negligence, it may introduce evidence to show | fendant's foreman in failing to give decedent the death due to the negligence of a fellow proper warning of an approaching car.-Jordan servant.-Big Hill Coal Co. v. Abney's Adm'r v. St. Louis Transit Co. (Mo. Sup.) 11. (Ky.) 394. *An averment of a petition in an action for personal injury, relating to defendant's negligence in furnishing appliances, held sufficient. Clippard v. St. Louis Transit Co. (Mo. Sup.) 44. *In an action for injuries alleged to be due to the defective condition of a car, an averment of the petition relating to the defects in the car held sufficiently definite.-Clippard v. St. Louis Transit Co. (Mo. Sup.) 44. § 9. Evidence. *In an action against a railroad for injuries to a fireman, through the breaking of a coupling, evidence held to justify a finding that there was an observable defect in the coupling, and that defendant failed to exercise due care to discover it. St. Louis & S. F. R. Co. v. Wells (Ark.) 738. *Where a railroad employé was injured by the breaking of a coupling between the engine and tender, held that negligence of master could not be inferred merely from the occurrence of the accident.-St. Louis & S. F. R. Co. v. Wells (Ark.) 738. *In an action for injuries received while assisting in putting a charge of powder in rock for the purpose of blasting, evidence examined, and held insufficient to show that plaintiff assumed the risk.-Pitts & Hankins v. Wells (Ky.) 1192. In an action for injuries caused by a piece of ore dropping on plaintiff while he was working in a shaft of defendant's mine, evidence examined, and held sufficient to sustain the verdict for plaintiff.-Minton v. La Follette Coal, Iron & R. Co. (Tenn.) 178. *In an action for the death of a servant, the admission of evidence that an inexperienced man would not realize the danger held not erroneous.-Yellow Pine Oil Co. v. Noble (Tex. Civ. App.) 276. In an action for personal injury to a servant, that defendant failed to have present at the trial witnesses who were present at the accident can be inquired into as a circumstance tending to show that defendant was negligent. -Missouri, K. & T. Ry. Co. of Texas v. Smith (Tex. Civ. App.) 453. In an action for personal injury to a servant, it was admissible to show that a witness was injured at the same time plaintiff was, but not that defendant had settled for his injury. -Missouri, K. & T. Ry. Co. of Texas v. Smith (Tex. Civ. App.) 453. *In an action by a servant for injuries received while attempting to set a defective brake, evidence examined, and held insufficient to show that he assumed the risk.-Gulf, C. & S. F. Ry. Co. v. Griggs (Tex. Civ. App.) 473. *In an action for injuries to an employé, certain proof held to establish a prima facie case of negligence, casting on the employer the burden of meeting it.-El Paso Foundry & Machine Co. v. De Guereque (Tex. Civ. App.) 814. $ 10. Trial. *In an action for injuries to an inexperienced servant while performing the duties of a brakeman on a railroad construction train, evidence held to require submission of the issue of defendant's negligence to the jury.-Oliver v. Calbert (Ky.) 314. *In an action for the death of a servant employed by a street railroad company, evidence considered, and held a question for the jury whether there was negligence on the part of de In an action for the death of a servant, the giving of a certain instruction after modification by the court held error.-Jordan v. St. Louis Transit Co. (Mo. Sup.) 11. Where the evidence in an action showed that the defect in the car was in the bearing alone, it was not error to instruct that, if the jury find that the car and its appliances were defective, then plaintiff may recover. Clippard v. St. Louis Transit Co. (Mo. Sup.) 44. *In an action for the death of a section hand who was run over while sweeping snow from a frog, the question of contributory negligence held one for the jury.-Johnson v. St. Joseph Terminal Ry. Co. (Mo. Sup.) 641. *In an action for injuries, where the plaintiff produces evidence of defendant's negligence, it is for the jury to determine if this negligence was the producing cause of the injury.-Mack v. Chicago, R. I. & P. Ry. Co. (Mo. App.) 142. *In an action for injuries received in falling from a hand car, held, that the question of plaintiff's negligence was, under the evidence, for the jury.-Mack v. Chicago, R. I. & P. Ry. Co. (Mo. App.) 142. tion held not objectionable as being a commenIn an action for personal injuries, an instructary on the evidence, and to properly define negligence.-Smith v. Kansas City (Mo. App.) 1118. dence, that the question of plaintiff's contribuIn an action for injuries, held, under the evitory negligence was for the jury.