heating apparatus contained in the said premises hereby leased, and all charges for water and gas for same as they may become due and payable." In the next paragraph of the lease the lessees covenanted "that they and their assigns will with care and diligence keep the same [premises] in good order and condition during said term, and at the termination thereof will quit and surrender the same to the said Sinton or assigns in like good order and condition, careful wear and fire only excepted." And Sinton covenants that the "lessees shall have peaceable possession and quiet enjoyment of the premises hereby demised during the term of three years hereinbefore specified." By writing of October 28, 1872, the lease was extended for a fourth year, and by writing on September 17, 1873, it was again extended for three years from Jan. 1, 1874, Sinton agreeing to "at his own cost keep the elevator in said property in repair, providing the lessees hereto use proper and judicious care in the use of the same."

In using the elevator it was necessary for some person to go up on it with the goods from floor to floor. In the afternoon of Aug. 11, 1874, W. N. Moore, a salesman of the lessees, was upon the elevator with a truck and goods to be hoisted. As he was about to start upwards the plaintiff, Thomas Butler and a Mr. Druden, employes of the lessees, stepped upon the platform for the sole purpose of being taken to a floor above. As the platform was ascending the wire rope parted and they all fell to the basement. The plaintiff was seriously injured in foot, ankle, leg, &c.; was sick for months; lost wages, incurred expense, suffered pain, &c., &c. He sued Sinton, alleging the covenants of the lease and its extension, that he was clerk to lessees, that it became and was necessary in the transaction of his business as salesman to pass from one floor of said building to the other, and that the passage was usually accomplished by the use of the elevator and hoisting apparatus erected and used in said building, and operated and controlled by said defendant; that being the most common and the usual and customary means used in passing from one floor to another in said building." He also charged the defendant with negligence and carelessness in building and constructing said hoisting apparatus and in operating the same; "that it became and was out of repair and wholly unfit for the use for which they were constructed and used; that the defendant, well knowing the premises, permitted it to become so much out of repair and in such bad order and condition that it broke and gave way, without fault or neglect on plaintiff's part," and injured him as aforesaid. The defendant by answer as a first defense,

denied that the "boilers, engine and hoisting apparatus were in the possession of, and under the control of, and operated and conducted by the defendant when the accident occurred; set out the lease and its extensions, denied any other contract; admitted that plaintiff was in the lessee's employment, and that he used the elevator as their clerk and salesman. The second defense denied all carelessness and negligence, denied that the apparatus was out of repair, denied knowl edge, etc., making direct issues with all the averments in the petition as to these matters. The answer was silent as to the statements in the petition touching the usual and customary use of the elevator, and the allegation that the plaintiff was without fault or neglect was not denied.

At the trial the plaintiff offered evidence tending to prove that the sheaves over which the wire rope passed were so small that the wires were liable to break, thereby weakening the rope; that it needed repairs; that the springs for holding the platform in case the rope should break, were defective and insufficient; that Sinton knew, when he originally ordered it, that it was not so good an elevator as one of another plan then in use in Cincinnati, and that his engineer had opportunities for knowing that the rope was too weak for use.

Sinton offered evidence tending to prove that the elevator was good of its kind; that it was of a kind generally used; that he did not know that it was not so good as another one then in use in Cincinnati for such purposes; that the sheaves were of a proper size, and the rope in good condition, and that neither he nor the engineer had knowledge or notice that it was out of or needed repair. There was no controversy but that it had been used from January 1870 until August 11, 1874, without accident; that the rope had been repaired at least twice, being once turned end for end, and that it did not break at either of the places where it had been repaired. Evidence was conflicting as to the cause of the break.

So much of the charge to the jury as did not relate to the conduct of the plaintiff below was as follows:

"Mr. Sinton had leased to Tolle, Holton & Co. the store on Vine Street, and also leased to them, for receiving and discharging merchandise, the use of so much of the yard as was in rear of store, and by the terms of the lease as extended, the lessees were to pay quarter-yearly the cost of steam heating and hoisting for said premises, being one-third of the expenses of running engine for steam hoisting for three buildings known as the Sinton block; and keeping the same and the

and condition" the lessees were bound to make all repairs except those required by the elevator, and to duly notify Sinton whenever the elevator required repairs. It was the duty of the court to construe the written contract for the jury, until they knew what it meant; standing alone, they could not properly apply the evidence as to the conduct of the parties. Prior to 1874, the true meaning of the lease was a renting to the lessees of a building including an elevator, and also the services of an engineer selected and paid by Sinton. The lessees had entire possession with the entire duty of using care and diligence to keep the entire levied premises in good order. If repairs are needed by the elevator it was for them to notify Sinton, and his duty to them [was to] advance the money to pay for them as made, the lessees reimbursing him at the end of the quarter. This construction gives effect to both clauses in the lease, and is reasonable in itself. The wire rope, the part of the apparatus most liable to get out of order, was before the eyes and in the hands of the lessees and their employes every day; the lessees were to pay for the repairs; they and their employes are most directly interested in its being maintained in good order and had the best means of learning when repairs were needed. Any supervision of the use, for repairs, affected their business. Neither Sinton nor the engineer could suspend that use without the lessees' consent. Sinton was distant; the engineer's usual part was in another building.

