MARK. efficient mediums of publication, held that de- § 176 (Tex.Civ.App.) In mandamus to compel railroad companies to comply with an order of the Railroad Commission commanding them to file plans and specifications for the construction of a union passenger depot, the court may issue a writ of mandamus commanding the filing of such plans and specifications; its power not being confined to the issuance of a writ commanding the construction and maintenance of such a depot.-Gulf, C. & S. F. Ry. Co. v. State, 167 S. W. 192. § 187 (Mo.App.) Mandamus to compel the clerk of a school district to make certain records concerning an election was a proceeding at law, and the trial court's finding was binding on appeal, if it had any substantial evidence to support it.-State ex rel. Holmes v. Kernes, 167 S. W. 1080. $187 (Mo.App.) Mandamus being a civil proceeding in the nature of an action at law the findings of the trial court, when supported by substantial evidence, cannot be disturbed on appeal.-State ex rel. Journal Printing Co. v. Dreyer, 167 S. W. 1123. MANSLAUGHTER. See Homicide. MARITIME LIENS. I. NATURE, GROUNDS, AND SUB- (A) Under Maritime Law. 89 (Ky.) A maritime contract is one relating to a ship as an instrument of commerce or navigation facilitating its use as such or in connection with its use as such.-Rounds v. Cloverport Foundry & Machine Co., 167 S. W. 384. To create a maritime lien, the service must in some way be brought into relation with the vessel itself and tend to facilitate her use as an instrument of commerce.-Id. § (Ky.) A contract by an owner of a towboat for its reconstruction into an excursion steamer is not a maritime contract, within the admiralty jurisdiction of the United States.Rounds v. Cloverport Foundry & Machine Co., 167 S. W. 384. (B) Under Statutory Provisions. § 16 (Ky.) A state statute cannot create a maritime lien as incident to a cause of action not maritime by nature, nor annex an admiralty lien to a contract for the original construction of a vessel.-Rounds v. Cloverport Foundry & Machine Co., 167 S. W. 384. $25 (Ky.) A contract by an owner of a towboat for its reconstruction into an excursion steamer is within Ky. St. §§ 2480-2486, giving a lien on water craft, and the contractor may enforce his lien under the statute in the state courts.-Rounds v. Cloverport Foundry & Machine Co., 167 S. W. 384. III. ENFORCEMENT. (B) Statutory Remedies. 871 (Ky.) A state can confer on its courts jurisdiction over suits against the master or owners of vessels and annex to such suits a process of attachment, and the proceeding in rem, which is forbidden to state courts, is a proceeding against the vessel as the real defendant.-Rounds v. Cloverport Foundry & Machine Co., 167 S. W. 384. $74 (Ky.) In an action to enforce a lien for reconstructing a vessel, evidence held to justify a finding of a contract for the work and the performance thereof, as claimed by plaintiff.Rounds v. Cloverport Foundry & Machine Co., MARRIAGE. See Bigamy; Criminal Law, § 444; Divorce; § 54 (Tex.Civ.App.) Where plaintiff and defendant were never legally married, but the woman believed that they were married, she was entitled on separation to one-half of the property acquired during the existence of the putative relation.-Green v. Green, 167 S. W. 263. MASTER AND SERVANT. See Appeal and Error, § 233; Evidence, §§ 59, 123, 236, 471, 483; Injunction, § 114; Judgment, 251; Parent and Child, §§ 7, 13; Trial, 191; Work and Labor. I. THE RELATION. (C) Termination and Discharge. § 30 (Mo.App.) That a traveling salesman sold another line of goods for others in competition with defendant did not constitute a breach of duty, where it was shown that the two lines were not of the same class, and that one of defendant's officials recommended one or more houses to be so served.-Stockton v. John Ainsfield Co., 167 S. W. 1143. II. SERVICES AND COMPENSATION. III. MASTER'S LIABILITY FOR IN- (A) Nature and Extent in General. 897 (Ark.) Plaintiff, an engineer upon a work train, was injured when the engineer of a passenger train, which was passing the work train under a viaduct, blew the whistle in four or five feet of plaintiff's head, rendering him deaf, etc. Held, that the accident, was such an ex traordinary one that defendant was not negli gent in not foreseeing it.-St. Louis, I. M. & S. Ry. Co. v. Copeland, 167 S. W. 71. 897 (Ark.) The killing of a servant by the fall of a derrick because of the breaking of a guy wire when a sudden strain was put upon it by the dropping of the log was not an inevitable accident, if the master was negligent in furnishing a derrick unable to withstand sudden jerks or strains incident to the work.