source: Caselaw Access Project

author: Caldwell, J. Hitchcock, C. J. Spalding, J.,

license: Public Domain

text:
    The Little Miami Railroad Company v. John Stevens.

    Where an employer placed one person in his employ under the direction of another, also in his employ, such employer is liable for injury to the person of him placed in the subordinate situation, by the negligence of his superior.
    When a railroad company places the engineer under their employ under the control of the conductor, who directs when the cars are to, start, stop, etc., the company are liable to the engineer for an injury received, occasioned by the negligence of the conductor, whilst they are both engaged in their respective employments.
    Error, to the common pleas of Hamilton county.
    In the common pleas, Stevens sued the Little Miami Eailroad Company, in an action on the case, to recover damages for injury to his person, occasioned by a collision between two trains of railroad cars belonging to said company.
    One of the counts in the declaration is as follows:

      “ And also, for that whereas, before the time of the committing of the grievances hereinafter next mentioned, the defendant was possessed of a certain other railway running from Cincinnati, in the county aforesaid, to Springfield, to wit, also in the county aforesaid, and of two certain other locomotives with Mother trains of railway, ears attached to each, the one thereof running from Cincinnati aforesaid to Springfield aforesaid and back again the ensuing day, and the other thereof also running from Springfield aforesaid to Cincinnati aforesaid and back again the ensuing day, which said two last-mentioned locomotives, with their respective trains, were used and accustomed to meet and safely pass each other at Plainville, in the county aforesaid, by the express direction and arrangement of the defendant, to wit, at the county aforesaid. And whereas, the plaintiff, at and before the time of the committing of the grievances hereinafter next mentioned, was employed by the defendant as engineer upon one of the said last-mentioned locomotives, at and for a certain reward agreed upon by the parties in that behalf, and was accustomed to stop the said last-mentioned locomotive at Plainville aforesaid, in the county aforesaid, under the direction and arrangement of the defendant as aforesaid, and there safely to pass the other of the last-mentioned locomotives as aforesaid, to wit, at the county aforesaid. And whereas, by reason of the premises, it became the duty of the defendant, by its agents and servants, to give the plaintiff due and timely notice of any chango in the place of meeting and passage of the two last-mentioned locomotives and their respective trains, to wit, at the county aforesaid. Yet the defendant, by its agents and servants, not regarding its duty as aforesaid, but contriving to injure and aggrieve the plaintiff in this behalf, did, by its agents and servants, heretofore, to wit, on the 12th day of August, in the year eighteen hundred and forty-six, change the place of meeting and passage of the said last-mentioned locomotives, with their trains, from Plainville as aforesaid to Columbia, to wit, also in the county aforesaid, the said change to take effect on the ensuing day, to wit, on the 13th day of August aforesaid, without giving the plaintiff due and timely notice thereof, to wit, at the county aforesaid. Whereby, whilst the plaintiff was proceeding, in the capacity of engineer as aforesaid, on one of the said last-mentioned locomotives, with the train thereto belonging, from Cincinnati as aforesaid, *to Springfield as aforesaid, to wit, on the 13th day of August, in the year eighteen hundred and' forty-six, according to the previous express direction and arrangement of the defendant in that behalf, between Columbia as aforesaid and Plainville as aforesaid, to wit, at the county aforesaid, the other of the said last-mentioned locomotives unavoidably ran against, and came into collision with the said locomotive on which the plaintiff was, in cajjaeity of engineer aforesaid, and violently crushed the same. Whereby the plaintiff then and there was greatly scalded, bruised, lacerated, hurt and wounded, and in consequence thereof became and was sick, sore, lame, and disordered, and so remained,” etc., setting out the injuries at length.
    Plea, general use.

      At the February term, 1850, of the common pleas, the cause was tried to a jury, who returned a verdict for plaintiff below, and assessed his damages at $3,700.
    The defendant moved to set aside the verdict, and for a new trial, because of the rulings of the court, the charge given, and refusal to charge the jury as requested, because of discovery of new testimony, and that a witness under subpena left during trial; and also moved in arrest of judgment, for that the declaration was insufficient; which motions the court overruled, and entered judgment on the verdict.
    On the trial a bill of exceptions was taken by defendant below, which was made part of the record, and sets out all the evidence.
    This writ of error is prosecuted to reverse said judgment, and the errors assigned present the question as to the correctness of the action of the common pleas.
    The bill of exceptions discloses the following state of facts: Stevens was an engineer, employed by the railroad company, to run their engine attached to a locomotive, with a train of cars, prior to and on August 13, 1846. He was in this employ on said day, on the train going up from Cincinnati to Springfield; and a little above the town of Columbia, this ^ascending train came in collision with the descending train; by which collision Stevens was severely injured in a way to affect him for life. The collision took place on the day after the completion of the Little Miami Railroad to Springfield. On that day (August 13th) a change of place for passing the cars (that is, the up and down trains) was to take place in pursuance of a previous arrangement of the company. The trains had been in the habit of passing each other at a place called Plainville, some three miles above Columbia. On that day the cars were to pass at Columbia. Cards had been delivered to all the engineers and conductors except Stevens, giving notice of the change in the time and place of passing. The times and places of passing had been previously governed by similar cards, also furnished the conductors and engineers by the company, in accordance with a custom of the company by which the engineers and conductors are notified of all changes in the times and places of passing.
    On the trial it was further proved as follows :

      Isaac West, witness for Stevens,
    testified as stated in the opinion of Judge Caldwell; also, “that on day of collision the ascending train left Cincinnati between nine and ten o’clock a. m. The cars went on, not very fast; blew the whistle at road-crossings, and passing under bridge; blew half dozen times after left Columbia to bridge; thought something wrong, and went aft on the cars» Running ten or twelve miles an hour until they saw the other train ; trains came in collision quarter of a mile beyond bridge, on a curve; could see each other one. hundred and fifty or two hundred yards apart; no man was started on ahead of the train ; did not hear the whistle or bell of descending train; ascending train had nearly stopped when descending train ran into it; suspected danger from Stevens asking Smith if did not change passing places that day, and frequent blowing of whistle.

      Wm. L. Sazen, witness for Stevens:
    Was conductor on descending train when collision occurred; was running fifteen miles per hour; was not ringing the bell, nor blowing whistle *when met ascending train ; met in curve, and on right of curve coming down is heavy hill—a gravel bank ; could not see-the other train more than three hundred feet. When the engineer on down train saw the other train he gave signal of alarm by whistle, and they tried to check descending train; proves collision, custom to deliver new cards when time of passing changed, etc.

      The conductors have charge of the trains, not the engineers; they give directions when to go on and when to stop. Alexander H. Lewis, freight clerk or agent at the depot at Gincinnati for the company, went up with witness to Springfield on cars, August 12th; returned with witness on 13th, and was at collision. Clement, the superintendent of the road, went to Springfield, August 12th, and was there on morning of 13tb. Conductors control according to the rules on the card; if danger apprehended, they send a man ahead of train one hundred yards, and keep him ahead until out of danger. It is not determined who should send the man ahead, the conductor or engineer; hut the conductor has to keep one hundred yards behind Mm.

    If the conductor wants to stop, ho notifies engineer, and it is his duty to stop until conductor directs him to go on. Conductor does not direct to run fast or slow, unless he knows of danger. Not customary for engineer to stop at any unusual place, unless something broken. After the collision, Stevens told witness that ho was running fast; that he had been blowing his whistle on all tho ■curves after leaving Columbia, because he was expecting the train • that he (Stevens) had no new card. The whistle and noise of one train can not be heard by people on another. Stevens gave no reason why he expected to meet the other train.

      John W. Reynolds, witness for Stevens :
    Is an engineer—was on ascending train when collision occurred. The bell was rung at road-crossings, and not at other places—whistle blown three or four times.
    The engineer runs by conductor’s orders, so far as stopping and going on, keeping the time-card in view at the same time. Engineer always has card, and is put there to make his time. *He ■controls the motion as to time in particular places on road. Should not run as fast around'curves as on straight road. If in doubt in going round curve, should send a man ahead, and keep him ahead one hundred to one hundred and fifty yards, and so run until out of danger. Imprudent to run at rate of ten or fifteen miles an hour around a curve, where there is danger of meeting a train. Engineer’s business to look out for train ahead. If there was ■danger of meeting a train, Stevens was running at an imprudent speed. Was under no apprehension of meeting a train, but was under apprehension something was wrong, by frequent blowing of whistle.

      Paul Hueston, witness for Stevens.
    (See his evidence in the • opinion of Judge Caldwell.)

      Perry Little, for company :
    Was on ascending train which was running twelve or fifteen miles an hour—run usual speed on curve when came in collision. Will take one hundred yards to stop such a train. Stevens did all he could to stop his train when he saw the other one.

      Samuel T. Vanloan, engineer on the descending train:
    In starting from a stopping place, if a train is due, and not there, custom to send a man ahead around curves one hundred to one hundred, and fifty yards. If an engineer was in doubt or uncertainty, whether the trains would pass at Columbia or Plainville, it would be his duty to run slow. Was running his train fourteen miles per hour. Saw ascending train four hundred or four hundred and fifty feet before collision—tried to check up.
    IV. Morrell, chief clerk and book-keeper for company:
    “ The ■company paid wages and expenses of sickness of Stevens after the injury ; last payments made April, 1847.’

      On the morning of the collision, Thomas L. Cole, assistant in engineering department, delivered to George Smith, the conductor on the train on which Stevens was engineer, a time-card (one of the new ones). Smith showed it to witness after it was handed to him. Is certain it was that morning that Smith got the card.
    The time-cards were in evidence. The caption is: “ Instructions *to conductors and engineers for running trains.” The ■rules are printed on the cards.
    By the 10th rule it is declared, that “ in cases of uncertainty as to the occupation of the track, a man must be sent ahead or back, and kept at least one hundred yards distant until the danger is over."

