trine that the master is liable for the negligence of a superior servant, where such superior servant is in charge and his negligence causes the injury. But on this head we will treat more fully at another time.

Nothing, however, is better settled than that the servant assumes all risk growing out of the want of skill on the part of a fellow servant, when the master has not been at fault in the first instance in the selection of such incompetent or unskillful servant (Chicag, etc., Ry. Co. v. Froegch, 68 Ill. 545; S. C. 18 Am. Rep. 578). And it is equally well settled that the servant does not engage against the negligence or malfeasance of the master himself, and that the master is bound to use due and reasonable diligence to protect his servants from injury (State v. Malster, 12 Rep. 783). And should he lead an inexperienced servant into a dangerous place or put him in a dangerous position, and where an experienced servant would be in no peril, and such servant be thereby injured, the master is responsible for all injuries sustained. In the case of Parkhurst v. Johnson, recently decided by the Supreme Court of Michigan (16 Rep. 19), this doctrine is laid down by Judge Cooley, who cites a number of authorities to sustain the position (Cooms v. N. B. C. Co., 102 Mass. 585; Smith v. Oxford Iron Co., 42 N. J. 535; Barker v. Ry. Co., 95 Pa. St. 211; Swoboda v. Ward, 40 Mich. 420). A master does not impliedly guarantee the safety of his servant (Sykes v. Packer, 14 Rep. 92). He has discharged his full complement of duty when he provides for his servants to the best of his judgment (Addison on Torts, 564).

2. Extraordinary Risks. It is a well settled principle of law that a servant does not assume any unknown or unusual risks, and that the master is bound to inform him of such facts as are within the master's knowledge affecting the servant's safety in the service to be performed, when the servant about to be employed is ignorant of such facts (McGowan v. La Plata M. & S. Co. [U. S. C. C.-Col. Jan. '82], 13 Rep. 294; Baxter v. Roberts, 44 Cal. 187; Strahlendorf v. Rosenthal, 30 Wis. 675).

The master must make known all concealed dan Dorling v. Girard B. Allen Co., 13 Rep.

693), particularly when the service itself is free from danger and the peril grows out of extrinsic causes or circumstances not discernable by the use of ordinary precaution and prudence (Perry v. Marsh, 25 Ala. 659; Spelman v. Fisher Iron Co., 56 Barb. 151).

The Supreme Court of Pennsylvania, in the case of Baird v. Pettit (2 S. L. Rev. [Nashville] 115), where the plaintiff was employed as a draughtsman in the machine shop of the defendant, and was injured one evening as he was going home by falling over a pile of rubbish which had been thrown from the cellar of the shop by a fellow workman and negligently allowed to remain upon the sidewalk of the public street a few feet from the steps of the building; held, that the negligence which caused the injury was not one of the risks the plaintiff assumed on entering the defendant's service. The court go a step further in this case and hold that at the time the plaintiff had completed his day's work, left the shop, and was no longer (for that day) the servant of the defendant at the time the injury occurred, but a traveller on the street. This is similar in principle to the case where a man was employed by a railroad company to shovel gravel for them, a part of the consideration or wages paid him being transporation to and from the pit free from charge, and while he was being so transported he was injured by the negligence of the engineer. In this case the company were held to be liable for the damages thus sustained (Smith v. New York, etc., Ry. Co., 6 Duer 225).

As a general rule a servant can not maintain an action against his master for injuries sustained during the course of his employment (Johnson v. Bruner, 6 Phila. 554), for the very cogent reason that, as the court say in the case of Gunther v. Graniteville Manufacturing Co. (15 N. C.), "an employe enters the services of another upon contract; it is a voluntary service; he knows when he engages that he is to be surrounded by fellow servants; he knows, too, that this will expose him to risks other than such as his own conduct may create; he is. aware that the machinery is complex, and to some extent dangerous, and he is presumed to contract with full knowledge of all the risks incident to

these things, and therefore to assume them." Yet these facts do not relieve the master from the exercise of ordinary care for the personal safety of each and all of his servants; and the degree of care he is thus required to exercise must in all cases be proportionate to the hazard of the services (Chicago, etc., Ry. Co. v. Donahue, 75 Ill. 136).

