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State R. R. Tax Cases, 92 U. S. 575 (Bk. 23, L. ed. 663).

to the amount of the business in any way. Is These cases were decided upon two grounds:
this then, "a contribution proportioned to the 1. It was held that a tax consisting of a per-
value or results of the privileges granted?" centage upon the deposits made with a savings
The franchise is "the right to use the tangible bank is a tax upon its franchise or business, and
property in a special manner for the purposes of not a tax upon the property in which deposits
gain."
may be invested after they are received. 2. It
was held, further, that the decision of the state
court, although criticised in one of the cases as
Cor-"founded in unsubstantial distinctions," was
binding upon this court. Whatever may be
thought of the soundness of this, Louisville Co.
v. Palmes, 109 U. S. 244 (Bk. 27, L. ed. 922), it
has no present application. For it is not sought
to sustain the present tax by any decision of the
courts of the State construing the statute by
which it is imposed.

It is itself a part of the property of the poration, but quite distinct and separate from its tangible property.

Gordon v. Appeal Tax Court, 3 How. 133, 150 (44 U. S. bk. 11, L. ed. 529, 537); Wilmington R. R. Co v. Reid, 13 Wall. 264, 265 (80 U. S. bk. 20, L. ed. 568).

It is a thing" capable of appraisal and ascertainable by evidence, and is frequently made the subject of taxation by the sovereign power. It is a right separate and distinct from the capital and moneyed assets of a corporation, and as to the value of which they furnish no evidence." Conaughty v. Saratoga Co. Bank, 92 N. Y. 401. See to same effect Veazie Bank v. Fenno, 8 Wall. 533 (75 U. S. bk. 19, L. ed. 482); Monroe Co. Sav. Bank v. Rochester, 37 N. Y. 365; Porter v. Rockford etc. R. R. Co. 76 Ill. 561.

Its value is readily ascertained. It is determined by subtracting from the total actual value of the capital stock the total value of all items of property other than franchise. The remainder is, of course, the value of the franchise; the value of the right to use the tangible property in a special manner for the purpose of gain. This method has the approval of this

court.

State R. R. Tax Cases, supra.

It is approved elsewhere as well.
Spring Valley Water Works v. Schottler, 62 Cal.
69; People v. Badlam, 57 Cal. 594; San Jose
Company v. January, Id. 614.

[137]

The former ground, it has been claimed, con- 1138] trols the present case. Clearly this cannot be so. The question now involved is entirely different. There the tax was a percentage upon the deposits, "simply the sums received, wholly irrespective of the disposition made of the same.'

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Prov. Inst. v. Mass. supra, 627 (912).

The liability arose by reason of the receipt of the deposit. It was quite immaterial what became of the money after it was received, whether or how it was invested, or what profit was realized from it.

But in the present case the tax is not measured by the moneys received by defendant-by the volume of its business, the extent to which it has exercised its franchise. The tax is a percentage compounded of two factors, the capital and the dividends. That is to say, it is measured by defendant's permanent investment in the business, and the net profits realized from its entire property.

In the cases in 6 Wallace then, the tax was independent of the tangible property of the corporation or any profits therefrom. There the burden of the tax rested upon the franchise. But here, clearly, the ultimate burden rests upon the property of defendant invested in part in United States securities. That therefore is the subject of the tax.

State Freight Tax Cases, supra.

But here neither the value of this part of the property of the Corporation, nor the results of its use, are in any way ascertained. It is claimed that this is a tax upon the franchise or its results, upon the ground that the tax is measured by the profits resulting from the use of the franchise-by the capacity of the Company to declare dividends. This is clearly erroneous. The In case of corporations paying less than 6 tax is a percentage upon that part of defendant's per cent, the Act provides that there shall be a income which it has distributed in dividends-tax upon the "actual value" of their capital. It its net income of profits-without discrimination as to the source thereof. This, of course, is a tax upon the property from which the income arises.

Bank of Ky. v. Commonwealth, 9 Bush, 46; Opinions of Justices, 53 N. H. 634; People v. Commissioners, 90 N. Y. 63; Weston v. Charleston, 2 Pet. 472 (27 U. 8. bk. 7, L. ed. 489).