-Burdette Cooperage Co. v. Bunting, 167 S. W. 77. (B) Tools, Machinery, Appliances, and Places for Work. $$ 101, 102 (Ark.) A master must exercise ordinary care to provide his servants a safe place to work and safe appliances; the test being what a reasonably prudent person would have done in such a situation.-St. Louis, I. M. & S. Ry. Co. v. Copeland, 167 S. W. 71. A master is only required to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to §§ 101, 102 (Ky.) That the work of a brake- | special circumstances affecting the duties and man on a freight train is inherently dangerous obligations of both parties.-Shelton v. Kirksdoes not, of itself, render the railroad company ville Light, Power & Ice Co., 167 S. W. 544. liable for injuries to an inexperienced brake§ 129 (Ark.) If negligence of the master in man, in the absence of any showing of negli- furnishing a derrick having a cap plate at the gence of the part of the company.-Chesapeake top of the mast, with sharp-edged holes which & O. Ry. Co. v. Walker's Adm'r, 167 S. W. cut into the guy wires fastened thereto, contributed to the death of a servant from the falling of the derrick, it was liable, though a jerk caused by the falling of a log being lifted also concurred in producing the result.-Burdette Cooperage Co. v. Bunting, 167 S. W. 77. 128. § 106 (Tex.Civ.App.) Where a master hired a team from a third party and placed a servant in charge as driver, it was the master's duty to exercise ordinary care to furnish a reasonably safe doubletree, as though it were his own property.-Stone & Webster Engineering Corporation v. Goodman, 167 S. W. 10. § 107 (Ky.) Where a coal miner is pulling a stump, the perils to which he is subjected are of his own creation, and the duty of the employer to use ordinary care to furnish a reasonably safe place to work does not apply.Wallsend Coal & Coke Co. v. Shields' Adm'r, 167 S. W. 918. Where a coal miner was pulling a stump and removing coal from the side of an entry, consisting of the coal and the rock and slate above it, it was his duty either to remove the rock or to use props to prevent it falling.-Id. §111 (Ark.) It was the duty of a railroad company to exercise ordinary care to equip its cars with such ladders, grabirons, and handholds as would furnish its employés with a reasonably safe place in which and reasonably safe appliances with which to work, irrespective of statute.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83. § 129 (Ky.) Where the roof of an entry in a coal mine was unsafe, and the employé injured by slate falling on him knew of the condition, and also knew that he could use a safe entry, the negligence of the employer was not the proximate cause of the injury.-Elliott v. Greenville Coal Co., 167 S. W. 424. (C) Methods of Work, Rules, and Orders. death of a servant, killed while driving a team § 137 (Tex.Civ.App.) In an action for the which was pulling wire off a reel half a mile away, to string it as feed wire for an electric car, caused by the clevis breaking and doubletree flying back striking him, held that it was the primary duty of the master to distribute a sufficient number of men along the line to transmit signals.-Stone & Webster Engineering Corporation v. Goodman, 167 S. W. 10. § 137 (Tex.Civ.App.) Where it was the custom of a railroad to give warnings of movements of freight trains between the cars of which serv § 112 (Mo.App.) Rev. St. 1909, § 3163, requir- ants engaged in repair work were compelled to ing railroads to block switches and frogs in all pass, the failure of those in charge of a train, yards, divisional and terminal stations, held not between the cars of which a servant was passlimited to yards in divisional and terminal staing, to give the customary warning will suptions, but to include as a "yard" a way station where there were tracks on which cars could be cut out of trains and either stored or delivered to connecting lines, and where switching was customarily, though not constantly, carried on.-George v. Quincy, O. & K. C. R. Co., 167 S. W. 153. The statute, contemplates that they shall be blocked when they are put "in use" subsequent to September 1, 1907.-Id. The requirement that railroads shall adopt, use, and maintain the best known appliances or inventions to fill or block frogs, held not invalid for uncertainty or impossibility of performance, because no criterion was prescribed by which the railroad company might determine what appliance or precautions should be adopted to comply with the act.