NOTES OF RECENT CASES upon nonpayment and avoid the policy, or to continue the policy and enforce payment of the note. MASTER AND SERVANT (RESPONDEAT SUPER IOR) TENNESSEE SUPREME COURT. McGregor v. Gill, 86 Southwestern Reporter 318, is an interesting, if not an important case, more for what is omitted from the opinion than for what is contained therein. Defendant was a livery stable keeper, who furnished a vehicle, with a driver, and while plaintiff was a passenger in this vehicle, it was overturned by the careless ness of the driver, and plaintiff was injured. The court points out the fact that the records show that the driver was well known, and regarded as a safe and trusty driver, and then states that it knows of no principle which would authorize the maintenance of the action. The ensuing dis cussion is devoted entirely to the question as to whether or not the defendant was a common carrier, and it is properly enough held that he was not. No mention, however, is made of the principle of respondeat superior, and the reader is left to conjecture as to why, if the servant was negligent in the course of the master's business, as it seems to be conceded he was, and plaintiff was injured by reason of such negligence, the master was not liable, totally irrespective of the question as to whether or not he was a common carrier. MUNICIPAL IMPROVEMENTS. (BLASTING FOR SUBWAY — TRESPASS) N. Y. SUPREME COURT, APP. Div., IST DEPT. While building the New York subway, it was necessary to do considerable blasting, and the plaintiff in the case of Turner v. Degnon-McLean Contracting Co., 90 New York Supplement, 948, was injured by a stone ejected by a blast. The only question raised was whether the defendant contractor was liable upon the theory of trespass. The court approaches this question by consider ing analogous cases. In St. Peter v. Dcnnison, 58 N. Y. 416, where the plaintiff was on his own land, it was held that a contractor engaged in work upon the Erie Canal was guilty of trespass by blasting stone and earth upon plaintiff's land, although the work was being conducted without negligence. In Wheeler v. Norton, 86 N. Y. Supp. 1095, a subway contractor was held liable for trespass, without proof of negligence for breaking by force of a blast a water pipe in a street which caused the flooding of adjacent premises. In Sullivan v. Dunham, 55 N. E. 923, it was held that one who, for a lawful purpose and without negli
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gence, explodes a blast upon his own land and causes a piece of wood to fall upon a person law fully traveling upon the highway, is guilty as a trespasser for the injury thus inflicted. The court refers to the possible liability of the city had it been conducting the work, but dismisses the sug gestion that the contractor stands in the same position as would the city, upon the authority of Mairs v. Manhattan Real Estate Ass'n, 89 N. Y. 506. Upon the consideration of the above cases, the court holds that the contractor had no right to use or intrude upon the public street outside the line of the public work, and for the act of throwing the stone upon the public highway and injuring the plaintiff, who was lawfully there, the contracting company was liable as trespasser. Judge Laughlin dissents in a lengthy opinion, in which he distinguishes the case of Wheeler v, Norton, and expresses the opinion that no trespass was committed, the public having knowledge that a public improvement was being made, and that both parties were charged with care to avoid accidents. MURDER. (IMPROBABLE EVIDENCE — PLEA OP GUILTY — REASONABLE DOUBT) TEXAS COURT OF CRIMINAL APPEALS. In Sullivan v. State, 85 Southwestern Reporter, 8 10, the court is required to pass upon a question which seldom arises in a criminal case, and per haps has never arisen upon such a remarkable state of facts. Defendant was prosecuted for the mur der of his father and plead guilty. The Texas Code of Criminal Procedure provides that when defendant pleads guilty and the punishment is not absolutely fixed by law, a jury shall be im paneled to assess the punishment. The state introduced evidence of a confession and of a threat by defendant to kill his father. Defend ant, in his own behalf, testified in effect that his father had threatened to kill him and that he was afraid; that when he went to bed on the night of the murder he dreamed that his father was trying to kill him, that he got up, went into his father's room, procured a gun from a shelf near his father's head, went around to the foot of the bed and shot his father. The court failed to give any charge as to reasonable doubt of defendant's guilt, and on appeal the question was presented as to whether this failure was reversible error. Such an instruc tion is held to have been unnecessary, the Appellate Court even going to the extent of saying that a charge which was given and which permitted the jury to acquit under defendant's testimony was undoubtedly favorable to him. It is a familiar rule that where the evidence is very weak, trivial, light, or improbable in its nature or character, or
