[Ed. Note.-For other cases, see Fish, Cent. Dig. §§ 17, 18; Dec. Dig. 9.]

wounding of any fish by the use of dynamite a misdemeanor. May both acts stand, or was the earlier impliedly repealed by the

1

As noted, the act of 1907 prescribed a comprehensive system for the protection of fish, inclusive of the protection thereof from being killed by dynamite. If both acts stand,

WILLIAMS, J. The plaintiff in error was tried and convicted under a presentment for dynamiting a stream inhabited by fish, which presentment was under and closely followed the language of Act 1897, c. 57, which provided that it shall be unlawful for any person to use, procure, cause or assist in procuring the explosion of any dynamite or any other explosive material whatever in any stream, lake or pond in this state.

The second section of that act made its violation a felony punishable by imprisonment in the penitentiary for not less than one year, or more than three years.

The jury found the accused guilty, but his punishment was in the judgment fixed to be a fine of $200, and imprisonment in jail for six months. This punishment was evidently meant to be that provided for by a later act now to be outlined.

The General Assembly, by Act 1907, c. 489, p. 1649, enacted a comprehensive statute for the protection and preservation of fish in this state, section 2 of which, in substance, provided: That it shall be unlawful for any person to kill or wound any fish in any of the streams, lakes, rivers or ponds in this state by dynamite, giant powder, etc.; and declaring a violation to be a misdemeanor, and, providing that upon conviction, a fine of $200 and imprisonment of not less than six months nor more than one year should be the punishment.

In this court, the able Assistant Attorney General insists that, while this judgment, as to the punishment, was erroneous, it may and should be corrected in this court by the entry of a judgment here calling for the punishment fixed by the act of 1897-imprisonment for not less than one year in the penitentiary.

This is resisted by counsel for plaintiff in error, who insist that their client was presented for a violation of the earlier act, specifically, and not for killing or wounding fish, that the act of 1907 operated to repeal that act by implication, and that the presentment cannot be referred to the later act. Therefore, it is urged, no conviction of the accused can be upheld.

It does appear that the act of 1897 made the use by explosion of dynamite in any stream of water a felony, while the statute

the explosion of dynamite that does not ef fect the death or wounding of fish a punishment for a felony is prescribed, whereas for a consummation of such attempt by an actual killing or wounding of fish a punishment for a misdemeanor is stipulated. We cannot impute such a result as one purposed by the Legislature. Rather does it seem that by the later act, outlining a general and amplified system, the entire subject was intended to be covered, with result that the earlier statute was repealed by implication. We so hold.

The presentment not being under the act of 1907, or for the killing or wounding of fish, the result is that a conviction cannot be sustained by us. The presentment charged nothing denounced as an offense by any existing statute. Reversed.

STANDARD KNITTING MILLS v. HICKMAN.

(Supreme Court of Tennessee. Oct. 30, 1915.) 1. MASTER AND SERVANT 155-LIABILITY FOR INJURIES-FAILURE TO WARRANT.

An employé, working on a mangle, as she worked to go back of the machine, slipped on stepped down from the platform on which she a place where a scrubwoman had just put soapy water. Though she had worked on the mangle only a few hours, it, and the floor about it, were in view of her accustomed working place, and she knew that the scrubwoman mopped the floor about twice a week, and knew also the route taken by the scrubwoman as she passed the mangle. Her attention had been directed to the machine, which was so hot that it would burn one's hand, but on leaving the machine she had nothing to do but keep away from the machine. and obvious that it was not incumbent on the Held, that the danger of slipping was so simple employer to warn her of the danger, and it was immaterial that she had been absorbed in her work, as she was relieved of this tension when she stepped down and away.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 310; Dec. Dig. 155.] 2. MASTER AND SERVANT 185-LIABILITY FOR INJURIES-UNSAFE "PLACE" TO WORK.

The word "place," within the rule requiring an employer to furnish a safe place of work, ises, where the work is done, and does not commeans the premises, or some part of the premprehend mere negligent acts of fellow servants rendering the place dangerous for the time being, as by way of some transient peril.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 335-421; Dec. Dig. C 185.

For other definitions, see Words and Phrases, First and Second Series, Place.]

Action by Jessie Hickman against the Standard Knitting Mills. A judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant appeals. Reversed, and motion for peremptory instructions sustained.

Maynard & Lee and Jourolmon & Welcker, all of Knoxville, for appellant. Harris & Beeler, of Knoxville, for appellee.

WILLIAMS, J. [1] Jessie Hickman, a young woman aged 18 years, was engaged in running a mangle or ironing machine in the mill of plaintiff in error, at the time she was injured. Her duties were to put unfinished underwear between heated rollers in the machine, and after a dozen garments were so placed, her duty was to go behind the machine, collect the ironed garments that had passed through, and place them where they were to be further worked on by other employés.

While engaged in feeding the garments in the machine, she stood fronting the machine on a platform, which was about 4 or 5 inches above the floor level, from which she stepped to the floor in going to the rear of the machine.

