other; their separate services had an immediate common object--the moving of engines; neither worked under the orders or control of the other. Following that, in 112 U. S. 377, 5 Sup. Ct. Rep. 184, the famous Ross Case, the supreme court, by five to four judges, held that a conductor having charge of a train was so far localized in his work, and given such control over the train, that it was fair to hold him as a viceprincipal, and not a co-employe with one on another train injured by his negligence; but they do not carry this exception to the old rule beyond the conductor; and while, of course, no man can know what may be the decision of the court in subsequent cases, I am reliably informed that the decision was intentionally and narrowly limited to the case of a conductor. In Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. Rep. 590, a case that went up from Dakota, the court held that one who had charge of the keeping of the cars and machinery in order was not a coemploye with one who was at work as a brakeman, on the ground that it was an independent duty of the railroad company to see that its machinery, its cars, were kept in order; and that that was not a common service with that of one who is employed in running trains. In 119 U. S. there are two cases,-one, Steam-Ship Co. v. Carey, p. 245, 7 Sup. Ct. Rep. 1360, and the other Railway Co. v. McLaughlin, p. 566, 7 Sup. Ct. Rep. 1366. Neither of those cases adds anything to the question, for they were each affirmed by a divided court, so no principle of law was settled. In one of them the negligence charged was of some agent of the company in failing to provide a suitable rope. That was the duty of one who had charge of the machinery of the company as contradis tinguished from one who worked in using such implements; and yet, by only a divided court, the judgment below was affirmed. The other case went up from Iowa, and that was affirmed by a divided court; although in Iowa, by statute, they have abolished the rule in respect to co-em-. ployes, just as they have in Kansas. So the rule, as at present left by the supreme court,-and that, of course, guides me,—is that an engineer is a co-employe. It is a common service in a common object,—the moving of trains,—and, following the decisions of that court, I must sustain the demurrer to that complaint.

CANTER v. COLORADO UNITED MIN. Co.

(Oircuit Court, D. Colorado. May 4, 1888.)

MASTER AND SERVANT-NEGLIGENCE OF MASTER-PLEADING.

The complaint in an action for damages for personal injuries set out the employment of plaintiff by defendant, and charged a breach of duty on the employer's part in failing to keep a certain ladder in proper repair, and that one of the rounds of said ladder broke and dropped plaintiff. The allegation of negligence was to the effect that "it was the duty of defendant to keep said ladder in good, safe, and secure condition, so that those in its employment might securely ascend and descend the shaft upon the same." Held. on de.

murrer, that the duty of the employer was stated too broadly, and that the complaint should be amended so as to confine that duty to the exercise of "reasonable care and diligence. "1

At Law. Action for damages for personal injuries. On demurrer to complaint.

T. M. Patterson, for plaintiff.

R. S. Morrison, for defendant.

BREWER, J. In this case there is a demurrer to the complaint. The cause of action is one for personal injuries. There is really no difference between counsel on both sides and the court as to the rule of law applicable to cases of this kind. The complaint charges a breach of duty on the part of the defendant in failing to keep a ladder in good condition, one of the rounds of which broke, and dropped the plaintiff, causing the accident. It is not the absolute duty of an employer to see that the instruments and machinery he provides are safe. The limit of his duty is reasonable care and precaution in that respect. I think that, taking the complaint as a whole, it may be an open question whether any more than a breach of such duty is charged, and yet, in the clause stating the duty separately, it is stated broader than the law imposes. The particular clause reads thus:

"That it was the duty of said defendant company to keep the said ladder in good, safe, and secure condition, so that those in its employment might ascend and descend the shaft upon the same, secure from harm by reason of the breaking of or injury to the same."

That, construed strictly, is an affirmance that it was an absolute duty, and a breach of that duty necessarily would cause liability, and in cases of this kind, where the form of the complaint is challenged in the first instance, cases in which we all know that the sympathies of the jury naturally go out to the injured person,-I do not know but what it is fair and right that the language of the complaint should be made technically accurate in describing the duty resting upon the defendant. So, although there is general language in the subsequent part of the complaint that the defendant negligently and carelessly did so and so, I think, as this is challenged in the first instance, it would be no more than fair to sustain the demurrer, and at the same time permit an amendment by interlineation in this clause, so that it shall read that it was the duty of said company to use reasonable care and diligence to keep the said ladder, etc.; or putting at the close of the sentence, "So far as the same could be accomplished by the exercise of reasonable care and diligence," so that, when the complaint is read to the jury, and commented on, it may appear that the limit of its duty is the exercise of reasonable care and prudence. .