But the franchise is only one part of defendant's property. It is only in part the source of the dividends or net profits. They are the product of all the property. And as the tax includes property not taxable it cannot be sustained as a tax on the franchise.

Santa Clara Co. v. Southern Pac. R. R. Co. 118 U. S. 394 (ante, 118).

But the State claims that this court is already committed to the view that this is a tax upon franchise. And the court below placed its decision chiefly upon this ground.

Society for Savings v. Coite, 6 Wall. 594 (73 U. S. bk. 18, L. ed. 897); Provident Inst. v. Mass. 6 Wall. 611 (18:907).

is settled that a tax in that form is a tax upon
the property in which the capital is invested,
and that corporations upon which it is imposed
are entitled to deduct their United States bonds
from the amount of the assessment.

Bank of Commerce v. New York, and Bank
Tax Case, supra.

But if the tax upon corporations paying 6
per cent or more be a franchise tax, such cor-
porations will not be entitled to the deduction
of their United States bonds to which those
paying less than 6 per cent are entitled. Still
further, where a corporation has paid less than
6 per cent upon its common stock, it will be
entitled to exemption, as to its common stock,
for the amount of its capital invested in United
States bonds, but not as to its preferred stock,
although all its capital may be so invested.

If, then, this be a tax upon capital, the statute establishes a comprehensive system which bears equally upon all corporations which it affects. If it be a franchise tax, the statute is utterly incongruous and bears unequally both

the

upon different corporations, and also upon different property of the same corporation. This the court below meets by saying that the Legislature has power to impose unequal taxes. This may be so. But the same court had already laid down the rule that in matters of taxation "it is a sacred duty to impose the burdens equally, and to enforce the maxim of law and ethics, that equality is equity."

People v. Commissioners, 76 N. Y. 64. "Equality of taxation is a fundamental principle of our government which no legislation, in the absence of the most explicit provisions, will be presumed to have intended to violate." People v. Supervisors, 20 Barb. 81; affd. in People v. Supervisors, 16 N. Y. 424.

That, doubtless, is the principle of construction to be followed here. The statute, indeed, adınits of no construction other than that which will produce this result. The tax is a percentage upon the capital. The amount of this percentage varies, but the subject matter taxed remains the same.

Oswego Starch Factory v. Dolloway, 21 N.Y. 443; Commonwealth v. R. R, Co. 29 Pa. 370; Lehigh Co. v. Commonwealth, 55 Pa. 448.

The provisions of this Act have been judicially construed in accordance with these views. | They were copied literally from a Statute of Pennsylvania, Laws of 1879, p. 114, section 4. and have long existed there in the same substantial form.

Laws of 1844, p. 498, § 33; 1859, p. 529; 1868, p. 109, § 4.

less than 6 per cent is a tax upon their property, and they are entitled to deduct from the assessment the amount of their United States bonds. Bank Tax Case, supra.

Unless, then, those declaring over 6 per cent are allowed the same deduction-are relieved from taxation to the extent of their United States bonds-the tax is unequal, and therefore unconstitutional.

No doubt the Legislature may divide corporations into as many classes as the different pursuits followed by them may require. Railroad Tax Cases, supra.

But there can be no classification by arbitrary rules among those engaged in the same business in the same locality.

San Mateo Co. v. Southern Pac. R. Co. supra; Gilman v. Sheboygan, 2 Black, 510 (67 Û. S. bk. 17, L. ed. 305); Albany City Nat. Bank v. Maher, 9 Fed. Rep. 884; County of Santa Clari v. Southern Pac. R. Co. 18 Fed. Rep. 385; Dundee etc. Co. v. School Dist. 19 Fed. Rep. 359; Oliver v. Washington Mills, 11 Allen, 283: Stuart v. Palmer, 74 N. Y. 183; State v. Township, 36 N. J. L. 66; City v. McQuilian, 9 Dana 513; Howell v. Bristol, 8 Bush, 493; Atty-Gen. v. Winnebago etc. Plank R. Co. 11 Wis. 35; New Orleans v. Home Ins. Co. 23 La. Ann. 449; Re Ah Fong, 3 Sawy. 144; Parrott's Case, 6 Sawy. 349; Louisville & N. R. Co. v. R. R. Commission, 19 Fed. Rep. 679.

bitrary distinction should be made between persons owning that species of property, than between the owners of property of any other kind. And it is so held.