The usual place of work of the employé had been at a table, folding the finished garments for boxing, but in the same room where the mangle stood. She had been changed to the mangle at the commencement of work at 7 o'clock in the morning, before the injury at 12:45 in the afternoon. She had had no previous experience at the mangle, save a few minutes on two previous occasions. The mangle and the floor about it were, however, in view of her accustomed working place.

About twice a week a scrubwoman customarily mopped the floor of the room to remove oil and dirt; that she did so was known to the plaintiff employé, who knew also the route taken by the scrubwoman as she passed the mangle.

The plaintiff, after putting through the machine a dozen garments just after the noon hour, stepped down from the platform to go back of the machine, when she slipped on the floor at a place where the scrubwoman had just put soapy water, and received the injuries for which this suit was brought.

She testifies that no one had warned her, and that she did not look to see, nor did she know, that the water was standing where she stepped; that while the floor was being mopped by the scrubwoman plaintiff had her attention directed to the machine, which was so hot that it would burn one's hand if touched against its metal rollers. When she got off of the platform she "had nothing to do but to keep away from the machine, and was not bothered for lack of light."

place around the other end where the floor is not shown to have been wet at the time, though the usual route was the one taken by plaintiff. The scrubwoman was yet at work near the machine when plaintiff fell, and while not right at the spot, she was at plaintiff's side at that end of the mangle; she had not gone away and left the soapy water on the floor.

The theory of plaintiff for a recovery is that the place of work was unexpectedly made dangerous, and that she, without experience at that place of work, was given no warning of the dangerous situation.

The Court of Civil Appeals sustained this

theory. We are asked to review its judg

ment and to rule that the facts made a case for a directed verdict of nonliability on the part of the employer.

In our opinion the trial judge and that court should have sustained the motion for that the danger was so simple and obvious as such peremptory instructions, on the ground that the employé could, at a glance, observe and comprehend for herself, and so obvious as that it was not incumbent on the employer to give her warning. Plaintiff knew that the floors were cleaned by mopping them with soapy water at intervals, and also the direction the colored woman took, in doing so, as the latter passed the machine in ques

tion.

In the case of Ferguson v. Phoenix Cotton Mills, 106 Tenn. 236, 61 S. W. 53, the plaintiff employé complained of an injury caused by a hole in the floor at his working place, where he had been employed only five days. The court held that any such danger was obvious; and, denying the right to recover, said:

* *

"It was not incumbent on the defendant to prove that the plaintiff had knowledge of a defect which was plain and obvious. * * * It does not require experience to see a hole in the floor, and as these were necessary for the drainage of the floor, it was one of the risks assumed, and was so simple and obvious that experience was not an element to be considered in determining the question of liability, nor was it such as was incumbent on the defendant to instruct about."

See, also, Brewer v. Tennessee Coal, etc., Co., 97 Tenn. 615, 37 S. W. 549; 3 Labatt, Master & Servant (2d Ed.) §§ 1000, 1144, citing Ferguson v. Phoenix Cotton Mills, supra; Cudahy Packing Co. v. Marcan, 106 Fed. 645, 45 C. C. A. 515, 54 L. R. A. 258; Omaha Packing Co. v. Sanduski, 155 Fed. 897, 84 C. C. A. 89, 19 L. R. A. (N. S.) 355; Kline v. Abraham, 178 N. Y. 377, 70 N. E. 923.

In Thompson v. Norman Paper Co., 169 Mass. 416, 48 N. E. 757, it appeared that a beam on which the plaintiff employé slipped and fell was wet, and had been made more slippery by the placing thereon of soda ash, which was used for cleaning purposes. The common use of soda ash in the mill was

"Plainly it would have been unreasonable to require his employers to have some one at hand to notify him that the beam was wet, and that soda ash had been used. * **The superintendent was warranted in assuming that the plaintiff would use his eyes, and in supposing that he would know that soda ash might have been employed."

machine." She was just leaving the place that was ordinarily dangerous, and she was not injured by the rolls of the mangle.

Moreover, it would seem that if such were not the normal (or, to reverse the phrase, not the fairly fixed abnormal) condition of the floor, but that the slipperiness was caused by the neglect of the scrubwoman, this was the fault of a fellow servant, and the plaintiff cannot recover. Murphy v. American Rub

In accord with the above is the case of Goudie v. Foster, 202 Mass. 226, 88 N. E. 663, applying the rule to a laundry floor made slippery by an accumulation of starch saturated with water. The plaintiff was held to have assumed the risk of a slippery floor. In Hattaway v. Atlanta Steel, etc., Co., 155 Ind. 507, 58 N. E. 718, a floor was made slippery by oil being spilled thereon, over which sawdust was thrown to absorb the oil, and the plaintiff knew of the practice. Plaintiff was injured by slipping thereon while using the floor in the prosecution of his work; but the court held the employer not liable, on the ground that the condition was fully exposed to view and the risk an obvious one.

