[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 266-273; Dec. Dig. § 94.*] Appeal from District Court, Hennepin County; Wilbur F. Booth, Judge. Action by the City of Minneapolis against the Minneapolis Street Railway Company. Findings for plaintiff, and from an order denying a motion amending the findings or for new trial, defendant appeals. Affirmed. N. M. Thygeson, for appellant. C. J. Rockwood, for respondent. START, C. J. Action to recover $4,375, being one-half of the cost of the bridge hereinafter referred to, based upon a written contract between the parties hereto, which is referred to as "Exhibit A." The cause was tried by the district court of the county of Hennepin without a jury, and findings of fact and conclusions of law made in plaintiff's favor. The defendant appealed from an order denying its alternative motion to amend the findings and conclusions of law or for a new trial. The appeal, in legal effect, is only one from an order denying a motion for a new trial. Horton v. Crowley Co., 108 Minn. 508, 122 N. W. 312. The appeal, however, raises the questions here urged by the defendant. maintained by the park board and used by the public until 1905, when it became unsafe for parkway purposes; that a large amount of travel, suitable to the parkway, passed over the bridge; and, further, that a bridge over the defendant's tracks is reasonably necessary for the safety and convenience of the public. There was no evidence tending to show that the public ever acquired a parkway or public way over the defendant's railway tracks other than by a common-law dedication. Whether the evidence, exclusive of Exhibit A, was sufficient to sustain the finding of the trial court is a fairly debatable question; but the evidence, including Exhibit A, is practically conclusive, as between the parties hereto, that there is, and was when Exhibit A was executed, a public way across the locus in quo. The city was designated in the contract, Exhibit A, which was made February 7, appellant as the party of the second part. 1905, as the party of the first part, and the The here material recitals and provisions are to the effect following: The party of the second part is maintaining and operating its railway tracks across the line of the parkway or street, known as Park Boulevard, in the city of Minneapolis. Such railway tracks are laid in a depression, which was made by excavation of the soil, over which a wooden bridge was constructed, in the year 1887, for the purpose of carrying the traffic of Park Boulevard. The controlling question presented by the The bridge has fallen into a record is whether there was, at the time Ex- state of decay and disrepair, and a new hibit A was executed, a public street or way, bridge is necessary. The party of the first at the locus in quo, across the defendant's part is of the opinion that it is under no right of way and railway tracks. The trial obligation to rebuild such bridge, and that it court found that there was, and such finding has the legal right either to grade the parkis vigorously challenged by the defendant as way by filling the excavation with earth, or not sustained by the evidence. The evidence, to require the party of the second part to documentary and oral, exclusive of Exhibit construct and maintain a bridge. The party A, bearing directly or indirectly upon the of the second part is of the opinion that it question, is voluminous; but our conclusion, has a right to maintain and use its tracks as to the effect of the recitals in Exhibit A, in their present position, and that it is under renders unnecessary any extended reference no duty or obligation to construct a bridge to such evidence. The evidence is practically over the same. It is desirable that a bridge conclusive that the defendant's railway shall be immediately constructed to serve tracks at the locus in quo are not located in the public needs, and a plan for such bridge any street or public way; that they are lo- has been mutually agreed upon by the parcated in an artificial depression some 20 feet ties hereto, and neither party is willing to below the natural surface of the land at that waive any of its legal rights, nor to assume point; that the plaintiff, by its park board, or incur any greater liability in the premises in 1888 acquired the necessary land therefor than is required of it by law. The parties and established, and has ever since main-hereto have mutually agreed upon a course tained, a parkway or park boulevard on each of action to secure the immediate construc side of the defendant's right of way and tion of the bridge. Therefore the parties tracks at the locus in quo; that in 1889 the hereto do hereby agree that such bridge shall park board constructed a wooden bridge over be immediately constructed by the party of the tracks of the defendant at the level of the second part in accordance with the plan the natural surface of the land, thereby con- agreed upon; and the party of the first part necting the separated parts of the parkway does hereby agree to pay one-half of the or boulevard; that the bridge was, without