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to suppose that the Kansas legislature did under $ 2021 of the General Statutes of pot intend that this rule should obtain here, 1901. or such a provision would have been embod- The petitioner is remanded to the custody ied in the act.

of the sheriff We hold that a subsequent marriage to the injured female is not a bar to a prosecution All the Justices concur.


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ty made during the trial of actions brought

to recover damages for personal injuries to OLD COLONY STREET RAILWAY COM- the female plaintiff which were alleged to PANY.

have resulted from defendant's negligence,

in which actions a verdict was returned in Kezia P. CASSADY

plaintiffs' favor. Overruled.

The facts are stated in the opinion.

Messrs. Henry F. Hurlburt and Da

mon E. Hall, for defendant: (184 Mass. 156.)

Plaintiffs have failed to show that Mrs.

Cassady suffered that actual physical injury, 1. The ordinary burning out of a fuse so far as burning is concerned, which enti

in an electric car is not prima facie evidence tled her to go to the jury; in other words, of negligence on the part of the carrier.

the painless and discomfortless singeing of 2. Where witnesses testify that the

the eyebrows is not a physical injury. burning out of a fuse on an electric car is attended with flame and the

Berard v. Boston & A. R. Co. 177 Mass. burning of a passenger, the jury may find 179, 58 N. E. 586; Warren v. Boston & M. that the results were unusual and would not R. Co. 163 Mass. 484, 40 N. E. 895; Canhave occurred if the fuse had been in proper ning v. Williamstown, 1 Cush. 451; Spade condition, and that the carrier was guilty of negligence in failing to maintain such condi

v. Lynn & B. R. Co. 168 Mass. 285, 38 L. R. tion.

A. 512, 60 Am. St. Rep. 393, 47 N. E. 88; 3. One operating an electric car may Homans v. Boston Elev. R. Co. 180 Mass.

be guilty of negligence in placing a 456, 57 L. R. A. 291, 91 Am. St. Rep. 324, fuse box under the seat of an open car in such

62 N. E. 737. a position that its burning out will be likely to injure a person occupying the seat.

The singeing of plaintiff's veil, if, in fact, 4. The owner of an electric street car, it was singed, was not a "physical injury.”

against whom suit is brought by a White v. Sander, 168 Mass. 296, 47 N. E. passenger injured by the burning out of a 80; Smith v. Postal Teleg. Cable Co. 174 fuse, is not entitled to an instruction that the doctrine of res ispsa loquitur does not Mass. 576, 47 L. R. A. 323, 75 Am. St. Rep. apply, where the evidence might justify a 374, 55 N. E. 380. finding that the resulting flame was greatly Evidence which merely raises a suspicion, in excess of what would have resulted had

or a surmise, or a conjecture, is not enough the fuse been in proper condition, and the to be entitled to be submitted to the jury. imperfect condition of the fuse could have been discovered by the use of reasonable

Hiliyer v. Dickinson, 154 Mass. 502, 28

N. E. 905; Shea v. Wellington, 163 Mass. 6. One injured by the burning out of a 364, 40 N. E. 173; Brooks v. Old Colony R.

fuse on an electric car does not lose Co. 168 Mass. 164, 46 N. E: 566; Wadsthe right to rely upon the doctrine of res ipsa loquitur by attempting to show par: worth v. Boston Elev. R. Co. 182 Mass. 572, ticularly the cause of the accident, if at

66 N. E. 421. the close of the testimony the cause does The plaintiff cannot rely upon res ipsa pot clearly appear, or if there is a dispute loquitur. as to what such cause was.

Plaintiffs have waived the privilege of re(September 3, 1903.)

lying upon a prima facie case of negligence, and have assumed the burden of proving

that the happening was due solely to the the Superior Court for Plymouth Coun- defendant's negligence in respect to some one NOTE.-As to presumption of negligence from coln Rapid Transit Co. 29 L. R. A. 310 ; Whalen accident causing injury to passenger on street v. Consolidated Traction Co. 41 L. R. A. 836; car, see cases in note to Barnowski v. Helson, Keator v. Scranton Traction Co. 44 L, R. A. 15 L. R. A. 33; also Hawkins v. Front Street 546; and Harrison v. Sutter Street R. Co. 55 ('able R. Co. 16 L. R. A. 808 ; Spellman v. Lin. L. R. A. 608.



or all of the allegations of negligence in the Buckland v. New York, N. A. & H. R. declarations.