The master, of course, is never justified in knowingly or negligently exposing the servant to any unknown or extraordinary or unreasonable peril in the course of his employment, and against which the servant, from want of knowledge, skill, or physical ability, could not, by the use of ordinary care and prudence and forethought, under the circumstances of the case, guard himself (State v. Malster, 12 Rep. 783; Wonder's case, 32 Md. 11; Honrathey's case, 46 Id. 280; Hutchins v. Ry. Co., 5 Exch. 343; Wigmore v. Jay, Ib. 354; Roberts v. Smith, 2 H. & N. 213; Williams v. Clough, 3| Id. 258; Hough v. Ry. Co., 100 U. S. 213).

In Baxter v. Roberts (44 Cal. 187), where a man employed a carpenter to build a house on a lot without informing him that the title to the lot was in dispute, and that the attempt to put up such house would probably be resisted with force, and the carpenter was unexpectedly attacked and seriously injured, in a suit for damages for such injuries, the court held the plaintiff liable. In Strahlendorf v. Rosenthal (30 Wis. 675), a miner had been employed to sink a shaft deeper. The shaft had a crack or opening' in the side, and by reason thereof the sinking of the shaft deeper was made hazardous. The servant was not informed of the existence of such crack or opening, and was subsequently seriously injured by caving of the shaft. The court held the employer liable in damages for the injuries.

While it is the duty of the master to instruct his servants respecting unusual or unseen dangers, he is not required to give particular instructions to guard them against such dangers, which, though more than usually hazardous, yet are evidently obvious (Castello v. Judson, 10 Rep. 786; 2 Hun. 489; 64 N. Y. 636; 60 Id. 326; 113 Mass. 396; Sherman & Redfield on Neg. Secs. 49-50).

A servant is not bound to risk his safety in the service of his master, and may, if he

thinks best, decline the service in which he reasonably apprehends danger to himself (Green & Coats St. Ry. Co. v. Brewer, 11 Rep. 752; Hayden v. Manufacturing Co., 29 Ct. 548; Ry. Co. v. Barber, 5 Ohio St. 541; Wharton on Neg., Sec. 217).

In Green & Coats St. Ry. Co. v. Brewer, supra, it was held that where a servant enters upon a dangerous employment with full knowledge of the risks, he takes upon himself only those risks which are incident to the employment; yet if he discovers that there are other extraordinary dangers involved in such employment which he had not anticipated and had no reason to expect, and still remains in the same employment, without promise on part of the master that the dangers shall be lessened, he is presumed to assume the increased risks of injury arising from such additional dangers (Harkin v. Ry. Co., 65 Barb. 129; Frazier v. Ry. Co., 2 Wis. 104).

It was held by the Supreme Court of Iowa in the case of Mooney v. Lower Vein Coal Co. (11 Rep. 807), that where a miner knew, or by the exercise of ordinary care might have known of the unsafe condition of the roof of the mine, but continued to work in the dangerous place without protest or complaint and also without being induced by the master to believe that a change would be made in the condition of the roof, such servant assumed the risk caused by such unsafe condition of the roof, and could not recover for injuries (see also 40 Ia. 341; 39 Id. 615; 32 Id. 357; 29 Id. 14; and Sherman & Redfield on Neg.. Sec. 99).

A master is bound to notify his servants, if, from extraneous causes, the employment is hazardous or dangerous to a degree beyond what it fairly imports, or is understood to be by the servants (Baxter v. Roberts, 44 Cal. 178; Perry v. Marsh, 25 Ala. 659). The master is liable to his servants for all injuries arising from extra hazards caused by those defects in machinery provided, which it was the master's duty to have searched out and remedied (Clark v. Holmes, 7 H. & N. 937). And where the master increases the peril of the employment he is liable for all damages sustained by reason thereof (Lalor v. Chicago, etc., Ry. Co., 52 | Ill. 401).

