manent improvements" or "substantial repairs" he must make out a
case for them at the trial. Tipton Co. v. Tipton Co.,

10, 591

43. Stone severed after mortgage-Prior lien of workmen.--Held,
that the stone was subject to the lien of the mortgage, but that under
the circumstances it must be postponed to the lien for the quarrymen's
wages. Am. Trust Co. v. Belleville Co.,

10, 594

44. Mortgagee allowing mortgagor to work a quarry as his own.—
Held, to have let in an intervening lien. Id.

45. Mortgagor entitled to income of property.-Until the mortgagee
of a coal mine takes possession, either in person or by receiver, the
mortgagor is entitled to the income derived from operating the same.
Young v. Northern Ill. Co.,

10, 596

46. Assignment of drafts-Advances on mine proceeds.-The
mortgagor, prior to the appointment of a receiver, assigned to a
creditor bank certain drafts, drawn upon parties for the approximate
amounts of their several coal bills for the then current month. Sub-
sequently, and after the appointment of a receiver, the mortgagor
gave to the bank drafts upon the same parties for the actual amounts
due: Held, that the demands represented by the drafts were assets
of the mortgagor company, and it had the right to pledge or assign
them to secure the bank, and that the assignment of the latter set of
drafts being only the consummation of the previous agreement of the
parties, was valid, and passed title to the bank. Id.

47. Idem-Conflicting equities of creditors.-The fact that, at the
time of the appointment of the receiver, the mortgagor company was
largely in debt to its miners, and that the mortgagees were compelled
to advance the necessary funds to pay them, would not give to the
mortgagees a right to the proceeds of such drafts, as against the
bank. Id.

48. Reconveyance of title to mortgagee.-S. held a deed of mining
ground as a mortgage to secure an existing indebtedness; he conveyed
the premises to P., and after two or more transfers of the title, the
property was re-deeded to S.: Held, that when the title returned to
S., the same equities attached to it in his hands as existed at the time
he made the conveyance to P. Brophy Co. v. Brophy Co., 10, 601
49. In a mortgage to secure an antecedent debt, the mortgagee is
not regarded as a purchaser, and therefore his lien will be postponed
to that of a prior but unrecorded one. Bybee v. Hawkett, 11, 594
50. Attempted set-off by junior mortgagee.—In a suit to enforce
the lien of a mortgage, a subsequent mortgagee, who is made defend-
ant on that account, can not set up a claim or have a decree against
the plaintiff for the amount of his debt upon the ground that the
plaintiff is personally liable to him therefor as partner of his mort-
gagor. Id.

51. Working by mortgagor in possession.—The opening of a quarry
by a mortgagor in possession inures to the benefit of the mortgagee
of the term, so as to render him dispunishable for waste if he worked
the quarry during the term. Elias v. Snowdon Co.,
15, 143

MUNICIPAL CORPORATION.

1. Virginia city charter construed. City of Virginia v. Chollar
Potosi Co.,

14, 120

2. Adjournments of meetings of county commissioners.—The judges
discuss the question as to the time when the meeting should be held,
and the power of the commissioners after adjournment to revoke the
order, and meet at an earlier day. State v. Manhattan Co., 14, 149
NATURAL GAS.

1. The transportation of natural gas for public consumption is a
public use. Johnston's App.,
15, 556
2. Payment conditioned on striking gas. Held, that the breach
was complete by failure to sink the well-but without ruling on the
measure of damages. Washington Co. v. Johnson,

NEGLIGENCE.

1.

A-DEFINED-INSTANCES.

B-DEGREES OF-MEASURE OF DAMAGES.

C-PARTIES-MASTER AND SERVANT.

D-MACHINERY-WORKINGS-MINE ACCIDENTS.

E-KNOWLEDGE -NOTICE.

F-PLEADING-PRACTICE.

G-EVIDENCE.

H-CONTRIBUTORY.