-Minton v. La Follette Coal, Iron & R. Co. (Tenn.) 178. In an action for injuries held, under the evicovery was barred by his assumption of the dence, that the question whether plaintiff's rerisk incident to his employment was properly for the jury.-Minton v. La Follette Coal, Iron & R. Co. (Tenn.) 178. *Where plaintiff was injured while operating a drilling machine, and it was shown that he had had several years' experience in the work, it was error to submit the issue of his inexperience to the jury.-Chicago, R. I. & G. Ry. Co. v. Denton (Tex. Civ. App.) 452. *Refusal to give instruction as to care rerailroad for personal injuries held error.quired of injured person in action against a Chicago, R. I. & G. Ry. Co. v. Connors (Tex. Civ. App.) 480. *Evidence held sufficient to submit to jury question whether injured party was in the emRy. Co. v. Connors (Tex. Civ. App.) 480. ploy of the defendant.-Chicago, R. I. & G. Statement of issue submitted by instruction. -Missouri, K. & T. Ry. Co. of Texas v. Harris (Tex. Civ. App.) 506. *Liability of master for injuries received by an employé acting under direction of another employé was for the jury.-McCracken v. Lantry-Sharpe Contracting Co. (Tex. Civ. App.) 520. *Plaintiff's intestate, who was overcome by paint fumes while painting the inside of a locomotive tank, held not guilty of contributory negligence as a matter of law in failing to go out of the tank at short intervals for air.Houston & T. C. R. Co. v. Rutland (Tex. Civ. App.) 529. § 11. Liabilities for injuries to third persons. *The agent of an automobile company, while using plaintiff's machine without authority for *Point annotated. See syllabus. MECHANICS' LIENS. Priority of mortgages, see "Mortgages," § 3. 1. Nature, grounds, and subject-matter in general. A mechanic's lien being created by the Constitution is not lost by a failure to comply with statutory regulations in regard thereto.-Blakeney v. Nalle & Co. (Tex. Civ. App.) 875. 2. Proceedings to perfect. *A statement filed by materialman held to substantially comply with Ky. St. 1903, § 2468, as to showing the amount due.-Dobson v. Thurman (Ky.) 310. *A materialman having signed and sworn to a statement of his claim before a proper officer, as required by Ky. St. 1903, § 2468, held his lien was not lost by the failure of that officer to write out and sign the jurat.-Dobson v. Thurman (Ky.) 310. MEMORANDA. MISTAKE. Ground for reformation of instrument, see "Reformation of Instruments," § 1. MITIGATION. Of damages, see "Damages," § 2. MODIFICATION. Of contract, see "Contracts," § 3. Of contract for delivery of logs, see "Logs and Logging." MONEY RECEIVED. Recovery of price paid for land, see "Vendor and Purchaser," § 7. MONOPOLIES. 1. Validity and effect of grants. *A monopoly is not only an exclusive right granted by the state to a few of something which was before of common right, but embraces a combination, regardless of form, the tendency of which is to prevent competition and control prices to the detriment of the public.-Jones v. Carter (Tex. Civ. App.) 514. *A reservation in dedicatory deeds of the right in the grantors to the exclusive use of the streets and alleys so dedicated for the maintenance of street railroads, lighting, sewers, gas, telephones, etc., held contrary to public policy, as tending to create a monopoly.-Jones v. Carter (Tex. Čiv. App.) 514. MONTH. Tenancy from month to month, see "Landlord and Tenant," §§ 2, 5. MORTGAGES. Required by statute of frauds, see "Frauds, Abatement or survival of foreclosure suit, see Statute of," § 4. MERGER. Of cause of action in judgment, see "Judgment," § 7. MINES AND MINERALS. Mine operators as employers, see "Master and Servant," §§ 2, 4, 5. § 1. Title, conveyances, and contracts. *Defendant, having removed coal from plaintiff's land under a bona fide claim of right, held only liable to plaintiff for a reasonable royalty on the amount actually removed.-Sandy River Cannel Coal Co. v. White House Cannel Coal Co. (Ky.) 319. *A lessor in a gas lease held entitled to a cancellation of the same for the failure of the lessee to comply with its terms.-Kimball Oil Co. v. Keeton (Ky.) 887. See "Infants." MINORS. MISREPRESENTATION. See "False Pretenses"; "Fraud." 101 S.W.-80 "Executors and Administrators," § 3. Creation of tenancy by trust deed, see "Landlord and Tenant," § 1. Determination and disposition of appeal in suit to enforce, see "Appeal and Error," § 23. Estoppel in general of parties to mortgage, see "Estoppel," § 1. Subrogation to rights of mortgagees, see "Subrogation." Mortgages by or to particular classes of persons. 