    By the 16t]i rule, “ care at all times is earnestly enjoined. Always take the safe side in cases of doubt."

    (Signed,) “W. H. Clement, Superintendent."

    The defendants below, as the second charge, asked the court to charge the jury, “ that where two or more persons are employed by an individual or company, and in doing the work they are employed to do, one of them, by his negligence and inattention to his duties causes an injury to another, no action can be sustained against the employer, whether he bo an individual or a company.” This charge the court refused.
    The sixth instruction asked by defendants in these words was given : “ If the plaintiff, by his negligence, or by reason of his not observing the usual rules and precautions ordinarily used by skillful men in such cases, contributed toward bringing on the collision, he can not recover for any injury he has sustained.”
    The eighth charge asks the court to charge that “if the jury believe Stevens was in doubt and uncertainty as to whether the trains ought to pass at Columbia instead of Plainville; and if he expected to meet the down train between Columbia and Plain-ville, it was his duty to run slow, and if it was prudent, and according to the usages of engineers, and required by the printed rules of the company in case of doubt and uncertainty, to send a man ahead of the train, and keep him from one hundred to one hundred and fifty yards ahead of the engine, until the bends and curves in that place had been passed, and all apprehension of danger was over; and the plaintiff neglected to send aman already as required by prudence and the printed rules, and such neglect contributed to bring on the collision, and produce the injury, the plaintiff is not entitled to a verdict.”

      *This charge asked by the defendants below, the court refused to give.
    On the motion for a new trial, the affidavits of B. W. Davis and W. H. Clement were filed. Davis states that he was on the ascending train at time of collision ; that when Stevens checked the train at Columbia, Smith, conductor, told Stevens to go on ; that he (Smith) had understood that the trains were to change their passing places on that day, and were to pass at Columbia, but he had no authority from Clement. Smith also directed Stevens to blow the whistle while going around the curves. Affiant never communicated these facts to any agent or attorney of the company until after trial.
    Clement, superintendent of the company, left Cincinnati two days before the collision ; and before leaving, he directed that the trains should pass at Columbia, instead of Plainville, on that day, and had time-cards prepared accordingly ; that he left with A. H. Lewis, clerk in the freight department, new cards to deliver to Stevens, engineer, and Smith, conductor. Affiant was under subpena as a witness on this trial, and was in attendance, but was suddenly called away during trial, after adjournment of court one day, and its meeting next day, in consequence of sudden rise of waters, making it impossible to again appear at trial.
    Charles Pox & French, for plaintiff in error :
    It is well settled that the master is not liable for injuries sustained by one workman or servant by the careless or negligent or unskillful act of another workman or servant. Story on Agency, sec. 453 ; 3 Mees. & Welsb. 1 ; 4 Met. 40; 6 Hill, 592; 10 Mees. & Welsb. 115; 9 Mees. & Welsb. 710; 6 Mees. & Welsb. 505. We therefore claim, under these authorities, that the court should have given the second charge to the jury, as asked by the railroad company. 15 Conn. 124; 42 Eng. C. L. 276.
    In view of the evidence we claim also that the eighth charge ^should have been given. Stevens was himself in fault. The agent is bound by the general and known and safe mode of doing the business, and any departure from it not required by necessity will be at the peril of the agent, and involve him in full responsibility for any loss occasioned thereby. Story on Agency, sec. 199, 77, 96.
    But where there are written instructions given by the principal to the agent, the latter will be compelled to “ adhere faithfully to those instructions in all cases to which they ought properly to be applied.” Story on Agency, sec. 192; 1 Sand’s Sup. Ct. 111, 360.
    “If he unnecessarily exceeds his commission or risks the property of his principal, ho thereby renders himself responsible to Ms principal for all losses and damage which are the natural consequences of his act, and it will constitute no defense for him, that he intended the act to be a benefit to the principal. Story, 192, 333. So it is said the law never holds out a premium for any violation of duty.”
    Again, it is well settled that whenever it can be shown that a loss has occurred to the principal from any violation of duty on the part of an agent, whether by exceeding his authority by positive misconduct, or mere negligence or omission of the agent, in the proper functions of his agency, or in any other manner, the.agent is liable for all losses so occasioned. Story, sec. 217.
    Thus, if a captain deviates from his voyage, he is unquestionably liable to his owners for all losses sustained, directly or indirectly, by such deviation, and admiralty courts will enforce this liability3-. Abbott on Shipping, 167, new. ed. 218; Story on Agency, sec. 219.
    George E. Pugh, Peter Zinn, Geo. H. Pendleton, of counsel for the defendant in error,
    submitted a printed argument of forty-eight pages, maintaining these propositions:
    I. A railroad company is liable to its engineer for any injury *he may sustain by reason of the neglect of another employe to give notice of a change in the place of meeting of two trains.
    II. The rule in cases of collision is, that even if the plaintiff was in fault, yet unless he could have avoided the consequences of the defendant’s neglect or misbehavior, by the use of ordinary care, he is entitled to recover.
    Wo propose to show, by reason and by authority, that Stevens has no right of action against any other servant of the plaintiff in error, for the damage which he sustained. And we also propose to show, by reason and by authority, that he is entitled to his action against the employer of those negligent and unfaithful servants. McComb v. Akron, 15 Ohio, 477; 1 Bl. Com. 421; Lane v. Cotton, 12 Mod. 472; Middleton v. Fowler, 1 Salk. 282; Boson v. Sandford, 2 Salk. 440; Doe v. Martin, 4 Term, 66; Locke v. Stearns, 1 Mot. 560; Holt’s N. P. Cases, 227, n.; Bruker v. Fromont, 6 Term, 659; Lynch v. Nurdin, 1 Q. B. 29; Dixon v. Bell, 1 Stark. 228; 1 Hawk. P. C., chap. 13, sec. 8; Ellis v. Turner, 8 Term, 531; 1 Bl. Com. 429-431, n.; Dane’s Abr., ch. 54, art. 5; Cameron v. Reynolds, Cowp. 403; Rhodes v. Cleveland, 10 Ohio, 161; Bird v. Holbrook, 4 Bing. 628; Holt v. Wilkes, 3 B. & Ald. 304; 18 Ohio, 299.
    The following authorities were examined and reviewed, to wit: Coggs v. Bernard, 2 Ld. Raym. 916; 1 McMullen, 365; 3 Mees. & Welsh. 1; Rapson v. Cubit, 9 Mees. & Welsb. 710; Quarman v. Burnett, 6 M. & W. 505; 4 Met. 49; 6 Hill’s N. Y. 592; Winter-bottom v. Wright, 10 M. & W. 109; 3 Cush. 270.
    A master allows his household servant, who is too ill to help himself, to be put into a damp and unwholesome room, or to have only unhealthy food, and thereby the servant dies; here is only a case of neglect, one of the risks which a servant assumes by his contract of services, we are told. But the common law goes to the “alarming extent” of declaring that this is murder or manslaughter, in the master, according to ^circumstances. Squire’s Case, 1 Russ. on Crimes, 426; Huggins’ Case, 2 Stra. 882; Self’s Case, 1 East’s P. C. 226; Marriott’s Case, 8 C. & P. 425 ; 1 Hale’s P. C. 431.
    The following cases were commented on : Hutchinson v. The York, Newcastle and Berwick Railroad Co., 19 Law J.296; Scudder v. Woodbridge, 1 Kelly, 195 ; Eakin v. Thom, 5 Esp. 6; Holt’s N. P. C. 227, n.; 1 Bl. Com. 432.
    In the case in 19 L. J. 296, it is said : “ Though we have said that a master is not responsible, generally, to one servant, for any injury caused to him by the negligence of another servant, while acting in one common service, yet this must bo taken with the qualification, that the master shall have taken care not to expose his servants to unreasonable risk. The servant, when he engages to run the risk of his service, including those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable care to protect him from risk by associating him only with persons of ordinary skill and care.”
    But we claim that this case at bar is within the exception admitted by the very authorities cited against us. The South Carolina court said that a case might arise in which the railroad company would be liable, even to a servant, for employing improper and unfit agents. The Massachusetts court cautions the com munity against general inferences, and then states our ease as one not decided. Lord Abinger declared that a master “ was bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information, and belief.” It appears from the testimony in this case, that, although a change had been made by the board of directors and the superintendent—■ the latter of whom as fully represented the corporation as the former—in the place and time for the trains to meet and pass, to take effect on the 13th of August, no diligence at all was used to give the engineer a new time-card or any other notification. The testimony of Mr. ^Morrill shows that no attempt even was made to give Stevens a new card.
    Now, in each of the railroad cases (Massachusetts and South Carolina) cited by the present plaintiff in error, it was proven that the company had selected a prudent, experienced, and careful servant to perform the duty, through neglect of which the mischief occurred. And it is upon this ground chiefly, that the plaintiffs in those cases were not permitted to recover.
    Where have we such evidence ? There is no proof that Clement, or Lewis, or Cole, or Smith, was either trusty or competent. If what Morrill says bo true, in any degree, Smith was not trustworthy at all. The testimony in the case leaves it doubtful whether tho principal officer himself, the superintendent, was prudent, careful, or even competent. And, clearly, Mr. Lewis was incompetent and unfit to be trusted : ho went to the celebration, at Springfield, with the new cards in his pockets; and thus idly exposed both Smith, and Stevens to imminent danger. Was he a proper man to bo selected by tho superintendent for the duty of delivering the cards? We leave tho court to answer.
    As to Stevens being himself in fault, the true rule is, that, although the plaintiff was also negligent, yet unless he might have avoided the consequences of the defendant’s negligence by the exercise of ordinary care, he may recover. Bridge v. The Grand Junction Railway Co., 3 M. & W. 244; Thorogood v. Bryan, 18 Law Jour. 336; Davies v. Mann, 10 M. & W. 546. The defendant must take such precautions as will not compel the plaintiff, or any other person, to deal with remote probabilities in order to save life or limb.
    D. T. Wright, on same side:
    We claim that the master is responsible for acts of neglect or carelessness in his servant, while in his employ, upon the maxim,
    “ Qyi facit per aliurn facit perse."

