since the servant is not, in general (except where he has agreed to do so by contract with his master),17 required to institute special inspections for the purpose of discovering hidden dangers, 18 but may, in general, in the

39 La., Ann. 1011, 3 So. Rep. 363; Burton v. Missouri Pac. R. Co., 32 Mo. App. 455; Nicholds v. Chrystal Plate-Glass Co. (Mo.), 28 S. W. Rep. 991 (where the defect is not open to observation in its ordinary use); Herdler v. Buck's Stove, etc., Co., 136 Mo. 3, 37 S. W. Rep. 115 (defects in machinery or appliances which are unknown to him, but which are known to the master, or which, by exercise of ordinary care by the master, should be known to him); Clowers v. Wabash, etc., R. Co., 21 Mo. App. 213; Dowling v. Allen, 6 Mo. App. 195; Union Stock Yards Co. v. Goodwin, 57 Neb. 138, 77 N. W. Rep. 357, 12 Am. & Eng. Rail. Cas. (N. S.), 502; Chicago, etc., R. Co. v. Kellogg, 54 Neb. 127, 74 N. W. Rep. 454, modified on rehearing in 76 N. W. Rep. 462; Davidson v. Cornell, 31 N. Y. St. Rep. 982, 10 N. Y. Supp. 521, reversed 132 N. Y. 228, 30 N. E. Rep. 573; Byrne v. Eastmans Co., 163 N. Y. 461; 57 N. E. Rep. 738, reversing 50 N. Y. Supp. 457, 27 App. Div. (N. Y.), 270; Jarvis v. Northern New York Marble Co., 67 N. Y. Supp. 78, 55 App. Div. (N. Y.), 272, Spaulding v. O'Brien, 26 Misc. (N. Y.), 184, 56 N. Y. Supp. 1095; Johnson v. Richmond, etc., R. Co., 81 N. Car. 453; Fort Worth, etc., R., Co., v. Kime, 21 Tex. Civ. App. 271, 51 S. W. Rep. 558, affirmed in 54 S. W. Rep. 240; Galveston, etc., R. Co. v. McCray (Tex. Civ. App.), 43 S. W. Rep. 275 (no off. rep.); (where he could not have discovered the defective loading by inspection); Lehigh Valley Coal Co. v. Warreck, 84 Fed. Rep. 866, 55 U. S. 437, 28 C. C. A. 540.

App.

17 See Pratt v. Lake Shore, etc., R. Co., 63 Hun (N. Y.), 616, 45 N. Y. St. Rep. 715, 18 N. Y. Supp. 682, affirmed 136 N. Y. 654. Where a rule of the master, made known to the servants, requires the servant to perform the duty of inspection, as to which see Louisville, etc., Co. v. Pearson, 97 Ala. 211, 12 So. Rep. 176; Terre Haute, etc., R. Co. v. Pruitt (Ind. App.), 57 N. E. Rep. 949 (off. Rep. not out.)

18 Little Rock, etc. R. Co. v. Voss (Ark.), 18 S. W Rep. 172 (no off. rep.); Chicago, etc., R. Co. v. Bragonier, 119 Ill. 51 (the question whether it was his duty to know the condition of the wheel was one of fact for the jury); Cincinnati, etc., R. Co. v. McMullen, 117 Ind. 439, 20 N. E. Rep. 287 (no legal presumption that it is the duty of the conductor of a railway freight train to inspect the cars and machinery of his train); Morton v. Detroit, etc., R. Co., 81 Mich. 423, 46 N. W. Rep. 111; Nicholds v. Crystal Plate-Glass Co., 126 Mo. 55, 28 S. W. Rep. 991 (unless it was such employee's duty to make the examination or he was guilty of contributory negligence); Schaal v. Heck, 8 Ohio C. D. 596; Spronk v. Addyson Pipe & Steel Co., 19 Ohio Cir. Ct. Rep. 714, 10 Ohio C. D. 675; Lake Shore, etc., R. Co. v. Corcoran, 3 Ohio Dec. 641; Gulf, etc., R. Co. v. Kelly (Tex. Civ. App.), 34 S. W. Rep. 140 (no off. rep.); Missouri, etc., R. Co. v. Hanning, 91 Tex. 347,43 S. W. Rep. 1508, reversing 41 S. W. Rep. 196; Gulf, etc., R. Co. v. Warner, 22 Tex. Civ. App. 167, 54 S. W. Rep. 1064; Bookrum v. Galveston, etc., R. Co. (Tex. Civ. App.), 57 S. W. Rep. 919 (no off. rep.); (instruction erroneous which casts upon the servant the duty of inspection and inquiry); Houston, etc., R. Co. v. Kelly (Tex. Civ. App.), 35 S. W. Rep. 878 (no off. rep.); (a similar instruction held mis

absence of notice to the contrary, 19 rely upon the assumption that his master has exercised his superior judgment and intelligence and has done his duty in this particular.20 And, where the servant, after discovering a defect, which is a source of danger, performs his duty, by apprising his master of such defect and danger, and thereupon his master promises to repair the defect, the servant is

leading); New Orleans, etc., R. Co. v. Clements, 40 C. C. A. (U. S.), 465, 100 Fed. Rep. 415.