Book Notices.

A Manual of Medical Jurisprudence; Instructing how to conduct inquests and post mortems, and how to give official and expert testimony before courts of law in cases of homicide. By C. H. Von Klein, A. M., M. D. Hamilton, Ohio.

We have received this little manual of Dr Von Klein, and on examination find it very compact and suggestive. It is modeled after a book by a learned Geneva professor, entitled, "Joh. Fred. Faselii Elementa Medicinial Forensis," and is an epitome of the knowledge on the subject of medical jurisprudence. The work is well classified, is refreshing to read, and will no doubt be of practical utility.

An agreement which is enforceable by an action at law, requires for its creation at least two parties.

The plaintiff should be satisfied for all actual damages he has sustained by reason of his injuries, in the loss of business, his health, his time, and the amount of his expenditures necessarily incurred in consequence of such injuries.

OPINION OF ARBITRATORS.

This action was begun in the Court of Common Pleas of Clark County and by agreement of the parties was submitted to the arbitration of the undersigned. We have this day filed our award. In view of the nature of the case we think that all persons interested should be informed as to the grounds upon which our decision is founded.

The question submitted for our determination arises on the plaintiff's petition and defendant's answer and the reply thereto.

In his petition, the plaintiff alleges in substance that the defendant is a city of the second class and as such has control of the streets and sidewalks within its limits and is charged with the duty of keeping the same open and in repair and free from nuisance; that on Limestone Street, in said city, a great many people daily pass; that in the year 1879, when John W. Book walter was the owner of a lot abutting on the south side of High and the west side of Limestone street, and in September of that year an excavation, six feet deep, five feet wide and fifteen feet long, was made on and across the sidewalk on Limestone

Street, in front of said lot; that such pit was

a defect and a nuisance, endangering the lives and safety of persons passing along and upon said pavement; that the defendant, with the knowledge of said defect and nui. sance allowed the same to remain wholly unguarded and uncovered, and omitted to furnish any signals to warn travelers and passers-by of such dangerous condition of said sidewalk from September until the nineteenth of December; that about seven o'clock of the night of that day the plaintiff, in passing along said sidewalk, without fault on his part, and being ignorant of said defect and pit, fell into the same, whereby his left foot and ankle were broken and bruised, his left side and hip were injured, three fingers of his left hand were broken, his right arm crushed, and permanent internal injuries inflicted; that such hurt caused him great suffering, compelled him to incur large expense for medical aid and nursing, and disabled him of the use of his right hand in writing and from practicing the law, in which he was engaged, and from which he derived an income of about $3,000 yearly. He further alleges that his claim for damages on account of the injuries was duly filed on the day of May, 1880, with the clerk of the city, and that the city council refused to settle the same. He prays for $25,000 damages.

The city, in its answer, set up three defenses: The first defense is, in effect, a denial of the material allegation of the petition.

For a second defense, it is alleged that the plaintiff had never filed with the city clerk any claim for damages against the city on account of the matters set forth in his petition

For a third defence, it is averred, that an action was pending, December 20, 1881, in said court, brought by said Walker against said city and said Bookwalter, the object of which was to recover damages on account of said alleged injuries, on the ground that the city and Bookwalter were jointly liable therefor; that the plaintiff, to induce the city to enter into the alleged agreement below stated, represented to the city that in his view Bookwalter was liable to him for said damages; that Bookwalter was a positive wrong-doer in the premises in having caused said excava tion to be made, in violation of the ordinances of the city and for his (B.'s) exclusive benefit; and that if the city was liable at all, it was liable only on account of its negligence in the matter; that from these circumstances be (W.) believed he could recover a larger ver dict in a separate suit against B. than he could against the city alone, or in said joint suit; and that if the city would do the things hereinafter mentioned, he (W.) would enter into such an agreement with the city as is below mentioned; whereupon he did enter

