a movable truck and chain. The rail was to go from one side of the building to the other. The machine was made too short, so that at one end it only came within fourteen inches of the side of the building. The master builder put it up, and left it without a stop. After the mill had been running some time, a closet was built under the end of the rail, so that in fact, although it was not designed for this purpose, the truck could not get off of the rail while the closet remained, on account of the chain going against it. The day after the closet was made the general superintendent ordered the closet removed so far as it interfered with the movement of the truck; and while the plaintiff, a carpenter in the employ of the corporation, was engaged in this work, as directed by the master builder, the truck came off the rail, and injured him, and it was held, in an action by him against the general superintend ent for the injuries sustained, that, even if the defendant was not liable for any negligence in the construction of the building or its appliances, the jury would be war ranted in finding that the defendant, who was also an employé, failed in his duty to the plaintiff in ordering him to move the closet, without ascertaining whether the removal would be attended with danger, and that the action could be maintained. In the case of Rogers v. Overton, 87 Ind. 410, where one fellow-servant was injured by being directed by another fellow-servant, under whose control he was at the time, to climb upon the ele vated end of a bar of iron about which they were at work, and he obeyed, that, notwithstanding the plaintiff and the defendant were serving the same master, did not preclude the former from maintaining an action against the latter for a wrongful or negligent act. A servant may maintain an action against his fellow-servant for injuries received in the master's service. Hinds v. Harbou, 58 Ind. 121; Hinds v. Overacker, 66 Ind. 547; s. с. 32 Am. Rep. 114; Griffiths v. Wolfram, 22 Minn. 185; Vhart. Neg. § 245. In the case of Rogers v. Overton, supra, the court says : 'It is settled law that a servant shall not be exposed to unnecessary and unusual danger; and if he is so exposed he may recover for injuries resulting to him from the wrongdoer who exposed him to peril. It cannot be that a servant shall have no action against his superior who unnecessarily sends him to a place of extraordinary dan ger, for all sound principles and well-considered laws lead to a different conclusion.'"
It is noteworthy that in the Massachusetts case cited the court very unceremoniously overruled its contrary doctrine in Albro v. Jaquith, 4 Gray, 99.
NEGLIGENCE. — A curious case of negligence is Bonner ». Grumbach, Court of Civil Appeals of Texas, 21 S. W. Rep. loio, where it was held that the fact that a passenger on a train takes off his coat, and places it on an unoccupied seat, is not such con tributory negligence as will prevent his recovering for money therein contained, lost by the overturning of the coach into the water; but where the passenger recovered his coat shortly after he had got out of the overturned coach, and immediately missed his
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money, his failure to notify the carrier of his loss, and of all effort on his part to find it, will preclude a recovery. The court said: — "Plaintiff's act in riding with his coat off in no way helped to bring about that occurrence, which was the immediate cause of the loss. The petition showed that the loss of the money was caused directly and immediately by the fault of the company, through which the car was overturned, without the intervention of negligence of the plaintiff, or of any other cause. The damage claimed was not therefore too remote. . . . "He does not show that he made any effort to find it, or any inquiry for it, nor that he notified the servant of appellant that he had lost it, or in any way called upon them to recover it for him. So far as the record shows, they knew nothing of the fact that he had lost, or ever had the money. A plaintiff is not required ordinarily to assume the burden of showing that he has not been guilty of neg ligence; but when the facts which he states expose him to the suspicion that he has negligently contributed to his loss, he must clear away such suspicion before he will be permitted to recover. We think the latter rule applies here. It is not probable that in the overturning of the car the money was destroyed. Its ownership was not changed; it remained the property of appellee. Notwith standing the negligence of appellants, it was still his duty to act as a reasonably prudent person would ordinarily act under like circumstances, and if by so doing he could have prevented the final loss of his property, he ought not to recover. This principle, we think, would require that one situated as he was should make such reasonable efforts to regain his property as the situation allowed. Certainly, it would require that he at least give notice of his loss to those whom he proposed to charge with respon sibility, in order that they might protect both him and themselves, if possible, by recovery of the money. If the circumstances were such that none of these things could have been done, or such as would have rendered effectual any efforts to find the money, that should have been shown."
DEAF AND DUMB DRIVER. — In ancient times deaf mutes were considered idiots, but courts are now more lenient In Arkansas Tel. Co. v. Ratteree, Arkansas Supreme Court. 21 S. W. Rep. 1059, it was held that where a person leaves his horse standing in the street, with a deaf and dumb boy on the seat of the wagon, he himself being in the wagon, though not on the seat, the question whether he left his horse without a competent person to take care of it is for the jury. The court said : — "At the time the wire fell and caused the horse to start the appellee was in his wagon, and the deaf-mute boy was on the seat of the wagon We are of the opinion that the question whether at the time of the accident the appellee had left his horse standing in the street, without a com petent person in charge of him, was a question of fact properly left to the jury under the instructions of the court. On the evidence in this case it could hardly be said that the appellee could have been convicted of a