19 That the rule does not apply where the servan has actual knowledge that the master has not performed his duty in this respect. See Jennings v. Tacoma, R., etc., Co., 7 Wash. 275, 34 Pac. Rep. 937, or where he has used the appliances for a considerable length of time and under such circumstances that, in the exercise of reasonable diligence, he could have ascertained its unsafe condition. Chicago, etc., R. Co. v. Garner, 78 Ill. 281.

20 Louisville, etc., R. Co. v. Hawkins, 92 Ala. 241, 9 So. Rep. 271; Louisville, etc., R. Co. v. Baker (Ala.), 17 So. Rep. 452; Louisville, etc., R. Co. v. Orr, 91 Ala. 548, 8 So. Rep. 360; Denver, etc., R. Co. v. Smock, 23 Colo. 456, 48 Pac. Rep. 681; Illinois Steel Co. v. Schumanowski, 162 Ill. 447, 44 N. E. Rep. 876; affirming, 59 Ill. App. 32: Swift & Co. v. Wyatt, 75 Ill. App. 348; 3 Chic. L. J. Wkly. 165; Kirk v. Senzig, 79 Ill. App. 251; Chicago, etc., R. Co. v. Hines, 132 Ill. 161, 23 N. E. Rep. 1021 (rule is of special force where the performance of the duties of the servant require constant attention to other matters); Chicago, etc., R. Co. v. Goebel, 119 Ill. 515 (man unloading coal from a car on a side track is justified in believing that care will be taken to prevent other cars from running into his car); Ashley Wire Co. v. McFadden, 66 Ill. App. 26; Edward Hines Lumber Co. v. Ligas, 68 Ill. App. 523, 2 Chic. L. J. Wkly. 160; Graver Tank Works v. O'Donnell, 91 Ill. App. 524; Pioneer Fireproof Const. Co. v. Howell, 90 Ill. App. 122, affirmed 189 Ill. 123, 59 N. E. Rep. 535; Illinois, etc., R. Co. v. Sanders, 166 Ill. 270, 46 N. E. Rep. 799, affirming 66 Ill. App. 439; Pioneer Cooperage Co. v. Romanowicz, 186 Ill. 9, 57 N. E. Rep. 864, affirming 85 Ill. App. 407; Ross v. Shanley, (Ill.), 56 N. E. Rep. 1105 (no off. rep.) Ashley Wire Co. v. Mercier, 61 Ill. App. 485; Charles Pope Glucose Co. v. Byrne, 60 Ill. App. 17; Pawnee Coal Co. v. Royce, 184 Ill. 402, 56 N. E. Rep. 621, reversed 79 Ill. App. 469 (servant has the right to assume that the master has performed a statutory duty); Ohio, etc., R. Co. v. Pearcy, 128 Ind. 197, 27 N. E. Rep. 479; Chicago, etc., R. Co. v. Branyan, 10 Ind. App. 570, 37 N. E. Rep. 190; Arcade File Works v. Juteau, (Ind. App.), 40 N. E. Rep. 818; Ft. Wayne v. Patterson, 25 Ind. App. 547, 58 N. E. Rep. 747; Summit Coal Co. v. Shaw, 16 Ind. App. 9, 44 N. E. Rep. 676; authorities cited in Louisville, etc. R. Co. v. Wright, 115 Ind. 378, 13 West. Rep. 804; 16 N. E. Rep. 145; Baltimore, etc., R. Co. v. Amos, 20 Ind. App. 378, 49 N. E. Rep. 854; authorities cited in Cincinnati, etc., R. Co. v. Long, 112 Ind. 166, 11 West. Rep., 13, N. E. Rep. 659; Indiana, etc., Gas Co. v. Marshall, 22 Ind. App. 121, 1 Rep. 427, 52 N. E. Rep. 232; Haugh v. Chicago, etc., R. Co., 73 Iowa, 66, 35 N. W. Rep. 116; Mosgrove v. Zimbleman Coal Co., 110 Iowa 169, 81 N. W. Rep. 227; St. Louis, etc., R. Co. v. Irwin, 37 Kan. 701, 16 Pac. Rep. 146; Ohio Valley R. Co. v. McKinley, 17 Ky. L. Rep. 1028, 33 S. W. Rep. 186 (not to

not deemed to accept the risk of the same by reason of the fact that, after receiving such promise he remains in the service a reasonable length of time awaiting its performance,