into an agreement with the city as follows: That he would next day dismiss said joint suit as to the city, and prosecute it against B. alone until a verdict was rendered; that in case such verdict was in favor of W. for such a sum as would be a reasonable compensation for his injuries, he would not prosecute any action against the city; but that in case such verdict should be in favor of B., or in such an amount as would not be a fair compensation for such injuries, then and in that case he reserved the right to prosecute an action against the city; that in consideration thereof, the city agreed with W. that it would aid him in the prosecution of the suit against B., until such verdict as is above described was rendered therein-such aid to be rendered by the city's attorneys, and to consist of their advice and counsel, and their participation in the preparation of the law and the testimony and management of the case against B., so far as their services could be rendered and might be required in the prosecution of that suit; and as a further consideration, the city agreed that in case a verdict was returned against W., or in his favor, but for an insufficient amount, then, in either case, the city would enter its appearance as defendant in any action W. might bring against it, to recover against it for said injuries, and in such action the city would waive all questions that might otherwise arise as to W. having, prior to his having brought said joint action, filed with the city clerk his claim for said damages as required by law; and that the city would file its answer; and that the trial of the action so to be brought should take place without unnecessary delay. It is further alleged in the defense that the city, by its attorneys, duly performed said agreement upon its part, and that a verdict for $14,000 was returned in favor of W. against B.

The plaintiff, replying to the second defense, denies that he did not present any claim to the city, as stated in the city's second defense; and says such claim was presented, acted upon, and rejected more than sixty days before he began this action.

And replying to the third defense, the plaintiff admits that prior to Dec. 20, 1881, he had begun said joint action against the city and B., and becoming satisfied that he could not legally prosecute them in one action, he deemed it proper and was about to dismiss it as to one of the defendants, and begin a new action against the party so dismissed, and proceed in the then pending action against the other: That the city, by its legal counsel, represented to the plaintiff that it was extremely anxious not to be put on trial then, and that if he would dismiss said joint action as to it, and begin a separate

action against it, it would enter its apperance forth with, and waive any informality in the presentation of his claim to the city previous to beginning such suit,' and set up no defense on that ground: That the plaintiff assented to the proposition, dismissed the joint suit as to the city, and at once filed his petition in this case, and proceeded to trial against B. alone in the suit first begun; but the jury on such trial returned no verdict; and in January, 1882, another jury was called, which returned a verdict against B. for $14,000, but the court set it aside on the ground that it erred in instructing the jury as to the law of the case. And the plaintiff denies that he made the agreement set up by the city or any agreement other than that set up by him.

Much evidence was introduced before us. Its effect will be stated in connection with the statement of our conclusions of law.

I. As to the legal liability of the city to the plaintiff in the matter complained of.

Section 439 of the municipal code of this state, which was in force at the time the alleged right of action arose, provided that "the city council shall have the care, supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance." from nuisance." This statutory provision devolved upon the city council, as the representatives of the city, the plain duty of keeping Limestone Street, with the other streets of the city "open and in repair and free from nuisance." For that purpose such streets were within the special "care, supervision and control" of the council; and the municipal code conferred ample authority and means to perform the duty. Such duty was, therefore an absolute and imperative duty; and, therefore, if the city failed, in this instance, to perform such obligation, it is liable in damages to the plaintiff for any injury he actually sustained by reason of such failure, if he was without fault upon his part. It is now regarded as the settled law of Ohio, and of most of the other states, independently of a statute so providing, that whenever such duty has been imposed by the legislature upon a town or city, and is neglected, to the detriment of a private individual, he has his remedy by suit against the corporation.

The gravamen of the plaintiff's complaint against the city is, that it omitted to discharge its duty to keep the sidewalk where he was injured, "in repair and free from nuisance." In order to determine whether or not this complaint is well-founded, it is necessary to inquire what, according to the settled law upon this subject, will constitute an omission

or neglect on the part of a city to keep a sidewalk in repair and free from nuisance."