Upon principle the rule in regard to uniformity of taxation upon franchises must be the It is well settled there that they impose a tax same as in regard to taxes upon any other propupon the property of the corporation (West-erty. There can be no more reason why archester Co. v. County of Chester, 30 Pa. 232; Lackawanna, I. & C. Co. v. Luzerne Co. 42 Pa. 424; Phonix Iron Co. v. Commonwealth, 59 Pa. 104; Commonwealth v. Pittsburg, etc. R. Co. 74 Pa. 83; Catawissa R. R. Co.'s Appeal, 78 Pa. 59; Coatesville Gas Co. v. County of Chester, 97 Pa. 476), and that the dividend of profit earned by the stock is but a means of ascertain-428; Oliver v. Washington Mills, 11 Allen, 268; ing its value."

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Lehigh Co. v. Commonwealth, supra; Com monwealth v. Standard Oil Co. 101 Pa. 119.

The Pennsylvania Statute too, was before this court in Gloucester Ferry Co. v. Pa. 114 U. 8. 196 (Bk. 29, L. ed 158), and was then regarded as imposing "a tax upon the capital" of corporations affected.

If, however, defendant be taxable upon the basis of its entire capital, including the bonds, the tax is repugnant to the Fourteenth Amendment of the Constitution of the United States. The defendant is a person within the meaning of this provision.

County of Santa Clara v. Southern Pac.'R. R. Co. supra, County of San Mateo v. Southern Pac. R. Co. 13 Fed. Rep. 722.

Inequality of taxation is a denial of equal protection.

Strauder v. West Va. 100 U. S. 303 (Bk. 25, L. ed. 664); County of San Mateo v. Southern Pac. R. Co. supra; Exchange Bank of Columbus v. Hines, 3 Ohio St. 1; People v. Weaver, 100 U. 8. 539 (25: 705); Supervisors v. Stanley, 105 U.S. 305 (26: 1044); Evansville Bank v. Britton, 105 U. S. 322 (26:1053); County of Santa Clara . Southern Pac. R. R. Co. supra.

The present application of these principles is manifest. The tax upon corporations declaring

County of San Mateo v. Southern Pac. R. C. supra; Portland Bank v. Apthorp, 12 Mass. 252; Commonwealth v. People's Sav. Bank, 5 Allen,

Parish of Orleans v. Cochran, 20 La. Ann. 373; State v. Merchants Ins. Co. 12 La. Ann. 802; East St. Louis v. Wehrung, 46 Ill. 392.

If, then, the tax upon this dividend be a tax upon the franchise, the statute is unconstitutional; for it subjects defendant to assessment and taxation upon its franchises at a higher rate than that imposed upon others in precisely the same situation. It therefore denies to defendant equal protection of the laws.

Mr. Denis O'Brien, Atty-Gen. of New York, for defendants in error:

The decision of the court of appeals on the construction of the Constitution and Statutes of New York will be followed by this court. Township of Elmwood v. Marcy, 92 U. S. 289 (Bk. 23, L. ed. 710); Fairfield v. Gallatin Co. 100 U. S. 47 (25:544).

Questions not decided in the state court, because not raised and presented by the complaining party, will not be re-examined in this court upon a writ of error.

Hamilton Co. v. Mass, 6 Wall. 632 (73 U. S. bk. 18, L. ed. 904); Railway Co. v. Guthard, 114 U. S. 133 (29:118).

The tax imposed upon the plaintiff in error was a tax upon its franchises, and not upon its property or capital stock.

Prior to the passage of this Act corporations

were assessed and taxed upon their capital | rendered in the case of the County of San Mateo
stock, under the provisions of the Revised Stat- v. Southern Pacific R. R. Co. 13 Fed. Rep. 722.
utes of the State of New York, by the local offi- It is respectfully insisted that the broad scope
cials for both local and state purposes.
given to the first section of the Fourteenth
Amendment by this decision is not sustain-
able on principle or reason; that it was intended
simply and solely to prevent discrimination
against the negroes.