be off. rep.); Cincinnati, etc., R. Co. v. Barber, Ky, 31 S. W. Rep. 482; Bogenschutz v. Smith, 84 Ky. 330, 1 S. W. Rep. 578; Ashland Coal, etc., Co. v. Wallace, 101 Ky. 626; Helm v. O'Rourke, 46 La. Ann. 178, 15 So. Rep. 400; Faren v. Sellers, 39 La. Ann. 1011, 3 So. Rep. 363; Wilson v. Louisiana, etc., R. Co., 51 La. Ann. (Part 2), 1133, 25 So. Rep. 961; 14 Am. & Eng. Rail. Cas. (N. S.), 648; Frye v. Bath Gas etc., Co., 94 Me. 17, 46 Atl. Rep. 804; Knight v. Overman Wheel Co., 174 Mass, 455, 54 N. E. Rep. 890; Bartholomeo v. McKnight, (Mass.), 59 N. E. Rep. 804 (off. rep. not out); Smizel v. Odanah Iron Co., 116 Mich. 149, 74 N. W. Rep, 488; 4 Det. L, N. 1111; Delude v. St. Paul City R. Co., 55 Minn, 63, 56 N. W, Rep. 461; McDonald v, Chicago, etc., R. Co., 41 Minn. 439, 43 N. W. Rep. 380; Anderson v. Northern Mill Co. 42 Minn. 424, 44 N, W. Rep 315; Erickson v, St. Paul, etc., R. Co., 41 Minn. 500; Mississippi Cotton Oil Mills v, Ellis, (Miss.), 17 So. Rep. 214; Helfenstein v. Medart, 136 Mo. 595, 36 S. W. Rep. 863, affirmed in banc. in 37 S. W. Rep. 829, affirmed

on

V.

rehearing in 38 S. W. Rep. 294; Covey Hannibal, etc., R. Co., 27 Mo. App. 170; Kelley v. Cable Co., 7 Mont. 70, 14 Pac. Rep. 633; O'Neill v. Chicago, etc., R. Co. (Neb.), 86 N. W. Rep. 1008 (off. rep. not out); Union Stock Yards Co. v. Goodwin, 57 Neb. 138, 77 N. W. Rep. 357, 12 Am. & Eng. R. Cas. (N. S.), 502; Chicago, etc., R. Co. v. Kellogg, 54 Neb. 127, 74 N. W. Rep. 454, modified on rehearing in 76 N. W. Rep. 462; Cole v. Warren Man. Co., 63 N. J. L. 626; Ingebregsten v. Nord Deutscher Lloyds S. S. Co. (N. J.), 31 Atl. Rep. 619; Mikkelsen v. Ocean, etc., Transp. Co., 31 N. Y. St. Rep. 408, 9 N. Y. Supp. 741; Davidson v. Cornell, 31 N. Y. St. Rep. 982, 10 N. Y. Supp. 521, reversed 132 N. Y. 228, 30 N. E. Rep. 573; Kranz v. Long Island R. Co., 123 N. Y. 1, 33 N. Y. St. Rep. 46, 25 N. E. Rep. 206; McCauley v. Smith, 65 Hun, 620, 47 N. Y. St. Rep. 500, 19 N. Y. Supp. 991 (right to assume that the employer has complied with a statutory duty); Mayer v. Liebmann, 16 App. Div. (N. Y.), 54, 44 N. Y. Supp. 1067; Bird v. Long Island R. Co., 11 App. Div. (N. Y.), 134, 42 N. Y. Supp. 888; Dunn v. Connell, 20 Misc. (N. Y.), 727, 46 N. Y. Supp. 684, affirmed 21 Misc. (N. Y.) 295, 47 N. Y. Supp. 185; Cunningham v. Sicilian Asphalt Paving Co., 49 App. Div. (N. Y.), 380, 63 N. Y. Supp. 357; Harroun v. Brush Electric Light Co., 12 App. Div. 126, 42 N. Y. Supp. 716; Selleck v. Langdon, 59 Hun, 627, 37 N. Y. St. Rep. 511, 13 N. Y. Supp. 858, affirmed without opinion in 133 N. Y. 535; Rigdon v. Alleghany Lumber Co., 59 Hun (N. Y.), 627, 37 N. Y. St. Rep. 514, 13 N. Y. Supp. 871; Goodrick v. New York, etc., R. Co., 116 N. Y. 398, 26 N. Y. St. Rep. 767, 5 L. R. A. 750, 41 Am. & Eng. Corp. Cas. 259, 22 N. E. Rep. 397; Wilkie v. Raleigh, etc., R. Co., 127 N. Car. 203, 37 S. E. Rep. 204; Cameron v. Great Northern R. Co., 8 N. Dak. 124, 77 N. W. Rep. 1016, 5 Am. Neg. Rep. 454, 12 Am. & Eng. R. Cas. (N. S.), 520: Pittsburgh, etc., R. Co. v. Burroughs, 6 Ohio N. P. 37 (right to assume that there are no unblocked frogs in a railroad yard, left there in violation of a statute); O'Brien v. Sullivan, 195 Pa. St. 474, 46 Atl. Rep. 130; Ortlip v. Philadelphia & W. C. Traction Co., 9 Pa. Dist. Rep. 291; Bannon v. Lutz, 158 Pa. 166, 27 Atl. Rep. 890; McDonald v. Postel Tel. Co. (R. I.), 46 Atl. Rep. 407 (not error to refuse an instruction ignoring this prin

unless the danger is glaring and such as to threaten immediate injury,21 nor does he accept the risk of dangers proceeding from the special or unforeseen negligence of the

