ment of personal control enters into the consideration or not, all who are servants of a common master, engaged in the same general business, subject to the same general control, and are paid out of a common fund, are fellow-servants in respect to all acts done in the common service, unless the duty performed by them be such as properly belongs to the master as such, and in which case they take the place of the master, and he is chargeable with their acts as if performed by him personally with all the knowledge in the premises which the law imputes to him: McKinney on Fellow-servants, p. 53, sec. 23; Alabama etc. R. R. Co. v. Waller, 48 Ala. 459; Mobile etc. R'y Co. v. Smith, 59 Ala. 245; Tyson v. South and North Alabama R. R. Co., 61 Ala. 554; 32 Am. Rep. 8; Smoot v. Mobile etc. R'y Co., 67 Ala. 13. It may be that some of our cases that of Mobile etc. R'y Co. v. Smith, 59 Ala. 245, for instance - have gone to the extremest verge of soundness in applying the doctrine of fellow-servants to the exemption of the employer from liability; but we apprehend it would be a more radical departure, in the opposite direction, from what may be considered the established rule in our jurisprudence, to hold that a conductor in the control of a train is exercising the functions of the master in giving ordinary directions and orders in the management and running of the train so as to be chargeable with a knowledge of every fact in relation thereto which is known, or of which the law imputes a knowledge, to the

master.

11. It seems to us, however, that a decision of that question is not necessary to a correct determination of this appeal. The negligence imputed to the conductor in the second count of the complaint, and which the rulings of the court in certain instructions given and refused allow the jury to impute to him on the theory of his being a vice-principal, is, as we have seen, in its nature secondary and suppletory to that of the defendant itself. If there was a dangerous projection from the wall of the cut, that was the negligence of the defendant, for the injury resulting from which the defendant would be liable under either count of the complaint, as well without as with concurring negligence of the conductor. If there was no such defect, there could be no negligence, either on the part of the defendant directly, or on the part of the conductor, and indirectly, through him, on the part of the defendant. If plaintiff knew of the defect, his contributory negligence, in attempting to ascend the ladder at that point, is not relieved

by the fact that the attempt was made in obedience to the conductor's order. And if the plaintiff was negligent in being in the caboose, his presence there involving a necessity to ascend at that place to the top of the train, that negligence was just the same, in itself and in its results, whether or not the conductor was lacking in due care in ordering him out; or in other words, the rights and liabilities of the partiesthe cause of action and the defense to it being precisely the same whether the negligence is imputed to the conductor or not, the rulings of the court in respect to his alleged negligence, whether sound or not, abstractly considered, could have exerted no influence in the premises; and if error was committed therein, it was without injury, and will not avail to operate a reversal of the judgment.

We have discussed all the questions treated of in the argument of appellant's counsel. Several other matters are assigned as error. They have been carefully considered, but we deem it unnecessary to enlarge upon them here. They involve

no error.

The judgment of the city court is affirmed.

RAILROADS - LIABILITY FOR DEFECTS IN ROAD-BED. —A railroad company is liable for injuries suffered by its employees through defects in its road-bed: Taylor etc. R'y Co. v. Taylor, 79 Tex. 104; 23 Am. St. Rep. 316, and note 326, 327; Missouri etc. R'y Co. v. Jones, 75 Tex. 151; 16 Am. St. Rep. 879, and note; Vosburgh v. Lake Shore etc. R'y Co., 94 N. Y. 374; 46 Am. Rep. 148; Illinois etc. R. R. Co. v. Welch, 52 Ill. 183; 4 Am. Rep. 593; such as obstructions so near the track as to interfere with the railway employees in the discharge of their duties when engaged in operating trains: Note to Chicago etc. R. R. Co. v. Swett, 92 Am. Dec. 218, 219. Compare also Kansas City etc. R. R. Co. v. Kier, 41 Kan. 661; 13 Am. St. Rep. 311. In Johnson v. St. Paul etc. R'y Co., 43 Minn. 53, it is said that "a railroad company is bound to place signal-posts, or other structures used in connection with its road, or the operation thereof, at a reasonably safe distance from the track, so as not to be dangerous to brakemen or other employees who work on its trains; but if, for any reason, it is found necessary to erect or place such structures so close as to be hazardous to its employees, it is in such case its duty to warn them of the danger." Whether or not a railway company is negligent in leaving a ledge of rock in such a position that it would probably fall upon the track is a question of fact for the jury: Bean v. Western North Carolina R. R. Co., 107 N. C. 731.

