power to supply itself with water for fire and domestic uses. It left the exercise of this power to the discretion of the voters. It fixed no limits to the expenditure and set no bounds to the supply. It presented no system and devised no plan for adoption. It left the entire legislative function involved to the judgment of the village. The village, for aught that appears, in good faith, in the exercise of its power, adjudged that its fire exposure demands a water supply that is beyond all danger, so far as possible, of failure, both under ordinary and extraordinary contingencies; and that its supply for ordinary domestic uses shall not be cut off by any failure in the original main.

in case either failed, would it be seriously claimed that it had exceeded its chartered power? If such action were warrantable then, it is warrantable now. The power was not exhausted in the first attempt at its exercise. The power given the village was to take water from Berlin Pond for municipal uses. If by the growth of the village the first draft upon the supply becomes inadequate for its legitimate wants, may it not be enlarged? If the first method of supply, though ample, is exposed to hazards that threaten its continuance, it is quite clear that it may be perfected by any means that will secure the end for which the power was given.

It is very clear, upon the authorities, that a That the original main afforded a fair suppurpose to forefend against possible dangers to ply, if no accident befell it, we can easily see; its water supply is both a dictate of prudence and that some individual voters desired quite and of duty. The question whether it be wise as much, at the meeting of September 26, to to incur the expense proposed does not address obtain an increase of motive power, or a more itself to the court. We have only to consider certain water supply for ordinary municipal the question of power. The Legislature left purposes, we can well believe; still we are satisthe question of expediency to the village, not fied, from the facts shown, that the concrete to us. The power existing, the manner and vote of that meeting had its foundation in a extent of its exercise, as determined by its cus-purpose and desire to make the water supply todian, must be held legal until it is seen that of the village, for all uses to which it might be it is perverted to wrongful ends or diverted to subjected under the charter, more ampie, more wrongful uses. The fact that, while a proper useful, and more certain. municipal purpose is answered by laying an additional main, an incidental improper pur-upon a proposed municipal expense for a legitpose is subserved, does not invalidate the action of the village, provided, in good faith, the primary purpose of the expenditure is to perfect its water supply generally, and the additional motive power gained is a mere sequence of its action.

Suppose the village had deemed it wise at the outset to lay two mains instead of one, in order to secure an uninterrupted flow of water

This being so, it is a question of judgment

imate purpose which, under the law, addresses itself to the voters of the village, and not to the courts. 1 Dill. Mun. Corp. § 94; Spaulding v. Lowell, 23 Pick. 71; New York & H. R. Co. v. New York, 1 Hilt. 562; Bates v. Bussett [ante, p. 166].

The decree is reversed, and the cause remanded to the Court of Chancery, with a mandate to dismiss the bill, with costs.

KENTUCKY COURT OF APPEALS.

LAWRENCE

v.

SIMMONS et al.

1. Where the Legislature grants a lottery franchise and authorizes its sale, the purchaser may, for a valuable consideration, permit others to enjoy a part of the profits, but cannot assign the franchise so as to enable each assignee to conduct a separate lottery.

2. In a suit for a share in the profits of a
lottery, the petition, alleging that defendants
acquired the right to run the lottery, and that
certain sales by which both plaintiff and defend-
ants obtained their rights therein were made by
sufficiently alleges that defendants were operat-
ing the lottery in accordance with the grant.
8. Equity may stop the running of a lot-
tery until an accounting is accorded one denied
his rightful share of the profits, but will not ap-
point a receiver to take charge of it, because of
the consequences to public morals.

the original grantee under legislative authority,

(September 13, 1888.)

PPEAL by plaintiff from a judgment of the

The facts alleged and the questions presented
are stated in the opinion.
Messrs. Simrail & Bodley and F. W.
Morancey for appellant.

Messrs. D. W. Sanders and O'Neal,
Jackson, & Phelps for appellees.