88 1, 2. Requisites and validity. A deed held to be a mortgage given as security for money borrowed.-Barnett v. Williams (Ky.) 1191. *Point annotated. See syllabus. ed premises, and that materials were being furnished therefor, did not constitute actual notice of the existence of a mechanic's lien for such labor and materials.-Scheas v. Boston & Paris (Ky.) 942. *Where certain mechanic's lien claimants failed to file the preliminary notice of lien required by Ky. St. 1903, § 2463, prior to the recording of certain mortgages on the property, the mortgages were entitled to priority, in the absence of proof that the mortgagee' had actual notice of the lien claims. Scheas v. Boston & Paris (Ky.) 942. A mortgage executed simultaneously with a deed on the same land held given to secure part of the purchase price.-Flack v. Braman (Tex. Civ. App.) 537. Change of venue in civil actions, see "Venue," $ 10. Presentation of objections for review, see “Ap- Rehearing on appeal or error, see "Appeal and Vacation of judgment, see "Judgment," § 4. MOTIVE. $ 4. Rights and liabilities of parties. 5. Payment or performance of condition, release, and satisfaction. *Where more than 20 years had elapsed since a mortgage was executed, and no foreclosure was had, it would be presumed that the mortgage had been paid under Rev St. 1899, 8 4227 [Ann. St. 1906, p. 2353].-Morgan v. Pott (Mo. App.) 717. § 6. Foreclosure by action. In an action to foreclose a mortgage, the evidence held sufficient to take the issue as to whether a defendant other than the mortgagor had been an innocent purchaser of the land involved to the jury.-Hamilton v. Green (Tex. Civ. App.) 280. *A foreclosure decree against the mortgagor's administrator was sufficient to bind the property of the estate against which the foreclosure was had.-Flack v. Braman (Tex. Civ. App.) 537. *On collateral attack on a foreclosure decree against the mortgagor's administrator, it would be presumed that the administrator was properly served as prayed, though the decree contained no recitals of service.-Flack v. Braman (Tex. Civ. App.) 537. A foreclosure decree held not objectionable because it was sought to join certain unnecessary parties by publication of citation against them, when there was no statutory authority therefor.-Flack v. Braman (Tex. Civ. App.) 537. MUNICIPAL CORPORATIONS. See "Counties"; "Schools and School Districts," Dedication of streets, see "Dedication," §§ 1, 2. Monopolistic grants of rights in streets, see Opinion evidence in action for injuries caused Rate of interest on judgment on special tax bill, ror. Special or local laws, see "Statutes," § 2. § 1. Legislative control of municipal § 2. Officers, agents, and employés. A dog catcher appointed by chief of police under a city ordinance is himself a public officer, and hence the chief of police is not responsible for the dog catcher's misconduct in office.-Casey v. Scott (Ark.) 1152. Rev. St. 1903, §§ 3118-3125, held not to authorize the appointment of a market master by the board of public works.-Potter v. Bell (Ky.) 297. *Point annotated. See syllabus. Under Ky. St. 1903, §§ 3038, 3049, 3058, subsecs. 7, 25, the general council of cities of the second class held empowered to create the office of market master and to prescribe_his duties and salary.-Potter v. Bell (Ky.) 297. Act Aug. 20, 1897 (Laws 25th Leg. p. 236), held not to require the creation of a board of plumbers by the city of Marshall.-Caven v. Coleman (Tex. Sup.) 199. Under the San Antonio city charter, the board of police and fire commissioners held entitled to allow a mounted policeman holding office at the time of the adoption of the char ter to hold over under the control of the com mission.-City of San Antonio v. Beck (Tex. Civ. App.) 263. A policeman held entitled to receive a certain compensation until his removal from office. -City of San Antonio v. Beck (Tex. Civ. App.) 263. An ordinance of the council of the city of San Antonio, making appropriations for the police department, held to make appropriations for the police department under the control of the police and fire commission, created by the city charter.-City of San Antonio v. Beck (Tex. Civ. App.) 263. An acceptance by the police and fire commission, having control of the police and fire departments of a city, of the service of its appointee as a policeman, is an acceptance of the service by the city, creating an implied contract on its part to pay the appointee a salary.-City of San Antonio v. Beck (Tex. Civ. App.) 263. The salaries of the officers and employés of the police department of San Antonio, fixed by an ordinance in March, 1903, held not affected by the city charter subsequently enacted.