amputation near the knee joint was necessary in order to save his life, aud that he was otherwise permanently injured, to his damage in the sum of $15,000. It was alleged that the smokestacks were improperly and defectively loaded, being "unscotched" and unfastened on top of the coal, and that Seeley had no connection with the loading, and no knowledge of the negligent manner in which they were loaded, and was not guilty of any negligence which contributed to his injury. This negligence of the company is claimed to be the principal and proximate cause of the injury suffered. The answer of the defendant was-First, a general denial; next, that the common law was in force in Missouri, and that the injury was caused by negligence of the fellow servants of Seeley, or by his own carelessness or negligence.

Upon the trial, the jury found that on April 2, 1889, the Atchison, Topeka & Santa Fe Railroad Company was the lessee of and operated the Chicago, Santa Fe & California Railroad, and that Seeley was at that time in the employment of the lessee as brakeman. It was further found that the defendant company was guilty of negligence in loading the smokestacks upon the coal car; and, further, that the engine driver of the construction train was also guilty of a want of ordinary care in handling his train; but that the manner in which the smokestacks were loaded upon the car was the proximate cause of the injury. In answer to questions it was found that the conductor ordered Seeley to hurry up and couple the coal car in front of the engine, and to hurry and get upon the front end of the coal car, and keep a lookout ahead for danger until the place for switching should be reached; and that, in order to obey this order, he had to stand with his back to the smokestacks and to the engine, and therefore had no reasonable opportunity to observe the defectively loaded condition of the smokestacks or the dangerous position in which he stood. It was further found to be the duty of the yard master to inspect the loads of all open cars before such cars were put into the trains for transportation; and that such yard masters were employés of a higher grade than that of brakeman on a construction train; and that the defendant company knew, or could have known, by the exercise of reasonable diligence, that the smokestacks were dangerously loaded; and that, if they had been scotched or fastened in some manner to the car, Seeley would probably not have been injured. The jury found that Seeley was entitled to recover the aggregate amount of $7,943.25, which was made up from three items,-$350, for loss of time from April 2, 1889, to November 1, 1889; $700, for the pain and bodily suffering endured since that date by reason of his injury; and $6,893.25, for the permanent disability, including interest from April 2, 1889. The railroad company alleges error, and contends that the evidence fails to show

that Seeley was in the employment of the Atchison, Topeka & Santa Fe Company when the injury occurred, but that it does conclusively show that he was in the employ of the Chicago, Santa Fe & California Railroad Company. There is testimony to the effect that the plaintiff in error had leased and was operating the Chicago, Santa Fe & California Railroad on April 2, 1889, when Seeley was injured, and also testimony that he and the other trainmen associated with him, were in the employ of the Atchison Company as such lessee. It is true that there is much testimony tending to show that the Chicago road had not yet passed into the hands of the Atchison Company, and that the officers of the former had employed Seeley, and were still in the control of the road when he was injured. The form of the pay checks used tended to sustain this position. E. Wilder, however, who was secretary and treasurer of the Atchison Company, stated positively that the Chicago road had been leased to and was operated by the Atchison Company since the 1st of March, 1889, which was more than a month prior to the occurrence of the injury. Which one of the companies was controlling and operating the road was a question for the jury to settle, and, having been decided upon conflicting evidence, the controversy on that point is ended.

The principal contention in the case is that the injury was the result of the negligence of the fellow servants of Seeley, for which, at common law, the company was not liable. It was admitted at the trial that the common law was in force in Missouri where the injury occurred, and the decisions of the supreme court of that state were introduced in evidence, which showed that the common law in respect to the liability of the master has not been changed or modified by any statute of that state. The placing of the smokestacks upon the top of a loaded coal car, without fastenings or guards, was a clear case of negligence on the part of those who loaded them and those whose duty it was to inspect and prepare the car for transportation. The bed of the car was filled with coal, and the smokestacks lay loosely upon the top, subject to be shaken off by a jerk resulting from the starting or stopping of the train. Neither Seeley nor any of the trainmen associated with him loaded or assisted in loading the smokestacks upon the car, and he claims that he had no knowledge or opportunity to know that they were loose and unscotched. There was no yard master at the station of Courtney, and the duty of loading them, and seeing that they were properly loaded, devolved upon the station agent at that place. The car was already loaded, and was hurriedly placed in the train as soon as they reached the station of Courtney. If Seeley had inspected the car, he would readily have seen the dangerous condition of the smokestacks; but he accounts for his failure to notice the danger by the fact that the