-Id. 113 (Ky.) When structures are placed so close to the tracks as to endanger employés while discharging their duties, the railroad company is liable for injuries occurring without fault on the part of the injured employé.-Chesapeake & O. Ry. Co. of Kentucky v. Vaughan's Adm'x, 167 S. W. 141. That a depot shed which knocked a brakeman from a train was intended to protect passengers from inclement weather, to do which it was necessary to leave the smallest possible distance between it and the top of passenger coaches, held not to show such necessity for its location at that point as to relieve the company from liability.-Id. Ry. Co. v. Dereberry, 167 S. W. 30. ped between the carpenter shop and repair of a freight train with an unusual jar or jolt, § 137 (Tex.Civ.App.) The sudden stopping in the absence of ordinary care, may be negligence entitling a servant injured thereby to recover.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. (D) Warning and Instructing Servant. $151 (Tex.Civ.App.) The duty to warn and instruct the servant cannot be delegated by the master.-Hotel Dieu v. Armendariz, 167 S. W. § 177 (Ky.) In a servant's action for injury, not resulting in death, he could recover only for gross negligence, and not for ordinary negligence, on the part of the other servants superior in authority to himself.-Ohio Valley Coal & Mining Co. v. Heine, 167 S. W. 873. § 118 (Ky.) Ky. St. § 2739b, held to impose on a coal operator the nondelegable duty of furnishing props on the request of miners, so that a miner injured by the operator's failure to perform such duty may recover damages unless the danger was so imminent that an ordinarily pru-been superseded by a superintendent who was a dent man would not have continued to work. Continental Coal Corporation v. York's Adm'r, 167 S. W. 131. $119 (Mo.App.) The degree of care required by an electric company is to be measured by the terms of the employment, the employer's rules, or its custom as to inspection of wires, or other § 189 (Tex.Civ.App.) Where a foreman had member of the employer firm, the negligence of the superintendent causing injury to the foreman was the negligence of the employer, for which the foreman could recover.-Lisle-Dunning Const. Co. v. McCall, 167 S. W. 810. In an action for injuries to an employé struck by steel rods thrown from a car, it was imma terial whether the superintendent gave the or- the failure of the operators to give the usual der to change the manner of unloading the steel warning.-Missouri, O. & G. Ry. Co. v. Dererods, where he was negligent because remain-berry, 167 S. W. 30. ing silent when he saw men preparing to throw steel rods on the side where he had ordered the employé to go.-Id. (F) Risks Assumed by Servant. 8204 (Ky.) The distinction between "assumed risk" and "contributory negligence" is of great importance in cases arising under federal Employers' Liability Act, since the former bars recovery while the latter merely diminishes the amount of recovery.-Chesapeake & O. Ry. Co. v. De Atley, 167 S. W. 933. § 206 (Ky.) An employé assumes the ordinary risks of his employment.-Evans Chemical Works v. Ball, 167 S. W. 390. An employé creating a danger in the progress of the work must protect himself therefrom. -Id. (G) Contributory Negligence of Servant. § 228 (Ky.) The distinction between "assumed risk" and "contributory negligence" is of great importance in cases arising under federal Employers' Liability Act, since the former bars recovery while the latter merely diminishes the amount of recovery.-Chesapeake & O. Ry. Co. v. De Atley, 167 S. W. 933. § 234 (Ky.) That a miner, after ordering props, continued to work under the roof until a portion of it fell on him, after the props should have been furnished, when he could have worked in other places, was not in itself sufficient to convict him of negligence.-Continental Coal Corporation v. York's Adm'r, 167 S. W. 131. § 246 (Ky.) Where, through the default of an employer, an employé is placed in such a peril$211 (Ky.) An employé in a mine required ous condition as to render it an act of reasononly to remove dirt and ore torn loose by blast-ble precaution for the purpose of self-presering did not assume the risk of injury by mate- vation to do an act resulting in injury, the emrial falling from the sides of the ditch after ployer is responsible.-Millers Creek R. Co. v. he had been ordered to work.