The testimony touching the course of dealing of the parties prior to 1874, accords with this construction. While Sinton employed the engineer, he referred him to the tenants as the persons for whom he was employed. To them the engineer sent persons having bills for repairs, and to them he applied for an increase in his wages. Sinton did not examine, either in person or by agent, as to the need of repairs for the machinery. The tenants notified him when they were needed of repairs for the machinery. The tenants notified him when they were needed; then he caused them to be made and paid for them, they refunding. During the first four years of the lease there is no procf of any conduct of the parties indicating that Sinton was to make any repairs to the elevator except when notified by the tenants.

Did his agreement to "at his own cost keep the elevator in repair providing the lessees hereto use proper and judicious care in the use of the same" place him in control of the elevator after January 1, 1874? Standing alone the words may imply somewhat in that direction. But the express words giving to the lessees possession of the whole premises

remained unaltered. Give full effect to them and the new stipulation bound Sinton to make such repairs to the elevator as the tenants should call for at his own cost. The testimony showed no change in the course of dealing after January 1, 1874, except that Sinton did not at the end of the quarter, collect from the lessees the expense incurred about the elevator.

The omission by the court of a construction of the law and its extension, was calculated to mislead the jury. In effect it told them that the terms of the lease and its extension could not materially aid them in making a verdict.

The first instruction asked for by Sinton should have been given, It was germane to the true construction of the lease as extended and the conduct of the parties.

The fourth instruction asked for was proper as a part of a construction of the contracts.

The fifth instruction asked for was pointed at certain evidence put in by the plaintiff of a character likely to mislead the jury, and was proper in itself. Although it contained a few words bearing more strongly against Sinton than the law required, with his express consent the court could rightfully include them.

The evidence set out in the bill of exceptions seems to us clearly iusufficient to prove that "Sinton had the control, direction and management of the machinery, so that in connection with his agreement to keep the elevator in repair he did not merely lease an elevator, but he undertook to supply transportation or carriage."

On the contrary, we think it showed that in addition to renting the premises, Sinton undertook to furnish to the lessees an engineer, to advance the money required to pay for operating and running the machinery, and to make such repairs thereof as the tenants should call for; they agreeing to use diligence and care in seeing that all proper repairs should be made or called for, and that Sinton made all repairs called for by the tenants.

The claim of the plaintiff that Sinton was at fault in originally placing that elevator in the building must yield to the uncontested facts that it was of a plan somewhat generally in use and that itself was in constant use for well nigh five years without accident.

It follows then that as Sinton was not in Iault in originally placing the elevator in the building, as he made all repairs called for, and was not bound to do more; and as he was not in possession or control of or managing the elevator, when it fell, the case does not call for comment upon the numerous authorities cited by the counsel.

Judgment reversed.

[To appear in 40 Ohio St.]

The Ohio Law Journal.

Columbus, O., July 21, 1883.

THE Virginia Law Journal and the Central Law Journal seem determined to force the OHIO LAW JOURNAL into a fighting mood.

The subject matter of what promises to be a deadly feud, was, primarily, a question' of credit and subsequently a question of veracity. The OHIO LAW JOURNAL, since October 14, 1881, has been steadfastly advocating greater brevity and simplicity in the written opinions of judges, particularly judges of the supreme court.

In our issue of April 14, 1883, we had something to say upon the same old topic; and among other things quoted a Pennsylvania case recently decided wherein the opinion was extremely short-naming the parties, Doe against Roe, and citing the fact rather than the case to illustrate our point. The Virginia Law Journal gathered up the pearls of wisdom contained in our article and ingeniously adapted them to its own sunny Southern style. It even quoted our suppositional case of Doe v. Roe, misnomers and intentional exaggerations included, and yet gave no credit.

Now, on all this we should never have even wasted a thought had it not been for the dust and fury kicked up by the said V. L. J. because some virtuous editor did give us proper credit. This it actually did do, and then, upon our modest acknowledgment of our own ear mark upon the disputed property, it flew into a rage and talked in very bad form.

Notwithstanding the fact that the editors of the V. L. J. are named Lamb and Christian and we inadvertently said something about their conduct not being very lamblike or christianlike, they elevate their first family noses in horror at the sight of the poor little pun.

They concede the supremacy of the O. L. J. as a legal punster. In return we are willing to concede the superiority of the gall of these V. L. J. editors in first quoting from our paper and then squarely denying the fact.

The matter is so infinitely small-the sub

ject of the disagreement-the manner of its appropriation-the subterfuge of the Virginia paper-all these things are so ridiculously unimportant that were it not for the duty we owe.the profession to protect the "honah" of the guild, we would never have noticed this peculation on the part of our Southern friends.

The Central Law Journal gathers comfort from something, thinking itself vindicated— but evidently does not know exactly wherein.