Pryor, J., delivered the opinion of the court:

If the facts alleged in the petition filed by the appellant are true,-and they must be so regarded on the demurrer, we perceive no reason why he is not entitled to relief. The lottery franchise was sold or transferred under and by virtue of a legislative enactment by the city of Frankfort to E. S. Stewart, who became the sole owner; and Stewart afterwards transferred two one-hundredths interest to Reamer, who transferred the same through Stewart to Lawrence, the appellant. It is further alleged that, after this sale to Reamer, the lottery privilege and franchise were assigned to Edward Mensley in trust for the benefit of Stewart, Solomon, Reamer, and others; that after this transfer in trust all the par

A Louisville Law and Equity Court sustainties in interest except Reamer sold and assigned

ing a demurrer to a petition for an accounting, Reversed.

etc.

all their title and interest to Simmons & Dickinson, the defendants, who had notice of Ream

er's interest; that the defendants have been | deny; for, conceding the validity of the grant, operating the lottery for their own benefit, and no chancellor could be induced to lend the aid refuse to permit plaintiff to participate in the of a court of conscience in granting such reprofits, or to have any voice in transacting the lief, however meritorious between the parties, business. They refuse to state their accounts, when the consequences would be so detrimental or to have any settlement whatever with the to the public morals, and the business made plaintiff, denying him any access to the books, more pernicious than when conducted by those and keeping him in ignorance as to the condi- who are ready and willing to fatten upon the tion of the accounts. The insolvency of the ignorance or the misfortunes of their fellowdefendants is also alleged, and a prayer for the men. What relief, then, can the chancellor appointment of a receiver, and the settlement give in such a case? He can at least stay the of the accounts, with a judgment for plaintiff's hand that turns the wheel until a settlement is part of the profits. The validity of the fran- made; and while it is proper, perhaps, to leave chise or the right of the defendants to further the chancellor below to adopt the remedy, it operate the lottery is not involved on the ap is certain that the appellant must have some repeal; but the simple question presented is, Will lief upon the facts stated. the appellant, under his transfer, be permitted to participate in the profits?

It is contended by counsel for the appellees that it was incumbent on the appellant to allege This court, in the case of Meredith v. Barrow a state of facts showing that the defendants (MSS. Op. Feb. 17, 1881), held that the franchise were operating a lottery in accordance with the could not be assigned and divided so as to give grant, and, having failed to do so, the demurrer each assignee the power to conduct a separate was properly sustained. It is distinctly alleged lottery, although of different classes or schemes; that the defendants, in pursuance of certain but it did not hold that the original owners of Acts of the Legislature that are referred to, the grant were powerless to permit others, for acquired the right to run the lottery, and that a valuable consideration, to enjoy a part of the the transfers and sales were made by the oriprofits. If the Legislature had the right to ginal grantee, the city of Frankfort, under legrant the franchise, and then authorized its gislative authority; and the court will not assale, we see no reason for denying the purchaser sume that the defendants or any of the the right to permit others to enjoy the profits beneficiaries had failed to comply with the with him. It is true the plaintiff claims the provisions or conditions of the grant; but, on right to an interest in the franchise, which, the contrary, will presume as between these when construed properly, means an interest in parties that the appellees are exercising the what is made, and not an assertion of the right privileges, and none other, given by the Legisto run a lottery of his own. He comes into a lature, in the absence of any averment showcourt of equity to have an account of profits, ing that they had abused the privileges conalleging a state of facts requiring the interposi-ferred by the grant. In our opinion, therefore, tion of the chancellor to settle the joint account between them.

The appellant also asks for the appointment of a receiver to take charge of the franchise. This relief the chancellor must necessarily

the demurrer should have been overruled; and the judgment below is reversed, and the cause remanded for proceedings consistent with this opinion.

would be liable, and it was therefore error of the court in special term to take the case from the jury.

A master is not released from liability APPEAL by plaintiff from a judgment of the for an injury to a servant from a defective Marinette County Circuit Court on a verNOTE.-Negligence of master; question for jury. Inment, and that if he was so acting the defendant Goldman v. Mason, City Ct. Brooklyn, General Term, October 22, 1888, Daily Register, Oct. 26, 1888, plaintiff had worked on a sand-papering machine, not dangerous to work upon, and as a laborer and general roundabout, and was directed to take up work on a planing machine, driven by steam, having a knife or cutting-head making about 4,000 revolutions per minute under power, and requiring a skilled and experienced workman to operate it. No instructions were given except how to start and stop the machine, and that certain pieces of wood were to be put in it. Plaintiff started to put through a piece which at one end was of a size fitted to the gauge of the machine, but at the other end was too thick for the gauge as then set. It caught in the machine, and plaintiff's right hand was drawn into the rollers and very nearly severed. The court in special term held defendant not liable, taking case from the jury. In general term it was ruled that it was a question of fact whether the person who set plaintiff at work on the machine was acting in the line of his employ