[2] The defect was no more a structural one than would have been a negligent leaving on the floor of her mop by the scrubwoman. The theory of plaintiff is based upon a misconception or confusion of terms. The word "place," within the meaning of the rule that requires an employer to furnish a same place of work, means the premises, or some part of the premises, where the work is done, and does not comprehend mere negligent acts of the fellow servants that render the place dangerous for the time being, as, for example, by way of some transient peril. Southern Indiana R. Co. v. Harrell, 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460; Herman v. Port Blakely Mill Co. (D. C.) 71 Fed. 853; Haskell, etc., Co. v. Przezdziankowski, 170 Ind. 1, 83 N. E. 626, 14 L. R. A. (N. S.) 972, 127 Am. St. Rep. 352; 3 Words and Phrases, Second Series, 1038.

For failure to sustain the motion for peremptory instructions interposed by the defendant, the judgment of the Court of Civil Judgment here sus

CUMBERLAND TELEPHONE & TELE-
GRAPH CO. v. MAYFIELD WA-
TER & LIGHT CO.

(Court of Appeals of Kentucky. Oct. 27, 1915.) CONTRIBUTION 5-JOINT TORT-FEASORS RIGHT TO CONTRIBUTION.

Through the negligence of an electric company in allowing the insulation to wear off of one of its wires, and that of a telephone company in stringing its wires too low, a connection between the light wire and the telephone wire was formed, resulting in the death of a telephone lineman, whose administratrix recovered from the light company. Held, that the negligence of both was concurrent, and the light company could not enforce contribution against the telephone company.

[Ed. Note. For other cases, see Contribution, Cent. Dig. §§ 6-9; Dec. Dig. 5.]

Appeal from Circuit Court, Graves County. Action by the Mayfield Water & Light Company against the Cumberland Telephone & Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

Wheeler & Hughes, of Paducah, and Brutus J. Clay, of Atlanta, Ga., for appellant. Stanfield & Stanfield, of Mayfield, for appellee.

TURNER, J. In May, 1912, Lemuel MagIn May, 1912, Lemuel Magness, an employé of the Cumberland Telephone & Telegraph Company, was killed in Mayfield, Ky., by an electric current transmitted to the wire of the telephone company from the wires of the Mayfield Water & Light Company; the latter being a corporation engaged in furnishing electricity to the citizens of that place. His personal representative instituted an action against the two companies jointly, wherein it was alleged that he came to his death by reason of certain joint concurrent negligence upon the part of said two corporations. The defendants in that action filed separate answers, and, the issues being completed, a trial was had which resulted in a directed verdict for the telephone company and a judgment and verdict for the plaintiff against the water and light company. The plaintiff therein appealed from the action of the court in directing a verdict for the telephone company, and the judgment was affirmed upon the ground that Magness had, as an employé of the telephone company, assumed the risk of which he had full notice. Magness' Administratrix v. Cumberland Tel. & Tel. Co., 156 Ky. 330, 160 S. W. 1061.

The water and light company accepted the verdict and judgment in the circuit court against it and satisfied the same, and thereafter brought this action against the telephone company for indemnity by reason of the payment thereof.

The substance of the petition is that for many years prior to 1912 the plaintiff had maintained its poles and wires on Seventh street, in Mayfield, and that some time before 1912 the defendant had negligently and carelessly strung one of its telephone wires leading into the residence of one Stephenson in

such close and dangerous proximity to its heavily charged electric wires as to cause said telephone wire to come in contact therewith and thereby transmit the current of electricity through the telephone wire which resulted in Magness' death, and that said negligent act of the telephone company was the direct, proximate, and efficient cause of Magness' death.

In the original action the charge of negligence against the water and light company was that at the point where they came in contact with the telephone wire the electric wires were not sufficiently or at all insulated, and that the insulation thereon was old and worn off, and that it had negligently failed to repair the same. The judgment of the circuit court in the damage action against the water and light company must be deemed conclusive of its negligence in this respect; so that we have a plaintiff confessing its negligence which contributed to bring about the death of a citizen demanding indemnity of a defendant whose concurrent negligence also contributed to that event. The only question necessary to determine upon this tiff's petition should have been sustained. appeal is whether the demurrer to the plain

We have here one party conclusively shown to have been negligent, by the judgment of the court, in failing to have its electric wires insulated, and another party shown to have been negligent in placing its telephone wire in dangerous proximity to the heavily charged electric wires, and it is apparent that their concurrent acts of negligence, each separate and distinct from the other, brought about the death of Magness. If the electric wires had been properly insulated, the contact of the telephone wire with them would not have transmitted the electric current, and Magness would not have been killed. On the other hand, if the telephone wire had not been carelessly strung so near to the electric wires that it might come in contact with them, Magness would not have been killed. The separate acts of negligence of neither of the defendants would have brought about this result, but their two separate and distinct acts of negligence, concurring one with the other, at the time and place, did bring it about.

The appellee, of course, recognizes the general rule that there can be no indemnity between tort-feasors, but bases its right of recovery upon an exception to that rule which has been recognized in this state. The case of Blocker v. City of Owensboro, etc., 129 Ky. 75, 110 S. W. 369, 33 Ky. Law Rep. 478, was where in the erection of a building certain obstructions were permitted to remain on the sidewalk by the owner of the building which resulted in an injury to a pedestrian, and it was held that, although the person injured by the obstruction in the street might recover against the city alone, or against both