    *The motion in arrest of judgment claims an exception to this general rule, to wit: that the master is not liable to one servant for injury arising from the carelessness of another, both being in the common employ.
    Authority is not needed in support of the general proposition above laid down; it is for the plaintiff in error to establish the exception.
    The law has long been well settled, that the master is liable for the injuries done by his servant. When, therefore, the parties contracted, they contracted with a view to that law, and with the understanding and knowledge that a master is so liable. 2 Bl. Com. 443; 2 Kent’s Com. 450; 18 Ohio, 229; 15 Ohio, 474; 10 Ohio, 159; 4 Ohio, 500.
    One great reason for the recovery in this case, is, that if John Stevens can not recover against the company, he is remediless; and it is the favorite maxim of the common law, that there is no wrong without a remedy. He can not recover against the wrongdoer, for that wrong-doer is responsible only to the master. Story on Agency, sec. 308; Lane v. Cotton, 12 Mod. 488; 1 Black. Com. 431, n. 26; Story on Bailments, see. 404.
    This and the preceding argument reviewed the authorities cited for plaintiff in error very elaborately and with great ability, maintaining that the case at bar did not come within the principle of those authorities, and that, so far as applicable to this ease, they should not be adopted as law.
    Charles Fox, in reply :
    The court will perceive that the ease of Stevens, as set forth in the declaration, is one founded upon the alleged negligence of the company. The only evidence of negligence offered in the court below, is the omission on the part of one of the men employed by the railroad company, to give notice of the change as to the place of passing trains. It is not pretended that there was any other negligence, nor was there *a-particle of evidence offered tending to show negligence on the part of the company; and whether a charge of negligence against the principal or employer is proved by evidence tending to show that another person in the employ of the same principal, is to be taken as the negligence of the company, so as to subject the latter for an injury sustained, is the great question to be settled. I call it a great question, because it involves very important results or consequences to the whole community. The principle at issue not only embraces railroad companies and their employes, but affects all the transactions of life in which agents are employed.
    The case is admitted to be a new one in this state, and until within some ten or fifteen years, I am not aware that the question has been agitated in other states or countries. But if any one question can be regarded as settled by well-considered modern authorities, this question is settled against the claim sot up by Stevens. 3 Cush. 270: 6 Barb. 240; Bush v. Steinman, 1 Bos. & Pul. 404, is overruled by the English courts. See West. Law Jour., January, 1852.
    In refusing the eighth charge, we think the court substantially establish this proposition: that no matter what rules the board of directors establish for the safety of life and property, still the agent may or may not observe them as he pleases ; they are not binding upon the servant, and if he violates them, as he did in this case, by not running slow, and by not sending a man ahead of the train from one hundred to one hundred and fifty yards, and keeping him that ■distance ahead, and he has brought an injury on himself by the violation of the directions of his employer, still he can recover. This is the effect of refusing to give the charge as asked.
    Here again the defendant’s counsel claim a protection under the plea that the conductor regulates the time of running. But this is not true in point of fact. The time of arriving at and departing from any particular point is fixed by the superintendent, with the approbation of the board of directors. This time is fixed on what is called the time-card, and it is in fact *more particularly compulsory upon the engineer than on any other officer of the company. He keeps the time by the time-piece on his own car, and he is the only person who can so conduct the engine as to make it run fast or slow. The car conductor has no more control over the engine than any of the passengers. If there is any •one officer superior to another as to the speed of running, it is the engineer; and he hás men about him who are kept for the purpose of supplying fuel and water to the engine, and in case of any doubt and uncertainty about meeting another car, they, or one of them, is to be sent ahead—not only to be sent ahead, but he is to be kept from one hundred to one hundred and fifty yards ahead until the uncertainty is removed. Now, how can this be done unless the engineer stops his engine in part—unless he runs it so slow that an active man can keep ahead of the engine?

       See this case reported in 1 West. Law Journal, 1849, 1850, p. 369.

   Caldwell, J.

Stevens was the engineer on one of the trains of cars of the Little Miami Railroad Company. The upward and downward trains of cars had, previous to August 13, 1846, passed each other at Plainville, about nine miles from Cincinnati. A change of the place of passing had been determined on, namely, that the cars should pass at Columbia, instead of Plainville, the two places being about three miles apart. This change was to take place on August 13,1846, the day on which the collision occurred. It is the universal custom of the company, when a change of this kind takes place, to give the engineers a printed card, setting forth the times of starting, places where the cars are to pass, time of running, etc., containing the change that has been made. Oa the day on which the collision took place, the plaintiff, Stevens, was the engineer on the upward train from Cincinnati to Springfield, and George Smith was the conductor. On the route, the conductor, according to the rules of the company, is the commanding officer, so far as determining when the cars shall start and stop, etc. The upward train came in collision with the downward train, about seven miles from Cincinnati, ^between Columbia and Plainville, and Stevens was very much injured by scalding; his recovery was doubtful for some time; he was confined for months, and has been injured for life. The engineer and conductor of the downward train had received their cards, stating the change, and they were running in accordance with it, expecting to pass the upward train at Columbia. There is no evidence that Stevens had received a card stating the change; indeed, it is clearly inferable, from the evidence, that he had not. Paul Hues-ton, who was the baggage-master on the train, states, that, at the time of the collision, he had heard nothing about the change; he-also states, that, at the time the collision took place, A. H. Lewis, who was an officer of tho company (in what capacity does not appear), took out of his pocket two cards, and handed them to him, and told him to give one of them to Stevens, the engineer, and the other to Smith, the conductor. N. Morrill, the chief clerk, testifies, that, on the morning of the day on which the collision took place, Thomas L. Cole, an assistant in the engineering department, handed to Smith, the conductor, a time-card, and that Smith showed it to him, witness, after he had received it; he says he knows of no card being delivered to Stevens. Isaac West states, that, when the cars reached Columbia, Stevens stopped; that Smith, the conductor, went forward through the cars and asked him why he stopped; that Stevens inquired of him whether the change did not take place that day, and the cars pass there; that Smith replied that the change did not take place on that day, but named a subsequent day on which it was to take place ; Smith then told Stevens to go on, and the cars immediately proceeded.

Other witnesses speak of the stoppage of the cars at Columbia, and also of seeing Smith in the attitude of conversation with Stevens, but they did not hear what, if anything, was said. One witness states that he saw Smith give the motion of the hand to Stevens to proceed.

The cause was submitted to the jury, who found a verdict for the plaintiff. The defendant moved for a new trial, and *also an arrest of judgment, which motions were overruled, and judgment entered on the verdict. The defendant took a bill of exceptions, in which the evidence is set forth, as well as a number of charges, which were asked to be given by the court to the jury by the defendant, which were refused by the court.

The main question arises on the refusal of the court to charge on a single point, and on the charge affirmatively given on the same point; and although this question is presented indifferent forms by the charges asked, yet, we think it is fully presented by the second charge asked and refused, which reads as follows: “That where two or more persons are employed by one individual or company, and in doing the work they are employed to do, one of them, by his negligence and inattention to his duties, causes an injury to the other, no action can be sustained against the employer, whether he be an individual or a company.”

The proposition here stated, and contended for on the part of the company, is, that whilst it is admitted that the company would be liable to the fullest extent for an injury done to a person having no connection with the company, by the negligence of one of their agents, yet that Smith and Stevens, both being in the employ of the company, the company would not be liable for an injury done to Stevens, through the negligence of Smith and the other agents of the company.

It is a general rule that a person in the management of his business, whether he does it himself, or acts through agents, must so conduct that business as not to interfere with the rights of, or produce injury to others. This devolves on the party care and prudence in the management of his business, and renders him. civilly responsible for any injury that may result to others from the want of such care and prudence, whether the injury may be done under his own immediate supervision, or under the control of agents. This doctrine is founded in reason. What can be more reasonable than that he who puts any power in motion for his own benefit, which, from its nature, may be destructive to the property and life of ^others, if not carefully managed, should be accountable for such injury as may be caused by the careless management of such power ? An injury has been done; it has fallen on a party who is guilty of no wrong, no carelessness ; it has been done by a force put in motion by a party who has caused the injury by his careless management. On whom shall the loss fall ? On the innocent person who had no control or management of the thing that produced it ? Or shall it not rather fall on the person who put the power in motion, for whose benefit it moves, who is in duty bound to provide for its proper management, who selects his agents, controls their movements, and who gives them their authority to act?

Indeed, the rule is not only a reasonable one, that the employer should makegood the injuries thus done by the carelessness of his agents; but it is necessary as a preventive of mischief, and a protection to community, that it should be strictly adhered to. The rule is founded on the principles of justice between man and man, and abstractly considered, is of universal application. There must be some good reason for taking any case without its application.

It is said, however, that when a party contracts to perform services, he takes into account the dangers and perils incident to the employment, and receives wages accordingly. Take this for granted; and we think it falls far short of sustaining the main proposition. If the party does contract in reference to the perils incident to the business, he will only be presumed to contract in reference to such as necessarily attend it when conducted with ordinary care and prudence. So far as an implied contract, in reference to the business, will be presumed, it will be on the hypothesis that the business is to be properly managed. He can not be presumed to have contracted in reference to injuries inflicted on him by negligence—by wrongful acts. An express stipulation would at least be necessary to make it a part of the contract. The employer has paid him no money for the right to break his legs, or, as in this case, to empty on him the contents of a boiler of scalding water. It *was not the expectation, when the company hired Stevens, that the two trains should run by different cards and thus come in collision.