A. Defined-Instances.

16, 165

Negligence Defined.—“ Negligence is the omission to do some-
thing which a reasonable man, guided by those considerations which
ordinarily regulate conduct of human affairs, would do, or doing some-
thing which a prudent and reasonable man would not do. It is
not absolute or intrinsic, but is always relative to some circumstances
of time, place or person." Richardson v. Kier,

4, 613

2. Human agency aiding natural causes.-That water will natu-
rally descend is entirely consistent with its descent being so controlled
or directed in a particular instance by accountable human agency as
to work an injury to lands lying below, which would not otherwise
have resulted. Robinson v. Black Diamond Co.,
14, 93
3. Mining for coal is a dangerous occupation. Barksdale v. Fin-
ney,
14, 541

4. Responsibility for accident from natural causes.-A mine owner
will not be liable to the owner of an adjacent mine for injury occa-
sioned to such adjacent mine, where such injury proceeds from nat-
ural causes in themselves beyond his control, though his own acts may
have conduced to produce the injury, if his acts have been without
default or negligence. Fletcher v. Smith,
5, 78
5. Coal owner required to leave pillars although released from
injuries resulting to the surface from mining. Livingston v. Moin-
gona Co.,
10, 696

6. Tapping swollen ditch by the owner so as to flood a farm where
he might easily have run off the water without injury to the farin,
will justify a verdict imputing negligence. Turner v. Tuolumne
Co.,
1, 107

VOL. XVI.-34

NEGLIGENCE-Defined-Instances.

Continued.

7. Prior appropriation as affecting accidental injuries.-There is
no doubt that ditch owners would be responsible for wanton injury or
gross negligence, but they are not liable for mere accidental injury to
claim located subsequent to the construction of the ditch, if no neg-
ligence is shown. Tenney v. Miner's Ditch Co.,

11, 31

8. Percolation into tunnel from irrigating ditch-Sic utere tuo, ap-
plied to such interfering rights. Gibson v. Puchtu,
12, 227

9. What is due care and ordinary diligence depends much on the
business and the material. Ardesco Co. v. Gilson,

B. Degrees of Measure of Damages.

10, 669

10. Careless management of water ditch.—In an action for injury
to land by reason of the alleged careless management of defendant's
water ditch, the rule applicable is, that "defendant is bound to the use
of such care in the management of the ditch as prudent persons employ
in the conduct of their own affairs." Campbell v. Bear River Co.,
10, 656

11. The owner of a ditch is bound to use that care and caution which
a prudent man would use if the risk were his. Wolf v. St. Louis Co.,
10, C36

12. Negligence in such case a question of fact.-The degree and fact
of prudence must depend upon the particular circumstances of each
case; for what, under one state of facts, would be prudence, might,
under a different condition of things, be gross, or even criminal, negli-
gence. Id.

13. Injuries to garden by breaking of reservoir-Degree of negligence
-Error in instruction cured by explanation. Todd v. Cochell,
10, 655

14. Subsidence of land owing to negligence in mining—Smoke from
coke ovens injuring crops. The land owner is entitled to such damages
as the jury believe from the evidence he has thereby sustained. Brown
v. Torrence,
10, 692

15. Damages for pain and anxiety.-The jury, in estimating the
amount of damages for physical injury may consider, and may be
instructed to consider, the suffering and anxiety of mind of the plaintiff,
caused by the injury, though not included in the complaint.
v. Compton,

Wright

2, 189

Ardesco Oil Co. v.
10, 669

16. Employment of competent persons of good character, with due
care in choosing them renders the employer irresponsible for injuries
to others from their negligence or want of skill.
Gilson,
17. Idem-Boiler explosion.—If one employs a reputable machinist
to construct a steam engine and it blows up from bad materials or
unskillful work, the employer is not responsible for injury it causes. Id.

18. Machinery built on employer's own plan.-The rule is different
if the machine is made according to the employer's own plan, or he
interferes and gives directions as to its manner of construction. Id.

NEGLIGENCE-Parties, etc. Continued.

19. There is no difference between liability to a stranger and to a
servant for a man's own negligence or want of skill. Id.

20. Lessor not liable for surface injuries resulting from negligence
of lessee. Offerman v. Starr,

10, 614

21. Idem, as to licensor.-There would be no difference in regard to
the responsibility of defendants if the instrument were a license in
terms. Id.

22. Tort of lessees.-Lessors are not liable for the wrongful acts of
the lessees of their mines not done by their authority or command.
Little Schuylkill Co. v. Richards,

10, 661

23. Rule as to corporate liability.-The officer having charge of the
business must for all practical purposes be regarded as the corporation
itself, and that the same rule of liability must be applied to corporations
as to natural persons. Ardesco Oil Co. v. Gilson,

10. 669

24. Accident from reservoir bursting in hands of contractor. Bos-
well v. Laird,

10, 616

25. Respondeat superior, when not to apply.-The relation of the
parties is that of independent contractors; the relation of master and
servant, or superior and subordinate, did not exist between them,
and therefore thedoctrine respondent superior does not apply. Id.

