of the automobile, to say nothing to those on the road. The Law Applied to Motor Vehicles, Babbitt, § 226.

In order to give some protection to persons using the public highways, safety appliances on motor vehicles are required by statute in nearly all of the states. Apart from any statute, the law requires care in all things pertaining to the efficiency of the engine and equipment and the means by which both may be controlled. Babbitt, supra, § 229.

The statute of this state (chapter 86, Gen. Laws 1909) requires among other things, that every motor vehicle while in use on the public highways shall be provided with adequate brakes.

In the case of MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, 13 N. C. C. A. 1029, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, in a carefully written opinion by Cardozo, J., the court held that—

"The manufacturer of an automobile is liable to a purchaser thereof from a dealer for injuries caused by a defective wheel, the defects in which could have been discovered by reasonable inspection, though the wheel was purchased by the automobile manufacturer from the maker thereof."

In discussing the rule relating to the liability of the manufacturer of an article, which by reason of a defect therein, discoverable by reasonable inspection, is a source of peril to the user thereof and renders the manufacturer liable to the ultimate purchaser for an injury resulting from the defect, the court says:

"If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature

dredge or made any inquiries as to its condition. The agreement specified the dredge by name, and effected a hiring of the same for a specified term at a specified per diem, defendant to assume all the cost of manning, furnishing and operating the same during the term, and agreeing to return it in as good condition as it then was, at the termination of the contract. The agreement was silent as to the present condition of the dredge and as to the defendant's purpose in hiring it. Reversing the judgment and remanding the case for a new trial, the court held that it was error to instruct the jury that the law implied a warranty by the plaintiff, in letting the dredge, that it was in reasonably good working condition. The facts of this case, the court pointed out, made it an exception to the general rule applicable to bailments for hire, since

the letting was of a specific, named article, without reference to its condition or its intended use. Moreover, the court said, even the fact, necessarily known to the plaintiff, that the dredge was presumably to be used as a dredge, would not, in this case, raise an implied warranty that it was usable as a dredge. Defendant took it as it was, and had it desired a warranty of usable condition it should have required a stipulation to that effect in the lease.

IV. Defective loading derrick.

In an action in the name of the plaintiff for the benefit of his insurer, to recover a sum paid by it for personal injuries sustained by an employee of plaintiff covered by the insurance company's policy of indemnity, it appeared that the employee was injured while

gives warning of the consequences to be expected. If to the element of danger. there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. "Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go 50 miles an hour. Unless its wheels were sound and strong, injury was almost certain.

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"Precedents drawn from the days of travel by stagecoach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be."

The bailor, by the bailment, impliedly warrants that the thing hired is of the character and in a condition to be used as contemplated by the contract, and he is liable for damages occasioned by the faults or defects of the article hired. 7 Am. & Eng. Encyc. of Law (2d Ed.) 306 bb. Whenever a garage keeper lets a vehicle for hire to a customer, it becomes his duty to exercise that degree of care and skill in the selection of the vehicle he sends out which a prudent man, having regard of the circumstances or the occasion, would bestow upon such a matter. Babbitt, supra, § 522.

It has been held that he is liable to the hirer of an automobile for injuries which happen by reason of defects in the automobile which might have been discovered by a most careful and thorough examination. Denver O. & C. Co. v. Madigan, 21 Colo. App. 131, 120 Pac. 1044.

The right to use the highways must be exercised so as not to endanger the lives or property of others who have equal rights upon them. Bennett v. Lovell, 12 R. I. 166, 34 Am. Rep. 628.

assisting to load a steamship belonging to the defendant. Plaintiff was a stevedoring contractor, and had undertaken the loading of the steamer in a contract with the defendant's agent. The steamship furnished a block and derrick for the use of plaintiff in loading the vessel, but while the work was in progress, one of the blocks gave way, allowing the derrick to fall, injuring the employee above mentioned. There was evidence tending to show that the block in question was rotten and hence defective for the use to which it was being put, at the time the outfit was placed at the plaintiff's disposal. It was not inspected by plaintiff before its use was begun, and, by the terms of the contract or the custom of the port, the manner in which the appliance

should be used was entirely under plaintiff's control. It was held, affirming judgment for the plaintiff, that there was an implied warranty by the defendant that the blocks and derrick were reasonably fit for the purpose of their intended use, and that there was evidence warranting the finding of the jury that this implied warranty had been breached by defendant. Recovery would therefore be allowed, the court held, notwithstanding plaintiff's negligence in failing to examine the appliance before using it, under the recognized exception to the rule respecting joint tort-feasors where the negligence of the plaintiff was only passive, while that of the defendant was active. "While an employer owes the duty to his employees of refraining

Automobiles are in constant use upon the public highways, and a garage keeper who lets automobiles for hire owes a duty to the public. to the extent that he is bound to use ordinary care to see that the automobile he lets to be operated upon the public highways has its steering gear in a reasonably safe condition, as injuries to other persons lawfully using the highways is reasonably to be foreseen as the probable result of a defective steering gear.

If the defendant operated his own automobile with a defective steering gear upon the public highway when he knew or, in the exercise of reasonable care, should have known of such defect, and a third person was injured as the direct and proximate result of said defect, he would be liable to such third person; and it would be anomalous to hold that, because he let said defective automobile to a bailee for hire for use upon the public highway and while it was being so used such third person was injured as the direct and proximate result of said defect, he would not be liable.