When a man employs another to do work for him, each incur their obligations. The person hired is bound to perform the labor according to the agreement, and the employer is bound to pay;, besides that, neither party has parted with any of his rights. The employer has no more control over the person he has employed, outside of the service to be rendered, than he has over the person of any' other individual; and .is equally accountable for an Injury to it.

In this case the evidence leads the mind irresistibly to the conclusion that Stevens had not received a card, or any certain information that the change was to take place on the day of the collision. The effects of a collision are so dangerous, that it was certainly the duty of the company to furnish him with that information ; without such information he, as a matter of course, would run by the card that he had formerly been running by, which would placo the trains in danger of a collision. It would appear from the evidence that he had heard something of it, but ho was told by Smith, the conductor, that the change was not to take place on that day, and to proceed. Ho obeyed, and suffered the injury in consequence.

It is said that Stevens was guilty of negligence himself, in not stopping at Columbia. And further, that he was negligent in running as fast as he did, and not keeping a man on ahead to give notice of the approach of a train, he, Stevens, having reason, as is alleged, to believe that they were in danger of meeting the other train. And several charges were asked as to what would constitute negligence on his part; some of these charges the court overruled, and which ruling of the court is assigned for error.

When we take into account the fact that Stevens had not received the ordinary notice of the change, and the fact that he was told that the change did not take place until a subsequent day, by the person who had the control of the cars, and *the right to give him his orders as to running and stopping, we do not think that there was evidence showing negligence on his part; and that charge, from the state of evidence, was immaterial. Stevens had engaged to labor for the company in a subordinate capacity; he has received the injury from the negligence of those placed over him by the company, as the jury have found, and we do not see why the company aro not liable to him for the amount of the damage he has sustained.

It is contended, however, on the part of the company, that public policy forbids the right of a party to bring suit against his employer for an injury by another in the same employ, because it is supposed that it will lead to carelessness on the part of those employed, when they know that they can recover for any damage that they may receive. In answer to this, it may be remarked that it is only where the person has been careful himself, that any right of action accrues in any case. Besides, we do not think it likely that j>ersons would be careless of their lives and persons or property, merely because they might have a right of action to recover for what damage they might prove they had sustained. If men are influenced by such remote considerations to be careless of what they are likely to be most careful about, it has never come under our observation. We think the policy is clearly on the other side. It is a matter of universal observation, that in any extensive business, where many persons are employed, the care and prudence of the employer is the surest guaranty against mismanagement of any kind. The employer would, we think, be mud) more likely to be careless of the persons of those in his employ, since his own safety is not endangered by any accident, when he would understand that he was not pecuniarily liable for the careless conduct of his agents. Indeed, we think that those who have others in their employ are under peculiar obligations to them to provide for their safety and comfort, and we think they should at least bo held legally responsible to them as much as to a stranger.

*We could easily suppose a case where two persons employed by the same individual, and standing on a perfect equality —where the business was managed as much by one as the other—■ •where they would stand on the same footing as men in the community generally do—in which the employer would not be liable for an injury done to one by the negligence of the other. But we regard this case as standing on entirely a different footing.

Among other cases, we have been referred to those of Farrell v. The Boston and Worcester Railroad Corporation, 4 Met. 49, and Murray v. South Carolina Railroad Company. The case in 4 Met-calf denies the right of recovering principally on two grounds, namely, that the person employed contracts with reference to the perils of the employment; and that he receives a compensation, in the way of wages, for such perils, and therefore he can not recover ; and that it would be contrary to public policy to permit a recovery, as the tendency would be to produce carelessness on the part of persons thus employed. The decision in 1 McMullen appears to be based principally on the first of these two propositions. We have noticed both of these propositions in our previous remarks. In both cases, much stress is laid upon the fact that no precedent, of a recovery under such circumstances, is to bo found. It is to be noticed, that in both of these cases the facts differ in some particulars from the present; we must admit, however, that the reasoning in those cases would cover the one now before us. So far as those cases decide that a recovery can not be had in a case like the one now before the court, we think they are contrary to the general principles of law and justice, and we can not follow them as precedents. The court, then, are of the opinion that there was no error in the charge of the court, and that the evidence warranted d recovery on the part of Stevens.

The judgment will therefore be affirmed.

. Hitchcock, C. J., prepared au opinion expressing his views of this case.

^Spalding, J., dissented, and delivered his opi-

nion.

The opinions aforesaid follow :

Hitchcock, C. J.

I concur in the opinion of the court affirming the judgment of the court of common pleas; and it seems to me that this may be done without conflicting at all with the authorities which have been cited by the plaintiffs in error. If this case were, in its principal features, like any one of those reported and referred to, I should hesitate long before I would consent to disregard those decisions. They were decisions made by highly respectable tribunals, and by men whose opinions are entitled to the highest consideration. But in each case referred to as being decided in the United States, the action was commenced for an injury received by one employe or servant of the company, in consequence of the neglect or default of another employe or servant of the same company, both at the time being engaged in the running of the cars»

This case, as it appears from the bill of exceptions, is entirely different. The neglect complained of, is not the neglect of an employe or servant of the company upon the road, but the neglect of the company itself; so far as an incorporated company can be chargeable with neglect.

It appears that the company determine upon the places where the trains shall pass each other, when running the same way or different ways. Through their superintendent they furnish their engineers and conductors with cards, stating the several places where the trains are to pass, with other instructions, by which the engineers and conductors are to be regulated in running.

Previous to August 13,1846, the day on which the collision which caused the injury took place, Plainville had been the place fixed for the passing of the up and down trains upon the road of the plaintiff in error. Before that day, however, the company had determined on a different place at which these trains should pass each other'. The change was to take place *on the 13th of August; and on that day and afterward, until further directions given, the up and down trains were to pass each other at Columbia. Cards were prepared in conformity with this change, and it seems were furnished to the conductor and engineer of the down train. There is no proof, however, that any such card was furnished to Stevens, the engineer of the up train, and it is doubtful whether any was furnished the conductor. One witness swears that after the accident occurred, ho saw the cards delivered, by a man by the name, of Lewis, to both Stevens, the engineer,, and Smith,, the conductor» Here seems to have been the cause of collision. The card by which the engineer on the down train ran, directed him to pass the up train at Columbia, while the card by which the engineer of the up train ran, directed him to pass the down train at Plainville., While thus running, in pursuance of the directions given to them respectively, the collision took place. Had cards been delivered to the conductor and engineer on the up train, as they should have been, there is no probability that there would have been any collision.

Hero was negligence, in consequence of which an injury resulted to the defendant in error. It was not the negligence of any employe of the company, assisting in running the cars ; unless, by possibility, the conductor of the train had been notified of the change, of which there is no satisfactory proof. But it was the negligence of the company itself, or of its immediate agent, the superintendent of the road.

Now, suppose an individual had been placed in the situation of the railroad company, and a similar injury had resulted, in consequence of a like neglect on his part, can there be a doubt that he must have been liable to respond in damages for that injury ? If, under such circumstances, an individual would be liable, surely there can bo no sound reason why a corporation should not be. In this respect, I should be disposed to put corporations and individuals upon the same footing.

But it is said a corporation acts by agents, and if it employs faithful and competent agents, this is all that can be required. *True, a railroad company must act by agents, but I apprehend it must be responsible for the acts or neglects of those agents, so long as the agents are acting within the scope of their authority. The superintendent is a proper representative of the company, and, perhaps, to a certain extent the conductor of a train may be. But the employes or servants of a company, engaged in making or repairing their road, or in running their cars, can not bo held to be their agents.

It is because this injury resulted from the negligence of the company itself, or of an agent whose duty it was to give the notice before referred to, that I hold the judgment should be affirmed; and it seems to me the case is entirely different from those referred to in the books.

As to tho/charge of the court of common pleas, although not given precisely as asked by the plaintiff in error, it did appear to me to be all that could, with propriety, be required.

The damages assessed by the jury appear to have been high, and, I might think, extravagant, considering the commendable conduct of the company after the accident; but of that, this court can not as well determine as the court which heard the trial.

Spalding, J.,

dissenting: In this case I find myself unable to concur in the opinion which has been expressed by my learned associate, and which has been concurred in by a majority of this court. The facts, in brief, are these: The defendant in error was in the employ of the Little Miami Railroad Company, prior to and on August 13, 1846, in the capacity of engineer on a train of cars. On that day, in going from Cincinnati to Springfield, a short distance above Columbia, the ascending train, on which he was conductor, came in collision with the descending train, which re-suited in serious injury to the person of Stevens, and for this injury ho sued the railroad company to recover damages.

This collision took place on the day after the completion of the Little Miami Railroad to Springfield.

^Previous to that day a change of place for passing the cars (that is, the up and down trains) had been agreed upon. They had been in the habit of passing each other at a place called Plainville, some three miles above Columbia. On that day the cars were to pass at Columbia. Cards had been delivered to all the engineers and conductors to that effect, except Stevens.

The testimony shows that Smith, the conductor on this train,, was furnished with a card by tho company in due season, fixing the time of passing different towns, as then recently changed by tho company; that Clement, tho superintendent of the company, in due time placed the new cards in the hands of a suitable agent of the company, to be delivered to all the conductors and engineers, including Stevens; but by inattention, mistake, or perhaps negligence of the agent, a card was not delivered to Stevens. At least tho testimony tended to prove this. Morrell, a witness, states that Cole, an agent of tho company, delivered a new card to Smith, conductor on Stevens’ train. Huoston states that A. H. Lewis, agent of the company, went from Springfield on the descending train on the day of tho collision, and after tho accident gave him (Hueston) new cards to deliver to Smith and Stevens. jffazen states that Lewis went up to Springfield the day before the collision.