1A master's liability for injuries to his servant for defective arrangements is not that of an insurer or of a guarantor. The question is one of reasonable care and diligence. Batterson v. Railway Co., (Mich.) 13 N. W. Rep. 508, 18 N. W. Rep. 584; Richards v. Rough, (Mich.) 18 N. W. Rep. 785; Railroad Co. v. Wagner, (Kan.) 7 Pac. Rep. 204; Pierce v. Mills, (Ga.) 4 S. E. Rep. 381; Manufacturing Co. v. McCormick, (Pa.) 12 Atl. Rep. 273; Bowen v. Railway Co., (Mo.) 8 S. W. Rep. 230.

COWAN v. UNION PAC. RY. Co.

(Circuit Court, D. Colorado. May 12, 1888)

MASTER AND SERVANT-NEGLIGENCE OF MASTER-FAILURE TO FENCE RAILROAD TRACK.

Neither common nor statute law in Colorado require that a railroad company shall fence its track to prevent cattle from straying upon it. Hence, the company is not liable for the death of one of its engineers caused by a collision with cattle on the track.

At Law. Action for damages. On demurrer to complaint.
Browne & Putnam, for plaintiff.

Teller & Orahood, for defendant.

BREWER, J. In Cowan against the Union Pacific Railway Company is a demurrer to the complaint. The cause of action is, briefly, that the plaintiff's intestate was an engineer on the defendant's road, and while running a train, stray cattle jumped on the track, whereby the engine was thrown therefrom and he killed. Neither common nor statute law in Colorado requires that a railroad company fence its track to prevent cattle straying upon it, and where there is no obligation there is no liability. Counsel for plaintiff, in his brief, admits there is no authority sustaining this complaint, but insists that somebody must blaze the way, and we ought to. It is sufficient reply to that that it is the duty of the law-making power-the legislature-to blaze the way. The duty of the court is simply to walk super antiquas vias. Many a case I decide one way when I should decide differently if I had authority to make as well as construe the law. In the absence of any legislative action establishing a new rule, the only true way and rule for the court is to say ita lex scripta est. The demurrer to the complaint will be sustained. This is one of those cases whose pleading, I think, in the nature of things, cannot be changed so as to make a cause of action.

HOLLAND V. BROWN et al.

(District Court, D. Oregon. May 22, 1888.)

1. DEATH BY WRONGFUL ACT-ACTION BY ADMINISTRATOR-DAMAGES. The damages given to an administrator for the death of his intestate by the statute of Oregon (Comp. 1887, § 371) are, when recovered, assets of the estate. They do not include anything but what is consequent on the death, and therefore no allowance can be made for the expenses of the illness attendant on the injury which caused the death, or of the burial of the deceased.

2. SAME.

These damages are in the nature of a compensation paid by the wrong-doer to creditors and next of kin of the deceased for the loss of life in which they have a pecuniary interest, and incidentally the liability to pay them is calculated to secure from carriers and corporations more consideration for the lives of passengers and employes committed to their care.

3. SAME LIABILITY OF VESSELS IN FAult.

Ferry-boat No: 2 and the steam-launch Mikado collided in the Willamette river, in front of the Portland slip of the former, and thereby caused the death of a passenger on the latter, when such collision might have been avoided and the death prevented by the proper handling of either boat. Held, the owners of both boats are liable to the administrator of the deceased, under the statute of Oregon, in solido, for the damages resulting from such death. (Syllabus by the Court.)

In Admiralty.

William H. Effinger, for libelant.

Rufus Mallory, for Brown & McCabe.
John W. Whalley, for receiver, Koehler:

DEADY, J. This suit is brought by the libelant as the administrator of the estate of Philip J. Holland, deceased, against the defendants J. A. Brown and William L. McCabe, as owners of the steam-launch Mikado, and Richard Koehler, as the receiver of the United States circuit court of this district, of the property of the Oregon & California Railway Company, the owner of the steam ferry-boat No. 2, to recover damages for the death of said Philip, alleged to have been caused by the concurring negligence and misconduct of the persons in charge of said boats, respectively, on October 26, 1886.

The owners of the Mikado and the receiver answer separately, and the controversy has assumed a three-sided form; each defendant practically admitting that the deceased came to his death by the fault of the person in charge of the other's boat. Brown and McCabe also allege that the negligence of the deceased contributed to his death; and both defendants. allege that his death was no loss to his estate. The character in which the libelant sues is admitted.