-Evans Chemical Barnett, 167 S. W. 402. Works v. Ball, 167 S. W. 390. § 213 (Mo.App.) The extent of the risk assumed by a lineman is to be measured by the terms of the employment, the employer's rules, or its custom as to inspection of wires, or other special circumstances affecting the duties and obligations of both parties.-Shelton v. Kirksville Light, Power & Ice Co., 167 S. W. 544. § 217 (Ark.) Where a rule of a railway company against making a flying switch was habitually disregarded to the extent that it amounted to a total abrogation of the rule, the risk of making such switches was assumed by a brakeman employed by the railway.-St. Louis, 1. M. & S. Ry. Co. v. Rodgers, 167 S. W. 106. $217 (Ky.) Where an employé in a coal mine had two ways by which he could go out of the mine, one a safe way, and the other a dangerous one, and he voluntarily selected the latter, he could not recover for injuries sustained. -Elliott v. Greenville Coal Co., 167 S. W. 424. $217 (Mo.App.) Where linemen in defendant's employ were required to inspect and repair insulation, and decedent, an experienced lineman, received a shock that resulted in his death by coming in contact with a wire from which the insulation had been removed, he assumed the risk.-Shelton v. Kirksville Light, Power & Ice Co., 167 S. W. 544. § 218 (Tex.Civ.App.) As between a master and a minor servant in a dangerous service, whether instructed by the master or afterwards becoming aware of the danger, the minor's assumption of the risk depends on his having discretion to properly weigh his risk of injury, which is a question for the jury.-Cook v. Urban, 167 S. W. 251. § 219 (Ark.) The danger of a derrick falling because of the guy wires being cut by the sharp edges of the plate to which they were fastened at the top of the 42-foot mast was not assumed by a servant engaged in hooking the logs to be lifted, as the defects were not obvious, and the risk was not one ordinarily incident to the employment.-Burdette Cooperage Co. v. Bunting, 167 S. W. 77. $219 (Ky.) An employé assumes the risk of obvious dangers of his employment.-Evans Chemical Works v. Ball, 167 S. W. 390. $226 (Ky.) An employé does not assume risks created by the employer's negligence.Evans Chemical Works v. Ball, 167 S. W. 390. § 226 (Tex.Civ.App.) Where it was the custom of the servants of a railroad company, engaged in repair work, to pass between the cars of long freight trains so as to reach the repair tracks, and those in charge of the trains always gave warnings of any movement, a repairman (H) Actions. § 256 (Tex.Civ.App.) Petition, in an action by an administrator for the death of his intestate, a brakeman, held to sufficiently show that the suit was not brought under the state statutes. but under the federal Employers' Liability Act. -Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. § 258 (Ark.) In action for death of railway brakeman, complaint, alleging negligence in failing to provide ladders and grabirons, placing a tank car next to a higher car and in the manner in which the engineer handled the engine, held to state a cause of action.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83. § 264 (Ark.) In an action for the death of a servant from the falling of a derrick, alleged to have been caused by the old, rusty, rotten, and worn condition of the guy wires, evidence was admissible that part of the strands of the broken wire were not inserted in the cap plate, where the court instructed that it was only admissible as tending to show the conditions aileged.-Burdette Cooperage Co. v. Bunting, 167 S. W. 77. $ 268 (Tex.Civ.App.) A contract by a firm with a county to do work, providing against the firm subletting without the written consent of the county, in connection with evidence that there was no such consent, is admissible on the issue of one doing part of the work for the firm, being an independent contractor.-Corrigan, Lee & Halpin v. Heubler, 167 S. W. 159. § 270 (Ark.) In an action for the death of a servant from the falling of a derrick, evidence that the derrick had been considered dangerous by old employés was admissible to show that the master knew, or by reasonable diligence might have known, that it was unsafe.-Burdette Cooperage Co. v. Bunting, 167 S. W. 77. § 274 (Ky.) In a servant's action for injury, evidence as to the use of unsafe appliances is competent on the question of contributory negligence.-Ohio Valley Coal & Mining Co. v. Heine, 167 S. W. 873. § 276 (Ky.) Where a brakeman as injured by falling between the cars of a freight train while it was switching, and it was merely conjectural from the evidence whether the fall was caused by his own fault or the fault of the company, there can be no recovery.