Master and Servant. -- A servant may presume that his master has performed his duty by supplying safe appliances and machinery, as well as a safe place in which to work, in the absence of evidence showing knowledge to the contrary on the part of the servant: Chicago etc. R. R. Co. v. Hines, 132 Ill. 161; 22 Am. St. Rep. 515; Harrison v. Detroit etc. R. R. Co., 79 Mich. 409; 19 Am. St. Rep. 180, and note; Galveston etc. R'y Co. v. Garrett, 73 Tex. 262; 15 Am. St. Rep. 781; Myers v. Hudson I. Co., 150 Mass. 125;

15 Am. St. Rep. 176. A railroad employee may assume that the company has so constructed and maintained its road-bed and bridges that a brakeman can with safety perform his duties: Louisville etc. R'y Co. v. Wright, 115 Ind. 378; 7 Am. St. Rep. 432, and note; Chicago etc. R. R. Co. v. Swett, 45 Ill. 197; 92 Am. Dec. 206, and note; Johnson v. St. Paul etc. R'y Co., 43 Minn. 53; Bean v. Western North Carolina R. R. Co., 107 N. C. 731.

MASTER AND Servant - VIOLATION OF RULES BY SERVANT - CONTRIRU. TORY NEGLIGENCE. Disobedience of rules by a servant, in any degree contributing to the injury, constitutes contributory negligence, precluding recovery: Prather v. Richmond etc. R. R. Co., 80 Ga. 427; 12 Am. St. Rep. 263; Pryor v. Louisville etc. R. R. Co., 90 Ala. 32; Sloan v. Georgia P. Ry Co., 86 Ga. 15; Rome etc. Co. v. Dempsey, 86 Ga. 499; Wescott v. New York etc. R. R. Co., 153 Mass. 460; Grand v. Michigan etc. R. R. Co., 83 Mich. 564; Conger v. Flint etc. Co., 86 Mich. 76; Sutherland v. Troy etc. R. R. Co., 125 N. Y. 737; East Tennessee etc. R. R. Co. v. Smith, 89 Tenn. 114; Davis . Nuttallsburg etc. Co., 34 W. Va. 500.

But the servant is not bound by a rule not brought to his notice, or which has been habitually violated with the knowledge of the company, or where the customs and practice of the company tend to mislead him in the violation of the rule: Little Rock etc. R'y Co. v. Leverett, 48 Ark. 333; 3 Am. St. Rep. 230; Barry v. Hannibal etc. R'y Co., 98 Mo. 62; 14 Am. St. Rep. 610, and note; Louisville etc. R. R. Co. v. Hawkins, 92 Ala. 241. A servant is justified in disobeying a general rule, when he obeys another order given by his master inconsistent therewith: Hall v. Chicago etc. R'y Co., 46 Minn. 439. Disobedience of a rule is not negligence precluding recovery by a servant, when the evidence shows that the injury would have been sustained notwithstanding such disobedience: Louisville etc. R. R. Co. . Watson, 90 Ala. 68; Whittaker v. President etc., 126 N. Y. 544. A switchman, by standing on the foot-board of the tender, "which was put there for switchmen to ride on," is not guilty of contributory negligence, even though the company's rules forbade switchmen to go between cars for the purpose of coupling them: Richmond etc. R. R. Co. v. Jones, 92 Ala. 219. See also Kansas City etc. R. R. Co. v. Kier, 41 Kan. 661; 13 Am. St. Rep. 311.

Master and Servant — AssumPTION OF RISKS. — Servants knowing of defects in machinery, etc., by continuing in service after the lapse of a reasonable time for such defects to be remedied, assume the additional risk, though originally not incident to their employment: Taylor etc. R'y Co. v. Taylor, 79 Tex. 104; 23 Am. St. Rep. 316; Titus v. Bradford etc. R. R. Co., 136 Pa. St. 618; 20 Am. St. Rep. 944, and note. Compare also note to Gulf etc. R'y Co. v. Brentford, 23 Am. St. Rep. 385-388.

CONTRIBUTORY NEGLIGENCE - BURDEN OF PROOF. -The burden of prov ing contributory negligence is upon the defendant: Murray v. Missouri P. R'y Co., 101 Mo. 236; 20 Am. St. Rep. 601; but this rule does not apply where plaintiff's testimony, which seeks to fix negligence on the defendant, inculpates himself also: North Birmingham Street R'y Co. v. Calderwood, 89 Ala. 247; 18 Am. St. Rep. 105.

FELLOW-SERVANTS, WHO ARE AND WHO ARE NOT: See Sherrin v. St. Joseph etc. R'y Co., 103 Mo. 378; 23 Am. St. Rep. 881, and cases cited in note; Ross v. Walker, 139 Pa. St. 42; 23 Am. St. Rep. 160.

