1078. He says in his bill that he took his mortgage as a bona fide purchaser for the value above set forth. All that the bill sets forth is that the mortgage was given to secure a debt of $700. In respect to whether the debt was created at the time the mortgage was given, or was a pre-existing debt, is not stated, nor is anything stated from which it appears how the debt was created. The affidavit to the bill, so far as respects the consideration for the mortgage, only supports these general statements. Therefore, aside from the answering affidavits, I am of the opinion that the complainant has not shown himself to be a mortgagee in good faith. The rule to show cause is discharged.

GOODHUES v. GOODHUES. (Court of Appeals of Maryland. Dec. 9, 1899.) DIVORCE-EVIDENCE-APPEAL-RECORD.

1. Testimony of plaintiff in an action for divorce a mensa et thoro not being corroborated as required by Code, art. 35, § 3, except in the single particular that defendant once kicked her, which does not constitute "cruelty of treatment." within the statute, will not support a decree for her.

2. Matter in the return of a writ of diminution, consisting of a conversation between the judge and the parties at the conclusion of the hearing, which, if considered as testimony, was taken without any order or leave, forms no proper part of the record.

Appeal from circuit court of Baltimore city; Pere L. Wickes, Judge.

Bill by Mary Goodhues against Barond J. Goodhues. Decree for plaintiff. Defendant appeals. Reversed.

Argued before McSHERRY, C. J., and BOYD, SCHMUCKER, BRISCOE, PEARCE, and FOWLER, JJ.

Peter P. Campbell and C. Dood McFarland, for appellant. Norbert Blank, for appellee.

FOWLER, J. This is a bill for divorce a mensa et thoro, filed by the wife against the husband. The grounds relied on are cruelty of treatment, desertion, and abandonment. We are all of opinion that the allegations of the bill are not sustained. Undoubtedly, the plaintiff's testimony, taken alone, sustains both of the grounds on which she relies; but, so far from being corroborated, as she must be, to make her testimony the basis of a decree (article 35, § 3, of the Code), she is flatly contradicted on every material point except one. This condition of the proof is apparent upon an examination of the record, and it would serve no good purpose to examine the testimony in detail. The one particular in which she is corroborated is the alleged fact that her husband on one occasion kicked her. Assuming (which we do, however, only for the sake of the argument) that this one act of cruelty is established by satisfactory and legal evidence, it would not be sufficient to justify a dissolution of the marriage tie. "This single act of violence on his part,

though it cannot be justified in morals or i law, did not constitute 'cruelty of treatmentĮ within the meaning of the law, as a cause fo divorce a mensa et thoro." Hoshall v. Ho shall, 51 Md. 75.

2. The testimony of the plaintiff in regard to the alleged desertion and abandonment is equally pointed, but it is not only contradict ed by the direct denials of the defendant, bu all the circumstances of the case show that when he left her he did not do so with any intention of deserting her. On the contrary we think it is evident from the testimony that he was anxious for her to leave her moth er and live with him, and that she refused to accede to his wishes in this respect. In the presence of their pastor, she refused to leave the home of her mother to live with the de fendant. He left her on the 26th of August, 1898, to go with his father, for a few days, to Atlantic City; and on the 29th, three days thereafter, the bill in this case was filed.

In conclusion, it need only be said that the testimony which is embraced in the return to the writ of diminution cannot be considered. It forms no proper part of the record. It consists of a conversation between the trial judge and the parties to the suit at the conclusion of the hearing. If it is to be considered as testimony, it was taken without any order or leave of court. It follows from what we have said that the decree granting the divorce a mensa et thoro must be reversed, and the bill dismissed. Decree reversed.

LEVY et al. v. CLARK.

(Court of Appeals of Maryland. Nov. 24, 1899.)
MASTER AND SERVANT-DANGEROUS EMPLOY-
MENT ASSUMPTION OF RISK-NO-
TICE OF DANGER.

Where defendant placed an inexperienced girl, 15 years of age, at work passing linen through the rollers of a machine which usually had a guard before it to prevent the operator's hand from getting caught, but the guard had been removed, and she was given no warning, and believed that the rollers were too close together to permit her hand to go between, and her hand was caught, there was evidence of defendant's negligence sufficient to take the case to the jury.

Appeal from superior court of Baltimore city; Albert Ritchie, Judge.

Action by Lottie May Clark, by her father and next friend, against D. Levy & Sons. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before MCSHERRY, C. J., and PEARCE, FOWLER, BOYD, and SCHMUCKER, JJ.