Upon these facts a jury might well inquire, if in law it was material whether Cole and Lewis were not directed to deliver the new cards, and whether that was not the mission of Lewis to Springfield on the day previous to the change. Clement, in his affidavit, which was jiroper on motion for a new trial, states that he directed Lewis to deliver a new card to Stevens.

Now, if it was the duty of Smith, the conductor, to notify Stevens of the change, if the conductor is the commanding officer, or if Cole or Lewis had been directed to furnish Stevens with a new card, in either event, the second charge asked to be given to the jury by defendant below was very material in this case.

Upon these facts the plaintiff below recovered judgment, *and the question now presented is, was he entitled to recover? Did the court below rule correctly?

In the view I have taken of this case, I think the judgment-ought not to be sustained, and I have arrived at this conclusion mainly from the following consideratio'ns:

1. It is not warranted by any English or American decisions, but is in direct opposition to the well-settled law of both countries.

2. The law thus settled is founded in wisdom, and on principles of public policy, adapted to our condition, and should not, therefore, be changed.

3. Upon the facts in this case, other than those already ad ver tedio, the plaintiff below was not entitled to recover under the law as it exists, applicable to those facts.

If I am correct in these positions, then it would seem that the principles announced in the opinion of the court are in conflict with recognized authority, in violation of public policy, and liable to produce “alarming consequences,” when carried into the practical details of business.

What, then, is the question of law presented in this case? It is this: As between principal and agent, is the principal liable for an injury which one agent receives through the negligence or carelessness of another, without the fault, assent, or direction of ; the principal ?

The evidence shows that the railroad company used all the care and diligence which prudence required, to furnish Stevens with notice of the change in the time and place the trains were to pass. Smith, the conductor on the train, was furnished with a card. A suitable agent of the company was directed to furnish Stevens, as well as all the engineers and conductors, with cards, and all were furnished except Stevens. The result was, as claimed by Stevens, that he came in collision with the descending train, and sustained personal injury.

If this be true, why shall the company be hold responsible? *Not for any act or neglect on their part, for all was done that the most prudent and cautious could do. If the company are liable, then, it is because the principal is responsible to one agent for'the negligence of another, in a case where the principal has been guilty of no laches.

I. Such is not the law. It is now well settled that the employer is responsible to strangers for all injuries produced .by the negligence or carelessness of the servant, while the latter is doing the employer’s business, but the rule has not been extended further. 2 Kent’s Com. 259; 4 Met. 49.

But even this proposition was reluctantly assented to in 6 Term, 659, on the authority of Tuberville and Stamp. Ld. Raym. 264.

It is said in some of the books (1 East, 106), the master is liable because he employs an unskillful or negligent servant.

Again, it is well settled, that if a servant willfully runs his master’s carriage against another’s carriage, and does an injury, the master is not liable for the injury thus occasioned. McManus v. Critchett, 1 East, 106; Story on Agency, sec. 556.

No master is chargeable with the acts of his servant, but when he acts in execution of the authority given him. Salk. 282; 1 East, 106.

Such is the law as between the principal and strangers who may be injured by the nonfeasance or misfeasance of his agent. But these rules have never before been applied as between the principal and an agent who may have been injured by the negligence of another agent. Thus it is laid down in Story on Agency, in broad terms, “that the principal is not liable for any injury done to one agent by another, while engaged in the same business or employment. That the relation of master and servant, or principal and agent, creates no contract, and therefore no duty on the part of the principal; that the servant or agent shall suffer no injury from the negligence of others employed by him in the same business or service; and that, in such cases, the servant or agent takes upon himself the hazard of any such injury which may arise in the ^course of such business or employment; and his remedy for any such injury, by the misconduct or negligence of a fellow servant or agent, lies solely against the wrong-doer himself.” Story on Agency, sec. 453.

In Priestly v. Fowler, 3 Mees. & Welsb. 1, the facts ware these : Two servants were employed in conveying goods for their employer, and, by the negligent overloading of the van by one servant, it broke down upon the road, and thereby the other servant, in his proper place, received an injury, and brought his suit against his employer, to recover damages for the injury. Held, that the action could not bo sustained.

Lord Abinger, C. B., in pronouncing the opinion of the court, said : “It is admitted that there is no precedent for the present action, by a servant against his master. . . If the master be liable to the servant in this action, the principle of that liability will be found to carry us to an alarming extent. The master would be liable to the servant for the negligence of the chambermaid, for putting him in a damp bed; for that of the upholsterer, for sending in a crazy bedstead, whereby he was made to fall down while asleep, and injuro himself,” etc. “But in truth, the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant, than ho may reasonably bo expected to do of himself.”

As between the principal and strangers who were affected by the acts of his agent, in the cases whore the principal is liable, there is an implied obligation or contract on the part of the principal, to procure trustworthy agents, and this is the foundation of the liability of the principal. Story on Agency sec. 52.

Now, as between the principal and his agent, in the management of' business requiring more than one agent, the agents all assume the duties of their positions, knowing that the business is to be managed by various agents, and there is no ^implied obligation or contract by which the principal guaranties the absolute and perfect fulfillment, in every particular, of every duty to be discharged by each agent.

In Farnell v. Boston and Worcester Railroad Company, 4 Met. 49, Farnell, as engineer on a train of cars owned by the railroad company, sued the company for personal injury received by him, in consequence of other trustworthy agents of the company having negligently left a switch in an improper position, by reason of which the locomotive was thrown off the track, and the plaintiff injured. In this case it was held, that, “where a master uses due diligence in the selection of competent and trustworthy servants, he is not answerable to one of them, for an injury received by him in consequence of the carelessness of another, while both are engaged in the same service;” and, upon the facts, the plaintiff, it was held, had no right to recover.

The chief justice, in delivering his opinion, says: “It is laid down by Blackstone, that if a servant, by negligence, does any damage to a stranger, the master shall be answerable for his neglect. But this presupposes that the parties stand to each other in the relation of strangers, between whom there is no privity, and the action in such case is an action sounding in tort. The maxim, respondeat superior, is adopted in that case from general considerations of policy and security. But this does not apply to the case of a servant bringing his action against his own employer, to recover damages for an injury arising in the course of that employment, where all such risks and perils as the employer and the servant respectively intend to assume and bear, may bo regulated by the express or implied contract between them, and which, in contemplation of law, must bo presumed to be thus regulated.”

The court also held tho action could not be sustained on the ground of any implied contract; for the law does not imply any such contract from the relation of master and servant. The person employed takes upon himself the natural and ordinary risks and perils incident to the performance of such services, *and on legal presumption,-the compensation is adjusted accordingly.

,Tn Brown v. Maxwell, 6 Hill, 592, it appeared that Brown carried on the business of stone-cutting, and Maxwell and others were in his employ. Scott was Brown’s foreman, and had charge of the work. In Brown’s absence, Scott directed a stone to be taken from a pile, which was so carelessly removed that another stone fell on Maxwell, engaged in his proper place, and broke his leg. The injury resulted from the negligence of the foreman and other agents. It was held that, on the facts, Brown was not liable.

In Murray v. S. C. Railroad Company, 1 McMullen, 385, the syllabus is:

The railroad company are not liable to one of their agents for an injury arising from the negligence of another agent.”

Murray, a fireman, had his leg crushed in consequence of an engineer on his train negligently running over a horse.

In Hayes v. The Western Railroad Co., 3 Cush. 270, the same principle is laid down and fully sustained. The syllabus, in part is:

“ The proprietors of a railroad are not responsible to a brakeman in their employment for an injury sustained by him in consequence of the neglect or fault of another brakeman, engaged in the same service, even though the latter be at the same time conductor of a train of freight cars.”

In Coon v. Syracuse and Utica Railroad Co., 6 Barb. 231, the same doctrine is maintained.

If these authorities, in both England and the states of this Union, do not establish and settle this question, then I think it can not be settled by authority; especially when there is no well-adjudicated case to the contrary. But it is attempted to distinguish the case at bar from the authorities cited, in the following particular's:

First. That in some of the cases cited it was in proof *that the defendant used reasonable prudence in procuring trustworthy and proper agents.

Second. That the engineer, in this case, was a subordinate officer, acting under the direction of the conductor, and was not an agent of the same class; or, in other words, that the engineer acted under the direction of the conductor, and the act or negligence of the conductor was the act of the principal, and hence the railroad company is liuble for an act of their own negligence.

It seems to me that this attempt to distinguish, only cx’eates a distinction without a difference, and simply distinguishes this case from those cited, as being in conflict with them. But I will considci‘ these propositions in their order :

In 1 McMullen, 385, the engineer, by whose negligence the injury occurred to another agent of the same principal, was proved “ to be a skillful px'ofessional engineer',”

In 4 Metcalf, 49, the agreed statement of facts admitted that the agent whose negligence caused injury to a fellow-agent, “ was a carefxxl and trustworthy servant.” In all the other cases there was no proof upon the subject. The case in 1 McMullen is decided independently of the fact so proved, and in 4 Metcalf it was unnecessary to go further than to decide upon the state of facts before the court.

In the case at bar there was no proof on the subject, nor was any attempt made on the part of the plaintiff below to prove that the conductor and other agents of the company were not trustworthy, and such as a prudent company would select.