A comparison of those provisions (2 N. Y. R. S. 7th ed. 1036 et seq.) with those of the Act in question, shows radical differences in the method of assessment and collection of the taxes imposed upon these bodies, and clearly discloses the intention of the Legislature, in the enactment of the Statutes of 1880 and 1881, to formulate a new and distinct scheme of taxation for all the corporate, associate or joint-stock bodies included within the terms of its provisions.

The law distinctly states that the plaintiff in error shall pay a tax, as a tax upon its corporate franchises or business, into the treasury of the State annually, and then provides the method of computation.

Franchises are special privileges conferred by government upon individuals; no franchise can be held which is not derived from a law of the State.

Bank of Augusta v. Earle, 13 Pet. 595 (38 U. S. bk. 10, L. ed. 311).

The State may impose taxes upon the corporation as an entity existing under its laws, as well as upon the capital stock of the corporation, or its separate corporate property; and the manner in which its value shall be assessed, and the rate of taxation, however arbitrary or capricious, are mere matters of legislative discretion.

Delaware R. R. Tax Case, 18 Wall. 206 (85 U. 8. bk. 21, L. ed. 888).

Nothing can be more certain in legal decision than that the privileges and franchises of a private corporation may be taxed by a State for the support of a state government. Authority to that effect resides in the State independent of the Federal Government.

Slaughter House Cases, 16 Wall. 36, 81 (83 U. S. bk. 21, L. ed. 394, 410).

The Statutes of New York simply aggregate certain corporations into one class of taxpayers, and impose upon them a tax which is uniform as to the whole class. It is sufficient that the tax imposed be uniform and equal, as to the class upon which it operates.

State R. R. Tax Cases, supra; Kentucky R. R. Tax Cases, 115 U. S. 322 (Bk. 29, L. ed. 414). But the San Mateo Case is a direct authority for the imposition of the tax in this case. There the tax was one on property, here one on franchises. "Taxation on business in the form of licenses may vary according to the calling or occupation licensed, and the extent of business transacted."

San Mateo County Case and Provident Inst. v. Mass supra.

The first section of the Fourteenth Amendiment having no application, the Legislature, in the exercise of a taxing power, is supreme, unless limited by the Constitution of the State. Our court of last resort has decided the statutes in question to be constitutional and valid. People v. Home Ins. Co. 92 N. Y. 328.

Its decision is final and there is no question before this court.

Mr. Chief Justice Waite announced the affirmance of the judgment of the Supreme Court of the State of New York by a divided court.

Society for Savings v. Coite, 6 Wall. 594 (73
U.S. bk. 18, L. ed. 897). See also State R. R. Tax CUNARD STEAMSHIP COMPANY, Lim-
Cases, 92 U. S. 575 (23: 663).

This tax, therefore, being a tax upon the franchise of the plaintiff, it matters not how his capital stock or property may be invested, whether in United States securities or otherwise.

ited, Plff. in Err.,

0.

PATRICK CAREY.

(See S. C. Reporter's ed. 245-259.)

Steamship Co-injury to employee-negligence of fellow-servant-contributory negligence.

People Commissioners, 4 Wall. 244 (71 U S. bk. 18, L. ed. 344); Nat. Bank v. Common wealth, 9 Wall. 353 (19: 701); Van Allen v. Ass€8sors; 3 Wall. 573 (18: 229); Society for Savings v. Coite, supra; Provident Inst. v. Mass. 6 Wall. 612 (18: 907); Hamilton Co. v. Mass, supra. The Bank Tax Case of New York, expressly distinguishes between a property and a fran-empty bucket when it descended, two falls being chise tax.

Bank Tax Case, 2 Wall. 209 (69 U S. bk. 17, L. ed. 795).

The tax in question being upon the franchises of the plaintiff in error, the first section of the Fourteenth Amendment to the United States Constitution has no application. There is nothing in this case showing an unequal exaction; in proportion to their earning capacity, and the value of their franchises, they are taxed. Even were it not so a franchise tax is not within the rule of uniformity.

Ducat v. Chicago, 10 Wall. 410 (77 U. S. bk. 19, L. ed. 972).