If a verdict for the plaintiff, on the ground that the defendant was guilty of negligence in not repairing the machinery, thereby causing the injury, would be set aside, the court should direct a finding for the defendant. If such a result would not fol low, the jury must determine the question. Rogers v. Ludlow Mfg. Co. 3 New Eng. Rep. 921, 144 Mass. 198; Marshall v. Widdicomb F. Co. (Mich.) 11 West. Rep. 193; Swoboda v. Ward, 40 Mich. 420; Cagger v. Lansing, 64 N. Y. 417; White v. Nonantum Worsted Co. 3 New Eng. Rep. 899, 144 Mass. 276; Sherman v. Chicago, M. & St. P. R. Co 34 Minn. 259; Beaulieu v. Portland Co. 48 Me. 291; Craver v. Christian, 34 Minn. 397; Bean v. Oceanic S. N. Co. 24 Fed. Rep. 124: Bagley v. Cleveland R. M. Co. 21 Fed. Rep. 159; Barbo v. Bassett, 35 Minn. 485; Smith v. Peninsular Car Co. 60 Mich. 501; Greenleaf v. Illinois C. R. Co. 29 Iowa, 22: Cagney v. Hannibal & St. J. R. Co. 69 Mo. 416; O'Neill v. Chicago & N. W. R. Co. 1 McCrary, 505; Gaynor v. Old Colony & N. R. Co. 100

See also 1 L. R. A. 355; 4 L. R. A. 409; 15 L. R. A. 384.

the learned judge erred in holding (1) that there | the defect in the machine, and so the unusual was an entire lack of evidence tending to show that the edger was out of repair at the time the accident occurred; and (2) in holding that if there was some evidence tending to show such defect in the edger, still the plaintiff could not recover, because the evidence conclusively showed that such defect, if it existed, was not the proximate cause of the plaintiff's injury. We think the evidence in the case, on the part of the plaintiff, tends to show that the edger was out of repair at the time the accident happened; and the whole evidence tends strongly to show that if it was out of repair, as claimed by the plaintiff, then it was a much more dangerous machine to work with than though it had been in perfect repair. If it was out of repair, as claimed by the plaintiff, then it is evident that the planks, in passing through the machine, would be much more likely to clog the machine, and stop in their progress through it; and all the evidence tends strongly to show that the greatest danger in the use of the machine was present when it was necessary to remove a plank which stopped in the machine; that at such times the danger arising from planks being thrown backward from the machine usually occurred, and that it was almost impossible that that danger could arise except when an attempt was made to remove a plank which choked and stopped in the machine. The learned circuit judge does not absolutely deny that there was any evidence tending to show that the machine was defective, nor that such defect tended to render its use more dangerous to those using it or working in its vicinity; but he takes the ground that, if it be admitted that the machine was defective, and that such defect caused the plank which did the injury to clog the machine, and therefore rendered it Decessary for the persons in charge of it to perform the dangerous operation of removing the plank from the machine, still the plaintiff cannot recover, because the evidence clearly shows that it was the carelessness of the feeder of the machine in attempting to remove the plank which was the immediate cause of the accident, and as the feeder was a coemployee of the plaintiff, and his carelessness caused the injury, the plaintiff cannot recover.