top of the car was higher than his head, and by the urgent character of the orders given him by the conductor. He was told to hurry up and couple the car ahead of the engine, so as to get out of the way of another train that was following them, and was then told to hurry up and get on the front end of the car, and keep a lookout for anything that might appear upon the track. In this position, and looking forward, his back was towards the smokestacks, and hence he did not discover their condition or the peril he was in until one of them slipped and struck him upon the body. Taking the testimony of Seeley as true, it is enough to sustain the finding that he was not guilty of contributory negligence. He had a right to assume that the car was safely loaded and in a fit condition for transportation, and that the place of lookout which he was required to take on the end of the car was free from peril on account of the manner in which it was loaded. It was the positive duty of the company to safely load the car, and, before starting it, to inspect and see that it was in a safe condition for those who were required to handle it; and Seeley had a right to expect that it was properly prepared for shipment, had been duly inspected, and found to be in a suitable condition to be attached to the train. Whether he was aware of the condition of the car or under the circumstances should have observed its condition was a question for the jury to determine. From the testimony which he gives respecting his want of knowledge or opportunity to know of the danger, the positive command to hurry up so as to get out of the way of a coming train, and the order to keep a lookout in a direction which did not bring the danger within the range of his vision, it cannot be said that the finding of the jury with respect to his care is without support.

The question remains whether the company can be held liable for its negligence in failing to properly prepare and inspect the car before it was turned over to the trainmen for transportation. It is contended that those who inspected and made the car ready for transportation were the fellow servants of Seeley, and that he not only assumed the risk incidental to the nature and character of his work, but also assumed the risk of being injured through the negligence of a fellow servant. According to the testimony and findings, it was the duty of the yard master to inspect the loads of all open cars before they were put into trains for transportation; and it was also found that this officer is one who has authority to hire and discharge men under him, and that he was an employé of a higher grade of service than that of a brakeman on a construction train. It also appears that, in the ab sence of the yard master, the duty of preparing and inspecting cars belonged to the station agent. The fact that all these servants draw their pay from a common master,

and are engaged together in carrying on his work, does not necessarily make them fellow servants. If it had been the duty of the trainmen to have loaded the car, and one of them had negligently done so, it might be held that the resulting injury was due to the negligence of a fellow servant; but in this case, although they were working for a common master, they were not engaged in the same grade of service. The trainmen had no part in the loading of this car, nor in the inspecting of it. It was the positive duty of the company to furnish suitable instrumentalities for the performance of the work, and a safe place in which to carry it on; and it has been held that "those employed by the master to provide or to keep in repair the place, or to supply the machinery and tools, for labor, are engaged in a different employment from those who are to use the place or appliances when provid ed, and they are not therefore, as to each other, fellow servants. In such case the one whose duty it is to provide and look after the safety of the place where the work is to be done represents the master, in such a sense that the latter is liable for his negli gence." Sadowski v. Car Co., 84 Mich. 100, 47 N. W. 598. According to the record, the principal and promoting cause of the injury was the defective condition of the car furnished to the trainmen for transportation. If it had been properly inspected, the defect would have been remedied; and, although this duty was to be performed by a servant of the company, it was a duty which the company owed to Seeley and his associates, and it cannot be exonerated from liability because the duty was delegated to an agent or an employé. Whether they are fellow servants does not depend so much upon the grade or situation which each holds as upon the character of the work out of the negligent performance of which the injury arises. Although there is much diversity of opinion as to whether the negligence of inspectors and such employés as those who loaded and should have inspected the car can be attributed to the company, our own decisions, as well as the weight of authority, are to the effect that the employés in question in this case do not stand as to each other in the relation of fellow servants. In Railroad Co. v. Moore, 29 Kan. 644, it is said that, "at common law, a master assumes the duty towards his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools, and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow servants to work with him; and, when the master had properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of