It is respectfully urged that this contention is based almost entirely upon a recent decision

While a longshoreman, employed for two years previous by a steamship company, was assisting in shifting coal from the hold of the steamship Batavia to the steerage deck above, by hooking a loaded tub to the hoisting apparatus and unhooking the

used on the hoisting apparatus, each operating a tub, one of which ascended, while the other descended, only one being in his charge, he was injured by the loaded tub falling upon him, caused by the drawing of a splice from the untwisting of the rope. He brought suit against the steamship forming a part of the hoisting apparatus, by reacompany to recover damages, alleging that the rope son of its defectiveness broke, whereby the coal tub attached thereto tell upon the plaintiff withthe plaintiff for $15,000 and judgment was rendered out any fault on his part. There was a finding for thereon. Error was assigned by the defendant, on the grounds that the court retused to direct a verdict for the defendant, because (1) the evidence proved that the plaintiff was guilty of contributory negligence; and because (2) the evidence failed to establish negligence on the part of the defendant; and because (3) the Injury was occasioned through

the negligence of a fellow servant, for which defendant was not liable; and because (4) the court

(245)

arred in its charge to the jury, as well as in refusing to charge as requested by the defendant's counsel. This court being equally divided, the judgment of [No. 29.]

the court below stands affirmed.

Argued Nov. 8, 1886. Decided Nov. 16, 1886.

ERROR to the Circuit Court of the United

Craven sent ten men into the hold to get out the coal, and stationed one on each side of the hatch in the hold, and one on each side of the hatch on the steerage deck. The men commenced work between six and seven o'clock and worked until about half past ten. At that time Carey had hooked his tub loaded with

IN to uit of the new coal to the fall, and it had ascended dearly to

York, Affirmed.

This was an action by an employee to recover for personal injuries received while in the service of the plaintiff in error.

The action was commenced in the Superior Court of the City of New York, and was removed to the United States Circuit Court on petition of the defendant, a foreign corporation. Patrick Carey had been in the employ of the Steamship Company for two years as longshoreman, and on the evening of November 3, 1880, was sent, with others, into the hold of the steamer Batavia to assist in shifting coal from that place to the steerage deck above. The particular work assigned to him was that of hooking full tubs to the hoisting apparatus, and of unhooking empty tubs when they descended; and his duty required him to be stationed at the edge of the hatch, on the in-shore side of the ship, where the coal was which the men were engaged in shifting.

Two falls were in use on the hoisting apparatus, each operating a tub, one of which as cended while the other descended, and a man named Henretty was stationed in the hold, on the side of the hatch opposite to Carey, whose duties were similar to those of Carey. Each at tended to the tub ascending and descending on his side of the hatch.

Each fall was rigged to a block on a gaff or boom over the hatch, and ran from thence through a block or davit at the side of the ship, from thence through a block on the end of a scow alongside the ship, and from thence to a drum inside the house on the scow The drums were turned by an engine on the scow, and the drum which operated the particular fall in question was in charge of one O'Brien. The other drum was in charge of one Higgins, and the engine on the scow was in charge of one Redmond.

The superintendent of the dock, having general authority over all matters connected therewith, was named Storey. Under him was a foreman stevedore, Craven, who had charge of loading and unloading the ships, who hired and discharged all the longshoremen, set them to work, and exercised supervision over all things connected with that work. Under Craven were bosses of different gangs, and among them was Christopher Gerraghty, the boss of the coal gang, who had charge of the men, to see that they did their duty. The care and repair of the apparatus used by the men were in charge of the storekeeper, David Smith. The placing of the apparatus in position for work was in charge of the rigger, Graham.

On the evening in question, Craven directed Graham to rig the falls for the purpose of hoisting out the coal. He went to the storehouse and selected a fall, i. e., a rope, from among others; told Short, another rigger, to place it in position and superintend that job. It was a spliced rope, such as are commonly used for that purpose.

the steerage deck. He then stepped out from under the deck at the edge of the hatch, and across the hatch, directly under the loaded tub, in order to reach the empty tub descending on the opposite side of the hatch. While in this position the full tub which he had sent up fell upon him.