26. Ordinary and extraordinary risks.—Where an employe con-
tracts to perform, for extra compensation, hazardous service, he only
contracts to take upon himself the risks incident to that employment
and not risks growing out of the negligence of the employer. Tri-
hay v. Brooklyn Co.,
15, 535

27. Co-employe-Superior and inferior servants.-A corporation is
not liable for injuries suffered by an employe through the negligence
of a co-employe of a different grade, not vested with authority in the
general management of the corporate business. Peterson v. White-
breast Co.,

11, 1

28. Coal dirt in stream-Contribution to injury. Little Schuykill
Co. v. Richards,
10, 661

29. Liability of architect is where the defect is inherent in his plan.
If the plan be devised by the owners, and the builders simply engaged
to carry it out, and the defects from which the injuries resulted be in-
herent in the plan, then the former would be liable to plaintiffs. Bos-
well v. Laird,
10, 616
30. Proprietor not liable because accident happened on his premises.

Id

D. Machinery-Workings-Mine Accident.

31. Choice of instrumentalities.-Where unsafe instrumentalities
are needlessly used to perform a particular work, this adoption is
negligence. Berea Co. v. Kraft,
10, 16
32. It is culpable negligence to avoid keeping mining works pru-
dently protected. Lake Superior Co. v. Erickson,
10, 39

33. Duty to employes--Safe machinery.-Employers owe to their
servants and workmen the exercise of reasonable care and proper dili-
gence in providing them with safe machinery and suitable tools, and

NEGLIGENCE-Machinery, etc. Continued.

employing with them fit and competent superintendents and fellow
workmen. Ardesco Oil Co. v. Gilson,

10, 669

34. Neglect of statutory mine regulations.—Where a mining com-
pany failed to comply with the terms of the act of 1872, which re-
quired the top of each shaft to be securely fenced by vertical or flat
gates, properly covering and protecting the area of the shaft, the com-
pany is liable for the resulting death of an employe using due care.
Bartlett Co. v. Roach,

10, CS2

35. Neglect of company and that of co-employe distinguished.-The
failure of a company to comply with the statutory requirement which
results in injury to the employe, distinguished from cases where injury
is the result of negligence of a co-employe. Id.

36. Defective ladder-Employer not an insurer of safety but bound
to diligence. Canter v. Colorado M. Co.,

15, 559

37. Plaintiff was injured by a scale while timbering a fresh stope-
The evidence tended to show that the ground required immediate tim-
bering, as the stope was broken, to keep it safe: Held, sufficient proof
of negligence to sustain a verdict. Trihay v. Brooklyn Co., 15, 535
38. Running cars during recess for men to occupy the gangway is
negligence. Silver Cord Co. v. McDonald,

16, 171
39. Idem-Rule habitually disregarded.—The permitted non-observ-
ance of the rule makes its violation by the men no defense to the com-
pany. Id.

40. A company adopting rules should conform to them, and if it
fails to observe them it is liable for the consequences. Id.

41. Miner killed while off duty.-Held, that not being engaged in
the line of his duty at the time of the injury he stood in the same re-
lation as a visitor to the mine and could not complain of defendant's
negligence. Wright v. Rawson,

E. Knowledge-Notice.

11, 3

42. Evidence of admission by employer of knowledge of danger to
employe sufficient to justify the submission of the question of his neg-
ligence to the jury. Strahlendorf v. Rosenthal,

10, 676
43. No implied knowledge of danger from contact of hot slag with
water. McGowan v. La Plata Co.,
10, 59
44. Idem-Knowledge of facts and knowledge of implied dangers
distinguished.-It is not so much a question whether the party injured
has knowledge of all the facts in his situation as whether he is aware
of the dangers that threaten him. Id.

45. Injury from falling bucket-Presence of master-Working after
knowledge of danger.--Plaintiff, a workman employed in sinking a pit,
was injured by the fall of a tub filled with water. Evidence was given
that the hoisting tackle was defective, not being fitted with a safe hook,
and that the jiddy should have been used for hoisting the water as well
as the earth. The master was at the works several times each day.
Held, that the master was not liable, the plaintiff himself having at-
tached the bucket to the hook and the plaintiff's fellow workmen hav-
ing neglected to use the jiddy. Griffiths v. Gidlow,

10, 639