Co. 181 Mass. 3, 62 N. E. 955; Lafflin Winship v. New York, N. H. & A. R. Co. v. Buffalo & 8. W. R. Co. 106 N. Y. 136, 170 Mass. 464, 49 N. E. 647; Buckland v. 60 Am. Rep. 433, 12 N. E. 599; Kelly v. New York, N. H. & A. R. Co. 181 Mass. 3, New York & 8. B. R. Co. 109 N. Y. 44, 15 62 N. E. 955; Galligan v. Old Colony Street N. E. 879; Fox v. New York, 70 Hun, 181, R. Co. 182 Mass. 211, 65 N. E. 48.

24 N. Y. Supp. 43; Crafter v. Metropolitan The burning out of a fuse on an electric R. Co. L. R. 1 C. P. 300. car is not negligence per se, nor does it im- Messrs. George R. Swasey and Thom. port negligence. It is undoubtedly true as H. Buttimer for plaintiff. that, if the motors were large enough to meet every emergency, the fuse would never Hammond, J., delivered the opinion of blow out, because the motors would never be the court: overloaded. But that proposition fails ab- The first ground of defense is that there solutely to take into account the true meas- was no evidence of negligence of the defendure of the defendant's duty. It is bound to ant. It is conceded that the fuse burned exercise “the utmost care and diligence,” but out, but the defendant contends that the this “does not mean the utmost care and burning out of a fuse is not negligence per diligence which men are capable of exercis- se, nor does it import negligence. The box ing. It means the utmost care consistent containing the fuse was fastened to the sill with the nature of the carrier's undertaking, of the open car, at a place directly under. and with a due regard for all the other neath the portion of the seat upon which matters which ought to be considered in con- Mrs. Cassady was sitting. A fuse consists ducting the business. Among these are the of a piece of metallic alloy, similar in naspeed which is desirable, the prices which ture to soft solder, 1 or more inches in passengers can afford to pay, the necessary length, connected at each end with a smal} cost of different devices and provisions for circular piece of copper. These pieces of safety, and the relative risk of injury from copper are called the “terminals," and they different possible causes of it.”.

are so cut that they can easily be slipped Dodge v. Boston & B. S. S. Co. 148 Mass. under the thumb screws and clamped in 207, 2 L. R. A. 83, 12 Am. St. Rep. 541, 19 place. The fuse and thumb screws are held N. E. 373.

in what is called the "fuse box." A wire The blowing off of the automatic safety leading from one thumb screw up through valve has never been held negligence.

the roof of the car to the trolley wire conHoward v. Union Freight R. Co. 156 Mass. ducts the electricity from the trolley wire 159, 30 N. E. 479; Durall v. Baltimore & to the box. From the other thumb screw 0. R. Co. 73 Md. 516, 21 Atl. 496.

there is a wire leading to the motors. When The cases of the burning out of control the two screws are connected by the fuse, lers are not analogous to the “fuse” cases, there is a direct path for the electricity from and should be discriminated from them.

the trolley wire to the motors. The purPoulsen v. Nassau Electric R. Co. 30 App. pose in using the fuse is to protect the wirDiv. 246, 51 N. Y. Supp. 933; Buckbee v. ing and the motors from an excessive current Third Ave. R. Co. 64 App. Div. 360, 72 N. of electricity. It is constructed to withY. Supp. 217; Dunlay v. United Traction stand something less than the maximum curCo. 18 Pa. Super. Ct. 206.

rent which the wires and motors are capable The fuse box was placed in the position exceeds the maximum strength of the fuse,

of carrying. When the current of electricity left for it by the car builders, and the place the metallic alloy melts with more or less where the defendant placed all of its fuse of a report and flame, and, the electrical boxes. Evidence which tends to show negli: path between the trolley wire and motors gence on the part of the corporation will not being thereby broken, the wire and motor support an allegation that the negligence was that of its servants and agents.

are saved from possible harm. As the safe

ty valve in a locomotive engine allows the Com. v. Boston & M. R. Co. 133 Mass. 383. escape of steam when the pressure is too

There was not a scintilla of evidence of strong for safety or for the ordinary operafered by the plaintiff's upon the question of tion of the engine, so in electric cars the the proper or improper location of the fuse fuse is used to prevent the electrical mechanbox from one end of the case to the other. ism from injury which might otherwise arise

Tully v. Fitchburg R. Co. 134 Mass. 499; from the variations in the electrical current, Munroe v. Carlisle, 176 Mass. 199, 57 N. E. which are practically unavoidable in the op332; Francisco v. Troy & L. R. Co. 78 Hun, eration of the trolley cars. 13, 29 N. Y. Supp. 247.