ciple); Carter v. Oliver Oil Co., 34 S. Car. 211, 13 S. E. Rep. 419; Carter v. Oliver Oil Co., 37 S. Car. 604, 15 S. E. Rep. 928; Galveston, etc., R. Co. v. Adams (Tex.), 58 S. W. Rep. 831, affirming 55 S. W. Rep. 803; Texas, etc., R. Co. v. O'Feil, 78 Tex. 486, 15 S. W. Rep. 33 (has a right to rely on the master's promise, and it is not the servant's duty to inspect); Texas, etc., R. Co. v. Eberhart, 91 Tex. 321, 43 S. W. Rep. 510, affirming 40 S. W. Rep. 1060 (right to assume that the company has established proper rules for his protection in the performance of his duties); Missouri, etc., R. Co. v. Crowder (Tex. Civ. App.), 55 S. W. Rep. 380 (no off. rep.) (instruction that a servant has a right to presume that the master has performed his duty with ordinary care is not objectionable, as being upon the weight of the evidence); Jackson v. Missouri, etc., R. Co., 23 Tex. Civ. App. 319, 55 S. W. Rep. 376 (instruction ignoring this principle, erroneous); Galveston, etc., R. Co. v. Smith (Tex.), 57 S. W. Rep. 999 (not yet off. rep.); International, etc., R. Co. v. Johnson, 23 Tex. Civ. App. 160, 55 S. W. Rep. 772; Houston, etc., R. Co. v. Quill. 55 S. W. Rep. 1126, affirmed Quill v. Houston, etc., R. Co. (Tex. Civ. App.), 57 S. W. Rep. 948; Missouri, etc., R. Co. v. Hamilton (Tex. Civ. App.), 30 S. W. Rep. 679 (has the right to rely upon the exercise of ordinary prudence and care by him); Dillingham v. Harden, 6 Tex. Civ. App. 474, 26 S. W. Rep. 914; Texas, etc., R. Co. v. Guy (Tex. Civ. App.), 23 S. W. Rep. 633 (no off. rep.); Galveston, etc., R. Co. v. Garrett, 73 Tex. 262, 13 S. W. Rep. 62; Lawrence v. Texos, etc., R. Co. (Tex. Civ. App.), 61 S. W. Rep. 342; Terrell Compress Co. v. Arrington (Tex. Civ. App.), 48 S. W. Rep. 59 (no off. rep.); Daniels v. Union, etc., R. Co., 6 Utah, 357, 23 Pac. Rep. 762 (old crack in wheel which could have been discov ered by the car inspector); Bowers v. Union Pac. R Co., 4 Utah,215, 7 Pac. Rep. 251; Goodman v. Richmond, etc., R. Co., 81 Va. 576; Chesapeake, etc., R. Co. v. Lee, 84 Va. 642, 5 S. E. Rep. 679; Norfolk, etc., R. Co. v. Nunnally, 88 Va. 546. 16 Va. L. J. 73, 14 S. E. Rep. 367; McDonald v. Svenson (Wash.), 65 Pac. Rep. 789; Mackey v. Baltimore, etc., R. Co., 19 D. C. 282, 18 Wash. L. Rep. 767; Crawford v. The Wells City, 38 Fed. Rep. 47; Western Coal, etc., Co. v. Ingraham, 70 Fed. Rep. 219, 36 U. S. App. 1, 2 Am. & Eng. Corp. Cas. (N. S.), 689, 17 C. C. A. 71; Mason, etc. R. Co. v. Yockey, 43 C. C. A. (U. S.), 228, 103 Fed. Rep. 265; Grand Trunk R. Co. v. Tennant, 66 Fed. Rep. 922; Great Northeru R. Co. v. McLaughlin, 70 Fed. Rep. 669, 17 C. C. A. (U. S.), 330, 44 U. S. App. 189; Ten. nessee Coal, etc., R. Co. v. Currier, 108 Fed. Rep. 19, 47 C. C. A. 161.

21 Huber v. Jackson, etc., Co., 1 Mary. (Del.) 374, 41 Atl. Rep. 92; Ray v. Diamond State Steel Co., 2 Penn. (Del.), 525, 47 Atl. Rep. 1017 (three days was not an unreasonable length of time for him to continue at the work without assuming the risk); Foster v. Pusey, 8 Houston (Del.), 168, 13 Cent. Rep. 47, 14 Atl. Rep. 545; Harvey v. Alturas Gold Min. Co. (Idaho), 31 Pac. Rep. 819 (no off. rep.); Consolidated Coal Co. v. Bokamp, 75 Ill. App. 605 (instruction approved); Illinois, etc., R. Co. v. Creighton, 63 Ill. App. 165; Tesmer v. Boehm, 58 Ill. App. 609; Illinois Steel Co. v. Mann, 67 Ill. App. 66; 1 Chic. L. J. Wkly. 675; Swift & Co., v. Madden, 165 Ill. 41, 45 N. E. Rep.

master, or of those for whose conduct the master is responsible, or from the negligences