We are hankering after peace; but at the same time are fully prepared for war. Name your weepons, brethren.

NOTICE.

We desire to say, concerning the 38th volume of the Ohio State Reports, that the printers, Banks & Brother, of New York, who are printing the volume for us by contract, have delayed the work beyond all reasonable time. We now ascertain the true inwardness of this delay. They are simply printers, and have no right to sell any volumes whatever. They, however, as we are informed, are sending out the volume to attorneys who have placed their orders with us, and who will be supplied by us. This is done while they hold back the volume from us until they can accomplish this petty swindle. Our contract gives us the exclusive sale of the volume. Banks & Brother, by breach of contract and a total disregard of all business honor and decency, can send the book to every lawyer in Ohio. We could institute legal proceedings and restrain them, but the profit is too small to justify such steps, and this they

know.

The only proper way is for those who receive the volume from New York, to promptly return it to Banks & Brother, at their expense.

When this is done, we will supply its place at one dollar and fifty cents. They will send bill for one dollar and seventy-five cents.

We have published the fact that we have the exclusive sale of this and the two succeeding volumes; and the foregoing statement is made solely to establish the truth of that published assertion and explain how the unbusiness-like and dishonest proceeding of the New York firm inflicts annoyance and possible loss upon Ohio lawyers.

Teach them fair dealing and honest practice by sending back their unsolicited shipment of our books.

Articles Original and Selected.

MACHINERY.

The case of Union Manufacturing Co. v. Morrissey,3 OHIO LAW JOURNAL, 730 is an important one and enunciates the true doctrine respecting the liability of employers to their servants for injuries sustained by reason of the use of machinery known to be out of repair, unsafe and dangerous. This is a vexed question which has been bandied back and forth by our courts for some time, but the current of decision is setting in the direction of the course taken by the opinion in this case (Parodi v. C., M. & St. P. R'y Co., United States Circuit Court, Dakota, Mar. 21, 1883; 17 Am. L. Rev., 480).

The machinery furnished by employers for their employes to work with may be divided into innocent and dangerous, perfect and defective. Of the innocent we have nothing to say, nor of the perfect when it is not dangerDangerous and defective machinery

ous.

claim our attention.

1. Dangerous Machinery.—Where it is known that the machinery to be used in the employment is unusually dangerous, such additional risks as grow out of the dangerous character of the machinery used are assumed by the servant. And when a servant accepts employment with a knowledge of the character and position of structures or machinery which may injure him, he can not recover damages in case of subsequent injury from such risks as were apparent at the ime or of which he was informed by his employer (DeForest v. Jewett, 63 N. Y. 452).

Where business as conducted is hazardous and there is a method of conducting it so that there will be no danger, if an employe accept the employment with a full knowledge of the manner in which the business is conducted, he is presumed to acquiesce in and assent to such method, and in case of injury can not recover on the ground that if the safe method had been adopted the injury would not have occurred (Naylor v. C. & N. W. Ry. Co., 13 Rep.

288; Ryan v. Wilson, Ib. 375; State v. Malster, 12 Rep. 783; 126 Mass. 545; 59 N. Y. 28; 15 Scott, 221.)

It has been held that although the machinery, or the part complained of as especially dangerous, is visible, yet if by reason of the youth or inexperience of the employe he is not aware of the danger to which he is exposed, it is the duty of his employer to apprise him of it, and give him such instructions as will enable such employe to guard against the danger (Gizzle v. Frost, 3 F. & F. 622; Clarke v. Holmes, 7 H. & N. 937; Smith v. Ry. Co., 69 Mo. 38; Porter v. Ry. Co., 70 Mo. 66; Coombs v. Cordage Co., 102 Mass. 572; Perry v. Marsh, 25 Ala. 659).

All employes are required to use ordinary discretion and prudence, are supposed to be familiar with those ordinary laws of nature with which they come in contact every day and upon an observance of which self preservation depends, and to exercise caution and forethought (Walsh v. St. P. & D. Ry. Co., 11 Rep. 435). But the law does not presume that all persons are familiar with all the principles of natural philosophy-the law of hydrostatics and the expansive or explosive power of heat. In the case of McGowan v. La Plata M. & S. Co., the United States District Court of the District of Colorado held that it was the duty of the master to inform his servants of the danger which would result from the falling of hot slag into cold water as the slag was being drawn cff, and that if such duty was not performed, the master was liable in damages for injuries resulting from an explosion caused by the falling of the slag into the water (11 Rep. 294). The Supreme Court of New Jersey held in the case of Smith v. The Oxford Iron Co., (42 N. J. L. 467), that where an employer uses a new kind of powder for blasting, with the power, nature and dangerous character of which his servants are not acquainted, and they are injured because of its use, the master will be liable to them for the damages. And it was held by the Supreme Court of Michigan in Parkhurst v. Johnson, (16 Rep. 19), Judge Cooley delivering the opinion, that where a man takes an inexperienced servant into his employ and places him in a dangerous position, without apprising him of