total cost of the bridge in the following any objection or protest by the defendant or times and manner: The chief engineer of the its predecessors in interest, continuously party of the second part shall, from time to •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes time, certify to the party of the first part by their contract, after reciting the claim of the total amounts that have been actually each as to the question of liability, expressly incurred and paid by it in the construction reserved the question of liability for future of the bridge, which amount the party of determination in any action either party the first part shall pay. It is expressly might bring. This is the only construction agreed that neither party does, by this agree- of the contract consistent with its language ment, waive any of its legal rights, nor as- and a sane intent of the parties thereto, for sume, as against the other, any duty or ob- the existence of the street easement was the ligation; and either party may, upon the sole basis of any claim upon the appellant to completion of the bridge and the payment build the bridge and the motive for the makof its share of the expenses, bring an ac- ing of the contract. The recital in the suption, if so advised, against the other to re-plemental contract does not in any manner cover the amount by it paid. affect this construction, for the parenthetic This contract was modified by a supple-clause, "so called," refers, not to the existmental one, made on March 7, 1905, provid-ence of the public way, but to the name by ing only for an increase in the width and which it was called. cost of the bridge. This contract contained [2] We hold that the finding of the trial this recital: "Whereas, said parties entered court, to the effect that there was a public into an agreement in writing dated Febru- way across the locus in quo at the time the ary 7, 1905, for the construction of a certain contract was made, is sustained by the evibridge across the railway tracks of the said dence. This conclusion obviates the necessity party of the second part at or near the junc-of considering in detail the other contentions tion of Queen Avenue South and Park Boule- urged by the appellant, for it is now the setvard (so called) in the city of Minneapolis tled law in this state that the uncompensated and state of Minnesota. duty of constructing safety devices over rail The city claims that the appellant is estop-way tracks may be imposed upon the owners ped by the recitals to deny that there was a parkway or street across its railway tracks. Such was the view of the learned trial judge; but the appellant challenges the correctness of this conclusion. The law applicable to this question is well settled, and to this effect: thereof by the state in the exercise of the police power. State v. Railway Co., 98 Minn. 380, 108 N. W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581; Chicago, Milwaukee & St. Paul Ry. Co. v. City of Minneapolis, 133 N. W. 169. Whether the appellant is owner or lessee of the railway tracks in question is not, in view of the recitals and provisions of the contract, here material. We are not to be understood as intimating that, if in fact and operating the tracks, it would be re- NORTHFOSS v. WELCH. (Supreme Court of Minnesota. Nov. 10, 1911.) RELEASE-STATUTORY PROVISIONS. Petitioner was tried in 1904 for crime com [1] Recitals in a contract, which are consistent and certain in their terms, relevant to the subject-matter of the contract, and with reference to which the contract was the appellant was a lessee, but in possession made, estop the parties thereto to deny the facts recited. Red Wing Sewer Pipe Co. v. Donnelly, 102 Minn. 192, 113 N. W. 1, 120 Am. St. Rep. 619; 24 Enc. of Law, 58; 16 Cyc. 721. The recitals in the contract, Exhibit A, are clearly within the rule stated. They are certain in their terms, consistent with each other, and relevant to the subject-matter of the contract, which was made with reference to them. The only claim made by the appellant to the contrary is that the provision "that neither party waives any of its legal rights, nor assumes as against the other any duty or obligation," qualifies the recital that there was a public way at the locus in quo, and leaves the appellant free to deny the truth of the recital. It is clear, from the recitals and provisions of the contract, that the clause thereof relied upon refers, not to the question of the existence of the public way, but to the construction of the new bridge over it and the legal duty and obligation of the respective parties to build it. The question as to the duty and obligation in such cases was then pending in the courts of this state and not definitely decided. See State ex rel. v. Railway Co., 98 Minn. 380, 108 N. W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581. The parties accordingly, mitted on the ground of insanity at the time the act was committed, and sentenced to be committed to a state hospital for the insane until legally discharged, under G. S. 1894, § 7344. Held, that chapter 358, Laws 1907 (Rev. Laws Supp. 1909, §§ 5375, 5376), providing that a person so acquitted and committed shall not be liberated, except upon the order of the court committing him and until the superintendent of the hospital shall certify in writing to the recovered and that no person will be endangered court that, in his opinion, such person is wholly by his discharge, is not retroactive, and does not apply to commitments made prior to its passage. [Ed. Note. For other cases, see Insane Persons, Dec. Dig. § 86.