-Chesapeake & O. Ry. Co. v. Walker's Adm'r, 167 S. W. 128. $ 276 (Ky.) In an action for injuries, evidence held to warrant a finding that plaintiff's hip was dislocated by the accident.-Wisconsin Steel Co. v. Dixon, 167 S. W. 682. § 276 (Ky.) In an action for death of a rail of a train as he was endeavoring to board it, evidence held insufficient to warrant a finding that his fall was caused by a ridge of dirt and cinders dug from the track and alleged to have been negligently piled alongside thereof.-Weidekamp's Adm'x v. Louisville & N. R. Co., 167 S. W. 882. § 276 (Ky.) In an action for the death of a miner by falling slate, evidence held to sustain a finding that the accident was not caused by the failure or refusal of defendant to furnish sufficient cross-timbers or props.-Beaver's Adm'r v. Proctor Coal Co., 167 S. W. 885. § 285 (Ky.) In a brakeman's action for injuries from being thrown from a train which he was attempting to board, held that the question whether the speed of the train was the proximate cause of his injuries was for the jury.-Chesapeake & O. Ry. Co. v. De Atley, 167 S. W. 933. § 285 (Mo.) In an action for injuries to an employé in a municipal electric light plant caused by an electric shock, evidence held to make a question for the jury as to whether, if a switch was negligently constructed and maintained, the accident was due to such negligence. 1022. § 278 (Ark.) In action for the death of a rail-Riley v. City of Independence, 167 S. W. way brakeman claimed to have been due to the absence of ladders and handholds on the end of a box car, evidence as to the proportion of such cars in the country equipped with ladders and handholds on the end was properly admitted.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83. § 278 (Ark.) In an action for the death of a brakeman, caused by a collision between the caboose in which he was riding and other cars on a siding upon which the caboose was sent by a flying switch, evidence held insufficient to show negligence in making the switch at too great a speed.-St. Louis, I. M. & S. Ry. Co. v. Rodgers, 167 S. W. 106. In an action for injuries to a brakeman received while making a flying switch, evidence that the switch might have been made at less speed is not evidence of negligence, where it was uncontradicted that it was perfectly safe to cut loose the caboose in which the brakeman was riding at the speed at which it was then moving.-Id. § 278 (Ky.) In an action for injuries to a brakeman who fell between the cars of a freight train while it was switching, at a time when there was a rough or unusual jerk of the train, evidence held insufficient to show negligence by the other employés in handling the train.-Chesapeake & O. Ry. Co. v. Walker's Adm'r, 167 S. W. 128. Evidence held insufficient to show that the employés in charge of the train saw the brakeman fall so that they could have stopped the train and avoided the injury.-Id. § 278 (Ky.) In an action for injuries to a miner struck by material falling from the sides of a ditch, evidence held to show that the employer negligently failed to make the working place reasonably safe, and that its foreman negligently ordered the miner to work in the ditch, without first examining the condition of its sides. Evans Chemical Works v. Ball, 167 S. W. 390. § 278 (Mo.App.) Evidence that an eyebolt, by the breaking of which plaintiff was injured, appeared after the accident to have had an old crack partly through the bolt for a considerable time prior to the injury held to warrant a finding of negligence on defendant's part in failing to perform its duty of inspection. Spaulding v. Missouri Lumber & Mining Co., 167 S. W. 663. § 278 (Tex.Civ.App.) Evidence, in an action for the death of a brakeman, held to show that his fall from a freight car was caused by defendant's negligence in suddenly stopping the train with unusual force and jar.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. § 279 (Tex.Civ.App.) In an action for injuries to an employé struck by a rod of steel thrown from a car, evidence held to show negligence of the employer's superintendent.-LisleDunning Const. Co. v. McCall, 167 S. W. 810. § 284 (Tex.Civ.App.) Evidence in an action for injury to an employé held to make a question for the jury whether the person who employed plaintiff was an independent contractor, or merely a servant or agent.