Whilst in this state, the owners of lots abutting on pavements are required by ordinances of city councils, to construct and maintain them at the expense of such lot-owners exclusively; the city is, as we have seen, charged with the absolute and imperative duty of maintaining suitable sidewalks. It follows, that when a sidewalk has been constructed and thrown open to public use, and has been used with the rest of the street by the public, the city must maintain it in such repair that it will be reasonably safe and convenient to travelers. In a street, or part of a street, in a populous city, on which large numbers of foot passengers travel, the duty to repair and keep the sidewalk safe for travel extends to the whole sidewalk, throughout its entire width. This liability is primary, and extends to all obstructions, no matter by whom placed there; and the city cannot defend against an action by a party injured by means of an unlawful defect in the sidewalk, by alleging that such defect was caused by another wrong-doer, although it may have an action against him for reimbursement. If dangerous excavations are made in a sidewalk, no matter by whom, it must fill them up, or cause them to be filled up; or, if in constructing a building, it is necessary to make excavations in a pavement, the city must, if such excavations be dangerous, guard them, or cause the owner of the building or his contractor to guard them, light them in the night season, or otherwise warn travelers against them. That is to say, it must keep the sidewalks in a reasonably safe condition for foot passengers by night as well as by day; and a foot passenger proceeding, albeit in the night time, along a side-walk, has a right to presume that it is free from dangerous obstructions; and if he is injured in consequence of falling into such obstructions which the city, having left or allowed to be left unguarded, he will be entitled to recover damages from the city for such injury, even though the obstruction was created by a third person, provided the city had either actual or constructive notice of the obstruction for such length of time prior to the injury as to have enabled it to remove the obstruction or guarded it.

A city is, in this respect, liable for a lack of only ordinary or reasonable care. It is not held to the liability of an insurer; but the same rule of diligence is exacted from it that is expected from private persons in the control of any business involving a like danger to others. And unless the defect or obstruction causing an injury was produced by the city itself, or by some one in privity with it, it will

not be liable for the damages caused by the defect, unless it had notice thereof, express or implied, for a sufficient length of time before the happening of the accident, to have enabled it, by the exercise of reasonable diligence, to abate it; or, if for any reason, it ought not to be immediately removed, to establish barriers or signals for the protection of travelers.

If the defect in the sidewalk caused by an excavation made by a party in the erection of a building is of such a nature and has existed for such a length of time as by reasonable diligence in the performance of the duty of the city to keep the same open and "in repair, and free from nuisance," the defect ought to have been known by the corporate authorities, then notice will be presumed, and proof of actual knowledge will not be necessary to render the city liable for injuries. thereby occasioned. In the latter class of cases the foundation of the liability is negligence, and if the defect in the sidewalk had only existed for a short time, as for a night or a day, so that the proper officers of the city could not reasonably be presumed to have had any knowledge of it, the notice of the defect in the sidewalk, to the city, should be shown, in order to make it liable. But if the defect was of such a character and had existed for such a length of time as by reasonable diligence in the performance of the duty of the city the defect ought to have been known by it, then notice will be presumed, and proof of actual notice is not necessary. The principle is this, that if the city, by the exercise of reasonable diligence in the performance of the duty enjoined by its charter, has the means of knowledge of defects in a sidewalk, though caused by others, and negligently remains ignorant thereof, it is equivalent, in law, to actual knowledge. In such case, it is liable because it is guilty of negligence in not discovering the defect.

To illustrate the application of this principle, suppose there be a violent rain storm in the night time, and by the choking of sewers, theretofore and under reasonably anticipated circumstances sufficient to carry off the fallen water, a torrent be turned across a street, and it washed out, to such a state that injury occurred to some one abroad on his travel, before the working hours had come again in which the damage could be repaired or warned against, the city would not be liable for that injury. But just as it would be liable for an injury happening thus, after a reasonable time had elapsed, in which it could be presumed to have become aware of the peril in its public streets, so in our view, it is liable, if after the willful act of one not in its employment has been made a place of danger