*] 2. INSANE PERSONS (§ 86*) — PUNISHMENT RELEASE STATUTORY PROVISIONS. Where a person committed to an insane hospital under G. S. 1894, § 7344, recovers his sanity in fact and in the opinion of the superintendent of the hospital, he is entitled to be discharged therefrom, and his further detention is illegal. [Ed. Note. For other cases, see Insane Persons, Dec. Dig. § 86.*] 3. HABEAS CORPUS (§ 17*)-Grounds or RELIEF-DETENTION IN INSANE HOSPITAL. Where, in such a case, the superintendent refuses to discharge such persons, habeas corpus is a proper remedy. [Ed. Note.-For other cases, see Habeas Corpus, Dec. Dig. § 17.*] Appeal from District Court, Ottertail County; C. A. Nye, Judge. Petition by William L. Northfoss, by his guardian, Theodore Northfoss, for writ of habeas corpus to G. O. Welch, Superintendent of the State Hospital for the Insane at Fergus Falls. From an order remanding the petitioner to the hospital, he appeals. Reversed, with directions to discharge peti tioner. Townley & Frisbee and John W. Mason, for appellant. George T. Simpson (H. J. Maxfield and Alfred W. Mueller, of counsel), for respondent. he will not make such certificate for any person confined in the hospital; that, because the respondent declines to make such certificate, petitioner is still detained in the hospital. As conclusions of law, the court, "for the reason that said Dr. G. O. Welch refuses to make such certificate required by the statute heretofore referred to," refused to discharge the petitioner, and ordered that he be remanded to the hospital. From this order petitioner appealed. The facts may be summarized thus: (1) The petitioner has recovered his sanity. (2) The superintendent of the hospital still detains him in the hospital, though acknowledging that he is sane, solely on the ground that he is unwilling to make the certificate required by chapter 358, Laws 1907, because he is unwilling to vouch for or guarantee the conduct of any person who has been confined in the hospital. (3) Because of this position of the superintendent, a sane man is confined in a hospital for the insane. It it apparent that the question argued before the trial court, and upon which the decision hinged, was the constitutionality of the provision of the 1907 law requiring the certif BUNN, J. In December, 1904, the peti-icate of the superintendent, and that such tioner, William L. Northfoss, was tried be- court, being of the opinion that this provifore the district court for Wadena county sion was valid, decided that it had no power on an indictment charging assault in the to discharge the petitioner, in the absence second degree. He was acquitted by the jury of such certificate. It fairly appears from on the ground that he was insane at the the findings and conclusions that the court time the offense was committed. His dis- would have discharged the prisoner, had it charge being considered manifestly danger- not been for the provision of this law in ous to the peace and safety of the communi- question. ty, the court adjudged that he be committed to the State Hospital for the Insane at Fergus Falls for safe-keeping and treatment until legally discharged. Since December 19, 1904, Northfoss has been an inmate of the hospital. [1] 1. It is vigorously argued here by counsel for petitioner that the law requiring the certificate of the superintendent is unconstitutional. Counsel for respondent contend that this law does not apply to this case, because passed after the commitment of petitioner to the hospital. But each contention leads to the same result. In either case, the statute in force at the time petitioner was sentenced would govern the question of his right to a discharge. If, therefore, it can be held that the 1907 law does not apply, it is unnecessary to decide the question of its constitutionality. This proceeding is habeas corpus. The petition alleged that Northfoss was fully cured and restored to sanity, and was entitled to be discharged. The writ was issued and served on respondent, the superintendent of the hospital. The return stated that Northfoss was held in the hospital in accordance with the commitment issued from the district court of Wadena county in De- The law in force at the time of petitioncember, 1904. The matter was heard, testi- er's commitment was G. S. 1894, § 7344 (R. mony taken, and findings of fact and con- L. 1905, § 5376), which reads as follows: clusions of law were made. The trial court "When any person indicted for an offense found that Northfoss was a proper person shall be, on trial, acquitted by the jury by to be paroled from the