A fuse of the character above described It was the location of the fuse which was is in general use upon cars run by electrical complained of, and not of the fuse box. power. It is a safety device, and the evi


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dence in this case shows that, in view of the enough for her "to see it plainly come in the rapid action of electricity, the practical diffi- car and flash right over” her mother. “The culty of controlling it at all times, the ina- flame only partly enveloped” the person of bility of the motorman to ascertain the her mother. “I should say it came over half úmount of power upon the wires or on the of her face and body.” Again, she says: motors, the variable weight of the load to be “As the car started up the hill, there was carried, the reasonably necessary conditions this flash and flame. I saw this flash and of the traffic as to weight of machinery and flame come up around or near my mother." cost of transportation, it is a proper de Henry 0. Rideout, a witness called by the vice. It is intended to prevent harm to the plaintiff, testified that at the time of the machinery which otherwise might result accident he was driving a two-seated carryfrom the practically unavoidable fluctuations all, and that he “saw a flame and smoke of the power. The fuse is expected to burn come out of the car ahead.” He continued : out when, for any cause, the electrical cur- "It might have been a flame of three or rent exceeds its carrying capacity; and the four seconds duration. It came up over the evidence of the experts in this case shows side of the car. Seemed to come from underthat in the ordinary operation of cars prop. neath, I don't know where. I was too far erly wired and cquipped such an event is lia- away to tell. · · I was probably 100 ble often to happen without negligence upon yards behind the car at the time. I was on the part of anyone. When, therefore, a fuse the same side of the care that the flame burns out, it cannot be said that the connec

I noticed the flame more than tion between the occurrence and negligence I did the smoke. I can't say from where I is such as, in the absence of other evidence, was, whether the flame went inside or withto justify the conclusion that the result in the car.” Henry A. Rideout, another witwas due to negligence. As well might it be ness called by the plaintiff, testified that he said that the escape of steam from the safe was the father of the preceding witness, and ty valve of a locomotive engine momentarily at the time of the accident was driving in stopping at a station is evidence of negli- a team ahead of his son; and continued : gence. The ordinary burning out of a fuse, “I saw a flash of light. .. The car therefore, is not prima facie evidence of was ahead of me. I was driving towards it, negligence; and, if there had been nothing and was about the length of this room from else in this case, the defendant would have it. I simply saw a flash of light, and then been entitled to a verdict..

I had to attend to my horse.

It But the jury may properly have found was quite a flash of light come out near the that there was something else in this case. front end of the car, I thought. My horse The expert evidence on both sides showed saw it, and, of course, shied, and I had to that the report, flash, and vapor-like puff pay more attention to the horse.” “I don't attendant upon the burning out of a fuse recollect seeing any smoke.” As to the witlike this when in proper condition are in nesses called by the defendant, one Thompson stantaneous and harmless, and no physical testified that he was sitting directly oppoinjury, either by burning or by an electrical site the female plaintiff; and continued : shock, could be expected to result therefrom. “As the car was going, the fuse blew out. The evidence for the plaintiff tended, how

There was a kind of a puff, and ever, to show something more than a mere there was some smoke kind of come into instantaneous, harmless flash. Upon this the car. Looked to me like smoke. EveryMrs. Cassady testified as follows: "I was body jumped. I jumped. There was this sitting on the car, and all at once a large smoke, and, I suppose, flame, together; but flame of fire, or a blaze, came all over me, I didn't notice much flame.” On cross-exand I sprang off my seat, and started to go amination he said: “My clothing was not out of the car on the other side of the car, burned, and I never told anybody that it and a lady prevented me, and pushed me was. It inight have been scorched. I smelled back, and that's the last I remember until the scorch of it.” One Hunt, who was seated about three weeks afterwards, when I found by the side of the preceding witness, did not myself in bed.” Her daughter, who was notice any smoke, vapor, or flame. The conseated a few seats in the rear of the one ductor of the car testified that at the time upon which her mother sat, testified that she he was standing on the running board on "saw a flash of fire come into the car right the right-hand side of the car, at about the over my mother, on the left-hand side; and fifth seat from the front, collecting fares; she sprang away from it. ... The heard a slight noise; did not turn around fiame seemed to come up and over her,-to instantly, but soon turned, and saw no flame, come from under the seat. The duration of but only "a slight vapor.” One McPhee the flame was a few seconds." She could testified that he was about 400 or 500 feet not tell how long it lasted, but it was long behind the car at the time the fuse burned