-City of San Antonio v. Beck (Tex. Civ. App.) 263. *City council held not empowered to pass on appointment of chief of fire department by police and fire commission.-City of San Antonio v. Tobin (Tex. Civ. App.) 269. In an action against a city to recover for ser vices rendered by chief of fire department, former and subsequent ordinances fixing the salary of such officer held admissible on the question of salary.-City of San Antonio v. Tobin (Tex. Civ. App.) 269. Where a city by ordinance made an appropriation to support a fire department, it could not defeat the rights of the members of the department to their salaries, even though it may have been intended to give the mayor the authority to disburse the money to a fire department appointed by him.-City of San Antonio v. Tobin (Tex. Civ. App.) 269. A city ordinance held presumed to relate only to the appointment of officers as to whom the mayor had the power of appointment.-City of San Antonio v. Tobin (Tex. Civ. App.) 269. 1267 of St. Louis v. G. H. Wright Contracting Co. (Mo. Sup.) 6. A street paving tax bill held not void for a delay in completing the work.-Curtice Schmidt (Mo. Sup.) 61. V. the contract of the improvement required the A street paving tax bill is not void because contractor to observe an eight-hour labor ordinance. Curtice v. Schmidt (Mo. Sup.) 61. *Under Kansas City Charter, art. 17, § 12, street paving tax bills held void where brick to be manufactured by a certain company were specified in the paving contract.-Curtice v. Schmidt (Mo. Sup.) 61. Evidence in an action upon a special tax bill held to sustain a finding that the original holder assigned it to plaintiff.-Dickey v. Porter (Mo. Sup.) 586. A special tax bill held not void under Kanwholly made out by a certain clerk.-Dickey v. sas City Charter, art. 9, § 15, because not Porter (Mo. Sup.) 586. sas City Charter, art. 9, § 10, for failing to reA special tax bill held not void under Kancite certain matters; it being unnecessary for it to show upon its face every step essential to its validity.-Dickey v. Porter (Mo. Sup.) 586. *A special tax bill issued for a sewer improvement was not void because the improvement did not specify the amount of masonry to be used in the improvement.-Dickey v. Porter (Mo. Sup.) 586. bill issued therein held not void for the failure A sewer improvement proceeding and a tax of the ordinance to specify the thickness of the sewer pipe to be used.-Dickey v. Porter (Mo. Sup.) 586. Relations between a sewer contractor and plaintiff held to show no transfer or subletting of the contractor's contract with the city in violation of its terms.-Dickey v. Porter (Mo. Sup.) 586. Where an ordinance provides a sewer shall be constructed in conformity to plans and specifications on file in the office of the board of public works, the plans and specifications are as much a part of the ordinance as if set forth therein in detail.-Dickey v. Porter (Mo. Sup.) 586. Proceedings under a city charter as amended by Acts 1903, p. 62, § 8, held valid, notwithstanding the distance to be paved had been divided into three parts and ordinances submitted for paving each division.-Geiwitz v. Landis (Mo. App.) 154. *Rev. St. 1899, § 5858 [Ann. St. 1906, p. 2964], requiring an estimate to be filed before a city of a third class may contract for an improvement, held not complied with.-City of Boonville ex rel. Cosgrove v. Rogers (Mo. App.) 1120; Same v. Braxton (Mo. App.) 1123. and charged in a special tax bill for a municipal § 5. Use and regulation of public pla- An action on a contractor's bond for the loss sustained by property owners by reason of the nonperformance of a contract for a public improvement cannot be maintained by the city acting as trustee for the property owners.-City *Point annotated. trade as a street vendor does not entitle him A license by a city to one to carry on his to maintain a stand on a sidewalk or in the See syllabus. street of the city.-Galloso v. City of Sikeston (Mo. App.) 715. § 6. Torts. *In an action against a city for obstructing surface water, instructions that the city is liable for negligently adopting an insufficient drainage plan and constructing insufficient drains, etc., but not for failure to execute a plan or for damages caused by extraordinary rains, or on account of ditches made by complainant, held proper.-Campbell v. City of Vanceburg (Ky.) 343. In an action against a city for obstruction of surface water, evidence held to sustain a finding that plaintiff's damage was not the result of the city's negligent failure to provide adequate drainage facilities.