979, affirming, 63 Ill App. 341, 1 Chic. L. J. Wkly. 486; Joliet, etc., R. Co. v. Velie, 140 Ill. App. 59, 26 N. E. Rep. 1086, affirming 36 Ill. App. 450 (circumstances justifying a submission to the jury the question whether the servant remained in the position unreasonably long after receiving such promise); Tayor v. Felsing, 164 Ill. 331, 45 N. E. Rep. 161, affirming 63 Ill. App. 624; Chicago Bridge, etc., Co. v. Hayes, 91 Ill. App. 269; Swift v. O'Neill, 187 Ill. 337, 58 N. E. Rep. 416, affirming 88 Ill. App. 162; Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N. E. Rep. 714, affirming 40 Ill. App. 584; Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210; McFarlan Carriage Co. v. Potter, 153 Ind. 107, 1 Rep. 920, 6 Am. Neg. Rep. 254, 53 N. E. Rep. 465, reversing on rehearing 1 Rep. 432, 5 Am. Neg. Rep. 132, 52 N. E. Rep. 209, which reverses 21 Ind. App. 692, 1 Rep. 199, 51 N. E. Rep. 737 (protection of the promise is not postponed until after the arrival of the time fixed for the performance of the promise, but commences as soon as it is made); Daugherty v. Midland Steel Co. (Ind.), 53 N. E. Rep. 844, 1 Rep. 1070 (no. off. rep.) (six days not too long for servant to wait, as matter of law); Burns v. Windfall Man. Co., 146 Ind. 261, 45 N. E. Rep. 188; Stoutenburg v. Dow, 82 Iowa, 179, 47 N. W. Rep. 1039, Pieart v. Chicago, etc. R. Co., 82 Iowa, 148, 47 N. W. Rep. 1017; Southern Kansas R. Co. v. Crocker, 41 Kan. 747, 21 Pac. Rep. 785; Missouri, etc.. R. Co. v. Puckett, 62 Kan. [770, 64 Pac. Rep. 631; Atchison, etc., R. Co. v. Lanigan, 56 Kan. 109, 42 Pac. Rep. 343; Bell, etc., Co. v. Applegate. 23 Ky. Law Rep. 470, 62 S. W. Rep. 1124 (not to be off. rep.); Breckinridge Co. v. Hicks, 94 Ky. 362, 15 Ky. L. Rep. 143, 22 S. W. Rep. 554: Counsell v. Hall, 145 Mass. 468, 5 N. Eng. Rep. 462, 14 N. E. Rep. 530 (circumstances under which it was for the jury to decide whether the servant had assumed the risk in the meantime); Roux v. Blodgett, etc.. Co., 85 Mich. 519, 48 N. W. Rep. 1092 (known on the same day not an unreasonable time); Little v. Chicago, etc., R. Co., 84 Mich. 289, 47 N. W. Rep. 571; Mann v. Lake Shore, etc., R. Co., 124 Mich. 641, 83 N. W. Rep. 596, 7 Det. Leg. N. 376 (thirty days not an unreasonable time to wait, as matter of law, but question for the jury); Greene v. Minneapolis, etc., R. Co., 31 Minn. 248, 47 Am. Rep. 785 (locomotive engineer injured in a collission by reason of a defect, after a promise to repair); Lyberg v. Northern, etc., R. Co., 39 Minn. 15, 38 N. W. Rep. 632 (question of a servant's negligence in continuing with an incompetent fellow-servant after promise to remove him is one for the jury); Harris v. Hewitt, 64 Minn. 54, 65 N. W. Rep. 1085; Schlitz v. Pabst Brewing Co., 57 Minn. 303, 59 N. W. Rep. 188; Meyer v. Gundlach-Nelson Man. Co., 67 Mo. App. 389 (court will not hold, as a matter of law, that a servant could not reasonably wait two weeks for the fulfillment of the promise of the superintendent to remedy the defect in a machine, although the latter had repeatedly made the same promise before and failed to keep it); Stalzer v. Jacob Dold Packing Co., 84 Mo. App. 565; Conroy v. Vulcan Iron Works, 6 Mo. App. 102; Sioux City, etc., R. Co. v. Finlayson, 16 Neb. 578 (locomotive engineer injured by an explosion by reason of a defect after a promise to repair); Gulf, etc., R. Co. v. Donnelly, 70 Tex. 371, 8 Am. St. Rep. 608, 8 S. W. Rep. 52; International, etc., R. Co. V. Williams (Tex. Civ. App.), 34 S. W. Rep. 161 (no off. Rep.); Texas, etc., R. Co. v. Bingle, 91 Tex. 287, 42 S. W. Rep. 971, denying writ of error

of the master which are unknown to him. 22 There are many other questions connected with this subject which cannot even be touched upon within the limits of a short article. SEYMOUR D. THOMPSON,

NEW YORK.