We think it is clear, from the evidence, that if the machine was out of repair, as claimed by the plaintiff, then the use of it in the mill, even by the most careful men, was more dangerous to the men working in its vicinity than the use of a perfect machine. The defendant was culpable, therefore, in permitting the use of such imperfect machine. The dangers incident to the employment of those working in its vicinity were unnecessarily enhanced by its use. The evidence clearly shows that the greatest danger arises in the use of the machine when the saws for any reason become choked, so as to render it necessary to relieve them by withdrawing the board or plank. And the evidence also shows that the accident which injured the plaintiff occurred at a time when an attempt was made to relieve the saws by removing a plank from the machine, which in some way had choked the saws, or stopped in its regular progress through them. It is claimed by the plaintiff that the stoppage of the plank in its progress through the saws was occasioned by

and unnecessary danger to those using or working near the machine was the direct result of the want of repair of the machine; and we think, upon the whole evidence, it was a question for the jury to say whether the defect in the machine caused the plank to stop in its progress through it. Now, if the defendant, by its neglect, has unnecessarily increased the danger attendant upon the use of the machine, it is liable for any injury to an employee who is not himself guilty of negligence, resulting from the use of such imperfect and dangerous machine; and it is no excuse for the defendant that some one of his employees was careless in the use of such dangerous machine, and that, if it had been carefully handled, the accident would not have occurred. If the proof tends to show that the defect in the machine was the cause of the stoppage of the plank in its progress through the saws, and but for such defect the plank would have passed safely through, then it seems to us that the accident to the plaintiff, which occurred in attempting to remedy the difficulty which the defect in the machine caused, was the direct result of the defective working of the machine. It is evident that there would not, in the case supposed, have been any accident had the machine been as perfect as it ought to have been. We think the learned circuit judge erred in holding that, because the evidence tended strongly to prove that the feeder of the machine was careless in attempting to remove the plank from the machine after it had stopped in its progress through the saws, the plaintiff could not recover, because the negligence which caused the accident was the negligence of a coemployee. We are of the opinion that the negligence of the coemployee of the plaintiff, under such circumstances, would not excuse the defendant, but would simply be negligence contributing to the injury caused by the negligence of the defendant, and the coemployee and the defendant would be liable to the plaintiff. The culpability of the defendant lies in the fact that it permitted the use of a machine in doing its work, which, by reason of its defects, was unnecessarily dangerous to its employees; and it cannot excuse itself by alleging that if it had been carefully used no accident would have happened to the plaintiff. The position taken above, we think, is fully sustained by the authorities in this and other courts. In Cayzer v. Taylor, 10 Gray, 274, it is said: "We are not prepared to say that if one uses a dangerous instrumentality without the safeguards which science and experience suggest, or the positive rules of law require, he is not to be responsible for any injury resulting from such use because the negligence of one of his servants may have contributed to the result, or because a possible vigilance of a servant might have prevented the injury. . . . To say that the master should not be responsible for an injury which would not have happened had a safeguard required by law been used, because the engineer was negligent, would be to say, in substance and effect, that he should not be liable at all for any injury resulting from the failure to use it." The rule laid down in this case is followed in Avilla v. Nash, 117 Mass. 318. The same rule is followed in Paulmier v. Erie R. Co. 34 N. J. L. 155; Booth