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out. The first thing which attracted his at-, While, therefore, the mere burning out of a tention was the stopping of the car, and he fuse properly located and in proper condition saw no flash or flame. So much as to the does not of itself import negligence on the testimony of the witnesses as to what they part of the defendant, still, if the fuse be saw at the time.

so located as, by its burning out, to injure a There was evidence also tending to show passenger, such a location may be inconsistthat the flame existed long enough to burn.ent with the degree of care which a common The jury may have believed that holes were carrier owes to its passengers. It would be made by the flame in the veil worn by Mrs. something like arranging the safety valve Cassady at the time of the accident. The of a locomotive engine so that the escaping daughter testified that she went to her moth- steam might reach a passenger in his er while in the car immediately after the ac- seat. Upon the whole, we think that the cident, and that she then noticed that little plaintiff had a right to go to the jury on the red blotches were breaking out all over her question of the negligence of the defendant. mother's face; that, while bathing her moth- It is very strongly urged by the defendant er's face a few hours afterwards at home, that in a case like this the doctrine of res she noticed a "fine red mark about an inch ipsa loquitur does not apply, and in its sixor an inch and a half long,” near her moth- teenth request it asked for an instruction to cr's left eye, and that her eyebrows appeared that effect. The court instructed the jury as if they had been "scorched or burned off," that the mere fact that the accident occurred and that there was a very slight appearance is not in and of itself, as matter of law, priof scorching of hair elsewhere near the face. ma facie evidence of negligence, and continMargaret Pierce, called by the plaintiff, tes- ued as follows: "That is, you cannot astified to the existence of "red marks or sume, just because an explosion may have spots” on the left side of the eye, and just occurred, in connection with the testimony above the eye, and to the scorched appear in this case and the procedure in this case, ance of the eyebrows and hair. The evidence that that is of itself negligence as matter as to these spots and marks was confirmed of law. I cannot instruct you, as matter of by several other witnesses. The plaintiff's law, that you are to find that prima facie contended that these holes in the veil, these evidence of negligence. But it is some erispots and marks upon the face, and this dence of negligence. It is for you to considscorching of the eyebrows and hair were er that as evidence tending to show neglicaused by the flame. It is true that the ex. gence, but it is a question of fact for you to pert testimony for the defense tended to decide how far that shows negligence.” show that there could have been no such There was no error in refusing to give the flame, and hence that there could have been ruling requested. There was evidence, as no such burning; but an irreconcilable con above stated, which would warrant the conflict between what eyewitnesses say they saw clusion that the intensity and duration of and what expert witnesses say could not the flame produced by this explosion was have happened is not unusual in the trial greatly in excess of what could have been of causes, and within reasonable limits the the result if the fuse had been in proper jury may decide upon which they will rely. condition, and that this imperfect condition The jury, upon the evidence, may have found of the fuse could have been discovered by that the flame in this case was not the in the use of reascnable care. Such being the stantaneous and harmless flame which re-case, the defendant was not entitled to the sults from the burning out of a fuse when ruling requested. And the jury were propin proper condition; that the burning of this erly instructed that the matter was before fuse was attended with unusual results, them to decide how far negligence could be which would not have occurred if the fuse inferred froin the accident itself. If the de. had been in proper condition; and that the fendant desired to call the attention of the most reasonable conclusion was that, if prop- court to the precise phase of the testimony er care had been exercised, there would have where the principle would not apply, it been no such flame. We cannot say that should have done so more distinctly. such a conclusion was not warranted by the The defendant also contends that, even if evidence.