-Corrigan, Lee & Halpin v. Heubler, 167 S. W. 159. § 286 (Ark.) Whether the master exercised ordinary care to provide a safe derrick, able to withstand any sudden strain incident to the work, for the use of a servant who was killed by its fall because of the breaking of guy wire, held, under the evidence, for the jury.-Burdette Cooperage Co. v. Bunting, 167 S. W. 77. § 286 (Ark.) In action for death of brakeman claimed to have been thrown from train while attempting to pass from the top of a box car to the platform of a tank car, evidence held to make questions for the jury as to defendant's negligence, and its causal connection with the injury, though there were no eyewitnesses.Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83. § 286 (Ky.) In an action for injuries to an employé on a work train struck by a mail crane, held, that the question of negligent failure to give the employé notice in time to board the train in safety was for the jury.-Chesapeake & O. Ry. Co. v. Jesse, 167 S. W. 407. § 286 (Mo.) In an action for injuries to an employé in a municipal electric light plant caused by an electric shock, evidence held to make a question for the jury as to whether a switch was negligently constructed and maintained.-Riley v. City of Independence, 167 S. W. 1022. § 286 (Tex.Civ.App.) Evidence held to make question for jury as to whether freight train employés were guilty of negligence proximately causing a passenger train fireman's injuries in failing to post and put out a flag at a sufficient distance to warn the passenger train.Missouri, K. & T. Ry. Co. v. Wallace, 167 S. W. 168. § 286 (Tex.Civ.App.) As between a master and a minor servant, not instructed as to the dangers of his employment, it is a question for the jury whether he acquired sufficient knowledge of the danger to exempt the master from liability for his injury therefrom.-Cook v. Urban, 167 S. W. 251. tiff, while riding on a motor attached to a train § 288 (Ky.) In an action for injuries to plainin a mine, by being crushed between the motor for the jury.-Wisconsin Steel Co. v. Dixon, and a mine rib, the issue of assumed risk held 167 S. W. 682. § 288 (Ky.) A servant who knew of the defective condition of the tipple and appliances for unloading coal cars, and that the brakes had been oiled, held not as a matter of law charged with notice that because of such conditions an ascending car would probably jump the track and injure him.-Ohio Valley Coal & Mining Co. v. Heine, 167 S. W. 873. § 288 (Ky.) Under the evidence in a brakeman's action for injuries from being thrown from a train which he attempted to board while it was going at high speed, failure to instruct on the theory of assumption of extraordinary risk held not error.-Chesapeake & O. Ry. Co. v. De Atley, 167 S. W. 933. § 289 (Ky.) Whether decedent, a miner, who was killed by the falling of certain slate from the roof of the mine, was negligent in loosening a portion of the coal under the slate held for the jury. Continental Coal Corporation v. | his conduct being in no way connected with deYork's Adm'r, 167 S. W. 131. fendant's business.-Burns v. Texas Midland R. R., 167 S. W. 264. $289 (Ky.) Whether a brakeman descending from the top of a car, to throw a switch, when knocked from the car by a depot shed, used ordinary care was for the jury.-Chesapeake & O. Ry. Co. of Kentucky v. Vaughan's Adm'x, 167 S. W. 141. § 304 (Tex.Civ.App.) A railroad and a telegraph company were not liable because a boy in their employ got a loaded pistol kept in an unlocked drawer of their private office, while temporarily left in charge by the agents, and shot another boy in play, where, though he had previously got the pistol out without permission, he had never before been known to use it in play. § 289 (Ky.) Whether a miner struck by material falling from the sides of a ditch at the bottom of which he was working was guilty of contributory negligence held for the jury.--Burns v. Texas Midland R. R., 167 S. W. 264. Evans Chemical Works v. Ball, 167 S. W. 390. $289 (Ky.) In an action for injuries to plaintiff, while riding on a motor attached to a train in a mine, by being crushed between the motor and a mine rib, the issue of contributory negligence held for the jury.-Wisconsin Steel Co. v. Dixon, 167 S. W. 682. 8311 (Ky.) A superior servant directing the work and the men is jointly and severally liable with the employer for a failure to perform personal duties; but he is not liable for the employer's failure to furnish a reasonably safe to work.