The claim of the plaintiff below imputed nonfeasance to the railroad company, by means of negligence in their agents, resulting in the injury for which the suit was brought. That was a subject of averment in the declaration, material to the plaintiff’s claim, and like all other material facts, must be proved. Gould on Pl., chap. 4, sec. 7; 1 Greenl. Ev., sec. 74. And this is the rule both of the civil and the common law. Negligence is not presumed, but the contrary ; and if the plaintiff would seek to recover by reason of it, the onus probandi *is on him, or rather, it will not be presumed that agents selected by the company were not trustworthy, so as to impute negligence to the company. Wright Sup. C. 202; 1 Greenl. Ev., sec. 80 ; 17 Johns. 92; Lane v. Crombie, 12 Pick. 177; 6 Johns. 90.

The authorities also show that unless it is proved that agents •are not trustworthy, it will not bo presumed. So far, then, as the employment of trustworthy servants is concerned, there is no proof or legal presumption that such were not employed by the company. Upon this point the law and evidence is with the defendant below. The utmost that has ever before been claimed, is, that the principal “ is bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information, and belief” (1 Mees. & Welsb. 5), which, upon the law and facts, the company fully did. The action in the case at bar, however, is not for employing agents not trustworthy, but for changing the place of passing for the cars, without giving the plaintiff (below) due and timely notice thereof..”

The declaration proceeds upon the ground that the company were not only “bound to provide for the safety of their servants to the best of their judgment, information, and belief,” as by directing trustworthy agents to give Stevens “ a new time-card,” but that the company were bound to furnish the card absolutely by their agents (and corporations can only act through agents), and that they are responsible for the failure of the agents to furnish such card, when the failure was without the fault of the company. If this is so, then the company impliedly guaranties to each one of their agents the perfect performance of .every duty of every other agent. There is in reason and law no such implied contract. This is carrying the liability of the principal to an extent which will render the employment of agents impracticable, and impose on the principal a duty unheard of in the judicial history of the common law.

II. It is claimed that the engineer was a subordinate office!’, ^acting under the direction of the conductor ; and that the conductor being the superior officer, acting for the company, his negligonce was that of the company.

The question decided in the cases cited, is, that a principal is not liable for an injury to one servant resulting from the negligonce of another. It is a broad, comprehensive doctrine, and applies to all agents engaged in the business of the principal. It is not limited to superior or inferior agents.

In the case of 6 Barbour, 240, Pratt, J., says: “ The reasoning of Chief-Justice Shaw, in Farwell v. B. & W. Railroad Company, is equally clear and conclusive, and applies as well to injuries sustained by an agent in consequence of the negligence of another agent, endowed with greater'or less authority by the principal, or of one of the same authority. There can not, therefore, I think, be any reason for a distinction.”

In that case, a conductor run a train over a trackman, and this act was as much the act of the company as was that of Smith, the conductor, in the case at bar, in not disclosing the proper time of passing to the engineer, or of the other agents of the company, in neglecting to furnish Stevens with a new card. The same opinion seems to have been entertained in the case referred to in 3 Cushing.

In Brown v. Maxwell, 6 Hill, 592, the injury to an agent occurred by the negligence of the foreman and other agents. The foreman is in law the principal, and yet, as to a subordinate agent, his negligonce was not hold to be the negligence of the principal.

It is immaterial that the negligence of subordinate agents contributed to the injury. If the negligence of a foreman was the negligence of the principal as to a subordinate agent (which it is not), and such negligence contributed to the injury, the principal would bo responsible. Brand v. Troy and Schenectady Railroad Co., 8 Barb. 369; 6 Barb. 235; 6 Hill, 592. This is a rule applicable to collisions generally.

There is, then, upon principle and authority, no such distinction as claimed by the defendant in error.

*But, admitting the claim of plaintiff below, that the engineer is an officer subordinate to the conductor, and receiving the commands of the company through him, yet he (the engineer), knowing this, does, by his contract to serve in that capacity, impliedly agree to hazard all the risks of the situation—among which are included the casual negligence of the conductor, not arising from the fault or nonfeasance of the company. So that, in any view of the case, it rests upon the plaintiff to show positive nonfeasance, or default, on the part of the company, in not procuring trustworthy conductors; and if he can not show this, he can not hold the company responsible for injuries arising from the neglect of such conductor.

But if there were, the proof in this ease does not establish, to my mind, that the engineer was subordinate to the conductor. The “time-cards ” furnished to both were printed cards, directed to the conductor and engineer, as “Instructions to Conductors and Engineers for Running Trains;” and whatever the facts may be, there is no proof to warrant the assumption that one was a subordinate officer. Besides, the negligence of the conductor, who-was furnished with one of the new time-cards, could not have been evidence of negligence on the part of the company, as the object in furnishing him with the card was to give the train of cars he conducted the benefit of it.

Another agent distributed, or was directed to distribute, the-new time-cards. In this respect the company used all the diligence which prudence required ; and especially should this view be taken on a motion for a new trial, with the evidence before the court.

The opinion pronounced by a majority of this court proceeds solely upon the ground that the negligence was that of Smith, the conductor, in not notifying Stevens of the change. He was on the train, engaged with Stevens in running it.

The learned chief judge, in his opinion, proceeds upon the ground that the negligence was not that of the conductor, but that of the superintendent—of a person not engaged in running the train. I think the court below, on a motion for a new *trial, could not properly take this view, with the affidavit of the superintendent on file, showing that he directed an agent ¡0 deliver the new cards, besides the other evidence upon that subject. In either event, whether the negligence was that of the conductor or of another agent of the company directed to deliver the new cards, in the view I have taken, the court below should have given to the jury the second charge, as requested.

II. The solemn adjudications of courts of recognized authority should be followed, unless not applicable to our condition. There is nothing to distinguish this state from others, as to the liability of the principal to the agent. The province of the court is defined by the maxim, jus dicere et non jus dare, and it is an ancient and true maxim, that “omnis innovatis plus novitate perturbat, quarn utilitate prodest.” It has been declared that even when the reason of a rule can not well be discerned, “ the wisdom of the rule has in the end appeared, from the inconveniences that have followed the innovation.”

I would not, therefore, overturn the solemn decisions of courts of high authority, except for the most weighty reasons to warrant such a course. The authorities cited, as I conceive, are founded in wisdom and policy.

In Priestly v. Fowler, 3 Mees. & Welsb. 7, the court say : “ To allow such an action to prevail, would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise in behalf of his employer, to protect him against the misconduct or nogligence of others who serve hiin, and which diligence and caution, while they protect the master, are a much better security against an injury the servant may sustain by the negligence of others engaged under the 'master, than any recourse against his master for damages could possibly afford him.’ ”

At the present term of this court, we have decided that, as a matter of public policy, the owner of a trunk delivered to a common carrier, and by him lost, may prove its contents, and their value.

The agents of railroad companies are intrusted with *the care of the lives and property of individuals. Any principle which may encourage negligence endangering these, is fatal to all the groat interests of society, and subversive of its order and well-being. These companies can only be managed by a variety of agents, and if we are to teach each agent, that for the negligence of the othei'S, resulting in injury to himself, he can grasp the treasures of the company, and procure a competency for life, he ceases his vigilance over those with whom he co-operates—a bribe is held out to him to incur personal risks, which he may have facilities to render partially harmless to him, but which may carry destruction to a hundred homes, and make widows and orphans throughout the land, by a reckless waste of human life. “ Salus populi suprema lex.”

Let the agents understand that each shall be liable to the other, for negligence resulting in personal injury, and remove the bribe to incur personal hazards, and a motive is constantly operating to protect the lives and property of those intrusted to their care. This is one of the reasons for the rule in 4 Metcalf, 49. The court say, “ Where several persons are employed in the conduct of one common enterprise, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of others—can give notice of any misconduct, incapacity, or neglect of duty.”

The rule, as recognized by the court, will result in great practical inconvenience and wrong. If I employ two cooks, and use all the care in their selection that prudence requires, no matter how well they may know each other, while I have no personal means of knowing either, except by prudent inquiry, I am responsible to one of them, if she is scalded by the negligence of anothor. I conceive that such is not the implied contract arising out of those relations. And this consequence will extend to every case where the relation of principal and agent exists.

III. Aside from all these considerations, the judgment below ought not to be sustained. It is a well-settled principle iu *case of collision or injury, that a party who is himself in default, and thereby causes or contributes to the injury, can not recover. 8 Barb. 369; 6 Barb. 235; 6 Hill, 592; 21 Wend. 188, 615; 19 Wend. 399. The evidence satisfies me, that Stevens, although not furnished with a “new time-card,” so as thereby to know the place and time of passing the descending train, yet was otherwise put upon inquiry; did know, or had reason to know of the change, and did not use that caution to avoid the collision, which prudence and the rules of the railroad company required.

The evidence shows that on the day of the collision Stevens stopped the train at Columbia, the new passing place, and asked the conductor if the change was not to take place there on that day; that Stevens stopped because he believed so, but when the conductor told him they did not change there on that day, he went on as though in doubt and uncertainty.

It was claimed by the company that by printed rules, which were in evidence, directed to conductors and engineers, it was the duty of the engineer in cases of doubt to stop his speed.

By rule 10 it is declared that “in cases of uncertainty as to the occupation of the track, a man must bo sent ahead or back, and kept at least one hundred yards distant until the danger is over.”

By rule 16: “ Care at all times is earnestly enjoined. Always take the safe side in• cases of doubt.”

It was proven by West, a witness of plaintiff below, who was an engineer, that he thought when they left Columbia there was something wrong, and he wont back. He noticed they blew the whistle a great deal; that it was a crooked place in the road; that no man was started ahead of the train *in this dangerous place. Witness knew there was something wrong from their checking up, etc.

Stevens himself told the witness Hazen, a few days after the collision, in answer to inquiries, “that he had been blowing his whistle on all the curves after leaving Columbia, because ho was expecting the train.”

Stevens undoubtedly knew, or had reason to believe, that the change was to take place, yet he did not send a man ahead, and the result was that a collision took place on a curve, which might have been avoided if he had used proper precautions, such as the rules of the company required.