in 41 S. W. Rep. 90; Southern, etc., Co. v. Leash, 2 Tex. Civ. App. 68, 21 S. W. Rep. 563; Reddon v. Union, etc., R. Co., 5 Utah, 344, 15 Pac. Rep. 362 (his negligence in continuing to work is a question for the jury); Darracott v. Chesapeake, etc., R. Co., 83 Va. 288, 5 Am. St. Rep. 266, 2 S. E. Rep. 511; Virginia, etc., Wheel Co. v. Chalkey, 98 Va. 62, 34 S. E. Rep. 976 (accident happened twenty minutes after promise to repair the defect); Hoffman v. Dickinson, 31 W. Va. 142, 6 S. E. Rep. 53; Schulze v. Rohe, 4 Misc. (N. Y.), 384, 53 N. Y. St. Rep. 576, 24 N. Y. Supp. 118; Lake Shore, etc., R. Co. v. Winslow, 10 Ohio C. C. 193, 1 Ohio Dec. 147; E. P. Breckenridge Co. v. Reagan, 22 Ohio C. C. Rep. 71, 12 Ohio C. D. 50, Union Man. Co. v. Morrissey, 40 Ohio St. 148, 48 Am. Rep. 669; Sopherstein v. Bertels, 178 Pa. St. 401, 35 Atl. Rep. 1000; Wust v. Erie City Iron Works, 149 Pa. St. 263, 1 Pa. Adv. R. 869, 24 Atl. Rep. 291; Brownfield v. Hughes, 128 Pa. 194, 18 Atl. Rep. 340, 47 Phila. Leg. Int. 71, 24 W. N. C. (Pa.), 557; Madara v. Pottsville Iron, etc., Co., 160 Pa. St. 109, 28 Atl. Rep. 639 (accident happened twenty minutes after the promise to repair the defect); Louisville, etc., R. Co. v. Kenley, 92 Tenn. 207, 21 S. W. Rep. 236; Nelson v. Shaw, 102 Wis. 274, 5 Am. Neg. Rep. 743, 78 N. W. Rep. 417, (a teamster employed in hauling bark over his employer's private roadway may rely upon the latter's express promise to repair a defect in such roadway before he returns with such load); Jensen v. Hudson Sawmill Co., 98 Wis. 73, 73 N. W. Rep. 434 (citing Chicago Drop-Forge, etc., Co. v. Van Dam, 149 Ill. 337, holding that it is a question of fact for the jury as to whether a defect in machinery is so serious, or the danger so great, that a servant is not justified in continuing at his employment upon the master's promise to promptly remedy the defect); Albrecht v. Chicago, etc., R. Co., 108 Wis. 530, 84 N. W. Rep. 882 (holding that a locomotive engineer assumed a risk, as a reasonable time within which a repair of his engine could be made expired when the trip commenced); Stephenson v. Duncan, 73 Wis. 404, 41 N. W. Rep. 337; Parody v. Chicago, etc., Co., 15 Fed. Rep. 205; Lehigh Valley Coal Co. v. Warréck, 84 Fed. Rep. 866, 55 U. S. App. 437, 28 C. C. A. 540; Homestake Min. Co. v. Fullerton, 69 Fed. Rep. 923, 16 C. C. A. & Eng. 2 Comp. Cas, (N. S.), 596, 36 U. S. App. 32; Hough v. Texas,etc., R. Co., 100 U. S. 213.

22 Baltimore, etc., R. Co. v. Peterson, 156 Ind. 364, 59 N. E. Rep. 1044 (does not assume the risk resulting from the nonobservance of a city ordinance); Pittsburgh, etc., R. Co. v. Moore, 152 Ind. 345, 53 N. E. Rep. 290, 44 L. R. A. 638, 1 Rep. 842, 14 Am. & Eng. Rail. Cas. (N. S.), 678 (same as the preceding); Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210 (similar to the preceding); Taylor v. Evansville, etc., R. Co., 121 Ind. 124, 22 N. E. Rep. 876, 6 L, R A. 584, 7 Rail. & Corp. L. J. 125, 41 Alb. L. J. 173, 41 Am. & Eng, R. Cas. 437 (does not accept the risk of an injury through a designated act done by a vice-principal of the master); Malcolm v. Fuller, 152 Mass. 160, 25 N. E Rep. 83; Gregg v. Chicago, etc., R. Co., 91 Mich, 624, 52 N. W. Rep. 62; Irmer v. St. Louis Brew. Co., 69 Mo. App.

17; O'Neill v. Chicago, etc., R. Co. (Neb.), 86 N. W. Rep. 1098 (negligence of the employer, of which the employee is ignorant); Comben v. Belleville Stone Co., 59 N. J. L. 226, 36 Atl. Rep. 473; Felice v. New York, etc., R. Co., 14 App. Div. (N. Y.), 345, 43 N. Y. Supp. 922; San Antonio, etc., R. Co. v. Engelhorn, 24 Tex. Civ. App. 324, 62 S. W. Rep. 561 (does not assume any risk arising by reason of the company's negligence, unless he knows); Gull, etc., R. Co. v. Silliphant, 70 Tex. 623, 8 S. W. Rep. 673; Missouri Pac. R. Co. v. Crenshaw, 71 Tex. 340, 9 S. W. Rep, 262; Texas, etc., R. Co. v. Echols, 17 Tex. Civ. App. 677, 41 S. W. Rep. 488; Missouri, etc., R. Co. v. Chambers, 17 Tex. Civ. App. 487, 3 Chic. L. J. Wkly. 99, 43 S. W. Rep. 1090; Gulf, etc., R. Co. v. Brentford, 79 Tex. 619, 15 S. W. Rep. 561 (affirmative wrongful act of of master or his representative); Galveston, etc., R. Co. v. Pitts (Tex. Civ. App.), 42 S. W. Rep. 255 (no off. Rep.) Trihay v. Brooklyn Lead Min. Co., 4 Utah, 468 (does not agree to take extraordinary risks arising from the negligence of the employer, which have not been called to his attention); Houston v. Brush, 66 Vt. 331, 29 Atl. Rep. 380.