originally the doctrine would have been apMoreover, there is another feature in this plicable, the plaintiff had lost or waived her case of some importance. This was an open rights under that doctrine, because, instead car, and this fuse box was placed directly of resting her case solely upon it, she underunder a seat intended for passengers, so that took to go further, and show particularly if, for any reason, there should be a harm- the cause of the accident. This position is ful flame resulting from the burning out of not tenable. It is true that, where the eva fuse, it might be reasonably apprehended idence shows the precise cause of the acci. that it would reach and injure a passenger. 'dent, as in Winship v. New York, N. H. de H. R. Co. 170 Mass. 464, 49 N. E. 647, and ther by the flame or by electricity, and that Buckland v. Nero York, N. H. & H. R. Co. the sufferings of the plaintiff were due sim181 Mass. 3, 62 N. E. 955, and similar cases, ply to fright. It would not be profitable to there is, of course, no room for the applica- recite further in detail the evidence beartion of the doctrine of presumption. The ing upon this question. The charge to the real cause being shown, there is no occasion jury was sufficiently full and clear upon this to inquire as to what the presumption would point and while a decision for the defendhave been as to it if it had not been shown., ant might reasonably have been expected, But if, at the close of the evidence, the still we cannot say that the jury could not cause does not clearly appear, or if there is find upon the evidence that the plaintiff was a dispute as to what it is, then it is open physically injured by the flame or electricity, to the plaintiff to argue upon the whole ev- or both combined. idence, and the jury are justified in relying It was within the discretion of the judge upon presumptions, unless they are satis- to allow the question to be put to Morse, the fied that the cause has been shown to be in expert, concerning the possibility of an elecconsistent with it. An unsuccessful attempt tric shock. to prove by direct evidence the precise cause No error appears in the manner in which does not estop the plaintiff from relying the judge dealt with the requests of the deupon the presumptions applicable to it. fendant.

The defendant strenuously contends that Exceptions overruled. there was no evidence of physical injury, ei


John HUNDLEY, Appt.,



(105 Ky. 162.)

1. The novelty of a complaint is no ob

Jection to the action if it is made to appear that an injury has been inflicted of which the

ord of the causes of the discharge of employees, and to decline to employ those who are discharged for certain causes, makes it a part of the contract of employment that no false entry as to the cause of such discharge shall be made, or communicated, if

made, to any other railroad company. 5. Averments that plaintif has been

deprived, by blacklisting, of the right to engage in railroad employment, and that the wrong has made it impossible for him ever to get such employment, are merc conclusions, and insufficient to state a cause of action, without averring that he has sought employment and been refused by

law is cognizable. 2. An action lies for every injury, suf

fered by reason of a violent or malicious act, to a mau's occupation, profession, or

way of getting a livelihood. 3. The right of railroad companies to

discharge employees does not imply the right to be guilty of a violent or malicious act · which results in injury to the discharged em

ployee's calling. 4. A custom of railroads to keep a rec

reason of the wrong. 6. An agreement between railroad com

panies not to employ persons discharged by the respective companies gives employees no right of action unless carried out.

(December 13, 1898.)

NOTEBlacklisting employees.

ployees and mutually agreeing to refuse employ.

ment to all such persons. 1. Introductory, 289.

Sometimes, however, only the names of men II. Right of employers to combine for black

who have left on a strike, or are members of a listing purposes, 290.

certain labor union, are exchanged ; and in othIII. Right of corporation to circulate a black

er cases there is, perhaps, no actual agreement list among its own agents or employees, to refuse employment, but the combination is 292.

merely for the exchange of information ; while IV. Effect of malice, 293.

in still other cases there is no combination of V. Legislation, 294.

various corporations, but the lists are distribVI. Summary, 296.

uted to all of the many employing agents of a I. Introductory.

great railway or other corporation, and, when

its lines or business enterprises extend over a The meaning and scope of the term "black- large tract of the country under various divi. list.” as used in regard to employers and em- sions and names, the result is practically the ployees, have not yet, on account of its compara- same to the employee as though a combination tively recent adoption, been conclusively deter- of various corporations existed. Thus, it will mined. Generally speaking, it refers to the be seen that the term cannot be strictly defined, practice of employers to combine for the pur- and this is recognized by the courts; as, for pose of exchanging lists of their discharged em- instance, it is said in State er rel. Scheffer v.

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