C. Hopewell Warner, for appellants. Rich ard H. Worthington and J. Markham Mar shall, for appellee.

McSHERRY, C. J. This is another of the numerous actions for personal injuries which of late years have so often engaged the at tention of the courts. It seems to us that the

been employed to perform, and was put to doing work of a kind she had been informed, when hired, that she would not be called on to do. There was obviously, under these conditions, a clear duty owed by the master to her to warn and caution her as to the perils of the task. The failure to give that warning or caution, in these circumstances, was undoubtedly negligence which directly caused the injury. Then, again, the dampening machine was certainly dangerous, and known to be so to the defendants. Persons using it were liable to get their hands caught and crushed therein, or there would have been no occasion to provide a guard to prevent just such an accident as did occur. If the guard was a proper precaution to prevent injury, then, certainly, it was negligence to direct an inexperienced and uninstructed girl to operate that machine when no guard was upon it. The danger which was open and was known to the master was hidden and was unknown to the servant, and yet the master directed the servant to use the machine when. by reason of the absence of the guard, it was more dangerous than it would have been otherwise. The master, by furnishing a machine in an unsafe condition, was guilty of negligence, under all the facts in evidence on behalf of the plaintiff. There being, then, evidence of negligence which was properly submitted to the jury, it would have been error had the learned judge withdrawn the case from the consideration of the jury. The ruling which sent the case to the jury was right, and the judgment which was in favor of the plaintiff will be affirmed. Judgment affirmed, with costs above and below.

BALTIMORE CITY PASS. RY. CO. v. BAER. (Court of Appeals of Maryland. Nov. 24, 1899.) DAMAGES-PROXIMATE CONSEQUENCES

EVIDENCE-IMPEACHMENT-STREET

RAILROADS-SICK BENEFITS.

1. In an action for injuries incurred in boarding a street car, under an averment of nervous shock and injury to the body and head, plaintiff testified that he had lost a great deal of his will power and physical power; that he did not see as well as before the accident, and could not make calculations required in his business as rapidly as formerly. A physician testified that he thought the injury was sufficient to so jar the optic nerve as to affect his vision and his ability to figure quickly, and that his condition 10 months after the injury (he being then greatly emaciated) was the effect of some injury to the nervous system, and would show that he had suffered some great shock. Held, that the testimony was properly permitted to go to the jury, to be considered in estimating the damages, if they determined that the injury to the vision and the nervous shock resulted from the accident.

2. Exclusion of a question to plaintiff, on cross-examination, as to whether a physician (a witness) had not, on the day of plaintiff's injury, advised him to sue, was not reversible error,if intended to impeach the physician, no ground being laid; and, if to test the good faith or interest of the physician, plaintiff having answered in the negative before the question was excluded.

3. Where plaintiff, suing a street railroad for injuries sustained in boarding a car, testified that he hailed the car, to get on it; that it stop ped, and he started to mount it, and got both feet on the side platform, but before he could get to a seat the car started suddenly, throwing him off and injuring him, which was in part corroborated, there was sufficient evidence to go to the jury.

4. In an action for personal injuries, sick benefits received by plaintiff from any source other than defendant are not to be considered by the jury in making up their verdict.

Appeal from court of common pleas; Henry D. Harlan, Judge.

Action by George Baer against the Balti more City Passenger Railway Company From a judgment for plaintiff, defendant ap peals. Affirmed.

Argued before McSHERRY, C. J., and BOYD, FOWLER, PAGE, SCHMUCKER, and PEARCE, JJ.

Arthur W. Machen and Wm. S. Bryan, Jr., for appellant. William Colton, for appellee.

SCHMUCKER, J. The appellee sued the appellant company for injuries sustained by him when boarding one of its cars. The injuries were received on May 7, 1897, and the suit was brought on the 22d of the same month. The declaration avers that the appellee hailed the car at the corner of two streets; that it stopped, and he attempted to board it, but that it was negligently and prematurely started before he could get into it, and he was thrown to the street, and dragged for some distance, whereby "he received a serious nervous shock, was injured about the body, arms, and head," was compelled to lay out money, etc., "and had been deprived of the opportunity to attend to his business or avocation of a traveling salesman," etc. The accounts given by the witnesses of the happening of the accident are conflicting, but it is sufficient for the purposes of this opinion to say that there was evidence tending to show the following facts: The appellee attempted to board an open trolley car when it had come to a stop at the corner of Eutaw and Baltimore streets. He had gotten both feet upon the footboard which runs along the side of the car, and was about to step up into the car, when, at the signal of the conductor, it started with a sudden jar, and threw him off the footboard, and dragged him along the street for from 30 to 50 feet before the conductor was able to stop it. The appellee held to one of the sidebars of the car until it was stopped, and he was bruised and injured in the legs, side, and abdomen by being dragged along in that position. The evidence tended, also, to show that some of these injuries were of a permanent nature. At the trial of the case on March 25, 1898, the appellee, having testified that since the accident he had lost a. great deal of his will power and physical power, was asked by his counsel what was the condition of his vision before the injury, as compared with it afterwards, to which he replied that there was considerable change;

