Cowie v. Meyers. agreement was in fact made, all the members concurring therein. This we think is disclosed by the testimony. But it is said that such agreement, if made, was beyond the power of the members. We do not think that the cases cited by counsel calling for the exercise of the doctrine of ultra vires, under certain circumstances, have application to the facts in this case, but are of opinion that there is nothing in the agreement entered into by the stockholders, that was not within their power to make. Granting the correctness of the doctrine that articles of copartuership can not be altered or changed without the consent of all the partners, the court below found that the stockholders' meeting had been called in conformity to the rules and regulations of the partnership, that in pursuance to notice given, all had an opportunity to be present, and that the subsequent developments showed that the parties, now protesting against the methods employed, participated in the discussions or were present at sales, and in some cases, bidding upon property, and in others, by their acts, confirming the general plan that had been adopted by a majority of the stockholders. So that, in effect, the court found that as to such stockholders there was a complete ratification of the acts of their associates, and was, therefore, the act of all of the partners, and therefore not in violation of the rule requiring unanimity of action. The doctrine of estoppel is also invoked for the purpose of giving effect to the decree below, and reference is had to a deed made to the trustees by the members of the syndicate, wherein it appears that the trustees were fully "authorized by agreement of the equitable owners, to subdivide and sell said land, and have subdivided said lands agreed upon, and have sold and conveyed lots therein, and expect to sell and convey, from time to time, other lots therein, until the whole is disposed of in accordance with the trust reposed in them." The testimony does not indicate that certain of the shareholders, one Kennett and Cowie, were present at all the meetings, nor does it indicate that they had actual knowledge of all that was done, and yet the opportunities were presented equally to all the stockholders for knowing, and they were parties and partners in interest, and were put upon notice by various things done, and certainly had knowledge generally of the interpretation that was being made of the plan and arrangement for sale, and some of them were actually present, and all of them were equally bound by all acts that were done in pursuance of the plan that they themselves had adopted, and were bound by the covenant in the deeds, and we do not believe that the court erred in applying the rules of estoppel to them under such circumstances. The minutes of the meeting, while not kept accurately, in connection with the scrap-book in evidence, furnishes the best proof of the fact Superior Court of Cincinnati. that the trustees, so-called, who were in reality managing partners, conducting the business for the benefit of the others, made no effort whatever at concealment, but made frequent and continuous effort in the direction of the fullest disclosures of all that was their duty as apprehended, and we believe the testimony to be satisfactory and convinoing upon the question of good faith in the management of the affairs of this syndicate, and see no reason for the attempt to hold trustee Allison liable personally for any loss that may have been incurred by. him as managing partner for his associates. Neither do we find the ap pointment of Fulton, trustee, irregular, for if the situation presented that of a trust, the law will never permit it to fail for want of a trustee to execute the terms, and give effect to the original intention of the parties. On the whole, we see no reason for disturbing the finding of the court below, and we therefore, for reasons stated, adopt its conclusions, and affirm the decrees and findings of the court below. Hosea and Hoffheimer, JJ., concur. MASTER AND SERVANT-NEGLIGENCE-TRIAL. [Superior Court of Cincinnati, General Term, June, 1905.] (Judge Caldwell of Hamilton common pleas sitting in place of Judge Hoffheimer.) *ENDRESS ET AL. V. MARSHALL. 1. IT IS FOR THE JURY TO Determine WHETHER MASTER CHARGED WITH KNOWLEDGE OF DEFECT IN APPLIANCE. In a suit for damages for personal injuries alleged to have resulted from negligent conduct on the part of a master, where the testimony goes to show that a defect existed in a certain appliance provided by him, it is a question for the jury, whether the master knew or should have known from inspection properly made, of such defect, and if so, if it could not have been remedied. 2. IT IS A QUESTION FOR THE JURY WHETHER INSPECTION BY MASTER WAS SUFFICIENT TO RELEASE HIM FROM LIABILITY FOR DEFECTS. The question is for the jury under proper instructions, whether or not certain examinations of an appliance, made by a witness, were of such a nature as to bring an employer within the requirements of the law as to the inspection for defects of appliances used by his servants. 3. PROOF OF FAILURE TO FURNISH REASonably Safe APPLIANCES ENOUGH TO JUSTIFY FINDING OF NEGLIGENCE. A master will not be required, in the exercise of ordinary care, to furnish the latest and most approved appliances for the use of his servants; but he must furnish ones that are reasonably safe, and proof of his failure so to do will be a sufficient basis for a finding of negligence on the part of a jury. *Affirmed, without report, Enderes v. Marshall, 74 O. S. 436. Endress v. Marshall. 4. SERVANT NOT HELD TO ASSUME RISK OF EMPLOYMENT WHERE REASONABLE OPPORTUNITY NOT OFFERED TO LEARN THEREOF. In a suit for personal injuries, where the testimony discloses that a servant had worked for a master five days before the accident in controversy, but there is nothing in the record to justify the conclusion that he became familiar during this time with the appliances causing the injury, or had reason to learn of the defects therein, or that he was theretofore familiar with such appliance, such state of facts will not warrant the claim that the servant has assumed the risk from such appliance so as to release the master from liability therefor. ERROR to special term. Aaron Moore, for plaintiffs in error. C. B. Wilby, for defendant in error. FERRIS, J. The action below sought the recovery of damages by reason of the explosion of a gasoline lamp or torch, owned by the plaintiffs in error, about which lamp or torch the plaintiff was employed at the time of the happening of the accident on June 21, 1898. From the pleadings we are informed that the plaintiffs in error were charged with (a) negligently permitting the lamp to get out of repair; and were negligent (b) in failing to keep the same clean and in proper order, so that on the day of the accident, it was claimed that the same was out of repair. It is also charged that at the time of the happening of the accident, the defendants were negligent in filling said lamp or torch or flambeau, with a grade of gasoline too volatile and explosive for the uses and purposes for which the lamp was intended. And it was also charged that the plaintiffs