hospital; that, had reason of insanity, the jury, in giving their he been committed by a probate court, he verdict of not guilty, shall state that it was would have long since been paroled or dis- given for such cause; and thereupon, if charged by the respondent, for the reason the discharge or going at large of such inthat he appears to be in a sane and normal sane person shall be considered by the court condition and much improved physically; manifestly dangerous to the peace and safethat the respondent is unwilling to and de- ty of the community, it may order him to clines to make the certificate required by be committed to a hospital for safe-keeping chapter 358, Laws 1907, solely for the reason and treatment, or to prison, or may give that he declines to vouch for or guarantee him into the care of his friends, if they shall the future conduct of Northfoss, and that give satisfactory bond, conditioned that he shall be well and securely kept; otherwise | doned, or where the period for which he he shall be discharged." was sentenced has expired, habeas corpus will lie. 15 Am. & Eng. Enc. Law, 171, and cases cited. By chapter 358, Laws 1907, entitled "An act to amend sections 5375 and 5376, R. L. 1905, relating to insanity," section 5376 was amended in several particulars; but the amendment material here is the following provision: "No such person so acquitted shall be liberated therefrom [from the hospital] except upon the order of the court committing him thereto, and until the superintendent of the hospital or asylum where such person is confined shall certify in writing to such committing court that, in his opinion, such person is wholly recovered, and that no person will be endangered by his discharge." There is nothing in the language of the 1907 act either directly or by implication making its provisions retroactive. Clearly the provision requiring the certificate of the superintendent made it more difficult for a person committed to obtain his discharge after he had recovered his sanity than it was under the laws that were in force before. Section 1923, R. L., provides that the superintendent of a hospital for the insane "may discharge any patient certified by him to be recovered." It is plain that any patient that has recovered his insanity is entitled to be discharged, and it is therefore right to say that, under the law as it existed in 1904, petitioner was entitled to be discharged when he recovered his sanity. The 1907 law purported to attach an onerous condition to this right, to make it depend upon the order of the court and the certificate of the superintendent that no person will be endangered by his discharge. Under well-settled rules of construction, it must be held that the 1907 law was not intended to apply, and does not apply, to cases of commitments to the hospital prior to its passage. The [2] 2. We have, then, this situation. petitioner is sane and in good physical health. He would be discharged by respondent, were it not for the provisions of the 1907 law, which we hold do not apply. Petitioner being sane in fact, and in the opinion of the respondent, he is entitled to be discharged. His detention is therefore illegal. Clearly he is entitled to some remedy for this wrong. [3] 3. Is habeas corpus the proper remedy? The office of the writ of habeas corpus is to afford the citizen a speedy and effective method of securing his release when illegally restrained of his liberty. State ex rel. v. Bailey, 106 Minn. 138, 118 N. W. 676, 19 L. R. A. (N. S.) 775, 130 Am. St. Rep. 592. The writ lies in all cases of illegal imprisonment by commitment, detention, confinement, or restraint, for whatever cause, or under whatever pretense. The writ goes to inquire into the cause of the imprisonment. See note to McLeod Case, 3 Hill (N. Y.) 647. Where the original detention was legal, but has become illegal by reason of matters ex post Our statutes do not change these rules. Section 4573, R. L. 1905, provides that "every person imprisoned or otherwise restrained of his liberty, except persons committed or detained by virtue of the final judgment of any competent tribunal, * * * may prosecute a writ of habeas corpus to obtain relief from such imprisonment or restraint, if it prove unlawful." Section 4587 provides that, if it appears on the return that the prisoner is in custody by virtue of a process of a court legally constituted, he can only be discharged in certain specified cases. One of these is "where, though the original imprisonment was lawful, yet by some act, omission or event which has taken place afterwards, the person is entitled to be discharged." Both the common law and statutory rules fit this case. The original commitment of petitioner was lawful, but because the judgment has ceased to be operative by reason of a matter ex post facto, or, as the statute puts it, "by an event which has taken place afterwards," he is entitled to be discharged from the imprisonment. The case is quite analogous to one where the prisoner is kept in prison after a pardon or after the term of his sentence has expired. As before pointed