that he did not see as well now as before the accident. He was further asked by his counsel whether or not he was compelled to make calculations of his purchases and sales in his business, and whether there was any difference in his condition in that respect since the injury, as compared with his condition before the injury, to which he replied that he found some deficiency in that respect; that before the accident he could figure more quickly. Dr. Archibald Atkinson, who attended the appellee professionally after the accident, when asked whether, in his opinion as a medical man, the injury received by the appellee would probably affect his vision, testified as follows: "Vision is a thing very hard to get at, unless you have regular examinations, but I should think the injury was sufficient to so jar the optic nerve as to cause a diminution in that respect. I couldn't say positively. I wouldn't say positively." The same witness, being asked whether the appellee's alleged inability to figure as quickly after as before the accident would probably and ordinarily arise from such an injury as he had received, replied: "Well, the brain is greater than the optic nerve. The optic nerve is only a small part of it, and if it is affected the optic nerve is also affected. * * * My conclusion would be, yes." He also testified that he saw no special nervous symptoms in the appellee at the time of the accident, but that his condition 10 months afterwards, at the time of the trial (he being then very much emaciated), was the effect of some injury to the nervous system, and would go towards showing that he had suffered some great shock or injury. The appellant excepted to the admission of all this testimony of the appellee and his physician, and by its sixth and seventh prayers, which the court rejected, asserted that there was no legally sufficient evidence to enable the appellee to recover for any injury to his nervous system, nor any sufficient evidence, under the pleadings, to enable him to recover for any injury to his vision. The questions presented by these exceptions and prayers are: First, whether the injury to the vision of the appellee was such a natural consequence of the accident which occurred to him that it did not require to be specially alleged in the declaration, in order to enable him to recover for it; and, secondly, whether there was any legally sufficient evidence that he had in fact suffered injury to his vision, or from nervous shock. This court has had frequent occasion to consider and apply the proposition that damages which are not the natural and probable consequences of the injury complained of cannot be recovered unless they have been set out in the declaration. In the cases of Ellicott v. Lamborne, 2 Md. 136, and McTavish v. Carroll, 13 Md. 429, both of which were actions for damages to real estate, the court held that all damages must be specially alleged which are not the necessary consequences of the act complained of, even though they may be the natural and probable effect 44 A.-63

of it; but in more recent cases of suits for personal injuries the doctrine has been more broadly and liberally stated. In Sloan v. Edwards, 61 Md. 99, where this issue was distinctly raised by the prayers, it was held that, although the damages recoverable must be the natural and proximate consequences of the act complained of, such consequences include all damages of which the act was the efficient cause, even though the damages did not occur until some time after the act was done, and were not contemplated or foreseen by the wrongdoer. by the wrongdoer. The court in that case cited with approval the case of Tyson v. Booth, 100 Mass. 258, which held that the plaintiff might show specific, direct effects of the wrongful act complained of, without specially alleging them in the declaration. In Sloan v. Edwards the action was for damages for an assault and battery, and the plaintiff was permitted, without special allegation to that effect, to prove that he had, as a result of the battery, become subject to convulsions or fits. In the opinion, Judge Alvey, speaking for the court, says: "Of course, it was for the jury to determine whether the fits or spasms resulted from the assault and battery complained of, and it was only in the event of finding in the affirmative that such consequences could be considered in estimating the damages." The case of Railway Co. v. Kemp, 61 Md. 79-82, much resembles the one at bar. In that case a cancer developed in Mrs. Kemp's breast at a spot that had been bruised by the sudden starting of a street car from which she was about to alight. The doctorsof whom a number testified-all said that it is impossible to be certain as to the cause of a cancer; but they agreed that the blow received by Mrs. Kemp was sufficient, and may have been the cause of the development of the cancer in her case, and two of them stated that, under the circumstances of the case, they would attribute the cancer to that cause. The narr. contained no special allegation of the cancer, yet the evidence was permitted to go to the jury, the court holding that: "If the jury believed from all of the evidence before them that the cancer in the breast of Mrs. Kemp was the natural and proximate consequence of the blow received on her breast by the negligent act of the defendants, it would properly form an element to be considered in awarding damages for the pain and injury suffered by her. * It is not for the defendants to say that because they did not or could not, in fact, anticipate such a result of their negligent act, they must therefore be exonerated from liability for such consequences as ensued." Upon the authority of these cases, we think that the testimony relative to injury to the vision of the appellee was properly permitted to go to the jury, to be considered by them in estimating the damages, if they determined from all the evidence that such injury resulted from the accident complained of. We think the same principle applies to the testimony excepted to in refer

