of fully understanding and appreciating them.” And again: "Yow, in this case, the servant was inexperienced,” etc., “and, although the extra risk was apparent from this cause, the risk was not upon his shoulders.” The decision in this case should also be considered in reference to the facts that were presented. An inexperienced youth, unacquainted fully with the danger he incurred, was ordered to perform a duty by a master who fully understood the risks the servant was taking.

The case of Jones v. Railroad Co., 49 Mich. 579, 14 N. W. Rep. 551, appears to be based upon the case of Railroad Co. v. Bayfield, but the facts in the two cases are different. This case does seem to support the contention of the plaintiff in this case. Cooley, J., did not fully agree with the opinion of the court expressed therein, and said he did not think that the facts showed that the plaintiff was wrongfully sent on the duty in the performance of which he was injured. In that case the plaintiff was hired as a passenger brakeman, and was required to do some switching and coupling of cars. This was a duty, under his contract of employment, he was not required to do. The case is not fully reasoned out, and, in my judgment, is not sustained by the decision cited as supporting it, or the authorities generally. There is one thing to be noticed concerning the same, and that is, there is nothing to show that the plaintiff in that case knew the business of coupling cars, or had any knowledge of the dangers incident to it. The case is reviewed in Leary v. Railroad Co., 139 Mass. 586, 2 N. E. Rep. 115. Judge Devens says that the plaintiff was injured on account of his inexperience, and that that decision was based upon that fact. It is evident that that distinguished jurist in the last case mentioned does not fully sustain the views therein expressed, and I think the case in 139 Mass. and 2 N. E. Rep. may be considered as a direct authority opposed to that case.

The case of Cole v. Railway Co., 71 Wis. 114, 37 N. W. Rep. 84, is one certainly opposed to the general doctrine expressed in the ease of Jones v. Railroad Co., supra. That case is almost on all fours with the case at bar. The plaintiff in that case was a foreman in charge of a gang of men engaged in bridge work. He was requested hy a superior to do certain switching and yard work at Fond du Lac, Wis. He was injured by his glove catching, and his hand permanently injured. After a review of many cases, among them Jones v. Railroad Co., the court says:

"All we decided in this case is that, when an employe of mature years, and of ordinary intelligence and experience, is directed to do a temporary work outside of the business he is engaged to do, and consents to do sud work without objection, on account of want of knowledge, skill, or experience in dning said work, negligence of the employer cannot be predicated upon that state of facts."

This view is sustained by many authorities. Some of them will be found collected in a note No. 5, commencing on page 859, 14 Amer. & Eng. Enc. Law. In regard to the opinion referred to as having been

the

KNOWLES, District Judge, (orally.) In considering the motion presented by the defendant asking the court to instruct the jury to find a verdict for the defendant, I have considered most of the authorities presented by both plaintiff and defendant in the argument of the motion. In the case of Miller v. Railroad Co., 17 Fed. Rep. 67, plaintiff was an employe of the company. By order of the company, he was to be transported from the coal mine to a station on the railroad. A push car was used as a means of transportation. The plaintiff went upon the same for the purpose of being so transported. It was claimed that the car, having no brakes, was dangerous, and it was extrahazardous to ride on the same; that, therefore, Miller, the plaintiff, should not have entered upon the same for that purpose; and that he was guilty of contributory negligence in so doing. The court left this question to the jury, and in his instructions he charged it as to the duty of the master towards the servant, and said:

“If the master or other servant, standing towards the servant injured in the relation of superior or vice principal, orders the latter into a situation of greater danger than the ordinary course of his duty, which he would have incurred, and he obeys, and is thereby injured, the master is liable, unless the danger is so apparent that to obey would be an act of recklessness."

This language must be considered in connection with the facts in that case. The instructions cover a case coming under the rule that the master must furnish the servant a safe place to work, and give him suitable machinery, etc., and, where he is to be transported, safe means of transportation, and does not apply to a case like this at all.

In the case of Gilmore v. Railroad Co., 18 Fed. Rep. 866, the plaintiff was hurt by an explosion of giant powder, being thawed before an

This was held to be a negligent way of thawing such powder. Gilmore was ordered to assist in doing it by the boss of the gang, Cortin. The court, in its opinion, says: "The plaintiff is comparatively an unskilled man, from the humbler walks of life, and appears to have been altogether ignorant of the dangers incident to thawing giant powder in this manner.” The principal question considered was as to whether the boss of the gang was what was termed a “vice principal," which placed him in the position of master. Considering this question, there are some expressions indulged in by the court which favor the position of the plaintiff, but they should be considered with reference to the facts of the case, and not as applicable to other cases. In considering these remarks favorable to the plain tiff, the fact that Gilmore was an unskilled man, unacquainted with the danger incident to the thawing out of powder, should be considered. He was ordered to perform a duty which was extrahazardous, and the danger which he incurred was unknown to him, and it appears it was known to the boss of the gang, and that he did not notify Gilmore of the danger incurred in so thawing out such powder.

In the case of Railway Co. v. Bayfield, 37 Mich. 205, we find that the person injured was one Williams, a lad of 17. The court says: “As bearing upon the question of liability, special stress was placed by plaintiff on the youth, weakness, and inexperience of Wiliams," who was killed; and, after discussing other questions, the court comes to the question presented in this case, and says:

open fire.

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