The

the particular work, including those risks and hazards resulting from the possible neg ligence and carelessness of his fellow serv ants and coemployés. And, at common law, whenever the master delegates to any officer, servant, agent, or employé, high or low, the performance of any of the duties above mentioned, which really devolve upon the master himself, then such officer, servant, agent, or employé stands in the place of the master, and becomes a substitute for the master,-a vice principal,-and the mas ter is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence." In Railroad Co. v. Moore, 31 Kan. 197, 1 Pac. 644, this doctrine was applied, and it was held that the duty of keeping the road in safe condition devolved upon the master, and that the company was liable for injuries resulting from the negligent performance of those duties by its servants or employés. same doctrine was applied in Railway Co. v. Fox, 31 Kan. 586, 3 Pac. 320, where it was held that the company was liable where an employé was injured in Missouri, through the negligence of a car repairer, and without fault of his own. In Railway Co. v. Weaver, 35 Kan. 420, 11 Pac. 408, it was held that a section foreman was not a coem. ployé with a person who was assisting in operating a railroad train for the same employer. In Railway Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352, it was held that an inspector of cars is not a fellow servant with a brakeman operating such cars, within the meaning of that rule of the common law which exempts the master from liability for negli gence between coemployés or fellow servants. In that case it was urged that, if the company had employed careful and competent inspectors, and had performed its whole duty, it would not be liable, even though the injury complained of was the result of their negligence, upon the ground that the inspectors were fellow servants of the brakemen. Chief Justice Horton declared that the law was otherwise in this state, and cited Long v. Railway Co., 65 Mo. 225, and Condon v. Railway Co., 78 Mo. 567, showing that the supreme court of Missouri entertained a like view. In Railway Co. v. Barber, 44 Kan. 612, 24 Pac. 969, it was ruled that it was the positive duty of a railroad company to inspect a freight car, and see that it was reasonably fit for service, and that the omission of this duty renders it liable for resulting injury to its employés.

As has been said, there are some duties which the company, as master, owes to its employés, from which it cannot relieve itself except by performance. The providing of a safe place for Seeley to work, and of serv-. iceable and safe appliances and instrumentalities to be used in connection with his work, was a positive duty, and those who performed or should have performed the

same stand in the place of and represent the company. In Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, which is cited by the plaintiff in error, this doctrine was recognized to the fullest extent, although it to some extent modified the decision in Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184. As to positive duties of this character, it was held that the servant had "a right to look to the master for the discharge of that duty; and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employé, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore, it will be seen that the question turns rather on the character of the act than on the relations of the employés to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but, if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor." In the Baugh Case the supreme court of the United States fully indorses the doctrine of Railroad Co. v. Moore, 29 Kan. 632, and quotes largely from that opinion as to the relations of the master to the servant and of the doctrine of fellow servants. In the recent case of Railway Co. v. Snyder, 14 Sup. Ct. 756, a brakeman in the employment of the company was alleged to have been injured through the negligence of an inspector, and it was held that they were not fellow servants, and that, under the circumstances, it was the duty of the company to see that the cars that were about to be drawn out upon the road were in a safe and proper condition, and that this duty could not be delegated by the company so as to exonerate it from liability to its servants for injuries resulting from omission to perform that duty, or through its negligent performance. It was held that "the duty of a railroad company to exercise reasonable care in furnishing adequately safe trains for the use of its employés is not discharged by simply using reasonable care to employ and retain only competent and diligent inspectors, but it is liable if its inspectors in fact fail to discover a defect which a reasonable examination would have disclosed." Aside from the consideration that it was the positive duty of the company to properly prepare and inspect the car for transportation in the train, it is also clear that those who were to perform that duty were not in the same grade or employment of the service as the brakeman on the train, and therefore could not, in either view, be held to be fellow servants. An authority is cited to the effect that, where the company has employ. ed a competent inspector to see that the cars are properly loaded and in good condition, it

cannot be held liable for the negligence of the inspector in failing to observe that the car was improperly loaded. Dewey v. Railroad Co. (Mich.) 56 N. W. 756. This author ity is not satisfactory to us, nor in line with the decisions that have been cited. We are unable to see any reason for a distinction between the preparation and inspection of the car itself as a fit instrumentality to be placed in a train and the preparation and inspection of a loaded car to be placed in the train for transportation. Each is an instrumentality to be used in connection with the services necessary to be performed by the trainmen in its transportation, and no distinction between them is seen, so far as the obligation of the company or the safety of the employés engaged in handling it are concerned. The inspection in either case is made with reference to the same end, and the person to whom this duty is delegated stands in the place of the company, and the latter is responsible for his acts.