*

ence to an alleged nervous shock to the appellee. Nervous shock was only spoken of incidentally by the witness in connection with the emaciation and want of nutrition on the part of the appellee, which were present some months after the accident, and may have been caused by it. The medical witness testified that, in his opinion, the injury suffered by the appellee was sufficient to produce all the bad results of which we have spoken. There was no attempt in the case at bar, as there was in the case of Railroad Co. v. Dashiell, 7 App. D. C. 513, which was much relied on by the appellant, to produce an instruction to the jury making the loss to vision or the nervous shock a separate and independent ground for awarding damages. The evidence in reference to these two elements of damage was not in itself conclusive, but it was, in our opinion, sufficient to go to the jury, to be considered in connection with the other testimony, in order to determine to what, if any, extent the injuries to the appellee resulted from the accident, and also in order to estimate the amount of damages from such of the injuries as they should conclude arose from that cause. It follows from what we have said that the appellant's sixth and seventh prayers were properly rejected.

We find no reversible error in the refusal of the court below to permit the appellant's counsel to ask the appellee, upon cross-examination, if Dr. Atkinson, the medical witness, did not advise him on the very day on which the accident happened to bring this suit. If the question was intended to test the bona fides of the witness, or show an interest on his part in the suit, and thus affect the weight of his testimony, no harm was done to the appellant by its rejection; for the appellee, before the court had ruled upon the subject, promptly answered the question in the negative.

If it was intended to lay a foundation for contradicting the doctor, he should have first been asked if he had advised the bringing of the suit, but that was not done.

The appellant's ninth and tenth prayers were properly rejected,—the ninth, because it was general and abstract in its statements, and not connected with or applied to the facts of the case; and the tenth, because there was the evidence of the medical witness that some of the injuries of the appellee were permanent in their nature.

The eleventh prayer of the appellant, which requested the court to take the entire case from the jury for want of legally sufficient evidence, was also properly rejected. The evidence as to the circumstances under which the accident occurred was conflicting, as we have already said. But the appellee testified that he hailed the car for the purpose of getting on it; that it stopped, and he then started to mount it, and had gotten both feet upon the side platform, and was about to enter the car, but as soon as he got on the platform, and before he could get to a seat, the car started with a sudden jar, and threw him off and

injured him. His testimony was in part corroborated by the witness Hoffberger. In view of this testimony, it would have been improper for the court to have taken the case from the jury. If the appellee's testimony be true, the conductor of the car was made aware of his desire to board the car, and stopped it for the purpose of allowing him to do so. If the conductor then started the car prematurely, without allowing the appellee a reasonable opportunity, under the circumstances, of first taking a safe position, he was guilty of negligence, and under the rulings of this court in Railway Co. v. Smith, 74 Md. 214, 21 Atl. 706, and Baltimore Traction Co. v. State, 78 Md. 426, 28 Atl. 397, the appellee was entitled to recover. It is desirable, in order to facilitate rapid transit in large cities, that passengers should be prompt in entering and departing from street cars, but those operating the cars must take every reasonable precaution for the protection of the passengers. It is a well-known fact that the footboard running along the side of the ordinary open trolley car is narrow, and that both the step from the pavement to the footboard and the one from the latter to the floor of the car are high. A fair opportunity of taking these two steps in safety should always be afforded to the passengers before starting the car.

The law of this case was correctly stated in the appellee's prayers which were granted by the court, and which, with the exception of the sixth one, were copied from those which met the approval of this court in the case of Railroad Co. v. Anderson, 72 Md. 519, 20 Atl. 2, 8 L. R. A. 673. The sixth prayer asserts the correct proposition that any sick benefits received by the plaintiff from any source other than the defendant were not to be considered by the jury in making up their verdict. The judgment will be affirmed, with costs.

RILEY v. NEW YORK, P. & N. R. CO. (Court of Appeals of Maryland. Nov. 23, 1899.) RAILROADS-FRIGHTENING HORSES-ESCAPING STEAM-EVIDENCE-TIME FOR APPEAL.

1. A railroad company is not liable for frightening a horse, caused by steam escaping from an engine standing near the crossing which the horse was going over; it not being shown that the noise was of an extraordinary or unusual character, or without its charter privileges.

2. The allegation of the complaint in an action against a railroad for the frightening of a horse by steam escaping through the opening of the cylinder cocks of a locomotive standing near the crossing, that the defendant's servant_then and there in charge of the engine caused the discharge, is not sustained; it appearing that the engineer was not in the engine, the fireman testifying that he did not turn on the cylinder cocks, and it not being shown that any of them were in the engine at the time.

3. An appeal, not being taken within two months from the date of the judgment, as required by Code, art. 5, § 6 (rules 2, 27), will be dismissed.

Appeal from circuit court, Worcester county; Charles F. Holland and Henry Lloyd, Judges.