out, petitioner was entitled to be discharged from the hospital when he recovered his sanity. The question of what authority is to determine whether the patient has recovered is eliminated in this case, because, as we interpret the findings, the superintendent is of the opinion that there has been recovery, and he would discharge the patient, were it not for the mistaken supposition that he is required to guarantee his future conduct. We do not hold that the question of a patient's recovery can be inquired into on habeas corpus, in the absence of the statement required by the general law governing the discharge of patients from hospitals for the insane, but expressly limit our decision to cases where the detention has become illegal and the hospital authorities have refused the discharge on grounds other than the health of the patient. On the general principles governing the law of habeas corpus, the conclusion is irresistible that this is a proper case for the application of that remedy. We do not see that petitioner has another remedy that would be adequate and speedy. Clearly there is no right of appeal. Nor would an application to vacate or modify the judgment be an effective remedy. Defendant was adjudged insane and committed to the hospital for care and treatment "until legally discharged." There was no provision of the law prior to 1907 that gave the court which rendered the judgment power to discharge the prisoner from the hospital, and it cannot be ify or vacate the judgment, so as to adjudge quate or proper remedy. R. L. 1905, § 3831, denied. That There are no cases in this state involving the use of the writ of habeas corpus to obtain the release of an inmate of an insane hospital after he has recovered his sanity. But on principle we think there can be no doubt that the remedy exists, and there are cases in other jurisdictions where it has been applied. 21 Cyc. 333; Matter of Dixon, 11 Abb. N. C. (N. Y.) 118; Church on Habeas Corpus, § 3826; Gardner v. Jones, 126 Cal. 614, 59 Pac. 126. Our conclusion is that, on the facts found by the trial court, the petitioner should have been discharged from the custody of respondent. The order appealed from is reversed, with directions to so discharge the petitioner. Reversed. ANDERSON v. FRED JOHNSON CO. judgment notwithstanding the verdict or a new trial, defendant appeals. Reversed. Charles W. Farnham and C. G. Dosland (O'Brien, Young & Stone, of counsel), for appellant. William Russell and Peterson & Adams, for respondent. SIMPSON, J. This is an appeal from an order denying defendant's alternative motions for judgment notwithstanding the verdict or for a new trial. Plaintiff had a verdict for $1,200 for personal injuries sustained under the following circumstances: The defendant had the contract for painting and finishing a building. Plaintiff, a man 22 years of age, an experienced painter, was in Plain (Supreme Court of Minnesota. Nov. 10, 1911.) A rope was attached to the legs of the step (Syllabus by the Court.) 1. MASTER AND SERVANT (§ 278*)-INJURIES TO EMPLOYÉ NEGLIGENCE. In this, a personal injury action, held, the evidence does not show that the plaintiff was injured by reason of any negligence on the part of the defendant. ladder to prevent them spreading beyond a certain distance. There was no appliance on the ladder to prevent the legs from coming together. The ladder, at the time of or immediately prior to the accident, did not break or give way in any part. Some stepladders, when used as this ladder was being used in a scaffold, "walk" or "creep”—that is, the motion of the plank resting on the ladder will cause the legs of the ladder to work to2. MASTER AND SERVANT (§ 280*)-INJURY TO gether. If the ladder is standing on a smooth SERVANT-ASSUMPTION OF RISKS. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 954-972; Dec. Dig. $ 278.*] [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 280.*] The evidence shows that the injury result-floor, the weight upon the plank causes the ed through a risk assumed by the plaintiff in legs to slip apart again; but on a rough surusing a simple appliance in its then obvious face the legs may gradually approach until condition, or from a lack of ordinary care on the ladder falls. The porch floor upon which the part of the plaintiff. this stepladder was standing was cement. Some ladders have a tendency to "creep" when new. Others develop this tendency after use. The evidence tends to show that the tendency of a stepladder to "creep" is not discoverable by an inspection when not in use. Both the plaintiff and the defendant, upon the argument, accepted this as a 3. JUDGMENT (§ 199*) - NOTWITHSTANDING fact. Plaintiff looked at the ladder when he Appeal from District Court, Clay County; put it in use, to see that it was a proper Albert Johnson, Judge. Action by Emil H. Anderson against the Fred Johnson Company. Verdict for plaintiff. From an order denying motion for ladder and that it would stand up. In carrying the ladder and putting it in the scaffold, he closed and opened it, and then noticed that it was not hard to pull the legs |