From the pleadings and evidence in the case, and a view of the vicinity where the injury occurred, I find the following facts:

On and before October 26, 1886, the Oregon & California Railway Company was the owner of the steam ferry-boat No. 2, then running under the direction of the defendant Koehler, receiver as aforesaid, as a ferry-boat on the Willamette river, between her slip at the foot of F street in Portland, and her landing on the east side of the river, a distance of about 1,000 feet across the stream and 800 feet down the same from said slip.

The ferry-boat is a double ended, heavy, side-wheel, iron boat of great power. about 130 feet long and 54 feet wide over all,-her guards projecting beyond her hull some 10 to 12 feet, and about 8 feet above her water-line, and is capable of making 12 miles an hour, and of stopping when under way, at full speed, in about 70 feet.

At the same time the defendants Brown & McCabe were the owners of the steam-launch Mikado, then engaged in carrying passengers between Portland and Albina,—a distance of about a mile,-starting from her dock in Portland, between D and E streets, and about 360 feet above the ferry slip. The Mikado is a propeller about 45 feet long and 12 feet beam, and can make 10 to 12 miles an hour. She has a pilot-house a few feet aft of her stern, back of which is a cabin on deck and an open space at the stern, for the accommodation of passengers, of which she can carry 60.

Brown & McCabe are stevedores, and the Mikado was being used by them

to carry their workmen down the river, to assist in loading and unloading vessels. Brown usually acted as pilot, for which he had a license from the United States inspectors. At this time the owners of the Mikado were under contract with Robert MacIntosh, a ship carpenter of Portland, to carry his workmen to and from their employment between the termini of her route, at so much a month.

On the morning of October 26, 1886, the Mikado was at her dock with 35 or 40 passengers on board, mostly workmen going to their day's labor, including the deceased, who was then in the employ of MacIntosh as a "liner" of ships and "handy man." Brown, the pilot, was not on hand. Arthur Jones, a youth between 17 and 18 years of age, who is now engaged as fireman on the Northern Pacific Railway, and was then employed on the boat in some subordinate capacity, often took the wheel under Brown's direction. The time having arrived for the passengers to go to their work, Jones undertook to make the trip as pilot. Accordingly the Mikado was started out, head up stream, and swung around till her bow pointed down stream, at about 250 feet from the west shore and her dock, when Jones observed the ferry-boat coming out of her slip on the way across and down the river to her east shore landing. He immediately gave one blast of his whistle, to signify that he intended to pass to the right. The pilot of the ferry-boat immediately responded with one whistle, and, instead of porting his helm and passing to the right, up stream, stopped his engines. At the time these signals were given, the ferry-boat had moved out from her slip about 20 feet, and the Mikado was about 300 feet above the point where the courses of the two boats, if continued, would cross each other at right angles.

The ferry-boat had not yet gotten steerage-way, and was moving directly across the river at about three miles an hour, while the Mikado was moving down stream at about five miles an hour, with her helm slightly to port. The ferry-boat, by force of the impetus already obtained, continued to move forward through the water after her engines were stopped, and the Mikado did not change her course or slacken her speed until the collision was imminent or unavoidable, when she ported her helm and stopped her engine. About the same time the ferry boat reversed her engines.

The port side of the bow of the Mikado came in contact with the starboard side of the ferry-boat, about 20 feet aft, at an angle of about 45 deg., and ran under the latter, which pushed the pilot-house of the Mikado, with Jones in it, off into the river on the starboard side.

At and just before the collision took place the deceased, with two other passengers, was standing on the deck of the Mikado in front of the pilot-house. One of them saved himself by jumping overboard and the other by springing up onto the guard of the ferry-boat. But the deceased was caught about the head, between the guard and pilot-house, and badly hurt, from the effects of which he subsequently died. Among other injuries, his jaw was broken and his skull fractured at the base, which resulted in an abscess on the brain, that was the immediate cause of his death.

There was neither wind nor current to interfere with the action or management of the boats, and either could have been stopped, backed, or turned aside without difficulty in time to avoid the collision.

From these facts, but one conclusion can be drawn. The management of both boats was in fault. The first duty of a person in charge of a vessel, particularly where the lives of passengers are at risk, is to avoid a collision by all means.

The Mikado was moving at the rate of 5 miles an hour, and the ferryboat at the rate of 3, when the whistles were blown. The former would