LOTTERY-VALIDITY OF VOTING CONTEST.

QUATSOE v. EGGLESTON.

Supreme Court of Oregon, January 12, 1903. Const., art. 15, § 4, prohibits lotteries, and Bel. & C. Ann. Codes & St. § 1959, makes the conducting of a lottery a crime. Plaintiffs contracted with defendant to furnish three pianos to be given, as an advertisement, "to the society, church, school, lodge, or person having secured the greatest number of votes at the close of each contest." Five thousand tickets were to be furnished defendant to be distributed among his customers, one with each 25-cent purchase, and plaintiffs were to advertise the "result of vote." Defendant was to pay $26 down, and an equal sum later. Held, that the contract did not contemplate a lottery, the element of chance in the award of pianos being absent; and hence it was error to dismiss, on that ground, plaintiffs' action for the first installment.

STATEMENT OF FACTS: This is an action on the following written contract, entered into between the plaintiffs and the defendant on May 29, 1901: "To further advertise the Walworth pianos, manufactured by the M. Schulz Company, of Chicago, Illinois, we, Quatsoe Bros., doing business as the Manufacturers' Advertising Company, of Chicago, Illinois, hereinafter called the first party, agree to furnish three Walworth pianos to be given away as an advertisement. Said pianos will be awarded at the place of exhibition, to the society, church, school, lodge, or person having secured the greatest number of votes at the close of each contest. One on June 15, one on August 15, and last one on October 15, 1901. The first party agrees to furnish to W. H. Eggleston, hereinafter called the second party, five thousand (5,000) piano tickets, assorted denominations, two display cards, and pay for advertising the piano contest, giving result of vote and subscribers name as follows: Weekly in the Evening Telegram until October 15, 1901. In consideration of

the covenants and agreements herein expressed, to be kept and performed by the first party, the second party agrees to keep at all times displayed in a conspicuous place in his store the placards furnished by said first party, and give each and every one of his customers one piano ticket with each 25 cents of their cash purchase only. The second party further agrees to use tickets only in the manner above specified, and to pay to the first party the sum of fifty-two dollars ($52) dollars when tickets are delivered, together with vouchers for advertising, and a letter from C. A. Whale, of Portland, showing that three Walworth pianos have been paid for and will be delivered as above mentioned. This contract in duplicate contains the entire agreement of the parties herein. The following is endorsed on the back of the contract and made a part thereof: "This contract is taken upon the express condition that only $26 of the sum named in this contract shall be paid when tickets are delivered; balance, $26, to be paid after W. H. Eggleston has used $500 worth of tickets, and not to be paid until he has used that amount." The complaint alleges that the plaintiffs fully complied with all the terms and conditions of the contract on their part, but defendant refused to make the first payment as provided therein. The answer admits the execution of the contract, but alleges, as a defense to the action, a failure by the plaintiffs to perform certain of the conditions thereof, and that the contract was induced by fraud. The reply put in issue, the new matter in the answer, and the trial resulted in a verdict in favor of the plaintiffs. Motions for a new trial, for judgment notwithstanding the verdict, and for judgment on the verdict were filed by the respective parties, but were each overruled by the court, and, on its own motion, the action was dismissed, because it appeared "from the pleadings herein that the contract sued on by the plaintiffs is a lottery contract, and void." From this judgment the plaintiffs appeal.

BEAN, J. (after stating the facts): The setting up, promoting, or conducting a lottery is not only a species of gaming, immoral and vicious per se, but is prohibited by section 4 of article 15 of the constitution, and made a crime by statute (Bel. & C. Ann. Codes & St. § 1959.) The court was therefore not in error in dismissing the action sua sponte, if the agreement set out in the complaint, and upon which it is based, is in fact a lottery contract. To this question we shall direct our attention. The term "lottery" has no technical legal meaning, but the courts adopt the generally accepted definition in popular use. Webster says that it is "a scheme for the distribution of prizes by lot or chance; esp., a gaming scheme in which one or more tickets bearing particular numbers draw prizes, and the rest of the tickets are blanks." By the Standard Dictionary, it is defined as "a scheme for distributing prizes by chance or lot, where a valuable