The charge of the court is criticised, and while the instructions are voluminous, and involve many repetitions and some immaterial matter, we find nothing in them which is not in harmony with the views expressed, nor which can be held to be prejudicially erThe judgment will be affirmed. All the justices concurring.

roneous.

(53 Kan. 750)

ORCHARD PLACE LAND CO. v. LEWIS. (Supreme Court of Kansas. July 6, 1894.) GRANT OF NEW TRIAL-REVIEW ON APPEAL.

Where the testimony at the trial is conflicting, and the trial court sets aside the verdict of the jury, and grants a new trial, this court will not undertake to weigh the evidence, but will affirm the order of the lower court.

(Syllabus by the Court.)

Error from district court, Wyandotte county; O. L. Miller, Judge.

Action by S. M. Lewis against the Orchard Place Land Company and another. A verdict in favor of said company was set aside, and a new trial granted, and said company brings error. Affirmed.

Mills, Smith & Hobbs, for plaintiff in error. True & True, for defendant in error.

ALLEN, J. This case grew out of the same overflow of Splitlog creek as the cases of the City of Kansas City v. Brady, 52 Kan. 297, 34 Pac. 884, and City of Kansas City v. Slangstrom (Kan.) 36 Pac. 706. In this case, the jury rendered a verdict against the city of Kansas City only. The special findings of fact are very different from the findings in the other cases named. The court, on the application of the plaintiff, set aside the verdict in favor of the Orchard Place Land Company, and granted a new trial. Where the trial court sets aside a verdict based on conflicting evidence, and grants

a new trial, the order will not be disturbed by this court. McCreary v. Hart, 39 Kan. 216, 17 Pac. 839; Black v. Berry, 40 Kan. 489, 20 Pac. 194. The order of the court granting a new trial is affirmed. All the justices concurring.

(54 Kan. 13)

BURRTON LAND & TOWN CO. v. HANDY et al.

(Supreme Court of Kansas. July 6, 1894.) EQUITY JURISDICTION-REFORMATION OF DEED.

1. The rule is that, where property has been included by mistake in a deed, which the parties never intended should be conveyed, which the grantor was under no legal or moral obligation to convey, and which the grantee in good conscience has no right to retain, a court of equity will interfere and correct the mistake.

2. Where a grantee purchased from a grantor a fractional 80-acre tract of land subject to the right of way of the Union Pacific Railway Company, which, under an act of congress, was 400 feet in width, but the parties did not actually know the width of the right of way, and the conveyance, without conforming to the intent of the parties, included the right of way with covenants of general warranty, held, that the grantor was entitled to have the deed reformed so as to except therefrom the right of way, to which he had no title.

(Syllabus by the Court.)

Error from district court, Ellsworth county; W. G. Eastland, Judge.

Action by Jerome B. Handy against the Burrton Land & Town Company and the Ellsworth Loan & Investment Company. Judgment for plaintiff and for said loan and investment company, and the land and town company brings error. Modified.

On April 2, 1888, Jerome B. Handy commenced his action against the Burrton Land & Town Company and the Ellsworth Loan & Investment Company to recover $1,662.50 upon a promissory note executed to Ruth A. Tarr on the 21st of May, 1887, with interest at 8 per cent. from that date, by the Burrton Land & Town Company, which note was afterwards transferred and assigned to the plaintiff, and also to foreclose a mortgage upon the north half of the southeast quarter. and the south half of the northeast quarter, of section 19, township 15, range 8, in Ellsworth county, executed by the land and town company to Mrs. Tarr to secure the note. The petition further alleged that the Ellsworth Loan & Investment Company claimed an interest or lien upon the mortgaged premises, but that the same was inferior to plaintiff's lien. The Ellsworth Loan & Investment Company, having obtained a similar note from Mrs. Tarr, filed its answer and cross petition, praying for judgment upon the note held by it, and also to foreclose the mortgage given to secure the same. The notes were given by the land and town company to Mrs. Tarr as part of the purchase price of the real estate purchased of her. After the commencement of this action, the