Craven had remained upon the deck attending to his duties until about nine o'clock, when he went home, leaving Gerraghty in charge of the men. Down to the time Craven left no notice had been given to him by anyone, as to the condition of any of the apparatus.

Some time after eight o'clock, O'Brien, before whom a considerable portion of the rope was constantly in sight, first noticed that something was the matter with the rope which he was operating, It was his duty to watch the rope, to work it carefully, to take care of it if the turns or twists came out of it; viz., to retwist it, and to report its condition if unfit for work for any reason. He did nothing-neither stopped his drum, attended to the rope himself, nor reported its condition-until Gerraghty, who had been notified by someone concerning the rope, came down upon the scow some time afterwards. O Brien then spoke to Gerraghty concerning the rope. Gerraghty took the rope off the drum, and put back the turns or twists which had come out, dipped the rope in the water and put it back on the drum, and when he left the scow directed O'Brien to look out for the rope and, if the turns came out again, to take it off and put them in. O'Brien continued to operate the rope, and saw that it was getting worse, but did nothing himself to correct its condition; he neither stopped the drum nor attended to the rope, nor gave notice. O'Brien says that he spoke to Gerraghty a second time about the condition of the rope, but does not say what was done or said by Gerraghty at that time. He does not remember whether Gerraghty's action with regard to the rope was on the first or second occasion of his speaking to him, except that he does say that Gerraghty directed him to put the turns in the rope if they came out again. This, however, O'Brien failed to do. He continued to hoist with the rope, and some time afterwards the splice drew, by reason of the rope untwisting, and the disaster followed.

It is customary to use spliced ropes for the purpose of hoisting, and the splice in and of itself, constitutes no defect, and in no manner weakens the rope for use. It is also usual for the turns or twists to come out of the rope while being operated single, by reason of the motion of the drum or the revolving of the articles hoisted, which necessitates watchfulness and care on the part of those operating the falls, to see that the turns do not come out to the det riment of the rope. The rope in question was good and sufficient for the purpose, when the work commenced that evening.

The plaintiff had been directed not to go un

der the open hatch when a load was ascending, and had also been repeatedly warned against doing the same thing. The tub fell by reason of the drawing of the splice, caused by the untwisting of the rope.

The court refused to direct a verdict for the defendant, but left the jury to decide upon uncontradicted testimony: first, whether or not the plaintiff was guilty of contributory negligence; and second, whether or not Gerraghty was a fellow workman with the plaintiff, or the representative of the defendant, for whose negligence the defendant would be liable. To this ruling the defendant excepted.

The court further charged the jury that the rope was a spliced rope; that the injury occurred by the untwisting and drawing apart of the portion that was spliced; that the important duty of the hour was to see that the rope did not untwist; and that if the rope was in good condition when it went upon the fall, and thereafter became in bad condition, which Gerraghty knew, and should have attended to himself and did not, and the accident happened in consequence, the defendant was liable. The defendant excepted.

Messrs. Frank D. Sturges, R. D. Benedict and Owen & Gray, for plaintiff in

error:

The law is well settled that if a party has by his own acts contributed to his injury he cannot recover. Prudence is imposed as a continual duty.

Baltimore and P. R. R. Co. v. Jones, 95 U. S. 439 (Bk. 24, L. ed. 506); Kresanowski v. Northern Pac. R. Co. 18 Fed. Rep. 235; English v. Chicago etc. R. Co. 24 Fed. Rep. 910; Cunningham v. Chicago etc. R. Co. 5 McCrary, 472.

That the plaintiff was guilty of a breach of legal duty which contributed to his injury should have been decided as a matter of law by the court.

C

Schofield v. Chicago, M. and St. P. R. Co. 114 U. S. 615 (Bk. 29 L. ed. 224); Pleasants v. Fant, 22 Wall. 116 (22: 780); Randall v. Balt. and O. R. R. Co. 109 U. S. 478 (27: 1003).

When a servant disobeys a reasonable regulation established for his safety, and suffers, he cannot recover.