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consideration is given for the chance of drawing a prize, especially where such chances are alloted by sale of tickets;" and the Century, as "a scheme for raising money by selling chances to shares in a distribution of prizes; more specifically a scheme for the distribution of prizes by chance among persons purchasing tickets, the correspondingly numbered slips, or lots, representing prizes or blanks, being drawn * *. In law, the term lottery embraces all schemes for the distribution of prizes by chance, such as policyplaying, gift-exhibitions, prize-concerts, raffles at fairs, etc., and includes various forms of gambling." Practically the same definition is given by the legal authorities. Thus, in 14 Am. & Eng. Enc. Law (2d Ed.) 600, it is defined as "a gambling contract in which one or more parties on the one side risk a small sum for the chance of obtaining a greater, the winner or winners to be determined by lot;" and in the 19th volume of the same work, at page 588. as "a scheme for the distribution of prizes by lot or chance; a game of hazard in which small sums of money are ventured for the chance of obtaining a larger value, in money or other articles." Mr. Bishop says it is "any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine." Bish. St. Crimes (2d Ed.) § 952. Mr. Chief Justice Sherwood defines it as "a scheme by which a result is reached by some action or means taken, and in which result man's choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished." People v. Elliott, 74 Mich. 264, 267, 41 N. W. Rep. 916, 3 L. R. A. 403, 16 Am. St. Rep. 640. Definitions of similar import could be given indefinitely, as the books are full of them, but those quoted are sufficient for the present purpose, and show that any scheme for the distribution of property by lot or chance is a lottery, whatever form it may take, or however ingeniously its real object may be concealed. As illustrating how zealous the courts are to condemn any scheme that is in effect a lottery, and as showing what have been held to be such, reference may be made to 19 Am. & Eng. Enc. Law (2d Ed.) 590; Meyer v. State, 112 Ga. 20, 37 S. E. Rep. 96, 51 L. R. A. 496, 81 Am. St. Rep. 17; Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171; Thomas v. People, 59 Ill. 160; State v. Shorts, 32 N. J. Law, 398, 90 Am. Dec. 668; Holoman v. State, 2 Tex. App. 610, 28 Am. Rep. 439; State v. Lumsden, 89 N. Car. 572; U. S. v. Wallis (D. C.), 58 Fed. Rep. 942; Hull v. Ruggles 56, N. Y. 424; U. S. v. Olney, 1 Deady, 461, Fed. Rep. Cas. No. 15,918; State v. Boneil, 42 La. 1110, 8 So. Rep. 298, 10 L. R. A. 60, 21 Am. St. Rep. 413; Dunn v. People, 40 Ill. 465; Horner v. U. S., 147 U. S. 449,13 Sup.Ct. Rep. 409,37 L. Ed. 237; Wilkinson v. Gill, 74 N.Y. 63, 30 Am. Fed. Rep. 264; Comm. v. Wright, 137 Mass. 250, 50 Am. Rep. 306; U. S.

v. Fulkerson (D. C.), 74 Fed. Rep. 619; State v. Moren, 48 Minn. 555, 51 N. W. Rep. 618.

In all these cases, as well as in the definitions to be found in the books, it will be observed that one essential ingredient of a lottery is the element of chance, by which some prize or other thing of value in excess of that paid for by the purchaser is distributed to the holder of a ticket or other designated person by some means, the result of which human foresight or sagacity cannot foretell. "This ingredient of chance," says Mr. Chief Justice Beasley, in State v. Shorts, 32 N. J. Law, 398, 90 Am. Dec. 668, "is, obviously the evil principle against which all prohibitory laws are aimed. It is by this means that cupidity is solicited, for, if fortune be propitious, in consideration of the trival price of a ticket, a return of value is to be expected." There cannot, therefore, be a lottery without this element of uncertainty or chance. If the power of reason or will is exercised upon the selection, then there is no lottery.

Now, when the contract under consideration is examined, the element of pure chance is found wanting. The awarding of the pianos, which are proposed to be given away as an advertisement, is not made by chance or lot, but by the affirmative, conscious act and will of the holders of tickets obtained with goods purchased at the defendant's store. By the contract, the plaintiffs agreed to furnish the defendant 5,000 tickets, in assorted denominations, two display cards, and pay for advertising the piano contest, giving the result of the vote and the subscribers' names for a certain specified time, in consideration of which the defendant agreed to pay to them a certain amount of money, to keep these placards on exhibition in his store, and to give to each and every oue of his customers one ticket with each 25 cents cash purchase, which ticket entitled the holder to a vote in determining to whom the pianos should be awarded. By the arrangement, each purchaser of goods of a certain value obtained a ticket, which simply entitled him to the right to vote in the contest, but by no possibility could he obtain a piano merely aa a holder of such ticket, or of any number of tickets, on account of these purchases. The pianos were not to be given to the holders of tickets alone, but "to the society, church, school, lodge, or person having secured the greatest number of votes at the close of each contest," whether holding a ticket or not; so that the holder of a ticket, or of any number of tickets, as such, stood no more chance to obtain the gift than one who had not traded at defendant's store and held no ticket at all. The pianos were not to be distributed among the ticket holders by schemes or lots, or to the persons holding the greatest number of tickets, but the award depended upon the result of the vote. There was, therefore, no awarding of the prizes by lot or chance, and no appeal to the cupidity of any one, nor inducement to make reckless purchases in the hope of securing some