-Campbell v. City of Vanceburg (Ky.) 343. *Where a city assumed to make changes and improvements in drainage facilities adjacent to plaintiff's property, it was liable for damages resulting from its negligence in respect thereto. -Campbell v. City of Vanceburg (Ky.) 343. *Where a new territory was taken into a city, the city was not responsible for failure to make new drainage improvements or alter or reconstruct old ones.-Campbell v. City of Vanceburg (Ky.) 343. In an action for injuries sustained by falling from a sidewalk into an unguarded excavation, held, that an instruction was properly given authorizing a finding for plaintiff if the jury believed that the city knew of the defect.-Muncy v. City of Bevier (Mo. App.) 157. *In an action for injuries sustained in falling from a sidewalk into an excavation, held, that the question of the city's liability was for the jury.-Muncy v. City of Bevier (Mo. App.) 157. *In an action against a city for injuries caused by a defective sidewalk, plaintiff was not restricted in showing the bad condition of the walk to the loose board which caused the accident, but might show that in its immediate vicinity the walk was in bad order.-Thompson v. City of Poplar Bluff (Mo. App.) 709. § 7. Fiscal management, public debt, securities, and taxation. A city's right to enforce a tax lien may be lost by inexcusable delay.-Seibert v. City of Louisville (Ky.) 325. *An agreement by a municipality held not to create a debt against it within Const. art. 10, § 12, limiting municipal indebtedness.-State ex rel. Smith v. City of Neosho (Mo. Sup.) 99. The word "debt," in the San Antonio city charter, held not to refer to the salaries of officers and employés, provision for the appointment of which is made in the charter.-City of San Antonio v. Beck (Tex. Civ. App.) 263. *San Antonio City Charter, § 20, held not to exonerate the city from the payment of a debt for current expenses because no appropriation by ordinance has been made to cover it before the debt was incurred.-City of San Antonio v. Tobin (Tex. Civ. App.) 269. NEGLIGENCE. Applicability of instructions to pleading and evidence, see "Trial." § 8. Argument and conduct of counsel, see "Trial," § 3. Causing death, see "Death," § 1. Construction of instructions, see "Trial." § 10. Examination of witnesses, see "Witnesses," $ 3. Impeachment of witness, see "Witnesses," § 4. Measure of damages, see "Damages," § 4. Necessity and subject-matter of instructions, see "Trial," § 6. Province of court and jury, see "Trial." § 5. Requests for instructions, see "Trial," § 9. Taking case or question from jury, see "Trial," § 4. Waiver of irregularities at trial, see “Trial,” § 13. By particular classes of persons. See "Carriers," §§ 1, 6; "Municipal Corporations," § 6; "Railroads," §§ 5-9. Employers, see "Master and Servant," §§ 2-10. Telegraph or telephone companies, see "Telegraphs and Telephones," § 2. Condition or use of particular species of property, works, machinery, or other instrumentalities. See "Bridges." § 1: "Electricity"; "Railroads,” §§ 5-9; "Street Railroads," § 1. Demised premises, see "Landlord and Tenant," § 6. Horse hired from livery stable keeper, see "Liv ery Stable Keepers.' Contributory ncgligence. Of passenger, see "Carriers," § 8. Of person injured by falling on bridge, see "Bridges," § 1. Of person injured by operation of railroads, see "Railroads." §§ 6, 7. Of person injured by operation of street railroad, see "Street Railroads," § 1. Of sender of telegram, see "Telegraphs and Telephones," § 2. Of servant, see "Master and Servant," §§ 7, 10. § 1. Proximate cause of injury. *What constitutes proximate cause determined.-San Antonio & A. P. Ry. Co. v. Trigo (Tex. Civ. App.) 254. *The injurious, proximate, and natural consequences of an act of negligence are deemed to be foreseen.-El Paso & Southwestern R. Co. v. Barrett (Tex. Civ. App.) 1025. § 2. Actions. *An instruction defining negligence held erroneous.-Van Cleve v. St. Louis, M. & S. E. R. Co. (Mo. App.) 632. Where a petition in a personal injury action charges defendant with two or more independent acts of negligence, proof of any one of such acts held to authorize the court to submit it to the jury as a ground for a recovery.-San Antonio & A. P. Ry. Co. v. Trigo (Tex. Civ. App.) 254. *Plaintiff averring severable acts of negligence held entitled to recover on proof of one of them, shown a proximate cause of the accident. -Galveston, H. & S. A. Ry. Co. v. Patillo (Tex. Civ. App.) 492. NEGOTIABLE INSTRUMENTS. See "Bills and Notes." NEWLY DISCOVERED EVIDENCE. Ground for new trial in civil actions, see "New Trial," § 2. Ground for new trial in criminal prosecution, see "Criminal Law," § 26. *Point annotated. See syllabus. |