The defendant below requested the court to charge, “ that if the jury believe Stevens was in doubt and uncertainty as to whether the trains ought to pass at Columbia, instead of Plainville ; and if he expected to meet the down train between Columbia and Plainville, it was his duty to run slow; and if it was prudent, and according to the usages of engineers, and required by the printed rules of the company, in cases of doubt and uncertainty, to send a man ahead of the train and keep him from one hundred to one hundred and fifty yards ahead of the engine, until the bends and curves in that place had been passed, and all apprehension of danger was over; and the plaintiff neglected to send a man ahead, as required by prudence and the printed rules, and such neglect contributed to bring on the collision and produce the injury, the plaintiff was not entitled to a verdict.”

This charge was refused, and in this I think the court erred, as well as in the refusal to give the second charge asked for.

In any view which can be taken of this case, it is clear to my mind, that the plaintiff below was not entitled to recover, and, upon the evidence before the court, that a new trial should havo been granted.

       1 Ohio, 245; 6 Ohio, 447.

       Hutchison v. York, etc., Railroad Co. West. Law Journal, 563.

       Volenti non fit injuria. (Wing Max. 482.) It is a general rule of the English law, that no one can maintain an action for a wrong where he has consented or contributed to the act which occasions his loss. Broom’s Legal Maxims, 128, and authorities there cited.


author: Hitchcock;, C. J.

text:
    * Abner Ketchum v. John B. Stout.
    Where a purchase of land is made by metes and bounds estimated to contain a specific quantity, or for “ more or less,” and a gross sum to be paid for the entire tract, the purchaser will not be entitled to an abatement in the price, should the number of acres fall short of the estimated quantity; more especially should the land, at the time of purchase, be of equal value to the price paid.
    Any misrepresentation or concealment on the part of the vendor may take a case out of this rule.
    This is a bill in chancery reserved in Coshocton county.
    The complainant filed the bill to enjoin a judgment at law, and to procure an abatement in the price of a certain tract of land, purchased by the complainant of the defendant in 1844. The case is sufficiently stated by the judge delivering the opinion of the court.
    Be angler, Humrickhouse & Love, for complainant:
    Where a party covenants to convey land with specified boundaries, his covenant is satisfied by conveying, and although the quantity of land conveyed be mentioned in the deed and yet prove deficient, no action results to the grantee. Howes v. Baker, 3 Johns. Ch. 506; Mann & Tolls v. Pearson, 2 Johns. 37; Powell v. Clarke, 5 Mass. 355. The purchaser can not at law excuse himself from a strict performance, on his part; but a court of conscience will not permit such gross injustice to result from the obvious mistake of the parties. 1 Sugden on Vendors, 382, 383, 199, 200-393.

      Mistake is indeed one of the great heads of equity jurisdiction. In a case of this kind, equity relieves a purchaser in two ways : First, by decreeing a rescission of the contract,in a case where the parties can be placed in statu quo ; secondly, by decreeing performance of the contract as far as it can be carried into effect, with an abatement in the price *proportioned to the deficiency in the quantity of the land. 2 Story’s Eq., sec. 779; Hill v. Buckley, Ves. Jr. 394.
    This case, upon the facts, stands as one of mistake, not of fraud. The complainant has not yet accepted a deed; and since by the proof it is established that the contract between the parties was to convey, by given metes and bounds, a tract of land “ estimated to contain 215 acres or a little upward” for a gross sum, and that the parties were mistaken as to the number of acres, it is a ease in which equity will relieve by an abatement of the price. 26 Law Lib. 18; Portman v. Mill, 2 Russ. 573; 1 Sug. Vend. 382, 383, sec. 3. “ If an estate be sold at so much per acre, and there is a deficiency in the number conveyed, the purchaser will be entitled to a compensation, although the estate was estimated at that number in an old survey. The rule is the same, though the land is neither bought nor sold professedly by the acre; for the presumption is, that in fixing the price, regard was had on both sides to the quantity which both suppose the estate to consist of.”
    The rule is not changed by the fact that the complainant lived near the premises and might have known the quantity of acres. 2 Sug. Vend. 391; Mirch v. Winchester, 1 Ves. & Bea. 375.
    Matthews & Tidball, for respondent, insisted:
    That the land was sold by its boundaries for a gross sum, and not by the acre ; and that the boundaries were known to the complainant at the time of the purchase. ■ The estimated quantity in the contract is descriptive, and forms no part of the contract. The parties were not mistaken as to the boundaries, and it was that certain tract, thus bounded, which was sold.
    The contract shows that there was no misrepresentation, for it describes the land, as “ estimated to contain 215 acres,” etc., and the proof shows, that it had been so estimated in prior conveyances.
    The court will apply to the purchaser the maxim, *caveat emptor, and will not abate the contract price. Fenton v. Brown, 14 Ves. 144; 20 Law Lib. 123; Powell v. Clark, 5 Mass. 355; 2 Johns. Ch. 37; 1 Sug. on Vend. 382-384; Chit, on Cont. 297, n. It is not ciaimed there was any fraud or mistake as to the boundaries or value of the land, and there is no ground of relief. Abbott v. Allen’s Ex’r, 2 Johns. Ch. 519; 1 Johns. Ch. 213.
   Hitchcock;, C. J.

The facts of this case, as disclosed by the bill, answers, exhibits, and testimony, are substantially as follows: On January 12, 1835, the defendant, Stout, purchased of the executors of Joseph Higbee, a tract of land in Coshocton county, the same being a part of the first quarter, fifth township, fifth range United States military land, for the consideration of nine hundred and. thirty-two dollars and fifty-five cents. In the contract of sale and purchase, the land is described by metes and bounds, and is sold for two hundred and fifteen acres and thirty-five hundredths, “be the same more or less.” Subsequently the land was conveyed to Stout. On May 28, 1844, Stout, by contract, sold this same land to Ketchum, the complainant, for the consideration of three thousand dollars. In this contract the land is described as situate in Lafayette township, Coshocton county, Ohio; being in the first quarter of the fifth township and fifth range, and bounded as follows : On the north, by the Tuscarawas river; on the east, by land now owned by Daniel Miller ; on the south, by the leading road; on the west, by land now owned by Isaac W. Miller, Thomas M„ Wiggins, and Thomas Miller, estimated to contain about two hundred and fifteen acres, or a little upward.” At the time of entering into this contract, the comjfiainant, Ketchum, was residing, and for years had resided, near this land, upon the opposite side of the road, and the lines of the tract appear to have been notorious» Stout was residing in a different township, but had previously occupied the land by a tenant.

The provision of the contract as to payments is as follows: *“The said party of the second part (Ketchum) is to pay the said sum of $3,000, as follows: he is to pay off three certain judgments, now standing in the court of common pleas, against the said party of the first part (Stout)—one in favor of Lawrence and Trimble, one in favor of William R. Thompson & Co., one in favor of John Miller—and such other amounts and claims as are a lien on said land. In making payment, as aforesaid, the said party of the second part is not to pay interest on five hundred dollars of said purchase money until from and after June 1, 1845 ; and he is not to pay interest on another five hundred dollars of said purchase money until from and after June 1, A. d. 1846. The remaining two thousand dollars of said purchase money is to draw interest until applied to the payment of said judgments and lien. After paying off the amount of said judgments and liens, out of the said three thousand dollars purchase money, as aforesaid, the said party of the second part is to have time to pay the residue thereof, as aforesaid, for the ono-half residue, until June 1, 1846, and for the other half of such residue till Juno 1, 1847, to the party of the first part.” It is further provided that Ketehum was to pay the taxes accruing subsequent to the contract; and, further, that he should have the possession, with certain exceptions, on the 1st day of August next after the date of ther contract, and full possession of the entire premises on October 1st. He took possession accordingly, and has remained in possession ever since. In September, 1844, he paid to Trimble and Lawrence, orr their judgments, three hundred dollars. In Januai’y, 1845, he caused the land to be surveyed ; and according to the survey then, made, the quantity within the metes and bounds was found to be only one hundred and sixty acres, instead of two hundred and fifteen, as estimated—falling short forty-nine acres. There is an allegation in the bill, that the defendant, Stout, represented the quantity of land to be two hundred and fifteen acres, and that it was taken upon this representation. This is denied in the answer, and *upon this point there is no proof. It is apparent that Stout purchased the lands, by metes and bounds, as containing two hundred and fifteen acres more or less,” and there is nothing in- the case to show that, until after he had sold to comjdainants, he ever suspected there was any mistake as to the quantity.

After the payment of the three hundred dollars, before referred to, as made upon one of the judgments named in the contract, the complainant made no further advances toward the performance of that contract. He continued in possession of the property, however, without taking any steps to rescind the contract. 'It is only by inference that we arc led to the conclusion that he even notified the defendant of the deficiency in the land. Being thus in possession, in Juno, 1847, he suffered the land to be sold on the judgment of Thompson & Co., one of the judgments named in the contract—purchased the same in at sheriff’s sale for the consideration of $2,215, which was applied, together with three hundred dollars before referred to, in discharge of the judgments specifically named in the contract. This sale was confirmed by the court, a deed ordered and executed by the sheriff, under which complainant now claims title to the land. In addition to these judgments, the complainant paid fifty-five dollars and fifty cents to relieve the land from taxes assessed before his purchase, and also eighteen dollars and sixty-three cents, to relieve the same from the liens of other judgments, not specifically named in the contract.