Union Pacific Railway Company, in a case brought by it as plaintiff against the parties to this action, in the nature of ejectment, in the district court, obtained a judgment on April 2, 1889, for 200 feet of right of way on each side of the center of its railroad track over and across the real estate purchased, to secure the purchase money for which the notes were given. Handy, by his amended petition, in addition to the foreclosure of the mortgage, also alleged a mutual mistake in the execution of the deed given by Mrs. Tarr and her husband, Smith R. Tarr, to the Burrton Land & Town Company, and also of the mortgage, and asked to reform the instruments so as to except from the covenants thereof a right of way 400 feet in width, in favor of the Union Pacific Railway Company, over and across the real estate. The Burrton Land & Town Company alleged in its defense, by way of counterclaim, damages for a breach of the covenants of warranty of the deeds to the land purchased by it from Mrs. Tarr and her husband, in consequence of the railway company being the owner and in possession of 400 feet of right of way over and across the same. Trial had at the November term of the court for 1889, before the court with a jury. The jury returned a verdict in favor of Handy against the Burrton Land & Town Company for $1,931.772, and also returned a like verdict in favor of the Ellsworth Loan & Investment Company. The jury answered the following questions, submitted upon the part of Jerome B. Handy and the Ellsworth Loan & Investment Company: "Q. At the time the Burrton Land & Town Company purchased the fractional 'eighty' in controversy, was the same occupied by the Tarrs, and used for farming and grazing purposes? A. It was. Q. At the time of the purchase of the land in controversy, was it well known and understood between the parties to such purchase and sale that the railroad ran through the fractional eighty? A. It was. Q. At the time of the purchase of the fractional eighty, was it discussed and understood that the Union Pacific Railway Company had a right of way through said fractional eighty? A. It was. Did the Burrton Land and Town Company purchase the said fractional eighty with the understanding and belief that they were buying the same subject to a right of way through the land? A. It did. Q. Did Ruth A. Tarr and Smith R. Tarr each sell the land with the intention of selling the same subject to the right of way through said eighty? A. They did. Q. Did the Burrton Land and Town Company make a proposition to the Tarrs that they would give $5,000.00 for the fractional eighty, and blocks thirty-one and thirty-two in Minnick's Addition, subject to the right of way of the Union Pacific Railway Company through fractional eighty? A. They did. Q. If you answer the last question in the affirmative, then state if the

amount of such right of way was not unknown or undetermined upon by the parties. A. It was unknown and undetermined. Q. Did the Tarrs accept the proposition to sell the land subject to the right of way of the Union Pacific Railway Company? A. They did. Q. If you answer the last question in the affirmative, was there any new contract between the parties, that the Tarrs accepted, other than the proposition of the said Burrton Land & Town Co. as stated in question 6? A. There was none. Q. If you allow the Burrton Land and Town Company damages in this case, then state how much, if any, damages you allow by reason of the right of way passing over a portion of block thirty-two. A. $100.00. Q. If you allow the Burrton Land & Town Company damages in this case, please state how much, if any, you allow by reason of the 400 feet right of way through the fractional eighty. A. None, as it was bought subject to the R. R. right of way." The jury also answered the following questions, submitted by the Burrton Land and Town Company: "Q. For what purpose did defendant buy the land in question? A. For platting. Q. Did defendant know that the Union Pacific Railway Company owned a right of way 100 feet wide through the fractional 80-acre tract at the time it purchased the land? A. An undetermined width. Q. If you answer the last question yes, please state, then, who told them so. A. By general discussion at the time. Q. Did Ruth A. Tarr, or any of her agents, inform defendant, at the time of said purchase, there was a 100-feet right of way through said land? A. Informed them that there was one of an undetermined width. Q. Did defendant ever agree with Ruth A. Tarr that a 100-feet right of way should be excepted out of the covenants in the deed? A. No, not with Ruth A. Tarr in person, but with her agent, E. W. Wellington, of a right of way of undetermined width. Q. If you say yes to the last question, state when. where, and by whom said agreement was made. A. At the time of sale, on or near the premises, by her agent, E. W. Wellington, and the representatives of the Burrton Land and Town Company. Q. Did defendant have any knowledge, when they bought the land in question, that the Union Pacific Railway Company owned, or claimed to own, a 400 feet of right of way through said land? A. According to evidence, the width of the right of way was not known. Q. Did de fendant and Ruth A. Tarr ever agree that a 400-feet right of way should be excepted out of the covenants of the deed for said lands? A. No, not with Ruth A. Tarr in person, but with her agent, E. W. Wellington, of a right of way of undetermined width. Q. If you say yes to the last question, state when, where, and by whom the agreement was made. State specifically. A. At the time of sale, on or near the premises, by her agent, E. W. Wellington, and the representatives of