in error when lighting the lamp or torch, did so carelessly and negligently, and that all these things were known by the Endress Brothers, plaintiffs in error, and unknown to the defendant, Jennie Marshall. But it seems from the record, that at the time of the trial, there was a practical abandonment of so much of the contention as related to the use of an inferior grade of gasoline as a ground of negligence. It may be regarded as settled by the authorities that the burden of proof was upon the plaintiff below, to prove by a preponderance of the testimony, the existence of negligence. It was incumbent upon her to maintain the issue; that she should have established by affirmative proof, that a duty due and owing to her by the defendants, had not been performed, and that by reason thereof, the injury complained of had occurred; and if it should appear that no negligence was shown, the verdict below is erroneous and should be reversed; or that if the testimony shows the occurrence was of such a nature as could not have been avoided by the exercise of ordinary care on the part of the defendant, the verdict and judgment were clearly wrong and should be reversed. And it will be further conceded that the authorities sustain the conten Superior Court of Cincinnati. tion, "That the happening of an accident is not evidence of negligence;" and courts of last resort, following this principle, have reached the conclusion, that where this fact alone (the happening of an accident) is shown, the case is one for the court and not for the jury. So also it might be conceded that nothing in the contract growing out of the relation of the parties to this suit, made the defendant below insurers against accident or injury, nor were they bound to furnish in the exercise of ordinary care, the latest and most approved appliances; but they were bound under all the authorities, to furnish a reasonably safe place for the plaintiff to work and reasonably safe appliances and conditions; and the absence of the same, would furnish a predicate for the conclusion reached by the jury, to wit, that there was negligence. At the conclusion of the plaintiff's testimony below, the trial judge had presented to him, in the form of a motion to take the case from the jury, the question that is pivotal in this case, viz., contention based upon the decision reached by the Supreme Court in Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613], holding that the mere fact of an explosion, would not raise a prima facie presumption of negligence; and that the analogy between the situation presented by the testimony, would warrant the court in concluding that the explosion of the lamp was fairly comparable with the conditions found in that case where the explosion was of a boiler. And the defendants below contended that this, being all the evidence before the jury, warranted the court in withdrawing the case from the jury and directing a verdict for the defendant. It will be observed that the rule adopted by Dickman, J., in Huff v. Austin, supra, was, that no amount of care in inspection would prevent the explosion of a boiler, but the testimony in the present case submitted to the jury, tended to show a defect in the reservoir and its connections; that unless there had been a defect in the oil tank which permitted oil to escape, the accident would not have occurred. The appliance was defective. This was the contention of the plaintiffs below, who presented testimony that the escaping oil formed a gas heavier than the air, which falling came in contact with the light and thus created an explosion. The proximate cause, it was argued, was the defective appliance, which should have been known to have been defective by the master, and was unknown to the servant; and that even though testimony was introduced tending to show inspection, it became a question for the jury to say whether or not such inspection as was had, was proper; had been made at suitable times; and whether known to the master, and had he acted upon the results of such inspection, the accident would have occurred. In other words, there was submitted to the jury, the question under the evidence as to whether or not, the defects to be disclosed by proper inspection, could not have 1 Endress v. Marshall. been remedied so as to have avoided the injury. It was for the jury to determine under proper instructions by the court, whether the master knew or ought to have known, the condition of the defective appliances. It was the duty of the court below to have instructed the jury as to the duty of the master to make proper inspection at reasonable times, and failing to make same, would be chargeable with the knowledge of the true condition of the appliances which were claimed to be defective. Practically, this was the position assumed by the trial judge, and the error complained of, in the trial judge refusing to grant the motion to instruct a verdict for the defendants below, is not shown by the record. But the contention is made, that even if there were no error in the overruling of the motion to instruct a verdict for the defendants below, the verdict reached is clearly against the weight of the evidence. This necessitates a review of what is disclosed in the record in this case; and examination of which makes the following facts apparent: The plaintiff at the time of the happening of the accident, was a woman employed by the Endress Brothers, who had an attraction at Coney Island, requiring her presence in a box or stall over which hung a light fed by a circular reservoir filled with oil, which, according to her own testimony, "all at once made a very peculiar hissing noise, and the blaze flashed out, outside. All at once it gave way, the gasoline came down on my head; I stepped this way and turned around to save my eyes. All at once I was a mass of flames." On page 85, on cross-examination, describing the incident, the witness stated: "I was sitting there and I noticed the lamp smoking and flickering, and the blaze shot out on the side, and a sort of hissing noise. Just as I rose out of the chair to call the boys to tend to it, the gasoline fell all down over me; I got afire immediately." These were the statements made by the witness, describing the accident to the jury, and the testimony excepted to by counsel for the defendant, of witnesses familiar with the construction of the same or similar appliances, was to the effect that such results could not have happened, had the appliance been maintained in proper order. No question was made as to the extent of the injury, the loss of service, or the pain and suffering of the plaintiff below, but there was testimony that justified the jury in concluding that the appliances were not safe, and had not been properly inspected; and there was testimony tending to show that inspecion of a kind had been made by one who styled himself a laborer, but there was no testimony tending to show that this man, Casey, was other than a lamplighter, and that his duties were concluded when he inspected the lamp with a lighted match to discover whether there were any leakages, and subsequently lighting the lamp for service. The testimony of the man, Parchment, a mechanic, |