The defect alleged in the declaration is not in the construction of the radius rod, but negligence in permitting some bolts to be loose which ordinarily made it secure, thereby rendering the automobile ungovernable while being driven upon the public highway. On demurrer these allegations are taken to be true, and for damage resulting therefrom the bailor should be held responsible, subject to the rules relating to proximate cause and contributory negligence.

The plaintiff's exception is sustained, the demurrer is overruled, and the case is remitted to the superior court for further proceedings.

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from using defective appliances furnished by a third person, under the circumstances of this case," said the court, the primary duty of furnishing safe appliances rests upon the third person, and he must indemnify the employer." Mallory S. S. Co. v. Druhan, 17 Ala. App. 365, 84 So. 874 (1920). For opinion on former appeal see 16 Ala. App. 438, 78 So. 636 (1918).

V. Defective motion picture film.

The plaintiff leased to the defendant a moving picture film, under an agreement whereby defendant undertook to return the film unharmed, except for ordinary wear, and in the event of its injury or destruction, to recompense plaintiff at an agreed rate per linear foot. The film was destroyed by fire

while defendant was exhibiting it, and in this action plaintiff sought recovery on the contract. Defendant introduced evidence tending to show that the burning of the film was due to the defective condition in which the same was turned over to him, and on the denial of plaintiff's motion for a directed verdict, it appealed. The court held, overruling plaintiff's exceptions to the ruling on the motion for a directed verdict, that plaintiff had impliedly warranted the fitness of the film for its intended use, and that defendant's proof tended to establish a breach of such warranty, which would be a good defense to the contractual provisions. Famous Players Film Co. of New England v. Saloman, N. H. 106 Atl. 282 (1918).

W. W. C.

NORTH BEND LUMBER CO. v. CITY OF SEATTLE.

1. Negligence-Contributory negligence-Duty to anticipate negligence of another affecting property.

One is not bound to use his property in anticipation of a situation arising which, because of the negligence of some one else, known to or suspected by him, may or may not cause him damage.

2. Real property-Rights of owner as to use.

The owner of real estate may make such use of it as he sees fit, as long as he does not injure his neighbor or violate some principle of the doctrine of police regulation.

3. Negligence-Known negligence of another-Duty to protect property from.

The rule which requires one to make a reasonable effort to protect his person from the known negligence of another is a rule of personal conduct and, in the nature of things, cannot be extended to the use of property.

4. Waters Building dam as contributory negligence to damage by flood caused by another.

The owner of land upon a creek was not contributorily negligent in building a mill and dam thereon because of the possibility that a reservoir constructed by a city in a stream on the opposite side of the watershed might cause large quantities of water to seep through the glacial moraine separating the two streams and cause a disastrous flood in the stream upon which his mill and dam were located.

5. Waters-Negligence-Construction of reservoir-Sufficiency of evidence. Where a city constructed a reservoir in a stream so that one bank was composed of a glacial moraine, as to which there was a question whether such moraine formation would permit large quantities of water to pass from the reservoir into a stream on the other side of the moraine, there was sufficient evidence of negligence to warrant submission to the jury of the negligence of such city in an action by the owner of a mill on the other stream for damages caused by a flood alleged to have originated in such reservoir.

Appeal from a judgment granting a new trial after a verdict for defendant in an action for damages sustained by plaintiff to his mill and dam from a flood alleged to have been caused by a reservoir constructed by defendant. Affirmed.

For appellant-Walter F. Meier and Frank S. Griffith.

For respondent-Peters & Powell.

BRIDGES, J. Boxley creek is a small mountain stream in King county, having its source near Rattlesnake Lake, and running thence in a southerly direction for some three miles, empties into the south fork of the Snoqualmie river. The plaintiff, North Bend Lumber Company, had its sawmill located on both sides of this creek, at a point about one mile above its mouth. The Druid Lumber Company's sawmill was located on the same creek, but very near its mouth. These

ing injured through another's negligence to make reasonable efforts to minimize his loss, nor those cases wherein the defendant's negligence operates continuously or at regularly recurrent intervals. It is limited, rather, to those cases wherein the peril arises from an unanticipated act of negligence or an unanticipated consequence of a known act of negligence, and considers primarily the reasonableness of the plaintiff's assumption that defendant would not be guilty of the negligence charged, or that such known act of negligence would not have the injurious effect shown by the event.

I. Fire damage.

A. Property itself easily ignited. 1. Fodder near railroad right of way. Ft. Worth & D. C. Ry. Co. v. Thompson (Tex. Civ. App.), 222 S. W. 289

(1920) was an action to recover damages for the burning of a quantity of kaffir corn and other fodder upon the plaintiff's land by fire alleged to have been negligently caused by sparks from one of defendant's locomotives. The evidence showed that the burned fodder was stacked about 125 feet away from the nearest track of the defendant, but that it was of a dry, inflammable character and wholly unprotected from ignition by any sparks that might come from the defendant's locomotives. It was alleged that plaintiff was negligent in thus exposing his property to danger. In reversing a judgment for plaintiff, the court said, in respect to this phase of the case: "The first assignment is to the action of the court in permitting the plaintiff to show that the premises on which this feed was stacked at the time had been used for such purposes for a period of 4 years before the time of