VICE-PRINCIPAL, WHO IS: See Ross v. Walker, 139 Pa. St. 42; 23 Am. St. Rep. 160, and note; Brown v. Gilchrist, 80 Mich. 56; 20 Am. St. Rep. 496, and note.

COOPER V. GEORGIA PACIFIC RAILWAY COMPANY.

[92 ALABAMA, 329.]

CONNECTING CARRIERS - LIABILITY OF LAST CARRIER - BURDEN OF PROOF AS TO Loss. — In an action against the last of a connecting line of carriers to recover for the loss of goods shipped on a through-bill of lading, the presumption prevails that the contents of the car delivered to the last carrier were the same, and the goods in the same condition, as when started by the first carrier. The burden of proof, in the first instance, is consequently on the plaintiff to show that the loss occurred while the car was in transitu, and without this proof he cannot recover. When this proof is produced, the burden is then on the carrier to show that the car and its contents were in the same condition when received by him as they were when started by the first carrier, or when delivered to him.

ACTION to recover for the loss of one barrel of molasses. Judgment for defendant, and plaintiff appealed.

E. H. Hanna, for the appellants.

Knox and Bowie, for the appellee.

CLOPTON, J. The cause of action indorsed on the summons issued by the justice of the peace before whom the suit was originally commenced is a stated account. In the city court, to which it was removed by appeal, plaintiffs filed, without objection, a complaint setting forth as the cause of action the failure of defendant to deliver one barrel of molasses, which it received as common carrier to be delivered to plaintiffs at Oxford, Alabama, and on this complaint the cause was tried without the intervention of a jury. The evidence, without conflict, shows that a car containing whole and half barrels of molasses was shipped by through-bill of lading from New Orleans, Louisiana, to plaintiffs at Oxford, and when the car, after arrival, was opened, one barrel was found empty. Defendant received the car from the Alabama Great Southern Railroad Company at Birmingham to be transported to Oxford.

Defendant being one of connecting lines of carriers, and in this case the last carrier, the presumption attaches that when the car was delivered to defendant the contents were the same, and the goods in the same condition, as when started by the first carrier at New Orleans; and if it had been shown that loss or injury occurred somewhere on the road of transportation, the burden would have been on the defendant to show what were the contents of the car, and the condition of the goods when received at Birmingham: Montgomery etc. R'y

Co. v. Culver, 75 Ala. 587; 51 Am. Rep. 483. The presumption avails in favor of as well as against defendant. The burden, in the first instance, is on plaintiffs to show loss or injury while thecar was in transitu; that is, to show the quantity and good condition of the goods when shipped at New Orleans, and a failure to deliver the quantity, or a delivery in a damaged condition. There is no evidence tending to show what num-ber of barrels were in the car when it left New Orleans, or that the condition of the goods was different on its arrival at Oxford. The car was sealed at New Orleans, and again sealed at Meridian, without disturbing the first seal, by an intermediate carrier; and when delivered to defendant at Birmingham, and opened at Oxford, the seal was intact. The empty barrel was apparently dry, and no head to the barrel wasin the car. The reasonable inference from these facts is, that the barrel was empty when it was put in the car at New Orleans, and that there was the same number of barrels in the same condition as they were when started from New Orleans. Plaintiffs have failed to show any loss or injury while the goods were in transit.

Affirmed.

CONNECTING CARRIERS - LIABILITY OF LAST CARRIER — BURDEN OF PROOF. The presumption is, that goods were delivered to the last of several connecting carriers in the same condition that they were delivered to the first, and the burden of proof is upon the last carrier to show that they were not: Savannah etc. R'y Co. v. Harris, 26 Fla. 148; 23 Am. St. Rep. 551, and note; Wallingford v. Columbia etc. R. R. Co., 26 8. O. 258.

BRADFORD V. MAYOR OF ANNISTON.

MUNICIPAL CORPORATIONS

--

[92 ALABAMA, 349.]

DUTY IN CONSTRUCTING BRIDGES. A city, in the construction of bridges across its streets, is required to provide against such causalities liable to occur from overflow as a cautious and prudent man should foresee and anticipate.

NOTICE to a street overseer of a defect in the

street is notice to the city. MUNICIPAL CORPORATIONS · LIABILITY FOR DEFECT IN STREET. The owner of an animal injured while being driven along the public street by stepping into a hole therein caused by rain may, if free from negligence, recover from the city, when it appears that the defect was known thereto, and had existed so long that it might have been repaired in the exercise of reasonable diligence, and that it failed to do this, or to give any notice or warning to the public. In such case, the fact that