It is shown by the evidence in the case, that at the time of sale by Stout to the complainant, the tract of land was well known in the neighborhood, with its boundaries, and estimated to contain two hundred and fifteen acres, and a little more; and that as it lay it was worth three thousand dollars, without taking into view the quantity. On June 15, 1843, the complainant himself, with two other freeholders, was called upon by the sheriff of the county to appraise the same land, and appraised it at four thousand dollars. This, however, was before the survey, which took place in January, 1845. Again, the same land was appraised on August 18, 1846, Sunder the direction of the sheriff, by three other freeholders, and was estimated by them to be worth three thousand three hundred and twenty dollars. This was after the deficiency in quantity bad been ascertained; and it was, as I suppose, under this appraisement that the complainant purchased at sheriff’s sale.

At the June term of the court of the common pleas of Coshocton county, a. d. 1849, the defendant Stout commenced an action of covenant, upon the aforesaid contract, against the complainant, to recover the balance of purchase money still due. The same matter was set up in defense in that case as is now set up in this, for relief. • .

This case was tried at the March term of the court, a. d. 1850, and a judgment was rendered, in favor of the then plaintiff, for ten hundred and thirty-six dollars and sixteen cents damages and costs.

The complainant admits, in his bill, that upon the trial of the ■case, he received credit for all he had paid upon the judgments, and also for taxes.

This bill is filed for the purpose of enjoining th8 judgment so as aforesaid rendered, and the sole ground of relief relied on, is, that the quantity of land as sold and described by metes and bounds, is not equal in quantity to the estimated number of acres. There is no pretense that there has been any fraud, or even misrepresentation. There is no pretense that the defendant had any better knowledge as to the quantity of the land, than had the complainant. There is no pretense but what the boundaries were well known and understood. Nor can it be pretended but that the complainant had equal means of ascertaining the exact quantity, before the purchase, as had the defendant. In fact, his position was such that he would bo more likely to suspect a deficiency than would the defendant; for he resided, and had for some time resided, adjoining the land, while the defendant resided in a different township, and there is no evidence in the case that the defendant ever had any possession except by his tenants. Still the complainant *agreed to purchase the entire tract, and for the stipulated price. Not at so much per acre, but for a round sum to be paid for the whole; and that whole was estimated “ at about two hundred and fifteen acres and something more.” But it is insisted by complainant’s counsel that he is entitled to relief, and the position is assumed, that, although land is sold by metes and bounds, at an estimated quantity, be the same more or less, if the land falls short of that estimated quantity, the purchaser is entitled to an abatement, as fully as he would have been had the land been sold by the acre. It is admitted that in such case he can have no relief at law, but that in chancery he may bo relieved.

It might be admitted, that where the vendor represents the tract so sold to contain more land than what is within the boundaries set forth, relief might be granted; still, it would not settle this case, for there is no evidence of any representation one way or the other.

Authorities have been cited to show that where a vendor has not title to all the land which he contracts to sell, the vendee may have an abatement. Of this there can be no doubt. The vendor contracts to sell an entire tract- of land, to one-half of which he has no title. In such case, as a general rule, the vendee might rescind the contract, or he might compel a specific performance, so far as the vendor can perform, and insist upon an abatement of the price as to the residue. For instance, he contracts to purchase a tract of one hundred acres, and the vendor has title to but fifty of the hundred. The vendor can be compelled to convey the fifty acres for which he has title, and he will not be allowed to receive pay for that to which he can make no title. In such case, however, the power of the court should be invoked in reasonable time.

In the case before the court, however, there was no defect of title. The vendor had good title to the entire tract sold. The only difficulty is, that the quantity does not agree with the estimate.

To sustain the position assumed by complainant’s counsel, *1 Sug. Vend. 372, 373, is cited, and some of the cases to which that writer refers. It is evident that Mr. Sugden favors-the opinion advocated by complainant’s counsel, but the most that can be collected from his treatise is, that there is no settled rule upon the subject. In his section treating of defects in the quantity of the estate, and which is the section quoted by counsel, he says: “ If an estate be sold at so much per acre, and there be a deficiency in the number conveyed, the purchaser will be entitled to a compensation, although the estate was estimated at that number in an old survey.” Of this, I suppose, there can be no doubt. Ho then adds: “The rule is the same, though the land is neither bought nor sold, professedly, by the acre. The presumption is, that in fixing the price, regard was had, on both sides, to the quantity which both suppose the estate to consist of. The demand of the vendor, and the offer of the purchaser, are supposed to he influenced, in an equal degree, by the quantity which both believe to be the subject of their bargain. The general rule, therefore, is, that where a misrepresentation is made as to the quantity, though innocently, the right of the purchaser is to have what tbo vendor can give, with an abatement out of the purchase money for so much as the quantity falls short of the representation.”

In support of this position, Hill v. Buckley, 17 Ves. 391, is cited. Taking the syllabus of the case, the position is sustained. But when the case itself is examined, if will be found that a statement has been made to the purchaser as to the quantity, and a measurement furnished by the agent of the vendor, which induced the purchase, which was incorrect; but this fact was not known to either of the parties. The master of the rolls, in commenting upon the case, refers to these facts, and says : “ Where a misrepresentation is made as to quantity, though innocently, I apprehend the right of the purchaser to be, to have what the vendor can give, with an abatement out of the purchase money for so much as the quantity falls short of the representation.”

*In the case now before this court, there is no proof of any misrepresentation as to the quantity of land, but it appears that the complainant, to say the least, had as much knowledge as to the quantity as tho defendant.

In tho next paragraph, Mr. Sugden says: “But where lands in a conveyance are mentioned to contain so many acres by estimation, or the words ‘more or less ’ are added, if there be a small portion more than the quantity, tho vendor can not recover it; and if there be a small quantity less, the purchaser can not obtain any compensation for the deficiency.” Thus much counsel quote, but omit what next follows in the same paragraph: “Indeed, a case is said to have been decided, where a man conveyed his land by the quantity of one hundred acres, were it ‘ more or less,’ and it was not above sixty acres; but the purchaser had no relief, because.it was his own laches,” and 2 Frum, 106, is “cited-” In this case, the comparative deficiency of land was much greater than in the case now before this court.

In the next paragraph, Mr. Sugden says: “That, however, was the case of an actual conveyance. Where the contract vests in fieri, the general opinion has boon that the purchaser, if the quantity bo considerably less than was stated, will be entitled to an abatement, although the agreement contain the words ‘more or less,’ or ‘by estimation.’ ”

Other authorities are cited, to show that a difference prevails where the contract is in fieri and where it has been executed by conveyance. Admitting that there is a difference, does the complainant come beforo the court under such circumstances as to tako advantage of it? It seems to mo not. True, he has not received a conveyance from the defendant, but he has acquired all tho title which was in the defendant, and he has acquired this title at sheriff’s sale, after neglecting to perform his own contract, by satisfying tho judgment upon which the land was sold. Had ho complied with his contract by paying off this and the other judgments, as he was bound, he might with a better face have como into this court for a specific performance, *and in such application have insisted upon an abatement.

Upon this question, whether there can be any abatement whero the land sold is described by measurements, metes, and bounds, and so far as the quantity is concerned, is sold “by estimation,” or “ for more or less,” there is much contrariety of decision, as is apparent from an examination of the authorities referred to in tho notes appended to the American edition of Sugden. No certain rule seems to have been established even in England. Mr. Sugden says, on page 378 of the American edition : “But however the rule may be finally established, yet a seller, knowing the true quantity, would not be allowed to practice a fraud, by stating a false quantity, with the addition of the words ‘more or less,’or the like.” This is unquestionably correct; for these words contain no power to relieve a vendor from his own fraud, whatever that fraud may be. But where there is no fraud, no concealment, no misrepresentation, they must have some effect.

So far as my knowledge extends, the general course of decisions in this state, upon contracts for the sale of land, or for the conveyance of land, the land being described by metes and bounds, and the quantity “estimated,” or sold “for more or less,” has been, that the purchaser should take all within the prescribed bounds, although more than the estimated quantity, and that there could be no abatement should the quantity fall short. At any rate, I have never known of any such abatement. And such, I believe, has been the general current of decisions in the United States, although they are not perhaps uniform.

But, oven admitting the rule to be otherwise in some cases, is this a proper case to give this complainánt relief? What has been his conduct? He bought the land in controversy by its motes and bounds, with which he was well acquainted, and contracted to pay a gross sum for the entire tract. The payments first to be made by him were to bo applied in satisfaction of cerLain judgments which wore liens upon the land. This contract *he neglected to comply with, but suffered the land to be sold upon one of these judgments, and purchased in himself, thereby ousting the vendor of his title. Was this acting in good faith? True, he had ascertained, as ho supposed, that the land fell short of the estimated quantity. But if, in consequence of this, he felt himself aggrieved, he should at once have notified the vendor, and have requested a rescission of the contract. Possibly, had the vendor refused to have rescinded, he might have compelled it. This course, however, did not meet his approbation. He preferred, in the first place, to got the title out of the vendor’s hands through, the instrumentality of a sheriff’s sale: The reason which he assigns for this course is, that he had paid three hundred dollars, which would otherwise have been lost in consequence of the vendor’s insolvency. But although he could charge the vendor in his bill with insolvency, he has not undertaken to prove the charge.

Besides, what has he lost by this contract, should he be compelled to pay the judgment? The land is proven at the time of his purchase to have been worth $3,000, irrespective of the number of acres. In the year 1843—the year before his purchase—he himself, with two other freeholders, under the solemnity of an oath, appraised it at $4,000. And in 1846, after the deficiencjr in quantity had boon ascertained, it was again ap2>raised at $3,320. The price agreed to be paid for the land, then, did not exceed its actual value, and all the defendant can lose, should he be compelled to pay the full amount of the contract price, will be the 02>portunity of acquiring a valuable farm at about $1,000 less than its worth.

It seems to the court that the equity of the case is with the defendant.

The injunction is therefore dissolved, and the bill dismissed at the complainant’s cost.