2 Thomp. Neg. 1018; Shanny v. Androscoggin Mills, 66 Me. 420; Memphis etc. R. R. Co. v. Thomas, 51 Miss. 637; Lyon v. Detroit, etc. R. R. Co. 31 Mich. 429; Brown v. Byroads, 47 Ind. 435.

The defendant is not responsible for the consequences resulting from an unauthorized order.

Wood, Master and Serv. p. 889; Felch v. Al len, 98 Mass. 572; Baltimore and P. R. R. Co. v. Jones, supra.

No presumption arose from the happening of the injury. The burden was on the plaintiff to show a breach of duty towards him.

Shearm. and Redf. Neg. §§ 12, 99; Whart. Neg. 2d ed. §§ 421-428.

The master's duty is discharged when the company's agents exercise due care in providing and maintaining appliances reasonably safe for use. Hough v. R. Co. 100 U. S. 213 (Bk. 25, L. ed. 612); Baker v. Allegheny etc. R. R. Co. 95 Pa. 211; Marsh v. Chickering, 101 N. Y. 400.

This obligation does not require the master to keep the apparatus in a safe condition at every moment of work, so far as such safety depends upon the due performance of that work by the servants, and their fellows:

Armour. Hahn, 111 U. S. 313 (Bk. 28, L. ed. 440.

The injury being occasioned through the negligence of a fellow servant, when all were working in the same department, and under the same general directions, the court should have directed a verdict for the defendant.

Chicago, M. and St. P. R. Co. v. Ross, 112 U. S. 877 (Bk. 28, L. ed. 787); Buckley v. Gould and Curry Silver Min. Co. 14 Fed. Rep. 833 and notes; Wood v. New Bedford Coal Co. 121 Mass. 252.

Gerraghty was a mere co-boss. The duty of supplying or maintaining the apparatus was not incumbent upon him. Even the power to hire and discharge men did not change his relation of fellow servant to the plaintiff.

Brown v. Winona etc. R. R. Co. 27 Minn. 162; Hoth v. Peters, 55 Wis. 405; Keystone Bridge Co. v. Newberry, 96 Pa. 246; McDermott v. Bos ton, 133 Mass. 349; McDonald v. The Eagle etc. Co. 67 Ga. 761; Yager v. Atlantic etc. R. R. Co. 4 Hughes, 192; Quinn v. N. J. Lighterage Co. 23 Fed. Rep. 363; Hough v. Railway Co. supra; Gallagher v. Piper, 111 Eng. Com. Law, 669; Crispin v. Babbitt, 81 N. Y. 516; Peterson v. White B. Coal Co. 50 Iowa,673; Mullen v. Steamship Co. 9 Phila. 16; Lawler v. Androscroggin R. R. Co. 62 Me. 463; Collier v. Steinhart, 51 Cal. 116, Marshall v. Schricker, 63 Mo. 308; Hamilton v Iron Mountain Co. 4 Mo. App. 564.

The master's liability depends only upon failing to perform his duty toward his employees, not failing to perform the employees' duty.

R. Co.v. Ross, Hough v. R. R. Co. Crispin v. Babbitt, and Quinn v. N. J. Lighterage Co. supra.

The servant represents the master only in respect to such duties as the law imposes on the master. "None of the better class of cases go beyond this rule."

Wood, Master and Serv. 890; Chicago, M. & St. P. R. Co. v. Ross, supra.

The court should not have refused correct instructions, where those given did not cover the entire case, nor submit it properly to the jury. Laber v. Cooper, 7 Wall. 565 (74 U. S. bk. 19, L. ed. 151).

The court refused an instruction discriminating between a duty devolving upon the master, for breach of which he would be liable, and one devolving upon a servant, for breach of which the master would not be liable. No proof hav ing been made showing a liability of the mas ter, the court should have directed a verdict for defendant.

Albro v. Agawam Canal Co. 11 Irish C. L. 353; Wood, Master and Serv. § 488; Crispin v. Babbitt, supra.

A question should not be submitted to the jury upon a mere scintilla of evidence.

Improvement Co. v. Munson, 14 Wall. 442 (81 U. S. bk. 20, L. ed. 867).

Messrs. Hermon H. Shook and William C. Trull, for defendant in error:

This court has held contributory negligence to be a question of fact for the jury.

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