. Boston & A. R. Co. 73 N. Y. 38; Cone v. mill pond or lake near the city of Palmyra, and Delaware, L. & W. R. Co. 15 Hun, 172; Grand on December 6, 1881, by a written agreement, Trunk R. Co. v. Cummings, 106 U. S. 700 (27 L. conveyed to one John Atkins the right, for the ed. 266); McMahon v. Henning, 1 McCrary, 516, term of five years, to cut ice from said pond, 3 Fed. Rep. 353; Boyce v. Fitzpatrick, 80 Ind. and store it in icehouses situated near the same. 526; Chicago & N. W. R. Co. v. Henderson, 37 At the same date said Atkins obtained from Ohio St. 549. The rule established by the one Reuben Rockway and wife a lease of 15 above cited cases has been approved by this acres of land situated near the margin of said court in Stetler v. Chicago & N. W. R. Co. 46 pond, for the term of five years, for the conWis. 497-510, and 49 Wis. 609; Schultz v. Chica- struction of icehouses thereon in which to store go, M. & St. P. R. Co.48 Wis. 375-381; Papworth the ice harvested from said pond, with an agreev. Milwaukee, 64 Wis. 389-402. Although cases ment therein that the said Atkins might purmay be found which seem to lay down a dif- chase said land at the end of the term for the ferent rule, we think the rule as stated in the consideration of $500. Between the 18th day case of Cayzer v. Taylor, supra, was adopted by of January and the 1st day of March, 1882, this court in Stetler v. Chicago & N. W. R. Co. the defendant had advanced and loaned to said supra, and is the rule which should govern in Atkins the sum of $3,000 to be used in concases of a like nature. We think there was structing icehouses on said premises, and prosufficient evidence in the case to carry the case curing all the necessary tools, machinery, and to the jury upon the question whether the edger appliances for the ice business, and Atkins gave at the time of the accident was out of repair, him his note therefor, dated March 1, 1882, to and consequently more dangerous to use than become due October 1, 1882, and at the same if in proper repair, and whether such want of time executed a chattel mortgage upon said icerepair caused the plank which did the injury houses, and all the property used in said busito stop in its progress through the saws; and, ness, to secure the same. At the same date if these questions were found in favor of the Atkins assigned and transferred to the defendplaintiff, it would be no defense for the defendant, as collateral security for said loan, the ant that the feeder was guilty of negligence in attempting to remove the plank from the machine. In this view of the case it is clear the learned circuit judge erred in taking the case from the jury and directing a verdict for the defendant. Whether the learned circuit judge erred in regard to the appellant's second ground for recovery need not be decided in this case, as we think the judgment should be reversed for the error committed in instructing the jury as to his first ground of action. The questions raised by the plaintiff's alleged second cause of action were somewhat discussed by this court in the case of Cole v. Chicago & N. W. R. Co. 71 Wis. 114.

The judgment of the Circuit Court is reversed, and the cause is remanded for a new trial.

GREGORY, Appt.,

v.

ROSENKRANS, Respt.

A mortgagee who becomes the purchaser on foreclosure is not entitled to ice cut by a lessee of the mortgagor before foreclosure, although the house in which it was stored, the land on which the house was situated, and the pond from which the ice was cut, were also sold under the mortgage.

(September 18, 1888.)

said agreement, by which he held the exclusive privilege to cut ice on said pond, and the said lease of the said 15 acres, and the agreement therein to purchase the same. On August 10, 1883, said mortgage and note were renewed by another mortgage upon the same property, and the time of payment extended to September 1, 1884. The defendant commenced an action for the foreclosure of said mortgages, and the rights of said Atkins in said agreements and lease, about the 6th day of July, 1885, and obtained a judgment of foreclosure therein, January 22, 1886; and the mortgaged property was sold on said judgment to the defendant, March 19, 1886. On April 19, 1883, Rockway and wife deeded said 15 acres to one Richard Sleep, and Sleep and wife deeded the same to the defendant in consideration of said $500, by virtue of said agreement to sell the same to said Atkins within said lease, on the 16th day of November, 1886. Atkins continued in possession of said icehouses, and the land on which they were situated, and of the property used therewith and in said business, and in the enjoyment of said right to cut ice on said pond, until said mortgage sale and confirmation thereof to the defendant. During the year 1884 the plaintiff advanced money to said Atkins in his 'ice business, and in consideration thereof obtained from him the right to cut ice on said pond, and store the same in said icehouses; and the plaintiff, in the winter of 1884 and 1885,

APPEAL by plaintiff from a judgment of cut a large quantity of ice from said pond, and

the Milwaukee County Circuit Court on a nonsuit ordered in an action for the value of certain ice. Reversed.

The facts are stated in the opinion.
Mr. G. W. Hazleton for appellant.

stored it in said icehouses, until it could be sold or removed. This ice, or much of it, remained in said icehouses until the defendant obtained possession of said property on said foreclosure sale, and the defendant removed or converted

Messrs. Gregory, Bird, & Gregory for the same. For the value of this ice this suit is respondent.

Orton, J., delivered the opinion of the court: The only facts of this case necessary to be stated to make the only question involved, and the decision, intelligible, are as follows:

John M. Riter and John H. Horton owned a 1 L. R. A.

brought, and the above facts constitute the only defense. The circuit court granted a nonsuit in the case. In the foreclosure action Atkins, the plaintiff, and others, were charged with a conspiracy to defeat the rights of said defendant in said property by obtaining a foreclosure of a pretended mortgage held by the