-Evans Chemical place in which Works v. Ball, 167 S. W. 390. A superior employé required to inspect a ditch where men worked after an explosion was guilty of actionable negligence where, without making an inspection, he ordered the men to work in the ditch, and, in obedience thereto, one of them commenced work and was injured by falling material.-Id. § 289 (Tex.Civ.App.) In an action for the death of an engineer caused by the failure of the switch tender to throw a switch, the court properly submitted the question whether the en gineer had the right to rely upon a go-ahead signal received from the switch tender.-Trinity & B. V. Ry. Co. v. Dodd, 167 S. W. 238. Where there was in evidence a rule requir- $313 (Ky.) A superior servant directing the ing the engineer to have his train "under full work and the men is jointly and severally liacontrol" in approaching the switch, what "un-ble with the employer for a failure to perform der full control" meant was properly submit- personal duties.-Evans Chemical Works ted to the jury.-Id. Ball, 167 S. W. 390. MATERIALITY. § 289 (Tex.Civ.App.) Evidence, in an action for a brakeman's death from his falling from a freight car under the wheels of another car while switching, held not sufficient to go to the See Alteration of Instruments; jury on the issue of his contributory negligence.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. 145. V. Evidence, § MEASURE OF DAMAGES. $291 (Mo.App.) Where plaintiff alleged neg- See Damages, §§ 110-112. ligence only in that an eyebolt connecting a brake chain to the staff was defective, an instruction authorizing a recovery if the chain § 124. MECHANICS' LIENS. connecting the brake and the ratchet was de- See Insurance, § 115; Limitation of Actions, fective and broken was erroneous.-Spaulding v. Missouri Lumber & Mining Co., 167 S. W. 663. § 293 (Mo.App.) In an action for injuries to a servant, an instruction on defendant's duty to provide safe cars and appliances held erroneous as imposing on defendant the duty of an insurer instead of the obligation to exercise ordinary care.-Spaulding v. Missouri Lumber & Mining Co., 167 S. W. 663. § 293 (Tex. Civ.App.) Instruction held not so erroneous as to require a reversal, though it did not expressly state the acts that the jury might consider as negligence.-Missouri, K. & T. Ry. Co. v. Wallace, 167 S. W. 168. § 293 (Tex.Civ.App.) In an action for the death of an engineer caused by the failure of switch tenders to throw the switch, a charge that if the engineer gave the switch tender the signal that his train was approaching, etc., and the tender negligently failed, etc., to find for plaintiff, was not erroneous in not specifying the kind of signal.-Trinity & B. V. Ry. Co. v. Dodd, 167 S. W. 238. § 295 (Ky.) In a brakeman's action for injuries from being thrown from a train which he attempted to board while it was going at high speed, an instruction that he assumed all the ordinary risks and hazards of his employment was properly refused, where the evidence showed that the risk was an extraordinary one.Chesapeake & O. Ry. Co. v. De Atley, 167 S. W. 933. IV. LIABILITIES FOR INJURIES TO (A) Acts or Omissions of Servant. II. RIGHT TO LIEN. (C) Agreement or Consent of Owner. $59 (Tex.Civ.App.) One merely in possession under a contract to purchase or under an unexecuted parol gift is not the owner of the land and cannot create a mechanic's lien on it.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275. 61 (Tex.Civ.App.) Only the owner or his Subcontractors, and Contractors' an § 115 (Tex.Civ.App.) Under the statute, owner employing a contractor is not liable to a subcontractor or materialman for any amount paid to the contractor until notice is served, but from such notice he cannot make further payIments to the contractor without incurring liability for any lien debt.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275. VII. ENFORCEMENT. § 260 (Mo.App.) Where plaintiff filed a blanket lien against several pieces of real property for work and labor in installing furnaces in the houses, making no attempt to separate the labor and materials furnished for the different houses, he being barred of the right to enforce the lien as to one of them, the entire lien was unenforceable.-Hiller v. Schulte, 167 S. W. 461. § 277 (Tex.Civ.App.) In an action to foreclose, the defense that the property was a homestead, and that the wife of the owner did not execute any written contract for the work as required by statute to fix a lien thereon, was available under the general denial.-Wilkerson |